In a recent post, we discussed the Safe Landings Act (H.R. 4166), pending legislation introduced in August of this year. In this post, we discuss another piece of pending legislation – the Safe and Quiet Skies Act of 2019.

The Safe and Quiet Skies Act of 2019 (H.R. 4547) was introduced in the U.S. House of Representatives on September 27, 2019, by Representative Ed Case of Hawaii’s First Congressional District (located entirely on the Island of Oahu, including the City and County of Honolulu). The bill’s stated purpose is “[t]o impose safety requirements on commercial air tour flights, and for other purposes.” Prompting introduction of the bill were an April 29, 2019, crash of a commercial air tour helicopter into a residential neighborhood in Kailua, HI, resulting in three fatalities, and a June 21, 2019, Part 91 commercial skydiving aircraft collision with terrain after takeoff from Dillingham Airfield, Mokuleia, Hawaii, resulting in eleven fatalities.

Among other things, section 7(a) of the bill:

  • would require the Federal Aviation Administration (FAA) to adopt and implement all recommendations issued by the National Transportation Safety Board (NTSB) concerning operators under 14 CFR part 135 (Operating Requirements: Commuter and On Demand Operations and Rules Governing Persons On Board Such Aircraft) that the NTSB classifies the FAA response as “Open Unacceptable.”

Although the NTSB over many years has investigated numerous accidents in Hawaii involving Part 135 operators, a review of the NTSB Safety Recommendations Database, which is always an adventure, reveals that there are a total of merely five recommendations involving Part 135 operators for which the FAA response is currently considered “Open Unacceptable Response.” Two of these recommendations involve a Part 135 accident in Hawaii (helicopter collision with mountainous terrain near Pukoo, Hawaii on November 10, 2011).

The bill would also:

  • preclude commercial air tour operators from operating under less restrictive General Operating and Flight Rules codified at 49 CFR part 91. (Section 7(b)).
  • prohibit commercial air tour operators from operating within a half mile of a military installation, national cemetery, national park, national wilderness area, and national wilderness preserve. (Section 2(a)).
  • require that a commercial air tour flights operate, with certain limited exceptions (including takeoffs and landings), at an altitude of less than 1,500 feet. (Section 7(d)).
  • preclude operation of commercial air tour flights over residential, commercial, and recreational areas to be no more than 55 dbA. (Section 2(e)).
  • require the FAA to issue a regulation applying the “sterile cockpit rule” to commercial air tour flights. (Section 2(c)).
  • require the FAA to revise 14 CFR § 91.227 to require the use of ADS-B Out during the entire operation of a commercial air tour. Section 2(b)).

Provisions in sections 3 and 6 of the bill that are potentially problematic would allow states, localities, and tribes to impose stricter regulation on commercial air tour flights in their respective jurisdictions. Stricter regulation may include banning air tours; imposing day and time flight restrictions; regulating the total number of flights per day; regulating route requirements over residential, commercial, recreational, and tribal areas; prohibiting flights over state or local parks, ocean recreation, cemeteries, and other areas of state or tribal interest; and requiring commercial air tour operators to operate at lower decibels for purposes of noise requirements. While the FAA may invalidate a requirement imposed by a state, locality, or tribal entity, it can only do so if it is necessary for flight takeoff or landing operations.

These two provisions raise troubling concerns about delegating authority to states, localities, and tribal entities to regulate aviation operations, safety, and noise that is reserved to the federal government. Enactment of these sections would violate the well-established principles of federal preemption of the entire field of aviation safety and may put the U.S. on the road to balkanized Government oversight of air operations.