LIHUE, Kauai — Several Hawaii House members are engaged in an admittedly quixotic exercise — seeking to require that helicopter tour pilots in the state have licenses allowing them to fly by instruments alone.

The proposal, House Bill 1907, has 20 co-sponsors. It was voted out of the House Transportation Committee unanimously last week and will next go to a hearing before the House Judiciary Committee. Any helicopter pilot flying without such an instrument rating issued by the Federal Aviation Administration would be subject to a $500 fine.

It is clearly a response to a spate of tour helicopter accidents in Hawaii over the last two years, culminating in the crash of a Safari Helicopters aircraft on Kauai on Dec. 26, in which seven people, including the pilot, were killed. More recently, the crash in Los Angeles of a helicopter carrying former NBA star Kobe Bryant and eight other people has drawn national attention to helicopter safety.

Hawaii experienced a record high combined total of 10 tour helicopter crashes in 2018 and 2019.

What makes this legislative initiative unusual, though, is the certainty that Hawaii is preempted from enforcing such a state law, even if the Legislature passes it and Gov. David Ige signs it.

The tour helicopter industry argues even if the state could enforce a requirement that their pilots be instrument rated, it would do little to enhance safety. Here, a Jack Harter Helicopters chopper lifts off from the Lihue airport.

Allan Parachini/Civil Beat

That’s because federal law reserves to the FAA the exclusive right to regulate aviation in the United States, with no local options for states, counties or cities. As an FAA spokesperson said on Friday, “Federal law gives the FAA sole jurisdiction over the nation’s civilian airspace.”

The agency declined to comment on HB 1907, saying the agency never takes positions on pending state legislation.

Sending A Message

So why are so many Hawaii legislators pushing ahead with this bill realizing it will never go into effect? For several, the issue is their frustration with what they perceive as FAA inactivity or unwillingness to act to improve helicopter safety in the state.

Rep. Dee Morikawa, the only Kauai legislator among the co-sponsors, said she had been struck by what she described as a realization that helicopter aviation may be more inherently unsafe than many people believe.

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“As far as this bill is concerned,” Morikawa said, “it is meant to bring out the conversation on helicopter safety. I know that it’ll be hard or impossible to legislate this policy, but the discussions help us to think about possible solutions. I signed onto this bill because I want to hear that discussion. This business is growing and we need to assure the safety of passengers the best way we can.”

Oahu Rep. Bert Kobayashi, another co-sponsor, went further.

“Some helicopter companies and pilots put a premium on good training, which includes instrument ratings; some others do not. In part, this bill was an indirect way of pointing out the importance of good training.  Here and on the mainland, flying in bad weather, with or without instruments, was a factor in several tragic accidents,” Kobayashi said.

“Clearly, FAA is ignoring some unsafe flying. We know of no FAA discipline/sanction for such unsafe flying.”

He said he was particularly upset by the practice of helicopter tour operators flying especially low in the Honolulu harbor area, which he described as “hugely unsafe.”

Kobayashi renewed calls for the FAA to implement operational rules in Hawaii similar to the New York City area, where the routes and altitudes tour operators can use are more regulated than in Hawaii.

Some community groups that advocate for better regulation of helicopter noise and safety have argued that the FAA’s authority is not absolute and that the state could use permitting requirements as a way of sidestepping the FAA’s exclusive aviation franchise.

“I don’t think this (bill) will accomplish anything.” — Douglas Froning, Magnum Helicopters

Another bill pending this session. Senate Bill 2649 would require tour helicopters to have permits to operate from Hawaii airports. To get a permit, they would be required to have flotation devices and electronic flight monitoring equipment. The measure cleared the Transportation Committee and goes before the Commerce, Consumer Protection and Health Committee on Thursday. The bill’s potential conflict with federal law is less clear than with HB 1907.

U.S. Rep. Ed Case has argued for new federal legislation to crack down on the FAA. Case is pushing HR 4547, the “Safe and Quiet Skies Act” of 2019, which directs the FAA to adopt tighter safety recommendations championed by the National Transportation Safety Board.

Opposition From Tour Companies

Although Hawaii Attorney General Clare Connors provided testimony in opposition to the bill, arguing that the state can’t overcome the FAA’s exclusive franchise to regulate aviation, the state Department of Land and Natural Resources nevertheless testified in favor.

Suzanne Case, director of DLNR, said in prepared remarks: “The department’s state parks, forest reserves, natural area reserves, and other public areas are being impacted by low flying helicopter air tours in such locations as Diamond Head State Monument on Oahu and Haena and Napali State Parks on Kauai and most recently the natural area reserves of the mountains of West Kaua’i.

“In some cases, these air tours may have safety implications as well as noise and wildlife implications which in turn impact the visitor experience for those at these locations.”

The helicopter tour industry uniformly condemned the legislation, with operators noting that the state lacks the authority to impose or enforce such an instrument flying requirement.

Douglas Froning, chief pilot and general manager for Magnum Helicopters said by phone that even if the state had the legal power to impose such a restriction, Magnum “does not believe it would increase safety. It merely provides a false sense of security to the public without reducing any risk.”

Froning and other helicopter industry officials noted that the pilot in the Kobe Bryant crash actually did have an instrument flying record, though the company that owned the helicopter did not.

“I don’t think this (bill) will accomplish anything. Commercial operators aren’t supposed to be in a cloud,” Froning said of existing visual flight rules procedures. “If they already find themselves in the cloud, this (law) isn’t going to help.”

Dan Heath, director of tours of Mauna Loa Helicopters, was similarly dismissive. The wording of HB 1907, he said in a telephone interview, “shows you how little they understand about what they’re trying to propose. Pilots spend a huge amount of time and money training for air tours. If you can’t see out of the window, it’s going to be a lousy tour.”

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