[Federal Register Volume 63, Number 1 (Friday, January 2, 1998)]
[Rules and Regulations]
[Pages 4-6]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-34164]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 119, 121, and 135
Compliance With Parts 119, 121, and 135 by Alaskan Hunt and Fish
Guides Who Transport Persons by Air for Compensation or Hire
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice to operators.
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SUMMARY: Operators transporting persons or property by air from one
location to another for compensation or hire must comply with the
regulatory requirements for air carriers and commercial operators. The
FAA has not enforced these regulatory requirements consistently
throughout the country. In particular, it has not enforced them
adequately against Alaskan guides, and many Alaskan guides conducting
such operations are not properly certificated under applicable
regulations. The FAA expects to provide those guides who do not
currently hold the necessary certification a fair opportunity to
achieve compliance with the applicable regulations. During 1998, the
FAA intends to offer certification clinics for these guides in three
Alaskan cities in order to expedite the necessary certification process
for the influx of these new operators. This notice is published to
emphasize these regulatory requirements.
EFFECTIVE DATE: This notice is effective December 24, 1997.
FOR FURTHER INFORMATION CONTACT:
Jerry Paterson, Technical Standards Branch Manager, AAL-230, Federal
Aviation Administration, Alaskan Region Headquarters, 222 West 7th
Avenue, #14, Anchorage, Alaska 99513, Telephone 907-271-5514 or
Kathleen Yodice, Office of the Chief Counsel, AGC-300, Federal Aviation
Administration, 800 Independence Avenue, S.W., Washington, D.C. 20591,
Telephone 202-267-9956.
SUPPLEMENTARY INFORMATION:
History
In Alaska there are organizations generally referred to as
``guides,'' that offer commercial packages for persons seeking to hunt,
fish, and engage in other similar sport activities within the state of
Alaska. This industry has grown to be a major economic activity in
Alaska contributing directly and indirectly to the livelihood of a
significant percentage of the state's population. The use of an
aircraft plays a key role in these operations because it is often the
guide's only reasonable means of transporting customers. In some
instances, these guides transport people by aircraft from airports
within the state of Alaska to lodges within the state of Alaska. They
often transport persons and supplies to and from lodges and remote
hunting and fishing sites within the state of Alaska. As a general
rule, the hunting and fishing sites are not easily accessible by any
conventional mode of surface transportation. Charges for the flights
are usually not separately itemized on a bill, but are usually included
in the ``package price.'' Many of the guides conduct only day, VFR
operations and
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employ only one pilot. Some of these pilots hold the minimum airman
certification for flying passengers not for compensation, i.e., a
private pilot certificate without an instrument rating, which is not
valid for commercial operations. This transportation of persons from
one location to another location is transportation by air for
compensation or hire, and requirements contained in part 119, and parts
121 or 135, are applicable.
Part 119 contains the certification requirements for operations
conducted under part 121 and for operations conducted under part 135.
Operation conducted under part 121 or part 135 provide a higher level
of safety than those conducted solely under part 91. Alaskan guides
providing transportation by air to persons form one point to another
point for compensation or hire are acting as air carriers or commercial
operators, and each must comply with the applicable requirements of
part 121 or part 135, including proper certification of pilots, proper
training of pilots, and proper maintenance of aircraft.
In the past, the FAA's Alaskan Region has not enforced part 121 or
part 135, as applicable, against those guides who provide
transportation by air to persons patronizing their lodges. The Alaskan
Region's enforcement, inconsistent with enforcement in the rest of the
country, was apparently based, in part, upon a misunderstanding of when
an aircraft operation is ``merely incidental'' to the guide services
and upon incorrect analysis of circumstances in which it might be
concluded that ``no charge'' was made for the flight. On the ``merely
incidental'' issue, there appears to have been a misinterpretation of
the scope and effect of a 1963 enforcement case involving a registered
hunting guide, Administrator v. Marshall, 39 CAB 948 (1963) (decided on
an extremely narrow set of facts that involved a registered guide's
single flight from base camp to spot game from the air and return to
base camp, with no landing at a point other than the point of takeoff).
This local misunderstanding was not based on any agency
interpretation or policy, and it must be corrected. The use of aircraft
by a guide who transports customers to and from hunting or fishing
sites and from their lodge may not reasonably be viewed as ``merely
incidental'' to the guide's business, even when no separate charge is
made for the flights. Rather, it is an integral part of the guide's
business to transport the customer to the remote fishing or hunting
sites. It is, in fact, transportation of persons from point to point
and those persons are paying compensation for the transportation,
either by separate charge or by an amount included in a ``package
price.'' The transportation by air is itself an integral, major part of
the enterprise for profit. Without the transportation by air, the
business arrangement would likely not exist. Furnishing transportation
by air is a crucial part of the guide's package because there is no
alternative, practical, or commercially acceptable way for the
customers to get to the lodge or to the remote hunting or fishing
sites. The lack of proper enforcement in this situation is contrary to
the FAA's consistent interpretation that transportation of persons from
point to point, even to remote sites and even when no separate charge
is made, is transportation of persons by air for compensation or hire
requiring the appropriate commercial FAA certification.
It should not be assumed that all guides operating within the state
of Alaska have been operating under part 91 only. On the contrary, many
guides have obtained part 121 or part 135 certification and have been
operating in compliance with those standards. This notice is intended
to ensure improvement in consistently enforcing compliance with, and
that all of the guides operate under the stricter and safer aviation
standards of, parts 119, 121, and 135, as applicable. As a result, all
of the guides will operate under similar high standards and will
receive fair and consistent treatment under the Federal Aviation
Regulations.
The FAA's statutory and regulatory provisions require that
commercial air transportation services are to be conducted under a
higher standard of care than air operations that are not conducted for
compensation or hire. However, wholly apart from the legal requirements
that require operators transporting persons from point to point to
comply with parts 119, 121, and 135, as applicable, there are safety
concerns as well.
On December 31, 1992, the FAA's Alaskan Regional Flight Standards
Division released a Study of Aviation Commercial Guiding Activities
Within the State of Alaska. The purpose of the study was to assess the
safety of transportation by air associated with commercial hunting,
fishing, and guiding activities within the state of Alaska. In that
study, the Alaskan Regional Flight Standards Division concluded that
those guides who conducted transportation by air solely under part 91
experienced a higher number of accidents and violations of the Federal
Aviation Regulations, indicating a lower level of safety associated
with those operations. Accordingly, the Alaskan Regional Flight
Standards Division recommended taking action to ensure the higher level
of aviation safety that is required for commercial operations involving
transportation by air that is engaged in by guides.
In May 1994, the National Transportation Safety Board (NTSB) made
several safety recommendations to the FAA based on its own study of the
Alaskan guide operations. See NTSB recommendations A-94-99 and A-94-
100. The NTSB studied 29 aircraft accidents involving pilots working in
guide operations in Alaska who had been operating only under part 91
and not also under the more stringent standards of part 135.
Specifically, the NTSB considered those aircraft accidents that had
occurred over a two-year period, from July 4, 1991, to August 31, 1993.
The NTSB concluded that because of the large number of accidents and
causal factors revealed by the study, there are serious safety problems
associated with guides who commercially transport persons from point to
point solely under part 91, and that the number of accidents and a
review of the legal issues involved warrant action to enhance the level
of passenger safety by ensuring that these operations are operated
under part 135. THe NTSB observed that ``the overall [Alaska flying]
operation requires a high degree of knowledge, skill, professionalism,
respect for the elements, and a keen awareness of the limitation of the
aircraft and one's self.''
In November 1995, the NTSB released a Safety Study that superseded
its earlier safety recommendations. See NTSB Safety Study NTSB/SS-95-
03. The NTSB reaffirmed its belief that the requirements of part 135
are needed to provide an enhanced level of safety to guide operations
by introducing safety improvements and by facilitating FAA oversight.
The NTSB recommended that, by December 31, 1996, the FAA take action
that would ensure that the transportation by air services provided by
Alaskan guides are conducted under a part 135 level of safety. See NTSB
recommendation A-95-134.
Regulatory Compliance
To promote uniform compliance under parts 119, 121, and 135, as
applicable, those guides carrying persons and/or cargo by air for
compensation or hire, who have not done so, must apply for and obtain
an air carrier or commercial operating certificate and appropriate
operations specifications. 14 CFR 119.5, 119.21, 119.33. These guides
are required to
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seek and obtain certification under part 119 for operations under part
121 or part 135, as applicable. The FAA anticipates that most guides
transporting persons from point to point for compensation or hire will
conduct those operations in accordance with the requirements contained
within part 135. Qualification to obtain the appropriate part 119
certification principally includes the following:
--Level of airman certification; pilots conducting operations under
part 135 must hold, at a minimum, a commercial pilot certificate and a
Class II medical certificate. 14 CFR 61.3, 135.95, and 135.243. In
addition, pilots may be required to hold an instrument rating, except
where such a rating is not required under 14 CFR 135.243(d).
--Training and testing: each part 135 operator must properly test and
keep current the pilots who are used in these operations. 14 CFR
135.97. Subpart G of 14 CFR part 135 prescribes the tests and checks
each operator must perform. Subpart H of 14 CFR part 135 prescribes the
requirements for establishing and maintaining an approved training
program. Those part 135 operators who employ more than one pilot will
be required to provide training to those pilots. 14 CFR 135.341.
--Aircraft requirements: each part 135 operator must have exclusive use
of at least one aircraft, 14 CFR 135.25, and must accomplish annual and
100-hour inspections or comply with an approved inspection program on
each of these aircraft, 14 CFR 135.71 and 135.421. Subpart C of 14 CFR
part 135 sets forth aircraft and equipment requirements, which must be
complied with in addition to those aircraft and equipment requirements
under 14 CFR part 91.
--Maintenance requirements: each part 135 operator using an aircraft
that is type certificated with a seating configuration of 9 seats or
less, excluding any pilot seat, shall maintain that aircraft in
accordance with 14 CFR parts 43 and 91, and those requirements set
forth in subpart J of 14 CFR part 135. Each operator shall comply with
the aircraft manufacturer's recommended maintenance program or a
program approved by the FAA. 14 CFR 135.421.
--Periodic surveillance: each part 135 operator may be subject to
periodic inspections of its required records and its facilities. 14 CFR
135.73 and 135.75.
--Airplane operator security: each part 135 operator must comply with
the applicable security requirements contained within 14 CFR part 108.
14 CFR 135.125.
--Drug and alcohol testing requirements: each part 135 operator must
establish a drug and alcohol testing program under 14 CFR 135.251 and
135.255.
Compliance Plan
The FAA intends to implement a plan to aid guides and other new
part 121 or part 135 operators in obtaining the appropriate part 119
certification in an efficient, expeditious manner. Implementation of
this plan is expected to occur during the 1998 calendar year. During
the year, the FAA may, of necessity, devote the bulk of its available
resources to securing compliance by processing certification
applications submitted by persons under this plan. Accordingly,
resources that would normally be devoted toward investigation and
enforcement may be constrained. The FAA does not expect enforcement
actions related to guides operating without proper certification to be
a major focus during implementation of the certification plan. However,
following this period, FAA resources will be available for a strong
enforcement response regarding any guides providing transportation by
air for compensation or hire without proper certification. In addition,
the FAA expects that resources will be available at that time to permit
a special emphasis on investigation and enforcement of compliance with
the appropriate certification and operational requirements for those
guides who transport persons by air for compensation or hire.
The Alaskan Regional Flight Standards District Offices (FSDOs)
intend to hold two informational meetings in three different locations
within the State of Alaska. The three Alaskan locations are Anchorage,
Fairbanks, and Juneau. The meetings will be held in the spring and in
the fall of 1998 in each location, most likely over a weekend. In
addition, the FSDOs will provide information and guidance to those
guides who contact or visit the FSDOs in Anchorage, Fairbanks, and
Juneau. Information concerning the technical requirements will be
available at the meetings and at the FSDOs. During the weekend
meetings, the FSDOs will be providing personnel who will conduct flight
tests and examine documentation and aircraft.
The FAA expects to accept and consider part 119 certification
applications from guides during these weekend meetings. The FAA further
expects to issue air carrier operating certificates or commercial
operating certificates and appropriate operations specifications to the
guides when they are determined to be qualified.
Issued in Washington, DC on December 24, 1997.
Guy Gardner,
Associate Administrator for Regulation and Certification.
[FR Doc. 97-34164 Filed 12-31-97; 8:45 am]
BILLING CODE 4910-13-M
