Proposed new FAA rules for the US sightseeing industry have enraged air tour operators, who fear the implementation costs could lead to ruin
These are anxious times for the US air tour and sightseeing industry. After years gathering dust in its "to do" pile, the US Federal Aviation Administration has bowed to pressure from the National Transportation Safety Board (NTSB) to "improve the regulation" of this diverse market sector.
In its National Air Tour Safety Standards notice of proposed rule making (NPRM), the aviation authority has recommended potentially devastating changes that have left the industry reeling.
Air tour and sightseeing operations are certificated under different Federal Aviation Regulations (FAR). Part 91, governing general aviation, covers local sightseeing operations that depart and land at an airport within 40km (21nm) of the destination. These vary from full-time specialist operations to training companies and fixed-base operators that offer sightseeing tours on an ad hoc basis to supplement company income.
Part 135 or Part 121 govern commercial air tour operations which are defined by the FAA as "any flight, conducted for compensation or hire in a powered aircraft where a purpose of the flight is sightseeing over a national park, within 1/2 mile outside the boundary of any national park, or over tribal lands".
Now the situation is set to change. The NPRM seeks to shake up the regulations and certificate all air tour and sightseeing operations under Part 135. The proposed rule also includes a new subpart, dubbed Part 136, which establishes requirements for low-level flight, stand-off distance, visibility limits, cloud clearance, and over-water operations. Charity flights remain under Part 91, but even they do not escape unscathed by the NPRM, which proposes raising the minimum number of hours required for private pilots conducting charity fundraising flights from 200h to 500h.
The FAA estimates that the proposed rule could affect around 1,670 operators with 3,100 aircraft, and lead to the closure of around 700 operations.
Not surprisingly, opposition to the NPRM has been overwhelming, with around 1,600 disproportionately negative comments received so far by the FAA, which in response has extended the comment period by three months to 19 April. The Washington DC-based agency has also discarded its convention of face-to-face meetings in this case, in favour of an online "virtual" forum to gauge industry opinion. This forum, regarded as nothing more than an internet chat room, has been widely criticised by industry.
"Before sentencing a person to death, you should look him in the eye and tell him why," says Aircraft Owners and Pilots Association (AOPA) president Phil Boyer.
AOPA and a host of other national trade bodies have developed a loose-knit consortium to speak for their diverse memberships, whose livelihoods are under threat. The group includes AOPA, the National Air Transportation Association (NATA), Helicopter Association International (HAI), the General Aviation Manufacturers Association, Experimental Aircraft Association and the United States Air Tour Association (USATA).
Air tour supporters argue there is no safety reason for pursuing this NPRM, as the industry, particularly commercial air tour operators, is already heavily regulated and operates to high safety standards. Furthermore, NATA manager of operations Jacqueline Rosser suggests that with over 700 companies facing extinction and hundreds more in danger of financial hardship as a result of these proposals, this regulation will be hard to justify.
Such is the strength of the industry's economic argument that opposition to the NPRM is gaining momentum outside the air tour community. The US Small Business Administration has recently weighed in to support its growing army of concerned stakeholders, and says it is preparing a written response to the FAA.
A growing number of US senators are bringing the FAA to task, while the White House Office of Management and Budget, responsible for signing off the regulation at a later stage, is also understood to be concerned with the potential economic fall-out. The FAA cautions, however, that the 700 business it quoted are thought only to conduct sightseeing for 10h a year. "But it doesn't mean they would close their doors and stop doing their other functions," the FAA says.
The consortium says the NPRM is largely based on NTSB recommendations and on SFAR 71 - special regulations for Hawaiian commercial air tour operators that were introduced by the FAA in the early 1990s after a spate of helicopter air tour accidents in the US island state.
"The FAA credits SFAR 71 for being responsible for the improved air tour safety record in Hawaii and uses that to justify its implementation nationwide," says Steve Bassett, president of USATA, which represents commercial air tour operators certificated under FAR Parts 135 or 121 conducting aerial sightseeing tours primarily in Alaska, the Grand Canyon and Hawaii. "We are not at all sanguine that FAR Part 135 and 121 commercial air tour operators in Hawaii would agree that SFAR 71 has been the reason the air tour safety record in Hawaii has improved," he says.
The Hawaiian air tour industry itself, Bassett argues, voluntarily undertook active self-regulatory initiatives through the development of its Tour Operators Programme for Safety. This contributed greatly to Hawaii's improved safety performance - not, he says, the introduction of SFAR 71 as cited by the FAA.
Knee-jerk reaction
Bassett draws a number of parallels between the issuing of SFAR 71 in the 1990s to the treatment of the US air tour operators today. SFAR was issued under "emergency conditions", bypassing the regulatory process, he says. Air tour operators in Hawaii were not consulted, Bassett adds. "It was a clear knee-jerk reaction to political pressure then, much the same as the promulgation of this regulation is now."
If the FAA is looking for an appropriate regulatory model, Bassett argues, the agency should look no further than SFAR 50-2 in the Grand Canyon. SFAR 50-2 was implemented in 1988 as a result of public law. It established a number of operating measures designed to reduce noise, including four flight-free zones encompassing 44% of the park, limiting air tours to mile-wide flight corridors and making 86% of the park flight-free; prohibiting flights below certain altitudes, and providing special routes for recreational air tours.
The rule also put in place a new route structure ensuring that aircraft avoided areas with large concentrations of ground visitors and set standard altitudes for fixed- and rotor-wing aircraft that ensured adequate separation.
Safety has improved dramatically following the introduction of SFAR 50-2. Bassett says that there has not been an accident or incident involving an air tour aircraft in SFAR airspace since the rule went into effect. "Our fear is that the NPRM will replace this special regulation, and this would be counterproductive."
The industry argues that the FAA has no understanding of the diversity or size of the air tour and sightseeing markets. USATA says the agency used a 1998 study, Estimates of the Sightseeing Air Tour Industry, as a basis for its market estimate. This study was prepared for the FAA by Gellman Research Associates (GRA), and Basset believes its research was flawed.
He says: "GRA used 1995 data from the highly questionable general aviation/air taxi/avionics sample data to magically create a view of air touring which has little or no basis in fact. Indeed, the only accurate air touring data the FAA has are the activity reports from air tour companies flying in the Grand Canyon."
The FAA says it knows the Part 121/135 operators, but not the Part 91 sightseeing companies, and says this makes it difficult to analyse accident data. "Many of the accident reports just indicate the flight is Part 91 and all of the accidents are lumped into general aviation which is a very broad term," it says.
Also under attack is the plethora of NPRM operating restrictions, dubbed by the industry as "burdensome and unnecessary". Limiting "experienced" commercial air tour operators to not less than 1,000ft (300m) above ground level over "raw" terrain without an FAA exemption would hit the quality of air tours provided at many locations, says HAI president Roy Resavage.
Industry says the FAA has not been able to substantiate a reasonable justification, for the proposed altitude restrictions, which it argues are based on speculation and not objective data or any meaningful analysis. The lower altitude advantage offered in the NPRM for twin-engined helicopters has been implemented under SFAR 71, Bassett suggests. "But it is an ill-advised incentive that pressures companies to adopt older, affordable twins, such as the Eurocopter AS355F in place of state-of-the-art singles."
NATA says the altitude proposals are political in that they are meant for noise abatement. "The altitude restrictions of SFAR 71 in effect in Hawaii and those contained in the NPRM not only do not enhance safety but are, in fact, detrimental to the flying public's safety," says Rosser. Resavage supports this view, saying the proposals would raise the altitude for rotorcraft traffic, dangerously compressing them into the altitude used by fixed-wing aircraft - a problem acknowledged by the NTSB and the FAA in this NPRM.
The industry believes that imposing a 3km (2 miles) visibility limitation on daylight air tour operations would have a significant and negative impact on experienced operators. Air tour proponents argue that sudden summertime thunderstorms or cloudy weather over the mountains of Hawaii for instance are easy for experienced pilots to identify and circumnavigate.
The NPRM's strict requirement for cloud clearance - 500ft below, 1,000ft above and 2,000ft horizontally - also fails to recognise the unique environment in which experienced commercial air tour operators conduct their sightseeing tours, says the industry. "This is generally regarded as a reasonable requirement for operators upgrading from Part 91 or those with limited experience, "Resavage says, "but not for operators who have been flying within their environment for many years and are familiar with local weather patterns."
The NPRM's recommendation to impose as a blanket rule the carriage of life vests and flotation devices on all air tours, irrespective of where they are operating, has also been called into question. Bassett says SFAR 71 in Hawaii, for example, which is focused primarily on areas where there are flights over large bodies of water and where there are areas of dense air traffic, has little to do with operations over deserts or glaciers such as in the Grand Canyon and Alaska, or where there is virtually no aircraft density.
Creating problems
Such is the diversity of the air tour market that a one-size-fits-all regulation, as promulgated by the NPRM, will be unworkable, most people in the industry believe. AOPA vice-president of regulatory affairs Melissa Bailey says federal requirements that appear to make sense in one geographic area may have little positive impact in another and may even create problems rather than solve them.
HAI's Resavage suggests the FAA must make a distinction between full-time commercial air tour operators, often functioning in unique and familiar flying environments, and those companies that may give sightseeing rides occasionally or only on a part-time basis.
Based on the GRA data, the FAA estimates that implementing these new requirements will cost existing FAR Part 135 operators about $26.7 million and, at the same time, these same operators will lose roughly $61.5 million in revenue due to lost business. "The impact on existing Part 121/135 commercial air tour operators will be staggering," says Resavage.
To re-equip its aircraft, Las Vegas-based Maverick Helicopters conservatively projects the cost just to purchase new equipment at more than $629,000. Added to this is the labour cost to install and maintain the equipment and hidden costs for training and operations. The extra weight of flotation devices reduces the number of customers the operator can carry on each flight, which also costs the company around $11,000 a day.
Fellow Grand Canyon operator Sundance Helicopters estimates it will cost $840,000 to equip its fleet with pop-out floats, with an associated 16% decrease in revenue due to the loss of one passenger on each flight, because of the additional weight. Minimum visibility requirements resulting from SFAR 71 in Hawaii cost Blue Hawaiian Helicopters more than $4 million, the operator says. Alaskan air tour operator ERA Aviation says the altitude restrictions outlined in the NPRM could cost it seasonal air tour business worth around $13 million a year.
For Part 91 operators the situation is dire. The cost of becoming a Part 135 operator and complying with the new regulations will inevitably lead to hundreds of casualties. Harry Harrison, co-owner of San Francisco sightseeing operator Golden Gate Bi-Plane Adventures, says the cost of insurance alone will prohibit qualification to Part 135. Golden Gate, like many similar companies, operates a vintage aircraft, a Waco, for which is no operating manual. "This is a fundamental requirement for Part 135," Harrison says. "So if the air tour NPRM is approved we will be forced to upgrade or shut down."
Recommendations
Continued growing opposition to the NPRM could force the FAA to reconsider its position on the fate of air tour and sightseeing operations in the USA, but this is thought to be unlikely. Consortium members are urging the agency to establish an aviation regulation committee to work alongside operators in exploring the suitability of the current set of regulations governing this industry. If there is still a requirement for yet another level of safety regulation, commercial air tour supporters say it should be incorporated into the ongoing Part 135 rewrite.
KATE SARSFIELD / LONDON
Source: Flight International