Judging from testimony at a hearing on the FAA’s new air-tour proposals, FAR Part 136 might be a solution in search of a problem. Speaker after speaker told the FAA that the notice of proposed rulemaking (NPRM) should be withdrawn, scrapped or, at the very least, rewritten.
The session in Washington early last month was the first of two–the second was scheduled for Las Vegas on May 21. Between the two hearings, the FAA will cover all four of the major air-tour areas–the Grand Canyon, Hawaii, Alaska and New York City.
Several presenters suggested that if the FAA is determined to alter the air-tour regulations, the changes should be done through an Aviation Rulemaking Advisory Committee (ARAC) or an Aviation Rulemaking Committee (ARC). Another suggestion was to refer the changes to the ARC that is currently reviewing FAR Parts 125 and 135.
Gary Davis, special assistant in FAA flight standards, acknowledged, “We got some comments and we’ll think about it.” The docket shows that the FAA received more than 2,100 comments, and most opposed the rule. “I can say without hesitation that, in my 26 years in the aviation business, this NPRM is one of the most ludicrous, unjustified and unwarranted proposed rules the FAA has ever sought to promulgate,”
said Steve Bassett, president of the United States Air Tour Association. The USATA represents Part 135 and 121 commercial air-tour operators. “[The NPRM] is fatally flawed and there is nothing the FAA can do to fix it except withdraw it,” he told the agency at the hearing. “In its place, the FAA should convene an ARC to sort through the issues to develop a more workable and effective regulation if, indeed, the agency first develops any factual justification for it, which it hasn’t.”
Ann Carroll, director of legislative affairs for the Helicopter Association International, said the organization concurs with the Small Business Administration’s (SBA) Office of Advocacy that the proposed rule will likely have a significant negative economic effect on air-tour activities. She added that the industry strongly supports the SBA recommendation that the rule be withdrawn until the FAA has obtained adequate data on the operators affected by the proposed rule.
In comments to the NPRM docket, the SBA noted that the proposal inadequately explains the reasoning for the proposed rule, underestimates the number of small entities affected by the proposal and inaccurately calculates the proposed rule’s economic effect on small entities.
Proposal Based on SFAR 71
Carroll said the FAA has based the proposed national air-tour safety rule largely on recommendations issued by the NTSB in 1995 and Special Federal Aviation Regulation 71 (SFAR 71) in Hawaii. SFAR 71 was originally issued as an emergency final rule in September 1994 and was renewed twice without serious consideration of industry input. “It is impossible for industry to comprehend how an ineffectual regulation such as SFAR 71 could possibly be safely applied across the United States,” she said.
Davis said at the outset of the hearing that the FAA projects total compliance costs to be $238 million over 10 years, while total benefits would be $490 million for the same period. But many countered that the economic study did not account for all of the tour operators that will be driven out of business because they are unable to comply or cannot afford the added costs.
AOPA said the National Air Tour Standards proposal–which it refers to as the charity/sightseeing rule–is bad policy, is not justified by safety data and should be withdrawn. “AOPA’s own research showed that the FAA grossly underestimated the effects of this rule,” said AOPA senior vice president of government and technical affairs Andy Cebula. “The FAA’s own estimates indicated that the rule change would drive approximately 700 of the estimated 1,670 Part 91 sightseeing operations out of business. That alone is an awful toll, but our numbers show the actual number of businesses forced to close would be nearly double that–more than 80 percent of all Part 91 sightseeing businesses.”
Further, the rule would have a negligible effect on safety, according to AOPA. After reviewing the NTSB reports that the FAA cited as reasons for creating the rule, the association’s Air Safety Foundation concluded that 92 percent of the accidents would not have been prevented by this NPRM. It added that only six “might” have been avoided if the operators had been operating under Part 135.
Cebula said the data used for the safety justification of the proposal included a mixture of Part 135 and Part 91 sightseeing accidents and was not a true reflection of Part 91 operators’ safety record.
Originally, the FAA intended to take public testimony only via an Internet forum, but after pressure from aviation groups and members of Congress, it agreed to hold the two public meetings.
Are Existing Regs Adequate?
The FAA’s Davis said many existing air-tour operators believe the current Part 91 and Part 135 rules are adequate and should not be changed. Currently, commercial air tours that are conducted beyond 25 miles of the departure airport, or over a property of the national park system, must be certified under Part 119 to operate in accordance with either Part 121 or 135. These parts include operational, safety and training rules that are not limited to air-tour operations.
Exceptions to the certification requirements are contained in Part 119. One of these exceptions applies to nonstop sightseeing flights conducted within 25 miles of the departure airport. These excepted operations are subject only to the requirements of Part 91.
According to Davis, the FAA believes that all air-tour operators should be consolidated under Part 136, but he said the new rules proposed to keep the 25-mile exception and incorporate other existing exemptions. The agency would, however, institute new minimum altitudes, standoff distances, visibility and cloud clearances and flotation devices.
But National Air Transportation Association president Jim Coyne said the FAA proposal could be called the “anti-air-tour rule, anti-barnstorming rule, anti-small-airport rule and anti-mom-’n’-pop rule. It is so inimical to the values of aviation that I think it has to be withdrawn.
“By its own admission, the FAA has no clear idea of the number and type of operations affected by its proposal,” said Coyne. “That in itself should raise a huge red flag for all concerned. There is not one scintilla of evidence to suggest that this is anything other than more needless FAA red tape for air-tour operators.”
USATA’s Bassett argued that the commercial air-tour industry already is severely over-regulated, with FAR Parts 135/121, SFAR 71 and SFAR 50-2 (Grand Canyon) and provisions of the Air Tour Management Act of 2000, which requires the development of air-tour management plans for air tours at more than 100 national parks. “This NPRM represents nothing less than a ‘piling on’ by the federal government,” he sa