Petition for Rulemaking; Summary of Petition Received

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Ch. I

[Docket No. 28814; Summary Notice No. PR-98-1]

Petition for Rulemaking; Summary of Petition Received

AGENCY: Federal Aviation Administration (FAA), DOT

ACTION: Notice of petition for rulemaking received.

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SUMMARY: Pursuant to FAA's rulemaking provisions governing the

application, processing, and disposition of petitions for rulemaking

(14 CFR Part 11), this notice publishes a petition requesting the

initiation of rulemaking procedures for the amendment of specified

provisions of the Federal Aviation Regulations. The purpose of this

notice is to improve the public's awareness of, and participation in,

this aspect of FAA's regulatory activities. Publication of this notice

is not intended to affect the legal status of any petition or its final

disposition.

DATES: Comments on this petition must identify the petition docket

number involved and must be received on or before June 8, 1998.

ADDRESSES: Send comments in triplicate to: Federal Aviation

Administration, Office of the Chief Counsel, Attn: Rules Docket No.

28814, 800 Independence Avenue, SW, Washington, DC 20591. Comments may

also be sent electronically to the following internet address: 9-NPRM-

[email protected]

The petition, any comments received, and a copy of any final

disposition are filed in the assigned regulatory docket and are

available for examination in the Rules Docket (AGC-200), Room 915G,

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FAA Headquarters Building (FOB 10A), 800 Independence Ave., SW,

Washington, DC 20591; telephone (202) 267-3132.

FOR FURTHER INFORMATION CONTACT: Elizabeth Allen, (202) 267-8199,

Office of Rulemaking (ARM-105), Federal Aviation Administration, 800

Independence Avenue, SW, Washington, DC 20591.

This notice is published pursuant to paragraphs (b) and (f) of

Sec. 11.27 of Part 11 of the Federal Aviation Regulations (14 CFR Part

11).

Issued in Washington, DC, on April 1, 1998.

Donald P. Byrne,

Assistant Chief Counsel for Regulations.

PETITION FOR RULEMAKING

Docket No.: 28814

Petitioner: Mr. William P. Horn, Counsel for Alaska Professional

Hunters Association Birch, Horton, Bittner and Cherot

Regulations Affected: 14 CFR 91.1 and 14 CFR 135

Description of Rule Change Sought: Inasmuch as the petitioner did

not submit a summary of the petition for rulemaking, the FAA is

publishing the petition verbatim to ensure that each of the

petitioner's points are presented fairly and accurately. It is the

Petitioner's position that 14 CFR Part 91 alone governs the air

operations of Alaskan hunt and fish guides. The petitioner wants the

FAA to partially augment the requirements of 14 CFR Part 91. By

contrast, it is the FAA's position that 14 CFR Parts 119, 121, and 135

apply to the air operations of Alaskan hunt and fish guides for

compensation or hire, and commenters should be aware that the FAA

published a notice in the Federal Register (January 2, 1998, 63 FR 4),

entitled, ``Compliance With Parts 119, 121, and 135 by Alaskan Hunt and

Fish Guides Who Transport by Air for Compensation or Hire.'' On January

30, 1998, the petitioner filed a petition for review in the U.S. Court

of Appeals for the District of Columbia Circuit challenging the FAA's

notice. Alaska Prof'l Hunters Ass'n v. Federal Aviation Admin., No. 98-

1051 (D.C. Cir.).

The Petition:

January 31, 1997.

Ms. Linda Daschle,

Acting Administrator, Federal Aviation Administration, 800

Independence Avenue, SW., Washington, D.C. 20591-0002

Re: Petition for Rulemaking on Regulation of Alaskan Aero-lodge

Pilots

Dear Ms. Daschle: This letter is written on behalf of the Alaska

Professional Hunters Association (``APHA'') to petition the Federal

Aviation Administration (``FAA'') to initiate a rulemaking pursuant

to 5 U.S.C. Sec. 553(e) to amend 14 C.F.R. Part 91 for the purpose

of enhancing the safety of Alaskan aero-lodge flight operations.

(Alaskan aero-lodge flight operations are conducted by pilots and

guides who fly guests to their lodges or remote areas for a hunting

or fishing experience. The aero-lodge pilots primary purpose is to

serve as a guide during a hunting or fishing trip.) We understand

that the FAA has considered unilaterally changing the regulation of

the Alaskan aero-lodge flight operations and pilots without using a

rulemaking process. (The APHA wrote a letter to you on December 10,

1996, discussing many of the issues discussed in this petition. That

letter is incorporated by reference in this petition. A copy is

attached as Exhibit 1.) The APHA requests that a rulemaking process

precede any dramatic changes in regulations as required by the

Administrative Procedure Act. By using the rulemaking process, all

parties can be brought to the table and afforded an opportunity to

provide meaningful comment. The APHA looks forward to working with

the FAA in an effort to provide the public with safe and enjoyable

outdoor experiences in Alaska.

For the past thirty-three (33) years, the FAA has regulated the

Alaskan aero-lodge pilots who fly passengers from remote lodges to

even more remote hunting or fishing areas under 14 CFR Part 91. The

FAA had determined that this transportation was incidental to the

purpose of the business and thus the Alaskan aero-lodge pilots

qualified for regulation under Part 91. For this three decade

period, the aero-lodge pilots have relied upon this determination

and have conducted their hunting and fishing operations in reliance

on this long-standing ruling. To change their classification to Part

135 operators would impose distinct and significantly greater

obligations and duties on the aero-lodge pilots. APHA maintains that

many of the requirements under Part 135 are impracticable,

unjustified and unnecessary for aero-lodge pilots. An immediate

change to Part 135 would not merely clarify or explain existing law

or regulation, or remind the public of existing duties; it would

impose substantial new duties on Alaskan aero-lodge pilots and

subject them to the FAA's enforcement power if they fail to comply.

These facts mandate that the FAA make such a change only as part of

a rulemaking. (See, e.g., Jerri's Ceramic Arts v. Consumer Prod.

Safety Comm'n, 874 F.2d 205, (4th. Cir. 1989).

The APHA agrees with the FAA that some increased regulatory

measures are advisable to ensure the continued safety of the Alaskan

aero-lodge pilots and their guests. (The APHA has long been

committed to and enjoys a reputation for the safety of its members,

the public and the men and woman who fly in Alaska. See Exhibit 2.)

The APHA is convinced the proposals in this petition will promote

safe flight without imposing arbitrary, unnecessary and costly

regulations on bush pilots and aero-lodge operators in Alaska. This

proposed rulemaking also is consistent with 49 U.S.C. Sec. 44701:

``Administrator of the FAA has the duty to promote regulations and

minimum standards to promote the safe flight of civil aircraft in

air commerce.''

The APHA is an association of over 650 individual guides,

outfitters, and others interested in hunting and recreational

opportunities in Alaska. Many members of APHA rely on or are pilots

who fly guests to their camps, lodges or remote areas where a hunt

or other recreational activity is to be conducted. As you know,

Alaska covers over 586,000 square miles, which is \1/5\th of the

area of the continental United States. There are very few existing

roads and the sheer size of the State-designated Game Management

Units demands the use of airplanes to reach the many hunting and

fishing sites. As an industry, the APHA uses aircraft as one of the

means to transport hunters and anglers to and from remote locations.

The Alaskan aero-lodge pilots do not sell transportation from Point

A to Point B. If weather prohibits a flight or a hunt occurs in a

nearby vicinity that can be accessed without an airplane, the guides

still charge and receive the same compensation. In other words, the

cost does not increase if a plane is used to transport the guests.

Thus, the Alaskan aero-lodge pilots are correctly regulated under

Part 91.

A. Proposed Regulatory Additions to Part 91

Although the APHA recognizes the benefit of increased safety, it

is not persuaded that the Alaskan aero-lodge pilots should be

subject to all requirements of Part 135. As explained below, this is

simply unnecessary. The APHA proposes that Part 91 continue to apply

but with added requirements, some taken from Part 135, that match

the realities of the Alaskan aero-lodge pilot situation. The APHA

also proposes that there be a phase-in period of at least one year.

1. Adding additional minimum pilot certification, experience and

qualifications to Part 91 for aero-lodge pilots will increase safety

by requiring more experienced pilots.

Currently, under Part 91, pilots need to have a pilots license

without any more advanced certification. In addition, Part 91 has a

relatively low minimum hour requirement and requires a third class

medical certificate.

After careful consideration and in recognition of the sometimes

challenging flight conditions in Alaska, the APHA recommends that

Part 91 be amended, for application in Alaska, to impose the

following four new requirements on aero-lodge pilots:

a. Aero-lodge pilots must have a Commercial Rating.

By requiring the aero-lodges to hire commercial pilots, the FAA

is increasing the base level of skill required of aero-lodge pilots.

The increased aeronautical knowledge and flight proficiency

requirements beyond that required for a standard pilot's license

makes good sense when applied to the aero-lodge pilots. Commercial

pilots are required to have a higher level of knowledge about

airplane operations, including retractable landing gear, loading and

balance computations and an advanced knowledge of the significance

and use of the airplane performance speeds. In addition, commercial

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pilots must also competently perform precision approaches to normal

and crosswind takeoffs and landings as well as utilizing specified

approach speeds. Commercial pilot ratings also require demonstrated

competence in more emergency situations than a standard pilot

license.

The requirement for increased knowledge regarding loading and

balance computations makes good sense for aero-lodge pilots who

often bring people and significant amounts of gear into the

wilderness. Increased emergency procedure training is also a

significant benefit as the aero-lodge pilots operate in remote areas

with less predictable weather.

b. Aero-lodge pilots must have a minimum of 500 hours of flight

time in Alaska.

This requirement exceeds that required for a commercial pilot.

Where a commercial pilot is only required to have 250 hours of

flight time, the APHA is recommending that aero-lodge pilots be

required to have 500 hours of flight time in Alaska. Increasing the

number of hours required to fly as an aero-lodge pilot will

necessitate the hiring of more experienced and safer pilots.

Moreover, requiring significant experience in Alaska will help

insure that aero-lodge pilots are fully capable of dealing with the

unique terrain and weather conditions found in Alaska.

c. Aero-lodge pilots must participate in an annual flight

review.

Under 14 CFR 61.56, pilots must participate in a flight review

every two years. The APHA recommends the aero-lodge pilots

participate in an annual flight review. This will demand the aero-

lodge pilots keep their skills sharp and inform them of the newest

safety innovations. Allowing the aero-lodge pilots to schedule their

annual flight reviews in the off-season will encourage compliance by

the pilots and help the aero-lodges remain operational in the active

hunting/fishing seasons.

d. Aero-lodge pilots must qualify for and receive a second class

medical certificate.

As a commercial pilot, aero-lodge pilots would have to qualify

for and receive a second class medical certificate. As you are

aware, the primary difference between a second class and third class

medical certificate is the increased vision requirements. When

flying in remote, uncontrolled airspace, it is vital that a pilot's

vision be clear enough to detect otherwise unannounced aircraft. In

addition, the importance of using aeronautical maps increases when

flying in remote areas. By requiring the aero-lodge pilots have a

second-class medical certificate you will help ensure they can

clearly and easily read the aeronautical maps as well as live by the

rule of ``See and be seen.''

These significant changes would go a long way toward increasing

safety by requiring more experienced pilots without requiring the

far more extensive Part 135 requirements that are better suited for

bona fide air taxi operations.

2. Adding additional aircraft requirements will help aero-lodge

pilots ensure the high quality of their aircraft and equipment.

The APHA is also committed to aircraft safety and related

maintenance requirements. The APHA recommends that Part 91 be

amended to require Alaskan aero-lodge pilots to meet the

manufacturers' recommended overhaul times for the engine, propeller

and prop governor. In addition, the APHA recommends that the

aircraft be required to have annual and 125 hour inspections to

ensure superior maintenance of the equipment. This recommendation

exceeds the current requirements for Part 91 operators and raises

the standard for maintenance of the aircraft used in the Alaskan

bush.

3. Proposed regulatory language.

The APHA recommends that the following language be adopted to

institute the above changes:

91.1(c). In addition to complying with this Part, each person

who operates an aircraft to transport guests and/or equipment to or

from a commercial hunting, fishing, or recreational lodge in Alaska

shall also comply with Sec. Sec. 61.121, 61.123, 61.127, 61.129,

61.139, 67.15, and 135.421. In addition, these pilots must also have

a total of at least 500 hours of flight time in Alaska as a pilot

and participate in an annual flight review as described under

Sec. 61.56 and their airplane must be inspected after 125 hours of

flight time. These requirements go into effect one year from the

date of publication as a final rule.

B. Requiring Aero-Lodge Pilots to Operate under Part 135 Will Not

Improve Safety and Will Cripple a Thriving Industry

The APHA is also strongly requesting that the FAA not require

Alaskan aero-lodge pilots to comply with Part 135. Complying with

the considerable paperwork and inspection requirements for Part 135

operators would create a great hardship to the small businessmen and

women who run Alaska's aero-lodges. Most fishing lodge operators

only have guests for 14 weeks each summer. Hunting guides operate

only during the limited hunting seasons in their Game Management

Units. The season may only be 4 to 10 weeks annually. Both fishing

and hunting guides use their aircraft to provide their lodges and

spike camps (remote camps) with supplies, food, fuel and gear.

Bringing necessary supplies is a large part of the flight operations

of the aero-lodges and does not involve any passengers.

The Alaskan aero-lodge pilots fly a minimum amount of time

compared with Part 135 operators. They fly hunters to their remote

camps, hunt with them and then return. For example, each aircraft of

most aero fishing lodges (that often fly anglers six days a week)

only fly between 100 and 200 hours annually carrying anglers.

The following are only a few examples of how Part 135

requirements would significantly harm the aero-lodges in Alaska:

1. 14 C.F.R. 135.41 requires a minimum of 3 years Part 135

experience for the Director of Operations and the Chief Pilot.

Most aero-lodges do not have both a chief pilot and a director

of operations. In fact, many hunting and fishing operations have

only one pilot who serves as the chief pilot, the director of

operations and the guide. These are small operations that should not

be expected to fill out and keep the large amount of paperwork

necessary to run a full service air taxi.

In addition, the pilots with the minimum 3 years of Part 135

experience are more interested in working in the more lucrative air

taxi operations than working for part of the year as an Alaskan

aero-lodge pilot. Importantly, most pilots with the required Part

135 experience are not qualified guides. The FAA should be aware

that the State of Alaska strictly regulates and certifies hunting

guides; it takes a substantial effort to become a registered guide.

Few aero-lodges can afford to hire an additional non-guide pilot who

would work only an hour or two each day.

2. 14 C.F.R. 135.267 requires at least 13 days of rest periods

or at least 24 hours for each calendar quarter.

A calendar quarter would include the months of July, August and

September, which is almost the entire sport fishing season. For the

vast majority of aero-lodge operations that only have one or two

aero-lodge pilots, 13 days off during the short season would cripple

most operations. Aero-lodge pilots simply do not have the same kind

of duties as Part 135 operators. The former typically fly 1 to 3

hours per day and rarely, if ever, approach the 8 hour limit per

day. The aero-lodge pilots are not on any time table where they have

to fly so many routes every day and routinely do not fly for

sustained periods that induce weariness or fatigue.

This restriction alone could put several aero-lodges out of

business and clearly does not make sense when applied to the aero-

lodge industry.

3. Part 135 maintenance requirements are not necessary.

One of the biggest differences between Part 135 and Part 91 lies

in the maintenance section. Part 135 operators must have all

maintenance, including oil changes and seat installation, performed

by a licensed A&P mechanic. This requirement would devastate the

aero-lodge industry. There are few lodges in Alaska that could

afford to hire a full time A&P mechanic to stand by to change the

oil, a spark plug or remove a seat. In the remote locations where

the aero-lodges are located, it is virtually impossible and

potentially unsafe to return to a larger community where an A&P

mechanic is available to perform routine tasks. The pilots are

capable of performing these minor tasks and have done so for the

past 33 years.

The aero-lodge operators recognize the vital importance of safe

equipment. With advance planning, the aero-lodge operators easily

are able to attend the required 125 hour inspections and can

schedule a trip to a mechanic. However, when minor, unscheduled

mechanical problems arise, returning to a more urban location to

find a mechanic would shut down the smaller operations entirely. The

aero-lodge pilots should be able to make the minor repairs and keep

the lodge in business.

4. 14 C.F.R. 135.293 requires initial and recurrent pilot

testing.

An important concern for aero-lodge operators centers on a

potential problem arising from the requirements of 14 C.F.R.

135.293. This section requires a pilot to pass a written or oral

test on the aircraft, navigation, air traffic control procedures,

meteorology and new equipment within the

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preceding year. This section also requires a competency check in the

class of aircraft the pilot commands within the preceding year. A

very real and pressing concern for the aero-lodge operators arises

when a lodge operator feels it is necessary to discharge his current

pilot. If this happens, it would be a virtual impossibility to get a

new pilot in quickly if they had to have an authorized check ride

and pass a written or oral test.

The FAA has recognized the difficulty in finding authorized

check airmen in the remote parts of Alaska. Although an operator may

be able to locate a qualified pilot, he would be prohibited from

hiring him because of the large potential of being unable to find an

authorized check airman, ground school for certification and

hazardous materials certification. With the extremely short season,

even a couple of days without a pilot could spell economic disaster

for a guide or lodge operator.

5. 14 C.F.R. 135.299 requires route checks for Part 135 pilots.

This section requires an approved check pilot give a flight

check to all Part 135 pilots within the preceding year. Importantly,

this section requires the check ride consist of at least one flight

over one route segment. Aero-lodge pilots do not fly standardized

routes to and from remote fishing/hunting locations. The hunting/

fishing destinations can change daily to reflect migrations or runs

and cannot be standardized. As such, there are no routes per se that

could be checked. Because the routes often change daily, a check

flight along one segment of a route does not necessarily improve

safety.

In addition, the areas where the aero-lodge pilots fly are

remote and difficult to access by FAA approved check pilots. Many

hunting and fishing camps are literally a day's flight out of

Anchorage. It would be disastrous for an aero-lodge operator to have

to shut down his camp while he awaited the approved check pilot to

arrive from Anchorage or Fairbanks and then fly a sample route (that

could change daily) with the aero-lodge pilot.

The annual flight review recommended by APHA would address many

of the same safety issues addressed in 14 C.F.R. 135.299, the safety

briefings and new equipment updates. However, the route checks would

not be necessary in an annual flight review, thus, eliminating the

problems found in this section.

C. Conclusion

As stated before, providing safe recreational opportunities is

one of the primary goals of APHA. The APHA recognizes and supports

regulation of air travel in Alaska. However, regulation that is

unnecessary and detrimental to small businesses is not needed. The

determination of what regulations best fit the unique situation in

Alaska must be determined through informal consultation and

ultimately rulemaking.

For these reasons, the APHA looks forward to working with you

and the Alaska Congressional Delegation to find a strong solution--

one that promotes safety, allows businesses to continue to operate

efficiently, and does not saddle Alaskan aero-lodge pilots with

unnecessary regulations.

The APHA stands ready to assist you in this rulemaking.

Sincerely,

William P Horn,

Birch, Horton, Bittner and Cherot.

[FR Doc. 98-9075 Filed 4-6-98; 8:45 am]

BILLING CODE 4910-13-P