Safari Aviation Inc. v. Garvey
| Citation | 300 F.3d 1144 |
| Decision Date | 26 August 2002 |
| Docket Number | No. 00-71520.,No. 98-70013.,98-70013.,00-71520. |
| Parties | SAFARI AVIATION INC., dba Safari Helicopter Tours, Petitioner, v. Jane F. GARVEY, Administrator, Federal Aviation Administration, Respondents. Safari Aviation Inc., dba Safari Helicopter Tours, Petitioner, v. Federal Aviation Administration, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
David Glenn Bettencourt, Honolulu, Hawaii, for the petitioner.
Constance A. Wynn, Department of Justice, Civil Division, Washington, D.C., for the respondent.
On Petitions for Review of Two Orders of the Federal Aviation Administration. FAA No. 27919.
Before WALLACE, TASHIMA and TALLMAN, Circuit Judges.
Safari Aviation, Inc., d/b/a Safari Helicopter Tours ("Safari") is an aeronautical business which operates helicopters and fixed-wing aircraft for sightseeing tours of tourist attractions in Hawaii as an on-demand Air Taxi Commercial Operator. Safari petitions for review of two orders of the Federal Aviation Administration ("FAA") promulgating Special Federal Aviation Regulation 71 ("SFAR 71"), which establishes procedural, operational, and equipment safety requirements for air tour operators in Hawaii. We upheld emergency rule SFAR 71, issued on September 16, 1994, in Hawaii Helicopter Operators Ass'n. v. FAA, 51 F.3d 212 (9th Cir.1995). In No. 98-70013, Safari petitions for review of the FAA's decision to extend SFAR 71 for an additional three years. In No. 00-71520, Safari petitions for review of the FAA's decision to establish SFAR 71 as a final rule. Safari contends that the FAA unlawfully and arbitrarily promulgated SFAR 71, and that the final rule decreases aviation safety and increases the risk of predictable accident scenarios. We have jurisdiction under 49 U.S.C. § 46110, and we dismiss the petition in appeal No. 98-70013 as moot, and deny the petition in appeal No. 00-71520.
The FAA issued SFAR 71 as an emergency rule in September 1994. Air Tour Operators in the State of Hawaii, 59 Fed. Reg. 49,138 (Sept. 26, 1994) (codified at 14 C.F.R. pts. 91 & 135). The FAA cited "an escalation of air tour accidents" as the reason for the rule, and stated that "[t]he regulation is intended to enhance the safety of air tour operations within the State." Id. Accident data for the nine-year period between 1982 and 1991, a time of substantial industry growth, established that there were eight air tour accidents in Hawaii which resulted in a total of twenty-four fatalities. For the three-year period from July 1991 through July 1994, the agency reported that the accident rate jumped to twenty air tour accidents with twenty-four fatalities. Id. at 49,139.
The FAA was concerned about the substantial increase in the accident rate and the risks associated with low-flying air tours in Hawaii.1 SFAR 71 imposes "Special Operating Rules" for airplane and single-engine helicopter air tours. Section 3 of the regulation requires operators who venture off shore to either use amphibious helicopters or helicopters equipped with floats; or they must require passengers to wear approved flotation gear. Id. at 49,145. Section 4 requires operators to file a helicopter performance plan before each air tour flight. Section 5 mandates that air tour operators maintain appropriate height and forward speed to allow the safe landing of helicopters in the event of an engine failure. Id. at 49,146.
Section 6 imposes a minimum flight altitude of 1,500 feet above ground level for all aircraft, and requires operators to maintain a standoff distance of 1,500 feet from any person or property except when necessary for takeoff and landing, air traffic control compliance, or as otherwise authorized by the FAA. Section 7 requires air tour operators to brief passengers on water ditching procedures, use of required flotation equipment, and emergency egress from the aircraft in the event of a water landing. Id. The emergency rule became effective on October 26, 1994, and the public comment period ended on December 27, 1994.
The Hawaii Helicopter Operators Association ("HHOA") promptly petitioned this Court to challenge the validity of the emergency rule on the ground that it was issued in violation of the Administrative Procedure Act's ("APA") notice and comment provision, 5 U.S.C. § 553(c). In a published opinion, we held that the FAA had properly invoked the good cause exception to § 553(c), and we rejected HHOA's claim that the 1,500-foot minimum altitude requirement in SFAR 71 was arbitrary and capricious. Hawaii Helicopter Operators Ass'n. v. FAA, 51 F.3d 212, 214-16 (9th Cir.1995).2
The FAA extended SFAR 71 as an interim rule on October 30, 1997, with the stated goal of "ensur[ing] that regulatory requirements for the safe operation of air tours in the airspace over the State of Hawaii remain in effect." Air Tour Operators in the State of Hawaii, 62 Fed.Reg. 58,854 (Oct. 30, 1997) (codified at 14 C.F.R. pts. 91 & 135). The FAA also published a "discussion" of some of the more than 200 public comments it received from entities including the NTSB, air tour operators, helicopter associations, and environmental groups. Id. at 58,855-58,859.
Many comments were critical of the minimum flight altitude requirement, including the concern that the requirement does not account for cloud cover and weather conditions in Hawaii which affect visibility and may compromise a pilot's ability to maintain the required distance from clouds. Several commenters, including the HHOA, also warned that the minimum altitude requirement will cause air tour traffic to be concentrated at the same altitude, thereby increasing the risk of mid-air collisions and decreasing overall air safety. The NTSB expressed the concern that the altitude requirement may lead to increased operating time over water, difficulties in regulatory enforcement, and possible disregard of the FAA regulation.
The FAA agreed that the minimum operating altitude requirement was "[o]ne of the most contentious aspects" of SFAR 71, but noted that "after working closely with air tour operators," it had mitigated the problem by allowing selected deviations on a case-by-case basis. Id. at 58,857. Since 1994, the FAA has granted deviations to "the majority of air tour operators" in Hawaii. For instance, air tour operators of single-engine helicopters have been granted deviations to conduct air tours at a minimum of 500 feet. These deviations are site-specific, and are only allowed over areas of raw terrain (i.e., areas devoid of persons, vehicles, etc.). Safety is not compromised, the FAA asserts, because of additional safety measures, including careful FAA screening of operators before they are granted a deviation. Id.
In response to comments regarding costs associated with complying with SFAR 71, the FAA states that it "believes that the SFAR has not had a direct impact on the viability of the air tour industry in Hawaii." By granting deviations, the FAA contends, it has mitigated the costs of the SFAR and ensured that commercially viable air tours are still available to the public. Finally, in response to comments that the FAA's promulgation of SFAR 71 was a response to residents' complaints about noise pollution, the FAA "reiterates its strong statement" that safety was the reason the agency promulgated the rule.
The FAA issued a notice of proposed rulemaking ("NPRM") on August 23, 2000, indicating an intent to extend interim rule SFAR 71 for another three years and soliciting comments on the extension of SFAR 71 as a final rule. Air Tour Operators in the State of Hawaii, 65 Fed.Reg. 51,512 (Aug. 23, 2000) (codified at 14 C.F.R. pts. 91 & 135). In this NPRM, the FAA explained that the extension was necessary to provide additional time for the agency to issue an NPRM regarding a national rule that would apply to all air tour operators. Id. The deadline for comments on the proposed extension was September 22, 2000.
Safari mailed its comments regarding the proposed extension of SFAR 71 on September 22, 2000, and the FAA received them on September 25, 2000. In its statement, Safari contended that "the imprudent and unjustified specifications within SFAR 71 have claimed the lives of thirteen person[sic] in two fatal helicopter accidents...." The document goes on to detail how the 1,500 foot minimum altitude requirement may have played a factor in two recent air tour helicopter accidents.
The FAA nonetheless issued the final rule extending SFAR 71 for another three years on September 29, 2000. Air Tour Operators in the State of Hawaii, 65 Fed. Reg. 58,610 (Sept. 29, 2000) (codified at C.F.R. pts. 91 & 135). The FAA again indicated its intent, in the near future, to promulgate a national rule to apply to all air tour operators, at which time SFAR 71 would be rescinded. Id. In its discussion of the comments regarding the extension of SFAR 71, the FAA indicated that it had received four comments, all of which supported the extension. Regarding the NPRM published on August 23, 2000, the FAA reported having received only one adverse comment, from Blue Hawaiian Helicopters. This comment indicated that "some air tour pilots believe the altitude restrictions may have contributed to the three accidents that have occurred since the SFAR was adopted in 1994." Id. The FAA did not review Safari's comments before issuing the final rule extending SFAR 71.
The FAA justified its promulgation of emergency final rule SFAR 71 on the grounds that a "large number of accidents ... occurred in Hawaii between 1982 and 1991"; that the interim and final versions of SFAR 71 were needed to ensure the safety of all air tour operations in Hawaii; and that the forthcoming national air tour safety rule would soon replace SFAR 71. As to the cause of the three accidents...
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