Dear Friend,In August, I sent a note to you on the Federal Aviation Administration's (FAA) new proposed rules here on commercial tour helicopters and small aircraft throughout our Hawai‘i. Urgent action was needed because the deadline at that time was August 24. But in consideration of the tragic wildfires on Maui, the FAA extended the deadline to Oct. 6. In this note, I am sharing with you my comments on the proposed rules that, if adopted, are scheduled to take effect in the Spring of 2024. Mahalo to those who have already submitted their comments to these proposed rules. For those who have yet to weigh in, the new portal to submit your thoughts is here. You can also email your comments to my staffer Nestor Garcia in my Honolulu office at nestor.garcia@mail.house.gov.Here are my comments that I submitted on the proposed rules:U.S. Department of Transportation Docket Operations, M-301200 New Jersey Avenue SERoom W12-140West Building Ground FloorWashington, D.C. 20590-0001Attn: Lawrence Fields, Acting Executive Director, Flight Standards ServiceSubject: Comment on Draft Advisory Circular 136-B048, Supplemental Information for the Creation of Operating Procedures and Pilots Training Subjects Related to OpSpec/LOA B048 (“Draft AC”), Proposing to Alter Conditions of Authorization to Conduct Commercial Air Tour Operations Below 1,500 Feet Above Ground in the State of Hawai’iDear Director Fields:Please accept these comments on the Draft AC on behalf of residents of Hawai’i whose communities are directly impacted by the severe safety risks and increasing ground disruption of commercial air tour operations throughout Hawai’i. GeneralBy way of context, I directly represent some 700,000 residents of Hawai’i in the First Congressional District (Urban/Suburban Honolulu), and formerly represented and indirectly represent some 700,000 more residents in the Second Congressional District (Remainder of O’ahu and All Other Islands). I believe that my comments represent mainstream resident concerns with proliferating air tour helicopter and small aircraft operations in all parts of Hawai’i, from the most urban to the most remote. This is reflected in part by resolutions in recent years expressing such concerns by the Hawai’i State Legislature, the Councils of all Hawai’i counties, and many governing community boards including most on the most populated island of O’ahu, as well as state legislative proposals and laws providing for regulation of air tour operations within the permissible scope of state and county regulation. Our concerns relate to clearly unsafe operational conditions, as evidenced most directly by the tragic accidents of recent years. These operations not only pose risks to aircraft occupants but to residents and property on the ground.They also relate to increasing noise, vibration and visual disruption on the ground, which repeatedly disturbs national, state and county parks and natural resources, cemeteries and memorial sites, military installations, harbors and other government infrastructure, visitor industry locations, commercial and industrial areas, nearshore waters and recreational areas, and throughout our residential neighborhoods. These disruptions arise from several factors, including:            (a) Frequency. These are not occasional tours, but operate virtually all day on all days at high frequency. Some residential neighborhoods on routes to and from national parks have sustained overflights of over 16,500 per year (45 per day, every day of the year). Statistics are difficult because operators resist reporting, but a conservative estimate on dense O’ahu in urban and rural Honolulu would be 30 per day or 10,000-plus per year.             (b) Route. Tour routes do not reflect efforts to mitigate disruption, such as routinely flying over the ocean as opposed to communities, or avoiding particularly sensitive locations such as national memorials or cemeteries and parks. They also generally follow a fixed route from point to point, which disproportionately impacts specific communities all the time. They further do not fly a constant direct route which minimizes disruption, but turn and hover, increasing noise and vibration.            (c) Design. Many if not most of the helicopters and small aircraft engaged in tour operations in Hawai’i (and the great majority are helicopters) are the more inexpensive available and have no effective noise reduction design features or systems. Their impacts, especially at high volume, are especially amplified.            (d) Altitude. Even at a minimum 1,500 feet altitude over ground, disruption is significant, especially given frequency, route and design. The 1,500 foot minimum over ground altitude should be increased. But even that limit is frequently ignored, as operators either deviate for alleged weather conditions, or for weather conditions which were clear before takeoff, or not adjusting altitude with increasing ground elevation, or just because they ignore it for a better customer experience. This is worsened by the fact that in large parts of Hawai’i there is no publicly-available automatic dependent surveillance-broadcast (ADS-B) Out requirement, the operators alleging (with the FAA thus far agreeing) that this is a privacy violation, even though they are flying in public airspace under public regulation. The result is that nobody including the public can effectively verify operator compliance with altitude or other flight restrictions.The best all-around solution is (1) substantially strengthened safety regulation, including adoption of all National Transportation Safety Board (NTSB) recommendations, and (2) clear regulations or binding agreements that specify time, place and manner of operations so as to minimize community disruption. Unfortunately, to date the FAA has been unwilling or unable to fully endorse and implement both goals.In this context, if the goal and result of the Draft AC are in fact to increase operational safety while minimizing community disruption, that is welcome. But if the Draft AC aims to increase operational safety without regard to and at the expense of community disruption, simply allowing operators far more flexibility to deviate from an insufficient-to start-with 1,500-over-ground minimum elevation claiming operational safety, that would further sacrifice the broader community for the sake of a thus-far-insensitive and largely uncooperative industry.Comments(1) NTSB Comments. I endorse the NTSB’s comments on the Draft AC in its September 1, 2023 from Chair Homendy to Director Fields. Of particular note are the NTSB’s comments on provisions of the Hawai’i Air Tour Common Procedures Manual (HATCPM) which are not included in the Draft AC, especially the deletion of a minimum standoff distance from raw terrain and the elimination of a conservative visibility requirement. The NTSB’s comments also address the issue of minimum altitude deviation when flying over “razorback ridges”; clearly operators us this as an excuse to deviate over much more general terrain elevation increases, and this exception should be eliminated to assure a higher general elevation over such terrain for both safety and community disruption purposes.(2) Draft AC 1.1 and Related Provisions. The draft cites its purpose as including allowing deviation from minimum altitude restrictions to “avoid entering unforecasted instrument meteorological conditions”. This and related provisions essentially appear to allow an operator to take off and commence a tour which deviates from minimum altitude restrictions even when the operator knew in advance from forecasts or other information that the route would not allow flight at required visibility standards at the standard  minimum 1,500 feet over ground. In other words, the operator knew in advance that the flight would occur at heightened safety and community disruption conditions. That should not be the case; the requirement should be that the operate may not commence any flight if known conditions would require a deviation from the 1,500 foot minimum altitude over ground. This appears to be specified in the last sentence of this subsection but should be reviewed for clarity and consistency throughout.(3) Draft AC 1.7.2, 1.7.7, 1.7.9, 3.3.3, 3.3.5, 4.1.1, 4.1.2 and Related Provisions. These provisions all relate to the Draft AC’s “Known Site Specific Area(s)” (KSSA) and appear directed at facilitating fixed routes from KSSA to KSSA. First, as noted above, that encourages high-volume flying over specific communities and other locations with severe impacts, essentially creating highways in the sky with no assessment of environmental impact (and question whether this entire process of regulation is subject to federal and state environmental laws). Second, if the intent of these provisions is to allow for pre-approved deviations from the 1,500 feet-over-ground minimum altitude requirement on specific routes including between KSSAs, negating any requirement, for example, that flights cannot take off if known weather conditions would allow for a deviation in altitude, that should not be allowed; any provisions should be trip-specific and conditional. Third, specific routes should not be allowed or approved unless they incorporate the maximum protections against safety risks and community and resource disruptions. This includes operating away from populated areas, parks, cemeteries and memorials and other especially sensitive areas and over the ocean wherever possible, and flying through rather than turning, circling and hovering, all of which substantially increase noise, vibration and visual impacts.(4) Draft AC 3.3.4. In the list of aircraft instrumentation for Hawai’i operations, the Draft AC, third sentence of this subsection, only recommends certain instrumentation including ADS-B (apparently contra to subsection 4.2.3; see also 5.1, third bullet). This instrumentation, especially ADS-B, should be required to be installed and operating at all times on any flight. Without that requirement, it is not effectively possible for any verification of compliance with minimum altitude and other requirements or understandings such as time of operations. The FAA states that noise complaints should be reported, but then when reported asks for details such as aircraft registration number and estimated altitude; that is not possible for members of the public to identify on an aircraft in flight except with publicly-available flight tracker tools. (The FAA sometimes claims that community disruption is not an issue because it receives few complaints, but the FAA’s process is essentially meaningless and has effectively chilled any meaningful public input.) Contrary to the FAA’s assertion, there is no right of privacy in operating aircraft in public airspace, especially with substantial safety and disruption impacts (and with the operators’ practice of turning off installed ADS-B in problematic flights). Finally, omitting any easy-to-identify means of verification of operations such as ADS-B broadcast runs counter to the intent of a 2022 state law that requires operators to report the details of each flight on a monthly basis.(5) Draft AC, 3.3.7. The required record keeping should include relevant specifics for each flight such as determined weather conditions at the outset of the flight, a determination by the operator that the flight could operate at a minimum 1,500 feet altitude over ground for the entire flight (there were no known conditions at the outset which would require or may require deviation), and specific route (including turning and hovering), speed and altitude for the actual flight.(6) Draft AC, 3.6.1 and Related Provisions. All certificate holders’ operating procedures document of manual in addition to the general operations manual should matters of public record available for review by the general public. The FAA has maintained that such documents are private, but there is no right of privacy in the conditions of operation of aircraft with safety and community disruption consequences in the public airspace. (7) Draft AC, 4.3 and Related Provisions. This proposed section makes an unacceptable distinction as to what flights are authorized lower than 1,500 feet above ground between “populated and congested” and “neither populated not congested”; the latter would be allowed down to 500 feet above ground. First, there is no specific definition of “populated” or “congested” nor of the specific zone of populated or congested (within 500 feet, or two miles, or ten miles?), and it thus appears to be a subjective judgment by the operator or FAA; that is not acceptable unless the operating definition is any human occupation or use, which is the reality of much of clearly rural Hawai’i which suffer from some of the most severe impacts of tour operations. Second, the distinction rests on the unacceptable assumption that more severe disruption is acceptable in areas of the state that are not technically populated or occupied. Some of the most severe disruption of tour operations is to our quiet, special places such as our parks, wildernesses, seashores and other less populated, less congested areas, and it is a mistake to assume that they are therefore deserving of less protection than populated, congested areas. There should be a straight minimum of 1,500 feet above ground statewide regardless. (Also of note: this requirement should apply to bays and nearshore waters. Operators sometimes deviate below 1,500 feet when transitioning from over land to over water on the apparent argument that the restrictions do not apply over water. The same safety and disruption consequences are prevalent over water, which is often highly utilized for recreational purposes.)(8) Draft AC, 4.3, Second Bullet and Related Provisions. On the reference to “unless instructed by air traffic controllers (ATC)”, this provision is often abused by operators to remain or descend below 1,500 feet above ground long after or before the point of instruction or control by ATC. For example, operators often defer climbing to 1,500 feet minimum on departure from Honolulu International Airport (especially east past Waikiki) after the point at which ATC no longer requires a lower altitude, and similarly often commence descent under 1,500 feet on approach to Honolulu International Airport (especially west over Pearl Harbor and adjacent communities) before the point at which ATC requires a lower altitude. The standards should require maximum altitude at all times as instructed or not instructed by ATC.(9) Draft AC, Section 4.5. First, if “weather minimums” are subject to a minimum “regulatory requirement”, that requirement should be specified and should be specifically tailored to Hawai’i and its specific weather conditions including cloud cover on high ground. Second, “weather minimums” should be standardized, especially as the record demonstrates that operator discretion can have tragic results. (10) Draft AC, Section 4.6.1. Similar to as discussed above (especially (2)), pilots (a) should not commence a flight at all if “weather conditions are marginal or available weather information is minimal” (and they cannot therefore assure flight safety or compliance throughout with a 1,500 foot over ground minimum altitude), and (b) if they do commence a flight and required updated weather information en route indicates unavailable weather condition information or weather conditions that are marginal or would result in deviation below the 1,500 foot over ground minimum, the flight should be aborted and immediately return to the point of departure. Some of this is provided in Section 4.6.2 but requires more specific instruction.(11) Draft AC, 4.8.1. Similar to as discussed in (9) above on limiting operator discretion, “risk analysis” should not be left to the subjective judgment of each individual operator, but should be a specific, standardized required step analysis that should be provided for all operators as a minimum requirement. The development of that required risk analysis should be undertaken in consultation with the NTSB.(12) Draft AC, Chapter 6. The provisions above, especially as related to operator-wide requirements as opposed to individual operator discretion, should be applied to all pilot training requirements. See especially NTSB report comments on pilot error in various tragic accidents in Hawai’i and elsewhere. (13) Draft AC, Section 2.4.1 and Related Provisions. My comments above apply as a minimum to airspace over and adjacent to Hawaii’s national parks and other national areas of significance including those cited in this section. The Air Tour Management Plan (ATMP) process is underway for our two national parks and, if and when adopted, will and should set the minimum standards for that airspace. Similar provisions, especially enhanced minimum altitude requirements and the 1/2 mile boundary buffer requirement, should be imposed through these standards or otherwise on our other national areas of significance including those cited in the draft such as the USS Arizona Memorial. Finally, certificate holders and operators should not just “consider” but should be required to include the referenced statement in their procedures.On behalf of my Hawai’i, thank you for considering my comments on the FAA Draft AC. But to repeat, this proposal overall would only perpetuate if not worsen a status quo which is not working for Hawai’i from both a safety and a community disruption perspective. Commercial air tour operators are not or should not be entitled to widespread and virtually unlimited disruption and risk as a result of their operations. The only real solution remains strict compliance with all safety requirements and the regulation of time, place and other conditions of operation to mitigate disruption. I ask the FAA to reconsider its defense of the status quo approach and work with us toward such a broader solution.Again, I am respectfully requesting that the FAA take my constituents’ concerns, as well as those of my own, very seriously and step back and ask what additional steps can be taken to improve safety and compliance.I also asked the FAA to prioritize these concerns over those of the tour operators. I do not believe that any air operations should ignore or downplay these concerns, especially operations which are not essential to maintaining air transportation in and out of Hawai‘i.As always, I deeply appreciate your consideration and assistance as we all work to find the best way forward for our country and Hawai’i. For more information on my efforts, and how we can help you, please visit my website at case.house.gov. If I can help you and yours with your own questions and needs, email us at ed.case@mail.house.gov, or call us at (808) 650-6688.Be safe and be well.