Commuter Operations and General Certification and Operations Requirements

SUMMARY: This rule requires certain commuter operators that now conduct

operations under part 135 to conduct those operations under part 121.

The commuter operators affected are those conducting scheduled

passenger-carrying operations in airplanes that have passenger-seating

configurations of 10 to 30 seats (excluding any crewmember seat) and

those conducting scheduled passenger-carrying operations in turbojet

airplanes regardless of seating configuration. The rule revises the

requirements concerning operating certificates and operations

specifications for all part 121, 125, and 135 certificate holders. The

rule also requires certain management officials for all certificate

holders under parts 121 and 135. The rule is intended to increase

safety in scheduled passenger-carrying operations and to clarify,

update, and consolidate the certification and operations requirements

for persons who transport passengers or property by air for

compensation or hire.

EFFECTIVE DATE: January 19, 1996.

FOR FURTHER INFORMATION CONTACT: Alberta Brown, (202) 267-8321;

Katherine Hakala, (202) 267-8166; or Dave Catey, (202) 267-8166;

Federal Aviation Administration, 800 Independence Avenue, SW,

Washington, DC 20591.

SUPPLEMENTARY INFORMATION:

Outline of Final Rule

I. Introduction

II. History

III. The Problem and Related FAA Action

A. Accident Rate for Commuter Operations

B. Public Perception

C. Congressional Hearings

D. NTSB Study

E. Related FAA Action

IV. The Proposed Rule and General Description of Comments

V. Major Issues

A. General Justification

B. Applicability

C. Aircraft Certification

D. Flight Time Limits and Rest Requirements

E. Age 60 Rule

F. Dispatch System

G. Airports

H. Effective Date and Compliance Schedule

VI. Discussion of Specific Proposals

A. Part 121 Discussion

1. Subpart E--Approval of Routes: Domestic and Flag Air Carriers

2. Subpart F--Approval of Routes: Approval of Areas and Routes

for Supplemental Air Carriers and Commercial Operators

3. Subpart G--Manual Requirements

4. Subpart H--Airplane Requirements

5. Subpart I--Airplane Performance Operating Limitations

6. Subpart J--Special Airworthiness Requirements

7. Subpart K--Instrument and Equipment Requirements

8. Subpart L--Maintenance, Preventive Maintenance, and

Alterations

9. Subpart M--Airman and Crewmember Requirements

10. Subpart N and O--Training Program and Crewmember

Qualifications

11. Subpart P--Aircraft Dispatcher Qualifications and Duty Time

Limitations: Domestic and Flag Air Carriers

12. Subparts Q, R, and S--Flight Time Limitations and Rest

Requirements: Domestic, Flag, and Supplemental Operations

13. Subpart T--Flight Operations

14. Subpart U--Dispatching and Flight Release Rules

15. Subpart V--Records and Reports

B. Part 119-- Certification: Air Carriers and Commercial

Operators

VII. Discussion of Comments Related to Costs and Benefits

VIII. Regulatory Evaluation Summary

IX. The Amendments

Background

I. Introduction

On March 29, 1995, the Federal Aviation Administration (FAA)

published a Notice of Proposed Rulemaking (NPRM) on ``Commuter

Operations and General Certification and Operations Requirements''

(Notice No. 95-5; 60 FR 16230.) In Notice 95-5, the FAA proposed that

commuter operations conducted in airplanes with 10-30 passenger seats

be conducted under the domestic or flag rules of part 121 of title 14

of the Code of Federal Regulations. Currently, scheduled passenger-

carrying operations in airplanes with passenger-seating configurations

of over 30 seats or more than 7,500 pounds payload capacity are

conducted under part 121. Scheduled passenger-carrying operations in

airplanes with passenger-seating configurations of 30 seats or less and

7,500 pounds or less payload capacity are conducted under part 135.

Part 121, which provides the safety requirements for all major air

carriers (as well as for any certificate holder conducting scheduled or

nonscheduled operations with airplanes configured with more than 30

passenger seats), is generally considered to have more restrictive

requirements than part 135. The regulatory changes were introduced in

order to address the continually changing needs of the industry and to

fulfill the agency's statutory requirement. This is the final rule,

based on Notice 95-5.

II. History

Historically, the maximum certificated takeoff weight (MCTW) of an

airplane determined both an airplane's categorization and operating

requirements. Beginning in 1953, airplanes with an MCTW of 12,500

pounds or less were defined as ``small airplanes'' and were permitted

to carry fewer than 10 passengers in on-demand air taxi service. The

rules under which those operations were conducted were eventually

codified as part 135. Airplanes with an MCTW of more than 12,500 pounds

were defined as ``large airplanes,'' and most large airplanes carried

20 or more passengers in scheduled air transportation. The Civil

Aeronautics Board (CAB) used the large/small dividing line to separate

major airline companies, who were required to obtain a Certificate of

Public Convenience and Necessity (CPCN) from the CAB in order to

operate in interstate commerce as a common carrier, from on-demand air

taxi operators, who were exempted from obtaining a CPCN.

During this time, the CAB issued only a small number of CPCN's to

major, publicly-recognized companies, such as Eastern, American, Delta,

Pan Am, TWA, etc. In contrast, on-demand air taxi operators numbered in

the thousands. These operators were typically fixed-base, usually at

small airports, and owned fewer than five airplanes. They provided on-

demand air transportation as well as other services, such as training

new pilots and selling and renting small airplanes. Typically, the air

taxi portion of such an operator's business was a small part of that

business and rarely involved any scheduled operations.

Beginning in the late 1960's, airplane manufacturers began to

design and build small airplanes, that is, less than 12,500 pounds

maximum certified takeoff weight, that were capable of carrying more

than 10 passengers, often close to 20. Some air taxi operators began to

offer services that resembled

[[Page 65833]]

the services of the major airlines, given the economic opportunity to

operate under the less restrictive requirements of part 135. Though

these scheduled commuter operators began to overtake some air taxi

operations, they still remained a small percent of the thousands of air

taxi operators.

In 1978, as a result of the Airline Deregulation Act, the airline

industry was deregulated economically and air carriers were given more

freedom to enter and exit markets without prior government economic

approval. One of the most significant effects of this deregulation was

that it allowed major carriers to eliminate service to smaller

communities, where such service proved to be uneconomical for the large

aircraft the carriers operated. Major carriers were replaced in those

communities by the commuter carriers. Under this ``hub and spoke''

system, the major part 121 air carriers provided service to the large

metropolitan airports, while the growing class of scheduled part 135

air carriers provided service between smaller communities as well as

feeder service from the smaller communities to the larger cities to

connect with the major carriers' operations. With these changes, the

traditional two categories of operations became three categories of

operations--scheduled commuter operations, traditional air taxis, and

traditional major air carriers.

Also in 1978, in response to the Airline Deregulation Act, the FAA

reissued part 135 standards to upgrade commuter and air taxi safety

requirements and make them more like part 121. At that time part 135

certificate holders were required to meet more stringent requirements

in several areas, including weather reporting, flightcrew training,

maintenance, and qualifications for management personnel.

Since 1978, the FAA has issued a number of separate rule changes to

further align part 135 safety requirements with those in part 121.

Despite this realignment, differences between the regulations still

exist. The economic incentive to operate under part 135 still exists

because the requirements in part 135 are still less restrictive than

the part 121 requirements in many instances.

For the remainder of this document the following terms are used in

the following ways. ``Commuter,'' ``commuter airline,'' and ``commuter

operator'' mean those operators conducting scheduled passenger-carrying

operations under part 135 in airplanes with a passenger-seating

capacity of 30 or fewer seats. This current use of the word

``commuter'' does not include scheduled passenger-carrying operations

conducted under part 121 in airplanes with a seating capacity of 31 to

60 seats. The term ``commuter category airplane'' used in this document

refers to airplanes type certificated in that category under part 23 in

contrast to airplanes type certificated under part 25 which are

transport category airplanes. The term ``nontransport category

airplanes'' is used for commuter category airplanes and SFAR 41 and

predecessor normal category airplanes to be operated under part 121, as

well as for some older airplanes certificated before the predecessors

of part 25 (parts 04 and 4b of the Civil Air Regulations) came into

existence. The Department of Transportation (DOT) uses the term

``commuter'' more broadly to include all scheduled passenger-carrying

operations conducted in airplanes with a passenger-seating capacity of

20 to 60 seats. (Note: The High Density Rule, 14 CFR part 93 uses

``scheduled commuters'' differently. Its meaning under that part is not

relevant to its use in this document.) The term ``regional,'' which is

used by industry to refer to short-haul, passenger-carrying, scheduled

operations conducted under part 121 or part 135, is not generally used

by the FAA.

III. The Problem and Related FAA Action

Recent part 135 commuter accidents have focused public, government,

and industry attention on the safety of commuter operations. While the

safety level of part 135 commuter operations has continued to improve,

accident data, public perception, and recent government inquiries show

a need for additional measures.

III.A. Accident Rate for Commuter Operations

The airline industry that uses airplanes with a passenger-seating

capacity of 60 or fewer seats to conduct scheduled operations under

parts 121 and 135 is an essential part of the air transportation

network in the U.S. These airlines now fly more than all airlines did

in 1958. In 1993, over 50 million passengers, 12 percent of the total

passenger flights in the country, were flown by these airlines. Half of

these passengers were flown in part 135 operations, i.e., in aircraft

with 30 or fewer seats.

Over the past two decades the safety record of part 135 commuters

has greatly improved. The accident rate per 100,000 departures in 1993

was one-fourth the accident rate in 1980. However, the accident rate

for commuter airlines operating under part 135 continues to be higher

than the rate for domestic part 121 airlines. In the past 2 years,

several commuter airline accidents occurred that attracted media and

public attention and caused government and industry officials to

scrutinize the safety system for commuter operations under part 135.

These accidents included the December 1, 1993, crash of a Jetstream

3100, operated by Express II (as Northwest Airlink), at Hibbing, MN;

the January 7, 1994, crash of a Jetstream 4100, operated by Atlantic

Coast Airlines (as United Express), at Columbus, OH; and the December

13, 1994, crash of a Jetstream 3200, operated by Flagship Airlines (as

American Eagle), at Raleigh-Durham, NC. All of these accidents involved

fatalities.

III.B. Public Perception

With the increase in the number of flights to many communities

conducted in airplanes with a seating capacity of 30 seats or less,

some members of the public are questioning whether they are receiving

an appropriate level of safety in small propeller-driven airplanes

compared to the level of safety they receive in larger aircraft. This

public concern is partly a result of the integration of commuter

carriers with major airlines under an arrangement known as code-

sharing. The term ``code-sharing'' refers to the computerized airline

reservation system that lists a commuter flight in the reservation

system under the same code used by a major carrier. A passenger who

books with a major carrier may have a leg of the flight automatically

booked with a smaller commuter affiliate of the major carrier.

With the media attention to recent commuter accidents, the

passenger may also believe that the flight involves more risk because

the smaller airplane and its operation may not have to meet the same

safety standards. Most passengers probably do not realize that some

differences in standards are necessary because of differences in the

airplane and operation and that some of the accidents that are

categorized by the media as ``commuter'' accidents occurred in flights

that were being conducted under part 121; that is, in airplanes with

over 30 passenger seats.

The differences in regulations were initially based on differences

in the types of operations and differences in the size of airplanes;

these differences in many instances still apply. But other differences,

such as certain performance and equipment requirements,

[[Page 65834]]

operational control requirements, and passenger information

requirements are not size- or operationally-based. Some differences

between the two sets of regulations must be maintained while others can

be eliminated to improve the safety of commuter operations.

III.C. Congressional Hearings

On February 9, 1994, Congress held hearings on the adequacy of

commuter airline safety regulations. The purpose of the hearings was to

determine if FAA safety regulations should be modified to establish a

single standard for all scheduled operations regardless of airplane

size. Representatives of government, industry, and the public presented

testimony. Most testimony supported the upgrading of safety

requirements.

III.D. NTSB Study

In November 1994, the National Transportation Safety Board (NTSB)

published a study on commuter airline safety. (National Transportation

Safety Board Safety Study: Commuter Airline Safety, NTSB/SS-94/02.) The

study was based on the NTSB's analysis of accident investigations and

previous studies, on a recent site survey of airline operations and

policies conducted at a representative sample of commuter airlines, and

on information obtained from a public forum on commuter airline safety

convened by the NTSB.

In the study, the NTSB found that the commuter air carrier industry

has experienced major growth in passenger traffic and changes in its

operating characteristics since the NTSB's 1980 study of the commuter

airline industry. The NTSB found that there has been a trend in the

industry toward operating larger, more sophisticated aircraft, and many

carriers have established code-sharing arrangements with major

airlines. The NTSB concluded that the regulations contained in 14 CFR

part 135 have not kept pace with changes in the industry.

As a result of the findings, the NTSB issued the following safety

recommendations to the FAA:

Revise the Federal Aviation Regulations such that all

scheduled passenger service conducted in aircraft with 20 or more

passenger seats would be conducted in accordance with the provisions of

14 CFR part 121. (A-94-191)

Revise the Federal Aviation Regulations such that all

scheduled passenger service conducted in aircraft with 10 to 19

passenger seats would be conducted in accordance with 14 CFR part 121,

or its functional equivalent, wherever possible. (A-94-192)

In the 1994 study, the NTSB examined the differences in flight

dispatch requirements between parts 121 and 135. The NTSB found that,

in the absence of support from licensed dispatch personnel, it is

difficult for a part 135 pilot to accomplish several tasks between

flights in the short periods of time available. The lack of support

might increase the risk of critical mistakes that could jeopardize the

safety of flight. As a result the NTSB issued the following

recommendation to the FAA:

Require principal operations inspectors (POI) to periodically

review air carrier flight operations policies and practices concerning

pilot tasks performed between flights to ensure that carriers provide

pilots with adequate resources (such as time and personnel) to

accomplish those tasks. (A-94-193) The FAA published all of the NTSB

recommendations in the Federal Register (59 FR 63185, December 7, 1994)

and received public comments generally supporting the expansion of the

operational rules of part 121, except for flight time limitations, to

commuter operations under part 135. Some commenters had considerable

reservations about applying certain part 121 equipment requirements to

smaller airplanes. The FAA considered these comments in developing this

rule.

III.E. Related FAA Action

In December 1994, the FAA proposed revisions to the training and

qualification requirements of certificate holders conducting commuter

operations under part 135. The proposed rule also addressed crew

resource management training for pilots, dispatchers, and flight

attendants in part 121. (59 FR 64272, December 13, 1994) [Add Final

Action]

IV. The Proposed Rule and General Description of Comments

In Notice 95-5, the FAA proposed to require that all scheduled

passenger-carrying operations in airplanes with a passenger-seating

configuration of 10 or more seats (excluding any crewmember seat) and

all scheduled operations in turbojets (regardless of the number of

seats) must be conducted under part 121. The proposal would require

certificate holders now conducting scheduled passenger-carrying

operations under part 135 in airplanes with a passenger-seating

configuration (excluding any crewmember seat) of 10 to 30 seats or in

turbojets to be recertificated and to conduct the applicable operations

in compliance with part 121 requirements. In some instances the

proposed rule revised the requirements of part 121 to make compliance

with the requirements feasible for operations in smaller, nontransport

category airplanes.

In response to Notice 95-5, the FAA has received over 3,000

comments from the public. Of these, most are solely on the issue of the

Age 60 Rule. Many of the Age 60 commenters are pilots and other

individuals who address the current rule in part 121; very few address

the specific Age 60 issue contained in this rulemaking, i.e. the

applicability of the Age 60 Rule to pilots of affected commuter

airplanes. These comments are summarized in Section V.E., The Age 60

Rule.

Approximately 200 comments were received on the substantive issues

raised by Notice 95-5. These commenters represent air carriers;

manufacturers; associations representing air carriers, manufacturers,

pilots, dispatchers, and passengers; State and local governments; the

U.S. Small Business Administration; the National Transportation Safety

Board; and individuals. While some commenters voice general support for

the goals of Notice 95-5, most raise concerns about specific proposals.

Industry commenters are particularly concerned about the costs of

complying with the proposed rule.

The FAA also conducted three public meetings on the proposed rule:

on May 18, 1995, in Anchorage, Alaska; on June 14, 1995, in Chicago,

Illinois; and on June 21, 1995, in Las Vegas, Nevada. Testimony from

the public meetings and written statements submitted at the meetings

have been included in the FAA public docket, have been considered by

the FAA in developing the final rule, and are discussed in the

following discussion of comments along with all written comments that

were submitted to the FAA docket.

In Notice 95-5, the FAA identified major issues that the agency

addressed in developing the proposal. These included applicability of

the proposal, aircraft certification issues, flight time limits, the

Age 60 Rule, use of a dispatch system, certain equipment items, and the

compliance schedule. Comments received on these major issues and the

FAA's response to these comments are discussed in Section V. Comments

received on specific proposals and the FAA's response to these comments

are discussed in Section VI. Comments specifically addressing cost

issues are discussed in Section VII. Below is a list of some of the

major commenters and their associated abbreviations. The full name of

each commenter is used when the commenter is first mentioned. In

[[Page 65835]]

subsequent discussions, the commenter's abbreviation, as shown below,

is used.

Abbreviations for Commenters

AAAE American Association of Airport Executives

AACA Alaska Air Carriers Association

ADF Airline Dispatchers Federation

AIA Aerospace Industries Association

ALPA Air Line Pilots Association

APA Allied Pilots Association

ASA Atlantic Southeast Airlines

GAMA General Aviation Manufacturers Association

HAI Helicopter Association International

IAPA International Airline Passengers Association

NACA National Air Carrier Association

NATA National Air Transportation Association

NTSB National Transportation Safety Board

Penair Peninsula Airways

RAA Regional Airlines Association

V. Major Issues

V.A. General Justification

In Notice 95-5, the FAA justified the proposed rule on the basis of

the higher accident rate for commuter airlines. Parts of the proposed

rule were also supported by the testimony from Congressional hearings

on commuter airline safety regulations and by the NTSB study, based on

accident investigations and previous studies, which found that part 135

regulations had not kept pace with changes in the industry.

Comments: The NTSB and the Air Line Pilots Association (ALPA)

generally support the proposal and its justification. A comment from

the International Airline Passengers Association (IAPA) supports the

rulemaking justification by stating the findings of a recently

completed IAPA study of commuter/regional airplane safety records in

the United States covering the period 1970 through March 31, 1994.

According to IAPA, during that period carriers using airplanes with 30

or fewer seats had 29 fatal accidents with 249 passenger fatalities;

over 30 seat regional carriers had 1 fatal accident with 2 passenger

fatalities; major airlines had 11 fatal domestic jet accidents with 527

passenger fatalities.

In contrast to these comments, many other commenters state that the

proposed rulemaking lacked sufficient justification. Recent accident

data, say these commenters, have shown significant reductions in

accident rates for commuters so that the difference in accident rates

for part 121 operations and part 135 commuter operations is minimal.

According to at least one of these commenters, if the accidents that

occurred in extreme environments such as Alaska are removed, the

accident rate under the two parts would be either the same or lower for

part 135 commuter operations.

According to some commenters, the recent accidents cited in Notice

95-5 were all caused by pilot error and thus would not have been

prevented by this rulemaking but could have been prevented by

improvements in training.

Some commenters state that the proposed rule is the result of

public, media, and agency overreaction to recent commuter accidents and

that both the public and the media drew inaccurate conclusions about

commuter airline safety from these accidents. According to these

commenters, instead of hastily proposing rules based on incomplete

information, the agency should have informed the public that many so-

called commuter operations are already being conducted under part 121.

Several commenters state that the proposed rule will decrease

safety because in order to avoid the proposed restrictions, certificate

holders now operating airplanes with a seating capacity of 10 to 19

passenger seats will switch to reciprocating-powered airplanes with a

passenger seating capacity of 9 or less in order to continue to operate

under part 135. Furthermore, some commenters state that if fares are

significantly increased to pay for the more restrictive requirements,

passengers may choose ground transportation, which has a much higher

accident rate.

Several commenters state that the proposed rule would have a

significant economic impact on small airline operators, in some cases

forcing them to close their businesses, thus eliminating air

transportation to some locations. In addition, according to some

commenters, the proposed rule would have a negative impact on

competition, particularly in the foreign market because the cost of

U.S. manufactured airplanes would increase.

FAA Response: The FAA does not agree with the assessment that the

proposed rule lacked sufficient justification. The FAA recognizes the

validity of some of these comments especially in regard to unintended

safety decrements if the aircraft performance portions of the proposed

rule were adopted on the schedule proposed. While the FAA recognizes

the improvements in the accident data for commuter airlines in recent

years, it intends through this rulemaking, and other related rulemaking

actions underway, to reduce the accident rate even further.

Several commenters have questioned the need for a rule that would

move affected commuters into part 121 domestic or flag operations. For

instance two commenters argue that a dispatch system would not have

prevented the three accidents cited by the FAA in the NPRM. It would be

a mistake to assume that the FAA is basing this final rule on just

those three accidents. Similarly, it would be a mistake to conclude

that the FAA is justifying this rule on merely ``perceptions'' of a

problem. Those accidents were catalysts for the Government to focus on

the differences in the part 121 accident rate and the accident rate for

10- to 30-seat part 135 commuters. Over the next 15 years affected

commuters are expected to have had 67 more accidents than they would

have had if the accident rate for part 135 affected commuters were the

same as that for part 121 scheduled operators. The FAA believes that

adoption of this rule will significantly close the accident rate gap

over time.

The FAA believes that the part 121 regulatory scheme for scheduled

operations is more appropriate for the 10- to 30-seat scheduled

operations. The added safety features and requirements in part 121

domestic/flag rules, including the dispatcher system, will increase

safety for the affected commuters. Because most accidents are caused by

human errors, rules such as the part 121 training rules and the

dispatcher system rules are some of the most valuable tools in reducing

the number of these kinds of accidents. Rules that most directly relate

to preventing accidents caused by human errors are being imposed on the

affected commuters on a faster schedule than many of the other rules

(e.g., aircraft performance and certain equipment retrofits). It can be

reasonably anticipated that applying part 121 operating rules,

including these two groups of rules, can begin to immediately and

significantly reduce the accident rate for affected commuters. For

instance, the FAA anticipates that requiring operators to have someone

(i.e., a certificated dispatcher) double check the work of the pilot

and provide the flight crew with updates on weather and alternate

airports can reduce some human factor errors. The FAA believes that if

the flight crew is subjected to more stringent flight and duty

safeguards (either the current part 121 domestic flight and duty rules

or the rules in a soon to be issued NPRM in which the FAA will propose

to overhaul all the flight and duty regulations), the dangers of

fatigue causing a human factors error will be reduced. Enhanced part

121 training (which is being required of

[[Page 65836]]

affected commuters in an associated final rule) will also reduce some

human factor errors.

It is critically important to impose the bulk of the part 121

regulatory scheme on affected commuters because the absence of any

significant portion of that regulatory scheme may lessen the

effectiveness of the rest of the safety features in the part 121

regulatory scheme. Even the best trained and well rested pilot is a

human being and, therefore, subject to making errors. With a dispatcher

system, the chances of pilot miscalculations or oversights could be

reduced. Moreover, a dispatcher can assist the flight crew in making

enroute plans for an alternate airport (which might be necessary due to

weather problems, air traffic control problems, airplane equipment

problems, fuel problems, etc.) while the crew focuses on flying the

airplane. It is reasonable to conclude that the accident rate for

affected commuters can be reduced to a level closer to that of current

part 121 domestic operations by eliminating most of the regulatory

differences that the two different regulatory schemes allowed.

While major air carriers may require commuter affiliates to follow

certain part 121 standards, and in some cases even exceed some part 121

standards, no part 135 commuter operator currently operates under part

121 operations specifications or totally complies with all part 121

standards (e.g., many part 121 requirements are based on the assumption

that transport category airplanes are operated). Most importantly, no

part 135 commuter is required by current FAA regulation to comply with

part 121 requirements.

Recent accidents brought to public attention the differences

between part 135 and part 121 and the lack of continuing justification

for these differences. As Notice 95-5 pointed out, the distinction

between these two types of operations was, in the beginning, an obvious

necessity. Major air carriers engaged in public transportation were

entirely different from the small on-demand, air taxi operator. But

with the development and growth of what has come to be known as

commuter service, the line between the two has blurred. Certain

segments of the commuter industry have continued to develop commuter

category airplanes, holding the line at 19 passenger seats in order to

stay within the limits of the less restrictive airworthiness

regulations for nontransport category aircraft. This has created the

potential for the further development of commuter airplanes

specifically designed to stay within the limits of the less restrictive

regulations while at the same time becoming as sophisticated or more

sophisticated in technology than some transport category airplanes

operated by the major carriers. With hindsight, the FAA may not have

drawn the line as it currently is but would have attempted from the

start to maintain one set of requirements.

Until now the line between the requirements has not created a

safety concern, but as the commuter market grows, the disparity between

the two sets of requirements is of more concern. There is no longer any

justification for maintaining two sets of standards for scheduled

operations in airplanes with a passenger-seating configuration of 10 or

more seats. When a passenger pays for a ticket on an FAA certificated

commuter operation, that passenger must be assured of the highest

possible level of safety.

With respect to commenters concerns that the proposed rules will

actually decrease safety because certificate holders will switch to

reciprocating-powered airplanes, the FAA has modified the proposal,

especially in regard to the schedule for some airplanes to meet part

121 airplane performance criteria, to allow operators sufficient time

to build up capital or credit to make changes to the existing fleet or

to purchase new airplanes that meet the higher performance standards.

The FAA does not want to move so fast as to force operators to use

airplanes that have even higher accident rates (i.e., airplanes with 9

or fewer seats).

The FAA finds that safety and the public interest require extending

the proposed compliance dates for imposing part 121 performance

criteria requirements and some equipment requirements until it is

economically feasible for operators of 10- to 19-seat airplanes to

acquire or lease replacement aircraft. The FAA has analyzed the

situation and has concluded that many operators of 10-15 seat aircraft

would replace those aircraft with 9 or fewer seat aircraft to avoid the

sudden imposition of large costs on their current fleets. Without the

FAA modifying its proposal with regard to airplane performance

requirements, many airplanes would be eliminated from scheduled service

at the first compliance date (i.e., 15 months after publication of the

final rule) and operators of other airplanes would have to offload

passenger seats, thereby causing the economic and safety impacts

discussed previously. This modification would be consistent with the

National Transportation Safety Board's (NTSB) recommendation for

airplanes with 10- to 19-seats in scheduled service. For those

aircraft, the NTSB recommended that scheduled passenger service be

conducted in accordance with part 121 ``* * * or its functional

equivalent, wherever possible''.

Clearly the NTSB used the phrase ``wherever possible'' because it

knew that it was not possible for a substantial portion of the 10- to

19-seat airplane fleet to meet all of the requirements of part 121. The

NTSB carefully chose its words when it made its recommendations for 10-

19 seat airplanes used in scheduled service. The NTSB recognized that

the FAA necessarily had to exercise judgment about which part 121

regulations to impose, which regulations could be modified to achieve

functional equivalency, and which regulations simply might not be

possible.

In regard to comments that higher fares resulting from this

rulemaking will cause passengers to switch to less safe modes of

transportation, it has been the FAA's observation that passengers are

usually willing to pay for safety. While some may choose to drive

rather than fly, that has not stopped the airlines in the past from

raising fares. It should also be noted here that the public tolerates a

higher accident rate for automobile travel than for airplane travel. If

air transportation accident rates approached that of ground travel,

most Americans would stop flying. The air transportation industry is

very aware of this; it is the main reason that air transportation is

safe. As one commenter points out, the recent commuter accidents caused

a 12 percent drop in passengers on commuter airlines. That is a

significant cost to industry.

The FAA has carefully considered the economic impact of the

proposed regulations and has reviewed and revised its analysis in light

of the comments received. (See Section VIII.) The agency has determined

that the impact of the final rule should not disrupt air transportation

service and that few, if any, certificate holders will discontinue

their commuter operations. During the transition period, the FAA will

work with certificate holders who are switching to part 121

requirements to make the switch as smooth as possible. It should also

be noted that the compliance schedule provides for a gradual updating

of equipment and operations and will allow certificate holders the

choice of upgrading or phasing out airplanes that cannot be upgraded

without significant cost.

Some may argue that there may still be limited circumstances, even

with these changes, where the effects of this rule (and related

rulemakings on

[[Page 65837]]

upgraded training requirements and pilot flight time and duty

limitations) will be so burdensome as to lead to adverse safety

consequences and/or a loss of critical air service. This is neither

FAA's intention nor its expectation. Indeed, the entire premise of this

rulemaking is that safety standards can and must be improved for the

benefit of passengers in 10-30 passenger seat aircraft in scheduled

service.

Nevertheless, there is in place in 14 CFR 11.25 a process for

requesting and granting exemptions from regulatory requirements,

including those adopted here. As with any request for exemption, of

course, an applicant would have to demonstrate that the public interest

justifies such an exemption. In this case, an applicant could show, for

example, that it is unable to comply with a particular provision or a

particular schedule date due to circumstances beyond its reasonable

control (rather than its own failure to act in a timely or prudent

manner), that there is convincing evidence that alternative service is

unavailable to the public, and that the carrier would be able to

maintain an adequate level of safety during the period of the requested

exemption.

We would expect that any exemption from this rule would be for a

limited period only, such as the time required for delivery of a piece

of equipment that has been ordered. Our goal would be to permit the air

carrier to come into compliance with the rule in an orderly manner, and

not simply to delay or avoid the cost of compliance.

The FAA considers this rulemaking a positive step towards promoting

air transportation by renewing confidence in commuter operations. Most

importantly, this rulemaking should reduce the accident rate of the

affected commuters to a rate that is closer to that of current part 121

domestic operators.

This rulemaking is consistent with the FAA's obligation in

accordance with section 44701(d) of Title 49 of the U.S. Code that when

prescribing a regulation or standard to promote safety or to establish

minimum safety standards, the Administrator shall consider the duty of

an air carrier to provide service with the highest possible degree of

safety in the public interest. The intent of this rulemaking is to

provide the highest possible degree of safety to affected commuter

operations.

V.B. Applicability

The FAA proposed that part 121 requirements would apply to all

scheduled passenger-carrying operations for compensation or hire in

airplanes with a passenger-seating configuration of 10 or more seats

and to all scheduled passenger-carrying operations for compensation or

hire in turbojet-powered airplanes regardless of seating capacity.

(Throughout the rest of this document these certificate holders are

referred to as the ``affected certificate holders'' or the ``affected

commuters.'') Under the proposal, scheduled passenger-carrying

operations in non-turbojet airplanes with 9 or fewer passenger seats,

on-demand operations with airplanes with 30 or fewer passenger seats,

operations in single-engine airplanes, and operations in rotorcraft

would continue to be under part 135.

The proposed rule would also have eliminated the frequency of

operations test of five round trips per week which allowed some part

135 scheduled operations to be conducted under the on-demand rules of

part 135.

Comments: While no commenters specifically object to applying part

121 requirements to commuter operations in airplanes of 20 to 30

passenger seats, several commenters, many of them small part 135

certificate holders, object to applying part 121 requirements to

commuter operations in airplanes of 10 to 19 passenger seats. According

to these commenters, the FAA did not sufficiently justify imposing the

more restrictive part 121 requirements on operations in these size

airplanes and the small certificate holders of these airplanes would

not be able to meet the economic burden of the proposal. A few

certificate holders state that if the regulations are implemented as

proposed they would either have to downgrade their airplanes, reduce

the number of passenger seats, or terminate certain services. This is

especially the case for small fixed-based certificate holders, who

conduct mostly on-demand service with some scheduled service, and for

certificate holders who service remote areas such as parts of Alaska,

Hawaii, or the islands of Samoa.

Commenters also state that the burden is greater for certificate

holders not affiliated with a major airline and that drawing the line

at 10 or more includes many small, independent certificate holders.

According to commenters, these certificate holders provide a different

kind of service from what the larger commuter operators provide.

One commenter, IAPA, states that part 121 requirements should apply

to all scheduled passenger-carrying operations, no matter how many

seats are on the airplane. According to this commenter, by leaving out

the under 10-seat aircraft from the rulemaking, passengers would be

exposed to travel on the least safe aircraft operating in scheduled

passenger transportation. According to the commenter, most under 10-

seat aircraft are piston-engined, with a lower level of engine

reliability and performance. The aircraft are frequently operated in

harsh environments thereby exposing passengers to higher risks.

Many of the commenters who object to the applicability of part 121

to aircraft with 10 to 19 passenger seats, also object to the

definition of ``scheduled'' in proposed Sec. 119.3. According to these

commenters, the effect of the current description in SFAR 38-2 of

commuter air carriers that includes 5 round trips per week should not

be changed. Apparently some small certificate holders that conduct

mostly on-demand service also provide one or two scheduled service

flights per week. According to these commenters, if they have to

upgrade the airplanes and operations to part 121 to conduct these

scheduled flights, they will downgrade the airplanes or terminate the

service. The commenters state that they cannot afford to comply with

part 121, that the service they provide offers one-of-a-kind service to

remote places or resorts, and that in some instances there is no ground

transportation to these locations.

Several on-demand operators and the National Air Transportation

Association (NATA) comment that the FAA should not revise part 135 on-

demand requirements either at this time or at any time. These

commenters are responding to a statement in Notice 95-5 that additional

standards for on-demand air taxi operations may be considered in the

future.

The General Aviation Manufacturers Association (GAMA) objects to

including all scheduled passenger-carrying operations in turbojets

under part 121 regardless of the number of passengers. While GAMA

agrees with the FAA's assumption that no turbojets are being used in

regularly scheduled part 135 operations, it objects to the

applicability because the FAA presented no technical justification for

the proposal. GAMA recommends allowing turbojets with a passenger-

seating capacity of 9 or less to operate under part 135. Aerospace

Industries Association (AIA) also objects that no rationale was

presented for including turbojets. AIA states that the proposed rule

offers an unfair competitive advantage for normal category turboprops

against jets with a passenger-seating capacity of 9 or less. United

West Airlines states that it is a small operation with two jets, that

it costs $70,000 a year to train its four pilots, and that the proposed

rule will put the airline out of business.

[[Page 65838]]

Two individual commenters recommend that ``any scheduled operation

with airplanes seating more than 9 passengers but less than 19

passengers'' be operated under supplemental rules when that scheduled

operation is a code-sharing arrangement with another part 121 scheduled

carrier.

FAA Response: The so-called ``frequency of operation'' provision in

the SFAR 38-2 definition of commuter air carrier does not exist for

current part 121 operations. Affected commuters being upgraded to part

121 by this rule will be required to conduct all of their scheduled

operations under part 121 regardless of the number of scheduled

operations. However, the FAA has decided to retain the frequency of

operations distinction for those operations conducted in airplanes with

a passenger-seating configuration of 9 seats or less by revising the

definitions of ``commuter operation'' and ``on demand operation'' in

Sec. 119.3. Therefore, scheduled operations in airplanes with a

passenger-seating configuration of 9 or less (except turbojets) and

conducted on a particular route with a frequency of fewer than five

round trips per week (regardless of whether one or more airplanes are

used on the route) would be conducted under the requirements applicable

to on-demand operations.

The FAA believes that, because of the nature of the operation in

which small turbojets, which are type certificated under part 25, are

used (e.g., transoceanic, long range, international, etc.), they

approximate the operations of larger air carriers. For example, part

135 contains no requirements for long-range navigational equipment or

long-range fuel considerations. In an effort to increase the safety for

passengers carried in those kinds of operations, the FAA has determined

that any scheduled operations of turbojet airplanes should be conducted

under part 121.

The FAA disagrees with commenters who suggest that commuter

operations in code-sharing arrangements should be conducted under the

rules for supplemental operations. Code-sharing, although it may affect

passengers' perceptions, is a business/marketing arrangement and is not

the basis for an FAA regulatory scheme. Scheduled operations in

airplanes with 10 or more passenger seats should come under part 121

domestic or flag, as appropriate, not under supplemental rules.

The only operators who currently operate under part 135 on-demand

rules that would be required to conduct their operations under part 121

scheduled rules are those who are included because, as discussed above,

part 121 does not contain a frequency of operation provision. If

circumstances in the future necessitate a change to these rules,

commenters will have an opportunity to comment on any proposed changes.

Air Tour Industry Comments: Several comments were received from air

tour operators in the State of Nevada and the vicinity of the Grand

Canyon. Some of these certificate holders would be affected by the

rulemaking because they operate nontransport category airplanes of 10

to 19 seats and because they provide point-to-point service; for

example, from Las Vegas to Grand Canyon Airport even though the flights

are exclusively marketed as sightseeing and not point-to-point travel.

Despite the fact that they technically fall into the category of a

commuter operator, these commenters claim that they are more like an

on-demand operator and that the proposed rule would penalize them for

using larger, safer airplanes than their competitors. One of these

commenters states that it does not fly city to city, but flies

regularly scheduled flights that take off and land at the same airport.

This operator states that, because of the nature of the operation and

because of the proposed definition changes, it would be required to

comply as a scheduled operator.

According to the commenters, since they have upgraded from 6- to 9-

seat airplanes to 19-seat airplanes, they have been required to install

ground proximity warning systems (GPWS), traffic alert and collision

avoidance systems (TCAS), cockpit voice recorders (CVR), and flight

data recorders (FDR), while their competitors have not been burdened by

these costs. According to some of these commenters, this equipment is

not beneficial in their operating environment because they typically

fly in VFR conditions on short-range flights of an hour or less.

The commenters complain that if the proposed rule is implemented,

they will be forced to replace the turboprop airplanes with smaller

reciprocating-powered planes and will thereby lose some significant

safety benefits such as the following:

The two-pilot crew requirement with captains required to

hold an Air Transport Pilot rating.

Aircraft certificated to higher levels of aircraft

performance.

Aircraft maintenance procedures under the more

comprehensive Continuous Airworthiness Maintenance Program.

Safety equipment such as GPWS, TCAS, CVR, and weather

radar.

One commenter lists some of the more ``onerous'' proposed

requirements:

``Ditchable'' exits in case of water landings.

Emergency floor path exits.

Third attitude indicator (in aircraft flown in daylight

under visual flight rules).

Portable protective breathing equipment (PBE).

A commenter points out that the new aircraft performance

requirements would limit maximum operating weight at Grand Canyon due

to the high altitude.

According to these commenters, switching to smaller airplanes will

increase air traffic congestion in the Grand Canyon area, decrease

safety for passengers, and double or triple noise levels.

According to one commenter, these certificate holders do not have

code-sharing partners and while these certificate holders sometimes

provide point-to-point service, the flights are typically part of an

all-inclusive tour package which includes ground transfers to Las Vegas

hotels, sightseeing flights to the Grand Canyon, and motor coach tours

of the Grand Canyon. This is totally unlike typical commuter

operations.

Another commenter, however, says that at least one of the air tour

operators does use code-sharing with a major carrier and that the

offering of its scheduled flights is available by referencing airline

computers all over the world.

Some of the commenters cite an NTSB report (``Safety of the Air

Tour Industry in the United States,'' June 1, 1995) which states that

the implementation of SFAR 50-2 has created a safe operating

environment for air tour operators over the Grand Canyon. One commenter

quotes NTSB as saying, ``The level of safety of air tour operations

could be improved by creating a national standard for air tour

operations that contains definitions specific to the air tour industry

and specific requirements, including unique operations specifications,

to accommodate localized unique conditions, similar to the special

conditions contained in SFAR 50-2.''

One commenter states that his company recruits retired airline

pilots to provide a high level of experience and stability to the

flightcrews.

The Clark County Board of Aviation is concerned that the proposed

rule could be devastating to individual certificate holders and

adversely affect the vitality of the air tour industry in Southern

Nevada.

[[Page 65839]]

The Grand Canyon Air Tour Council states that the proposed expanded

definition of ``scheduled operations'' is the problem and that the

definition was changed with no satisfactory explanation or

justification.

The Office of the Lieutenant Governor of Nevada testified at the

public meeting held in Las Vegas that compliance would affect a ``$250

million industry that we have worked hard to develop.''

FAA Response: The FAA does not agree that air tour operations are

totally unlike commuter operations. Much of an air tour flight is like

much of a commuter flight. If an air tour operator is conducting

scheduled operations, as defined in Sec. 119.3, in airplanes with a

passenger-seating configuration of 10 or more, it must comply with part

121 domestic or flag requirements, as applicable. This includes

operators who fly from and return to the same point on a scheduled

basis.

The FAA agrees that certain aspects of air tour operations make

them appear to be unlike commuter operations. For example, portions of

air tour flights are at lower altitudes, typically over rugged and

remote terrain, and often in airspace that is congested with other

sightseeing aircraft. The FAA has begun an air tour industry project to

study the implications of these differences to safety and to develop

regulations, as necessary, to address specific features of air tour

operations. If regulations are implemented as a result of the project,

they would be in addition to current regulations, as is SFAR 50-2 which

prescribes requirements for special conditions relating to flights over

the Grand Canyon. The FAA project will consider the recent NTSB study

cited by commenters. Because certain part 121 and 135 provisions are

being recodified into part 119, SFAR 50-2 and SFAR 71 are being updated

to conform to this rulemaking.

Alaskan Comments: Several comments were received from certificate

holders in Alaska, Alaska government agencies, and others interested in

how the proposal will affect Alaskan operations. Currently Alaskan

certificate holders conducting scheduled operations in airplanes of 10

to 30 seats comply with part 135. The regulations allow them not to

comply with flight time limitations for scheduled operations

(Sec. 135.261(b) and (c)) and instead allow them to follow the

regulations for on-demand operations. Alaskan certificate holders using

airplanes of more than 30 seats must comply with part 121 supplemental

requirements for nonscheduled flights and flag requirements for

international and intra-Alaska scheduled operations. Notice No. 95-5

proposed no exceptions for Alaska. Certificate holders whose operations

fit the applicability for scheduled operations for airplanes of 10 or

more seats would be required to comply with part 121 domestic

requirements. International operations would follow flag requirements

of part 121 and charter operations would follow supplemental

requirements of part 121. Alaskan operators currently operating under

part 121 flag rules would have to operate under part 121 domestic rules

except for those operations that meet the definition of flag operations

in proposed Sec. 119.3.

The basic thrust of the comments is that the Alaska environment is

unique and that requiring Alaskan commuter operators to comply with

part 121 requirements would be devastating to certain certificate

holders in Alaska and therefore to certain segments of air

transportation. Furthermore commenters point out that most air

transportation in Alaska is conducted in small reciprocating-powered

airplanes with passenger-seating capacities of under 10 seats.

Therefore, the proposed rule would not have a significant effect on air

transportation safety in Alaska and would impose an economic burden on

a few certificate holders who provide upgraded, i.e., safer, service.

According to commenters, the accident rate for airplanes with under 10

seats is much higher than for turbine-powered airplanes with 19 seats.

(Accident data analyzed by the FAA verifies that, unlike the rest of

the nation, the part of the commuter fleet in Alaska involved in

accidents contains a large proportion of under-10-seat aircraft.)

Peninsula Airways (Penair), as well as other commenters, states

that characteristics of Alaska make commuter operations in the State

unlike those in other parts of the country. In particular flights are

conducted in the same time zone, pilots do not have long commutes to

their jobs, flights are not usually conducted between 9 p.m. and 7

a.m., and operations subject to Air Traffic Control (ATC) are not in

congested airspace. This rationale is primarily in defense of using the

flight time limit requirements of part 135 nonscheduled operations.

Several commenters emphasize the absolute necessity of air travel

in Alaska where many of the towns and villages are not accessible by

road. They say that Alaskans are dependent on air transportation and

the cost of that transportation must remain affordable. High cost items

in the proposal, such as the possible need to upgrade airports, the use

of a dispatch system, the various equipment requirements, and certain

performance requirements, would boost the fares to levels that many

residents of Alaska could not afford. The State of Alaska Department of

Transportation and Public Facilities states that ``the proposed air

carrier and airport regulations could devastate Alaska's heavily

aviation dependent economy.''

The Alaska Air Carriers Association (AACA) states that the proposed

rule would end the growth of the 10- to 19-seat airplane and would

increase fares by 67 to 100 percent. The proposed airport legislation

is expected to cost the state $100 million. AACA states that the

proposed rule would directly affect only 15 certificate holders in

Alaska. Two-thirds of the scheduled air carriers use aircraft with a

seating capacity of 10 seats or less.

ERA Aviation, which currently operates under part 121 flag rules,

objects to the proposal to operate as domestic/supplemental. It

operates over 100 aircraft, fixed and rotary wing, nationally and

internationally. The commenter states that for years Alaska part 121

operators have been operating under flag rules, both for scheduled and

nonscheduled operations. This has allowed increased flexibility in crew

scheduling, which is necessary because of the length of Alaska routes,

the lack of facilities in remote locations, and the lack of road

networks or other alternate forms of transportation to outlying

communities. Section 119.21 would require these carriers to operate

under domestic rules, which would decrease crew scheduling flexibility,

add substantially to costs, derogate safety, and probably result in the

elimination of vital air transportation services to some outlying

communities. The commenter says there is no safety justification for

such a change because Alaska part 121 operators have established an

excellent safety record under existing rules. They say that, at the

very least, Alaska carriers currently operating under flag rules should

be allowed to continue to operate under flag rules for both scheduled

and nonscheduled operations.

A part of the proposal that would have affected several Alaskan

certificate holders is the proposal that single-engine airplanes with

10 passenger seats now operating scheduled flights under part 135 would

in effect have to remove a seat in order to continue operating in

scheduled service under part 135. Single-engine airplanes are

ineligible for operation under part 121. The only 10-seat single-engine

airplane model involved is the single-engine de Haviland DHC-3 Otter

(not to be confused with the twin-engine de Haviland DHC-6 Twin Otter

mentioned

[[Page 65840]]

elsewhere in this notice). According to AACA and other commenters,

there is no possible safety benefit in taking a seat out of an

airplane, but the cost to certificate holders who want to continue to

use these airplanes in scheduled operations will be significant.

NATA comments that no accident involving the Otter would have been

prevented by limiting the seating to 9 passengers. Furthermore,

according to the commenter, the FAA cost on this issue is another

example of gross underestimation; actual costs will be 15 times higher

(almost $22,000 per aircraft). The City and Bureau of Juneau opposes

the proposal to remove a seat from the 10-seat airplanes so that they

can operate under part 135. This commenter notes that there will be

additional flights, additional noise, and additional congestion on the

water and in the air. It notes that it is incomprehensible how the

reduction of one seat from the Otter will provide an additional level

of safety. Wings of Alaska comments that the most cost-efficient

floatplane used in southeast Alaska is the single-engine DHC-3 Otter.

Because there is no cost-effective replacement aircraft available for

float operations that offers the same capacity as the Otter, replacing

them is not an option. Wings states that it operates the Otter about 6

months a year. Four communities that do not have runways receive daily

service. Wings purchased five 10-seat Otters in '92-93 to improve

service to a wilderness sports facility, substantially reducing noise

by reducing the number of flights by 50%. Wings notes that considering

initial operating experience (IOE) and route check requirements, it is

being operated at a higher level of safety than the 10 seat, on-demand

aircraft allowed under the rule to be operated in part 135. Wings

estimates that the removal of one seat would have cost them $85,000 in

1994. Wings asks that the Cessna Caravan and the Cessna Grand Caravan

also be allowed to operate with 10 seats. AACA comments that Ketchikan

Air Service, Taquan Air Service, and Wings of Alaska together operate

12 Otters in southeastern Alaska.

The NTSB comments that it intentionally excluded airlines that

operate exclusively in Alaska from its study of commuter airline safety

because of the unique characteristics of the environment in Alaska. The

NTSB currently is conducting a study of commercial Alaska aviation

including commuter airlines. The NTSB held two public meetings in

Alaska during June 1995 and visited a number of scheduled and

nonscheduled part 135 certificate holders to collect information for

the study. The NTSB intends to compare flying operations in Alaska with

the rest of the U.S. The study is scheduled for completion in 1995.

Several other commenters mention the study and suggest that the FAA

should wait until the study is completed before making any changes to

Alaskan regulations.

ALPA, GAMA, and other commenters state that safety issues are the

same in or out of Alaska and that, therefore, Alaska should not be

given a blanket exemption from the rulemaking. ALPA and GAMA state that

Alaskan certificate holders, as well as certificate holders in other

parts of the country, may need to be exempted from certain requirements

that are not applicable to the type of operations being conducted and

should go through the standard exemption request procedures in such

cases.

One comment from an individual pilot in Alaska states that the

schedule he flies of 14 days on and 14 days off is exhausting, and that

even though he gets 10 hours of rest in each 24 hours, it is not enough

over a 14-day period. He is in favor of the proposed flight time limit

changes.

Some Alaskan certificate holders comment that they rely on

experienced pilots who are familiar with the particular demands of

Alaskan operations. Penair states that 10 percent of its pilots are age

60 or over and that 20 percent are over age 52.

Commenters who oppose the rule suggest either exempting Alaska

altogether, not including the 10-to-19 seat airplanes in the rule, or

allowing under-19-seat airplanes to be covered under the supplemental

rules of part 121 rather than the domestic rules.

FAA Response: The FAA agrees with the commenters who state that

safety issues are the same in or out of Alaska. The FAA has

specifically considered the implications of the proposal on Alaska

given its unique characteristics and has determined that the rules

should apply to Alaska as proposed. While the NTSB comment on Notice

95-5 states that the NTSB excluded Alaska from its safety study on

commuter airline safety, the NTSB states in the report that its

findings from the information obtained in the course of the study

``apply to operations in Alaska as well as the other 49 states and U.S.

Territories.'' (``Commuter Airline Safety,'' NTSB/SS-94/02). Therefore,

this final rule does not provide a blanket exemption for Alaska.

In response to the single-engine airplane issue, the FAA has

decided to allow an exception to continue. Currently, several part 135

certificate holders conduct scheduled passenger-carrying operations in

single-engine airplanes type certificated with two pilot seats in the

``cockpit'' and 9 passenger seats in the ``cabin.'' Some certificate

holders are authorized to conduct scheduled operations in that

airplane, the DHC-3 Otter, under daytime VFR, and carry a tenth

passenger in the right-hand pilot seat. In Notice 95-5, the FAA

proposed to limit all scheduled operations of single-engine airplanes

to the carriage of nine passengers, under all conditions. (60 FR 16235,

16273) The FAA has decided to allow the current practice to continue

for operators who currently conduct single-engine operations under

daytime VFR with a tenth passenger.

Comments on Exemptions/Deviations/Waivers: Currently some

certificate holders operating under part 135 that will be affected by

this rulemaking have obtained exemptions, deviations, and waivers from

certain part 135 requirements.

AACA states that AACA has held an exemption on behalf of its

members allowing removal and installation of aircraft seats by certain

pilots and trained ground personnel under an FAA-approved program. The

commenter states that it is unclear whether or not aircraft operated

previously under part 135 in Alaska would be allowed to continue this

seat removal and installation under part 121 with an appropriate

exemption. AACA states that taking away this option would significantly

increase air carriers' costs and diminish their flexibility to utilize

aircraft in ``combi'' (combination cargo/passenger) configurations.

AACA recommends that all exemptions, deviations, or waivers held by a

part 135 operator automatically be carried over into its part 121

operation. As presently written, Notice 95-5 would require compliance

with part 121 first, and only then would the FAA evaluate requests for

exemptions to part 121 rules. This places additional and unwarranted

operational costs on air carriers transitioning to part 121.

FAA Response: The specific exemption referred to by the AACA

applies only to operations with airplanes with a passenger-seating

configuration of 9 or less, and therefore is not affected by this

rulemaking.

However, exemptions issued for operations under part 135 do not

automatically continue in effect for operations under part 121.

Therefore, affected commuters who will in the future be operating under

part 121 must reapply for any exemptions they believe should apply to

their part 121 operations after the compliance date of this rule. Also,

general exemptions issued to present part 121 operators will

[[Page 65841]]

not apply automatically to new part 121 operators so any new part 121

operator will have to apply to be included in these existing

exemptions.

V.C. Aircraft Certification

The proposed rule would amend part 121 to require each 10- to 19-

passenger seat airplane that is to be operated in scheduled operations

and for which an application for type certification is made after March

24, 1995, to be type certificated in the transport category. Affected

commuter airplanes are type certificated under the requirements of part

23.

In Notice 95-5 the FAA stated its intent to review the standards of

parts 23 and 25 to see if the level of safety intended by part 25 could

be achieved for those airplanes with a passenger-seating configuration

of 19 or less through compliance with a particular standard of part 23

or another standard, in lieu of the corresponding standard of part 25.

On completion of that review the FAA stated its intent in future

rulemaking to consider amending part 25 as necessary to accommodate

type certification in the transport category of certain types of

airplanes previously type certificated in the commuter category.

The FAA also proposed that airplanes configured with 10 to 19

passenger seats already in service or manufactured in the future under

an already existing part 23 commuter category type certificate would

have to comply by specified compliance dates with certain performance

and equipment requirements in part 121. These performance and equipment

requirements are discussed later in this preamble.

In Notice 95-5 the FAA included a table that set out a list of

potential modifications that were being considered for application to

airplanes having a passenger-seating configuration of 10-19 seats that

were type certificated in the commuter category (or a predecessor) if

the airplanes are to be used in scheduled operations under part 121.

The table included a column that indicated that for 12 of the 38 issues

addressed, the FAA had determined that any required upgrade should

apply only to airplanes manufactured under a type certificate for which

application is made after March 24, 1995. Since these 12 issues will be

the subject of a future NPRM, the FAA is not addressing specific

comments on the substance or cost of these issues in this document.

Comments: ALPA fully supports the proposal to require newly-

designed airplanes to comply with the standards of part 25 and also

supports continued use of commuter category airplanes. The commenter

does not, however, concur that airplanes type certificated under part

23 normal category (i.e., pre-commuter category) should be permitted to

remain in operation with more than 10 passenger seats, even in non-air

carrier service. ALPA appears to base its position on differences in

performance requirements between commuter category and the predecessor

normal category standards.

American Eagle supports the proposed rulemaking and states that,

``while there may be limited circumstances when aircraft design and/or

manufacture may preclude or delay compliance with FAR part 121 or FAR

part 25, cost and weight considerations should not be an acceptable

barrier to the increase in safety which is derived from applying the

higher standards of aircraft airworthiness, airline operations and

passenger safety which those regulations provide.''

In contrast, six other commenters do not believe that any

propeller-driven airplanes with 10 to 19 passenger seats should be

required to meet the transport category standards of part 25. Although

the commenters' reasons vary, the comments focus on three basic issues:

(1) Commuter category standards are appropriate for airplanes of this

class; (2) there is no evidence that safety would be enhanced by

requiring future airplanes to comply with part 25; and (3) the cost of

complying with part 25 would be prohibitive.

Similar comments concerning recertification of existing part 23

airplanes under part 25 were also offered, apparently under the

misunderstanding that airplanes already type certificated, or

derivatives of those airplanes, would have to be recertificated under

part 25.

Some commenters believe that the airplane certification issue is of

such magnitude that it should be held in abeyance for a separate future

rulemaking program. In this regard, the commenters assert that

extensive changes to part 25 would be needed to accommodate the

airplanes otherwise certifiable under part 23 commuter category and

that those changes would entail a considerable expenditure of FAA

resources. They further believe that any such changes should be subject

to harmonization with corresponding standards of the European Joint

Aviation Requirements (JAR).

Several commenters cite the FAA's 1977 proposal to require all

airplanes used in air carrier service to meet part 25 transport

category standards. That proposal was later withdrawn. According to

commenters, the part 23 standards of that era were considerably

different from those of today's part 23 commuter category. The level of

safety expected by the public today is much greater than that tolerated

in 1977.

A number of other commenters address the proposed retrofitting of

existing part 23 normal and commuter category airplanes to meet certain

part 25 standards. Those comments are addressed in the section-by-

section portion of this preamble (Section VI).

One commenter has developed and produces a unique propulsion system

in which two turbine engines drive a single propeller through a common

gearbox. In addition to the installations already being made in

existing airplanes, the commenter anticipates a future installation of

this system in an airplane of entirely new design. Since any new model

would have to be type certificated under the provisions of part 25 in

order to be eligible for operation under part 121, the commenter

requests that part 25 be amended to accommodate airplanes with this or

similar propulsion systems.

FAA Response: Rather than forcing the retirement of part 23 normal

category airplanes, as recommended by ALPA, the FAA proposed in Notice

No. 95-5 to permit their continued use in air carrier service provided

certain changes were made on a retrofit basis to enhance their level of

safety. Banning those airplanes would be extremely costly, but most

importantly could result in an unintended safety decrement. Indeed, the

FAA's analysis indicates that moving too quickly on the imposition of

part 121 standards could have the unintended effect of lowering the

level of safety because operators would not be in a financial position

to quickly obtain new airplanes and currently there are not enough

replacement airplanes available that meet the higher standards. The

result could be a shift from 10- to 19-seat turbopropeller airplanes to

9-seat or less reciprocating engine airplanes, which have an even

higher accident rate.

The six commenters' assertions that commuter category standards of

part 23 are appropriate for airplanes of this class and that there is

no evidence that safety would be enhanced by type certification under

part 25 are, to a certain extent, correct. Through a number of recent

amendments and pending amendments, the level of safety established by

the commuter category has been and is being enhanced considerably. In

many instances, commuter category airplanes must meet standards that

are the same as, or very similar to, those of part 25 transport

[[Page 65842]]

category. Requiring future 10- to 19- passenger seat airplanes to be

type certificated under part 25 would complete this effort to ensure

that these airplanes used in air carrier service meet the same aircraft

certification standards as the larger airplanes.

In response to comments that part 23 airplanes could not be type

certificated using part 25 standards, the FAA notes that it did not

propose in Notice No. 95-5 that part 23 normal or commuter category

airplanes presently in operation would have to comply with part 25

standards for type certification. Instead, it proposed that part 23

airplanes that will be required to be operated under part 121 will have

to comply with certain part 121 equipment and performance requirements.

In response to the individual comment on a unique propulsion

system, although the commenter's request is beyond the scope of this

rulemaking, it will be considered during the review of part 25

discussed above.

V.D. Flight Time Limits and Rest Requirements

The FAA proposed that the part 121 domestic flight time limits and

rest requirements would apply to affected commuter operators when

conducting operations within the United States. Under the proposal

affected commuter operators, when conducting operations to or from the

United States, would comply with the flag flight time limitations and

rest requirements of subpart R. Additionally, if these certificate

holders use these same airplanes for nonscheduled operations, those

certificate holders would be required to comply with supplemental

flight time limitations and rest requirements of subpart S of part 121.

As stated in Notice 95-5, since the flight time limitations and

rest requirements for flag and supplemental operations were not updated

in 1985 when domestic limits were, the FAA has developed an NPRM that

is being issued concurrently with this final rule. (See elsewhere in

this issue of the Federal Register.)

Comments: Atlantic Southeast Airlines (ASA), Regional Airlines

Association (RAA), and Big Sky Airlines comment that the FAA should

provide specific and scientifically-based data to support this

significant change. Fairchild Aircraft adds that the additional time

off duty provided by the proposal will not necessarily be used for

rest. NATA comments that there are differences in part 135 operations

that justify a different set of flight time limitations and rest

requirements: part 135 operations are generally confined to a

particular area, pilots of smaller certificate holders rarely commute a

long distance to and from work, and pilots have fewer overnight stays

as part of their schedules. Air Vegas comments that unless an exception

is provided, seasonal operators would have to hire additional crews in

order not to exceed the 7-day limit of 30 hours or the monthly limit of

120 hours. This commenter notes that short-term employment of such

pilots is next to impossible. Morton Beyer and Associates comments that

the cost of hiring additional pilots is expected to add another $250

million to airline costs. Twin Otter International comments that the

1,200 yearly limit in part 135 is based on the part 121 100-hour-per-

month concept, and that the regulations really are similar.

Several individuals strongly urge the FAA to adopt the part 121

standards for the upgrading commuter pilots. American Eagle comments

that it applies part 121 domestic rules to its part 135 operations and

believes that all air carriers providing commercial passenger service

should use either the domestic or flag rules of part 121.

One individual notes that the reduced rest provision in part 135

allows for only 8 hours of rest between scheduled flights. Another

individual comments that commuter pilots have a high frequency of

takeoffs and landings, fly in the busier low-altitude airspace, deal

with more controllers per flight mile, and deal with more weather than

their part 121 counterparts. One person comments that certificate

holders routinely schedule 3-4 hour breaks to preclude violations of

the 8 hours of flight in 24 hours rule; however, the effect of this is

to stretch out the duty day. The result is a higher duty time to flight

time ratio which is not accounted for in the current rules. IAPA

supports the proposal but also expresses concern that the current

regulations fail to count, as part of duty time, the time period when

flightcrews are on reserve duty, standby duty, or carrying a pager or

other telephonic device. IAPA urges the FAA to treat reserve or standby

duty as duty time.

ALPA comments that while the upgrade to part 121 will result in an

improvement in flight time limits and rest requirements, part 121 will

continue to be deficient in this area until additional rulemaking

action is taken, as promised by the FAA.

Alaska commenters argue for maintaining the current regulations.

ERA Aviation estimates that if the proposed rule is adopted, it would

necessitate at least a 15% increase in the number of pilots it would

need, resulting in a $500,000+ increase in costs. Penair finds four

reasons for excepting Alaska: Operations are conducted in the same time

zone, few Alaska pilots commute to their jobs, less than 5% of Alaska

operations occur between 9:00 p.m. and 7:00 a.m., and Alaska does not

have the congested ATC operations which are found in the lower 48

states. AACA also presents this argument, adding that going from 1,400

hours of duty per year down to 1,000 represents a 29% decrease in

productivity. Other Alaska certificate holders, e.g., Wings, Northern

Air Cargo, Taquan Air Service, Tanana, endorse the AACA comment.

One individual commenter from Alaska opposes any attempt to create

exceptions to the requirements for Alaska. This person supports the

assertion that Alaskan operations are basically the same as state-side

operations and should be afforded no special exemptions.

This individual, a pilot who flew over 1,300 hours last year,

states that there were many consecutively scheduled 14-hour duty days

and many canceled days off. Ten hours of rest may sound adequate, but

not for days on end. The individual questions the logic that one is

more rested in one geographic area than in another. According to the

commenter, duty cycles that are unsafe in the lower 48, are also unsafe

in Alaska.

Another individual from Alaska states that the FAA has shown no

data to indicate any problem with the provisions of Sec. 135.261(b),

which allows Alaskan scheduled operators to use Sec. 135.267. The

individual states that in 1994, he flew 1320 hours, had 173 days off,

slept in his own bed every night, and never had less than 10 continuous

hours of rest in any 24-hour period. He believes he probably had more

rest and time off than the average long-haul part 121 pilot. The

commenter states that the proposed flight/duty time limits would cause

scheduling nightmares for operations in rural/remote parts of Alaska.

FAA Response: The FAA is holding in abeyance a final decision on

the proposed imposition of current part 121 flight time limitations and

rest requirements on affected commuters pending a review and

disposition of comments on the separate flight and duty rulemaking in

which the FAA proposes to overhaul all the flight and duty rules. The

separate rulemaking, if adopted, would harmonize flight and rest

requirements for all part 121 and part 135 carriers. The FAA

anticipates that the separate rulemaking will result in a net cost

savings to the industry as

[[Page 65843]]

a whole. In the meantime, affected commuters will continue to operate

under the current part 135 flight and duty rules. This will prevent

needless expenditure of resources by affected commuters who would have

to implement flight and rest provisions under the commuter rule

proposal and then later might have to change their system to comply

with the separate rulemaking. For the same reasons the FAA will allow

part 121 certificate holders operating in Alaska and Hawaii to continue

to follow the flight and duty rules of part 121 applicable to flag

operations, even though under this rulemaking these certificate holders

are now classified as conducting domestic operations.

Accordingly, Secs. 121.470, 121.480, and 121.500 include an

exception for affected commuters allowing that they continue to comply

with flight time limits and rest requirements of part 135.

Additionally, Sec. 121.470 will allow existing Alaska and Hawaii

intrastate scheduled domestic operations to continue to be conducted

under flag rules.

V.E. Age 60 Rule

Section 121.383(c) prohibits a certificate holder from using the

services of any person as a pilot, and prohibits any person from

serving as a pilot, on an airplane engaged in operations under part 121

if that person has reached his or her 60th birthday. Part 135 has not

had any such limitation. The FAA proposed to impose one age limitation

on all pilots employed in part 121 operations, including those pilots

currently employed in affected part 135 scheduled operations. The FAA

stated in Notice 95-5 that if it determines that it is appropriate to

propose a different age limit in another rulemaking action, it will

propose to apply the revised limitation to all part 121 operations,

including the pilots in commuter operations.

Comments: The age limitation question was the subject of over 2,000

written comments (including about 1,000 postcards from members of an

airline pilot organization) and oral presentations at public meetings.

The overwhelming majority of these comments concern the general

question of whether there is a need for an age limit in part 121, and

do not address any particular aspects of applying an age rule to

commuter pilots.

Several commenters, however, state that if commuter pilots are

subjected to an age limit, the FAA should adopt a phased-in

implementation schedule to avoid abruptly ending the careers of pilots

who had not planned on retiring at age 60. Another commenter states

that it hires over-age-60 retired part 121 pilots.

FAA Response: As discussed above, the FAA has identified a strong

need to enhance the safety of commuter operations. Commuter airlines

are carrying an increasing number of passengers over an increasing

number of miles. While safety has improved over the past two decades,

commuter airlines operating under part 135 continue to have a higher

accident rate than domestic part 121 airlines. The FAA can no longer

justify most distinctions between parts 121 and 135 commuter

operations.

The part 121 regulatory scheme provides a network of safety

features. Because most accidents are caused by human error, rules

designed to enhance the performance of pilots are among the most

valuable in reducing the number of accidents. Elsewhere in this

preamble the FAA discusses other provisions that serve this purpose,

such as the critical role of the aircraft dispatch system in double

checking the work of the pilot and providing updates on weather and

alternate airports. The training requirements for commuter pilots are

being upgraded, and eventually part 121 flight and duty time rules or

the newly proposed rules will apply to them. The Age 60 Rule provides

an additional measure of safety by reducing the risk that age-related

degradation will affect pilot performance. A pilot may have the best

training in the world, and be well-supported by an aircraft dispatch

system, but if the pilot suffers from a subtle age-related degradation

in performance, safety will be reduced. Also, the potential safety

benefits of training and dispatching may be reduced by human safety

lapses that could occur or do occur more frequently with age.

The ``Age 60 Rule'' was adopted by the FAA in 1959 (24 FR 9767,

December 5, 1959). At the time Notice 95-5 was issued, the FAA was also

considering whether, in the interest of safety, the Age 60 Rule should

be retained as is or revised to allow pilots to continue to fly in part

121 operations past their 60th birthday. The FAA completed its review

of the Age 60 Rule. In a Disposition of Comments (Disposition)

published in the Federal Register, [cite], the FAA announced that it

will not propose to change the Age 60 Rule at this time. The

Disposition thoroughly discusses the various issues regarding the need

for an age limitation and what that age should be, including the issues

raised in the comments to Notice 95-5 that concern the Age 60 Rule in

general, and those comments will not be further discussed here. This

rulemaking deals only with the application of part 121 rules to

affected commuter operations.

In Notice 95-5 the FAA proposed a general compliance date (that is,

a date on which most provisions must be complied with) of 1 year after

publication. The Notice also proposed delayed compliance dates for

several of the requirements (other than the age limitation), to provide

time for the work necessary to comply with the proposed requirements.

In this final rule, the FAA has adopted a general compliance date of 15

months after the date of publication of this final rule in

Sec. 121.2(c), and also has adopted delayed compliance dates for a

number of requirements, giving the air carriers 2, 4, or more years to

comply with certain of the new requirements.

In response to the comments requesting delayed compliance dates,

and after further evaluation, the FAA has considered that there are

factors warranting delay in the compliance date for the Age 60 Rule, as

it applies to those affected commuters that now will be brought under

part 121. The lack of an age limitation in part 135 has created

reasonable expectations on the part of both the affected commuter

operators and pilots regarding the length of time that the pilots would

continue in service: Some of those operators have spent money to hire

and train pilots with the expectation that they would serve past the

age of 60; and the pilots have not had to plan on leaving their

positions at age 60. In fact, certain affected commuters appear to have

a practice of hiring retired part 121 pilots, and will no longer be

able to do so.

Further, this rule requires the affected commuters to make

extensive changes in equipment, personnel, and procedures before the

general compliance date. Also, final rules have been adopted that

impose new requirements for training, including standardized pilot

training and crew resource management training. The affected commuters

operators should not be required to stop using the services of their

over-age-60 pilots in scheduled operations (10 or more seats) and train

replacements until these new programs are in place, and the training

can be under the new programs.

Accordingly, the FAA has determined that the Age 60 Rule, as it

applies to certain pilots, should have an extended compliance date. As

it applies to pilots newly hired by commuter operators, the Age 60 Rule

will apply on the general compliance date indicated in Sec. 121.2(c).

Until that date, there will be no age restrictions on the pilots of

commuter

[[Page 65844]]

operations that are upgrading to part 121. After that date, the

affected commuters will no longer be able to hire pilots who have

reached their 60th birthday (except for pilots who as of that date were

employed as pilots for another affected commuter). However, pilots who

are employed by affected commuters on that date will be able to

continue to serve until December 20, 1999, after which the Age 60 Rule

will apply to every pilot under part 121.

The delay in applying the rule will provide some relief from the

difficulties discussed above. The 4-year compliance period for these

pilots will permit the affected commuters to recover services for

several more years from those pilots in which they recently have

invested in training. Delaying the application of the rule to new hires

until the general compliance date will give affected commuters time to

adopt new hiring practices, at a time when the operators will have many

other new requirements under this rule to comply with. The 4-year

compliance period for pilots will give them time to plan for retirement

or for changing jobs. It will also give affected commuters additional

time to make careful selections of well-qualified pilots and train them

under the new training requirements. And, the operators will not have

to replace all of their over-age-60 pilots at once, at a time when so

many other new requirements must be complied with.

V.F. Dispatch System

Parts 121 and 135 require certificate holders to exercise

operational control over all flights conducted by the certificate

holder. ``Operational control'' is defined in 14 CFR part 1 as ``The

exercise of authority over initiating, conducting and terminating a

flight.'' Operational control consists of making decisions and

performing activities on an ongoing basis that are necessary to operate

specific flights safely. These activities include among other things

crew and airplane scheduling, reviewing weather and NOTAM's (Notices to

Airmen), and flight planning.

Parts 121 and 135 provide for three general types of operational

control systems based on the kinds of operations and the complexity of

operations: aircraft dispatch, flight following, and flight locating

systems. Part 121 domestic and flag operations require a dispatch

system, part 121 supplemental requires a flight following system, and

part 135 requires a flight locating system for any flight for which a

flight plan is not filed. In Notice 95-5, the FAA proposed that the

affected commuters would be required to have a dispatch system.

Affected commuters would have to meet all part 121 dispatch

requirements, including dispatcher qualification requirements,

recordkeeping, and flight release requirements. As proposed, affected

commuters that would conduct some nonscheduled flights under part 121

supplemental rules could use a flight following method for the

nonscheduled flights.

The FAA also stated in Notice 95-5 that Alaskan operations pose

certain unique problems and requested comments on alternatives that

could be considered for Alaska.

Comments: Two individuals suggest that the use of a dispatcher and

dispatch system be an option for 10- to 19-seat certificate holders,

recommending compliance with existing subpart F of part 121. Both

commenters believe that the FAA should seriously consider permitting,

at least on an interim 36-month basis, compliance with subpart F flight

following requirements in lieu of subpart E dispatch requirements for

transition carriers. This will, in their opinions, gain the early

momentum of the industry by making it possible for many certificate

holders to transition early. A long lead time is necessary to qualify

existing personnel as dispatchers under existing part 65. The

commenters remind the agency that during the early 1980's, by the FAA's

own rules, 20- to 30-seat aircraft were subject to part 121

supplemental rules, including the flight following requirements of

subpart F. One of these individuals also states that interim compliance

with subpart F flight following requirements would ease the transition

to subpart E dispatch requirements for affected certificate holders.

NATA comments that the FAA lacks understanding on the types of

operations 10- to 19-seat certificate holders typically fly and

recommends a flight following system instead of a dispatch system. NATA

states that many small, independent carriers operating aircraft with 10

to 19 seats may have only 2 to 4 of these types of airplanes and may

operate them over only a few selected routes. According to NATA, many

of these carriers conduct on-demand operations in addition to their

scheduled activity. NATA believes, along with several other commenters,

that for operations such as these, to implement a full dispatch system

will result in significant cost with little or no benefit.

RAA and other commenters suggest that the FAA identify specific

safety objectives in requiring a dispatch system for short-haul

certificate holders.

One commenter believes that a formal dispatch system for all

scheduled air carriers should be required, but points out both the pros

and cons of requiring such a system. This commenter, as well as others,

states that pilots may be shouldering many additional responsibilities

other than flying the aircraft in an effort to minimize the cost of

flight operations. Due to the task saturation of pilots and other

crewmembers, functions involving flight planning, weather analysis, and

weight and balance calculations may not be thoroughly performed.

According to the commenter, the majority of commuter pilots are, as a

rule, very young and inexperienced. These crews must continually

perform at peak levels of performance both on the ground and in the

air.

According to this commenter, as well as others, the use of the

flight dispatcher would increase safety, operational efficiency, and

productivity. The duties of filing the flight plans, checking NOTAMs,

planning fuel requirements dictated by weather, and obtaining ATC

routing would be completed by the dispatcher prior to the crew arriving

for the flight. Optimum routes based on known ATC or weather delays

would be filed, resulting in substantial fuel savings and improved

arrival and departure reliability. The pilots would now be able to

concentrate on flying and be able to relax and rest between flights.

Flight could be more effectively managed, thus saving fuel, maximizing

aircraft utilization, and passenger satisfaction.

On the other hand, according to the commenter, mandating the

dispatch system for part 135 air carriers may create some heavy

financial burdens. It will require a facility, communications hardware

for the facility and the aircraft, trained personnel, and training for

dispatchers. The initial capital outlay would not be recovered for

several years. According to the commenter, this mandate will place

severe constraints on many less established carriers and may actually

result in bankruptcy for some.

Many commenters are in favor of the role of the aircraft dispatcher

in operational control issues. One commenter states that the

requirement for a formal dispatch system is long overdue.

One commenter believes that dispatch centers might create a sense

of complacency on the part of the flightcrew and, along with other

commenters, thinks that automated flight planning and flight following

information should be used in lieu of dispatchers and dispatch centers.

Two

[[Page 65845]]

of the commenters advocating automated flight following systems state

that the three accidents cited by the FAA in Notice 95-5 would not have

been prevented by the use of a dispatcher. One commenter states that in

his experience PIC's typically check dispatcher computations but do not

duplicate the computations as the FAA stated in Notice 95-5.

The NTSB states that in its 1994 study report, it examined the

differences in flight dispatch requirements between parts 121 and 135.

The NTSB found that, in the absence of support from licensed dispatch

personnel, pressures on commuter airline pilots to accomplish several

tasks between flights in shorter periods of time might increase the

risk of critical mistakes that could jeopardize the safety of flight.

As a result, the NTSB recommended that the FAA require each principal

operations inspector (POI) to periodically review air carrier flight

operations policies and practices concerning pilot tasks performed

between flights. This review was to ensure that carriers provide pilots

with adequate resources (such as time and personnel) to accomplish

those tasks. According to NTSB, the proposed rulemaking, if

implemented, would meet the intent of the safety recommendation (A-94-

193).

ASA, RAA, and Gulfstream International Airlines support many of the

elements of the dispatcher rule. They state that flight dispatch

systems that are required under part 121 are extensive since they

address the dispatch and en route communications needs for a span of

air carriers from international airlines with worldwide flight

operations to the largest U.S. regional carriers. ASA supports the

requirement for licensed dispatchers, believing that the most qualified

candidates for licensing as dispatchers are the individuals currently

employed as flight followers. These commenters request that the

criteria in Sec. 65.57 be examined to provide guidance for granting a

dispatcher certificate based on practical experience as a flight

follower under part 135 operations. According to the commenters, many

flight followers have passed the written portion of the dispatch

license but have not attended formal dispatch school and do not hold

licenses. However, they may have extensive practical experience in

scheduled air carrier operations performing what is essentially a

dispatcher function. According to these commenters, the criteria

contained in Sec. 65.57 includes experience in scheduled military

operations. The commenters believe that if military experience is

applicable, the experience of a flight follower with a scheduled

airline should qualify. These commenters also point out that the

practical portion of the dispatcher license is administered using a

Boeing 727 aircraft. The commenters believe that while many of the

functions and decision making circumstances would be the same, the

experience of part 135 flight followers, managing flights of high

performance turbopropeller-powered aircraft is a considerably more

significant and practical measure of their capabilities than military

experience or demonstrating their skills in managing a turbojet

operation. The commenters believe that the cost and time to send

current flight followers to a formal dispatcher school is not

justified.

Samoa Air comments that since its longest flight is only 70 miles

(35 minutes), a dispatch system would not enhance or change any of its

current requirements. Samoa has established VFR and IFR fuel

requirements to all of its destinations and the requirements do not

change. The only alternate airport is the destination airport. Samoa

also states that Sec. 121.101 requires each domestic and flag operator

to show that enough weather reporting facilities are available along

each route to ensure weather reports and forecasts necessary for

operations. Section 135.213 allows the pilot in command to use various

other sources, including his own weather assessment, for VFR

operations. Of the four airports Samoa serves, only one (departure

airport) is in controlled airspace with weather reporting facilities

and instrument approach procedures. Enroute and terminal weather

conditions are received through the ATC tower from their weather

station. VHF communications with the tower cover almost the entire

route, so the aircraft has ready access to any weather information

available and direct information on the status of communications,

navigation, and airport facilities. A dispatcher would not enhance

safety but would add significant cost. If Samoa is required to provide

weather conditions at each airport to the pilot from an approved source

and the pilot can not assess the weather himself, the rule change could

eliminate all of Samoa's present operations.

Similarly, Inter Island and Air Vegas comment that the requirement

for enroute weather reporting is unfeasible because of minimal weather

reporting facilities in the certificate holders' regions. Air Vegas

also comments that radio communication in mountainous terrain would be

difficult if not impossible with VHF radio systems because mountains

block radio transmission.

Air Vegas comments that all ``dispatcher duties'' are currently

being accomplished by personnel in the operations department, station

managers, and company pilots. All flight following is being done by

telephone. The commenter states that current flight following

procedures meet part 135 requirements and are operationally safe and

efficient.

Mesa Airlines comments that due to its short flight segments and

the lack of significant weather changes in the areas in which it

operates, a dispatch system is not needed. Mesa believes that all

enroute communications can be accomplished by ATC.

AACA states that the requirements of subpart E come at a time when

the availability of weather information in Alaska has been identified

as a significant issue adversely affecting aviation activities

(proceedings of an NTSB ``Aviation Safety in Alaska'' forum, May 1995).

The Airline Dispatchers Federation supports the dispatch proposal

and agrees with the upgrading of current commuter facilities to

dispatch centers. It believes this upgrading is necessary because of

the extensive use of code-sharing by the aviation industry. The

commenter is not in favor of amending part 121 dispatch rules for

certificate holders of the 10- to 19-seat category. The commenter

provides its estimate of costs to certificate holders that could be

affected by the implementation of this rule. The commenter notes that

the costs provided by some certificate holders may not be accurate. For

example, cost estimates concerning flight planning and performance

issues are inaccurate since several airlines use bulk stored flight

plans and performance information taken directly from aircraft flight

manuals for fuel planning. The commenter also provides its assessment

of various aircraft accidents for which it believes dispatchers could

have made a difference in changing events that led to the accident

(crew fatigue, lack of management oversight, operational control

issues, late arriving weather information).

ALPA comments that dispatchers should be required to complete their

5-hour inflight operating experience in 10- to 30-seat aircraft, not in

larger 60-seat aircraft, as currently allowed. ALPA proposes that

Sec. 121.400(b) be amended by adding a group specific to propeller-

driven aircraft with a seating capacity between 10-30 seats.

AACA comments that due to the operating environment of Alaska, the

pilot and not the dispatcher is in a

[[Page 65846]]

better position to access and evaluate operational control information.

The commenter believes that scheduled operations in Alaska more closely

resemble the operations conducted under supplemental rules and not

domestic or flag operations. The commenter notes that pilots frequently

are not in radio communication with company offices directly, but could

communicate via Flight Service Station, ATC, or other aircraft.

According to the commenter, enroute and destination weather conditions

are either not accessible or not available at any time from

``official'' sources. The commenter notes that three affected

certificate holders in Alaska presently have a part 121 type dispatch

system in place. AACA further states that the assumption that estimated

fuel savings by dispatchers would offset the cost of establishing a

dispatch system is not true. AACA recommends that the FAA adopt the

flight following supplemental rules of part 121 for Alaskan 10-19 seat

certificate holders. AACA also recommends that current part 135

personnel be ``grandfathered'' for dispatcher certificates if they have

been employed as flight followers. The commenter notes that the

practical experience dealing with turboprop aircraft and flight

planning may be lost to the industry if flight followers are required

to take extensive dispatcher training courses, pass a written and

practical test, and lose time and money on the job while they obtain an

FAA dispatcher certificate.

FAA Response: The FAA anticipates that requiring operators to have

a certificated dispatcher double check the work of the pilot and

provide the flightcrew with updates on weather and alternate airports

can reduce human factor errors. With a dispatcher system, the chances

of pilot miscalculations or oversights could be reduced. Moreover, a

dispatcher can assist the flightcrew in making plans for an alternate

airport (which might be necessary due to weather problems, air traffic

control problems, airplane equipment problems, fuel problems, etc * *

*) during the flight while the crew focuses on flying the airplane.

The FAA disagrees with the recommendation to make the use of a

dispatcher and dispatch system optional since that would not address

the safety issues involved. The FAA also disagrees that a flight

following system is an acceptable alternative to a dispatch system or

that dispatch systems are not needed for limited flight distances if

there is adequate weather reporting facilities. The use of a dispatch

system is based on the type of operation (scheduled), and not the

distance of a flight, the number of aircraft, or the type of aircraft

being flown. Flight following systems are used for nonscheduled

operations, and could be used for nonscheduled operations by affected

commuters under the supplemental rules of part 121. Note: The dispatch

system requirements apply only to scheduled passenger-carrying

operations.

The FAA disagrees with the basic idea that the decision making

process of operational control of aircraft can be made by automated

means. While automation has improved the accuracy and timeliness of

flight planning, weather information, and NOTAMs, nothing so far has

replaced the decision making capabilities of a certificated dispatcher.

Dispatchers receive training in subject matter beyond just flight

planning, e.g. crew resource management, hazardous materials

regulations. These subjects are just a small representation of the

subject matter an aircraft dispatcher must know in order to make

operational control decisions.

The FAA agrees with the comment that dispatchers are usually in a

better position to review weather reports and forecasts than pilots

hurrying to accomplish other postflight/preflight aircraft duties.

Operational control issues are enhanced when both the pilot in command

and the aircraft dispatcher are jointly responsible for the safe

conduct of a flight. As several commenters point out the overall level

of safety is enhanced when a dispatcher is available to assist and back

up the pilots who already may have numerous responsibilities in

addition to flying the airplane. Thus, while it may not be possible to

pinpoint accidents that have actually been prevented by a dispatch

system, there can be little doubt that the existence of a dispatch

system contributes to the overall high level of safety of scheduled

operations under part 121.

The FAA does not agree that use of dispatchers would lead to

complacency on the part of the flight crewmembers. Section 121.663

states that for each domestic and flag operation, a dispatch release

must be prepared based on information furnished by an authorized

dispatcher. The pilot in command and an authorized dispatcher shall

sign the release only if they both believe that the flight can be made

safely. Dispatchers provide the necessary resources and expertise

needed to review operational control issues.

In response to comments that in some companies ``dispatch''

functions are being adequately performed by individuals from three

separate departments (operations, station managers, and company

pilots), the FAA finds that operational control decisions can not be

effectively made by three separate groups of individuals. The

perception is that ``whoever is available'' makes the decision. For

effective operational control, the dispatch process should be

standardized and consistent.

In response to NATA's and others' comments on the nature of 10- to

19-seat certificate holders, the FAA finds that these certificate

holders are not unique. The same situation currently exists for some

part 121 certificate holders who are required to maintain dispatch

systems.

In response to comments on the issue of limited areas of operation

and short flight duration, the requirement for a dispatch facility is

not based on distances, the type of aircraft, or weather patterns

alone. It is the type of operation (scheduled) an air carrier is

currently operating under that determines if dispatch systems are

required. The role of the aircraft dispatcher in the operational

control of aircraft provides an enhancement to safety that has clearly

been established through years of operations by many air carriers in

both domestic and flag operations. Continuous communications could be

accomplished with HF radios or through satellite communications, both

of which can be provided through vendors.

The FAA agrees with commenters that for some part 135 certificate

holders, personnel will first have to acquire the necessary certificate

and then complete required air carrier training requirements for

dispatchers. The average dispatcher school curriculum lasts 5 weeks and

usually includes instruction on both the written and practical tests.

The FAA believes that some part 135 personnel already possess aircraft

dispatcher certificates and that these personnel would be required to

attend only the air carrier's dispatcher training program. Regardless,

once an air carrier employs a certificated dispatcher, company training

would have to be completed. That training would entail 40 hours of

basic indoctrination, differences training, initial ground/transition

of 30-40 hours (based on the type of aircraft), and a competency check

(see Sec. 121.422).

While the FAA does not agree with AACA's recommendation to

``grandfather'' dispatcher certificates to current flight followers or

flight locating personnel, Sec. 65.57 outlines a means of providing

credit for previous experience in order to take the practical test. All

[[Page 65847]]

dispatcher applicants must complete the appropriate written and

practical tests before a certificate can be issued. The FAA agrees that

training costs will be incurred to prepare current flight following or

flight locating personnel to qualify for a dispatcher certificate,

regardless of who pays for the training. Replacement personnel will be

needed if the decision by the certificate holder is to send current

employees to dispatcher training.

There is no requirement for dispatchers to attend a formal school.

Section 65.57, entitled experience requirements, allows several options

in lieu of a formal school.

In response to specific requests to expand the criteria in

Sec. 65.57 (aircraft dispatcher experience requirements) to include

personnel assigned to flight locating and flight following under part

135, the FAA believes that some part 135 experience is acceptable as

equivalent experience in Sec. 65.57. Through current policy and

guidance provided to FAA inspectors, a review on a case-by-case could

be accomplished to ascertain if an applicant has equivalent experience.

In response to comments on the current format of the dispatcher

practical exam, Sec. 65.59 requires an applicant for an aircraft

dispatcher certificate to pass a practical test with respect to any one

type of large aircraft used in air carrier operations. Further, current

practical test standards require dispatcher applicants to exhibit

adequate knowledge of applicable aircraft flight instruments and

operating systems. The scope of the practical test allows for turboprop

aircraft and representative commuter operations. Practical tests are

developed by the inspector conducting the test and can be designed for

any type of large aircraft, including turboprop airplanes.

There is only one dispatcher written examination, the Airline

Transport Pilot question book. The selection sheet has questions

applicable only to dispatchers and not based on any particular make and

model of aircraft. The FAA is considering developing written tests

geared to commuter-type operations. However, the current written exam

is valid in that it tests for areas common to all make and models of

aircraft. The test requires knowledge of various subject areas, i.e.

the ability to interpret weather information, interpret regulations,

handle emergencies, compute weight and balance, etc.

The FAA disagrees with the ALPA recommendation to require

dispatchers to receive 5 hours of operating experience in aircraft they

will actually dispatch. Section 121.463(c) requires the dispatcher to

satisfactorily complete at least 5 hours of operating familiarization

in one of the types of airplanes in each group he is to dispatch.

Section 121.400(b) includes all sizes of propeller-driven aircraft

under group 1. Therefore, the FAA allows dispatchers to complete the

operating familiarization in airplanes that are not exactly the same

size or configuration as the ones they will dispatch.

V.G. Airports

Section 121.590 requires that no air carrier or pilot conducting

operations under part 121 may operate an airplane into a land airport

in the U.S. (or territory, etc.) unless the airport is certificated

under 14 CFR part 139. Section 135.229 states that no certificate

holder may use any airport unless it is adequate for the proposed

operations.

Part 139 prescribes regulations governing the certification and

operation of all land airports that are served by any scheduled or

nonscheduled passenger air carrier operating airplanes with a seating

capacity of more than 30 passengers. The FAA's authority is limited by

statute (49 U.S.C. 44706(a)) to the 30-passenger-seat dividing line.

The FAA, in conjunction with the Department of Transportation, has

sought legislation that would grant the agency the authority to

certificate any airport that receives scheduled service by a

certificate holder utilizing airplanes designed for 10 or more

passenger seats.

Accordingly, pending Congressional resolution of this issue,

affected commuters are permitted to operate into other than part 139

certificated airports. If the FAA receives expanded authority over

airport certification, it would propose rulemaking standards that are

sufficiently flexible to cover the range of airports presently served

under part 135.

Comments: Nine comments were received on this issue, with the major

concern being that airport legislation currently being considered may

include requirements that some communities may not be able to afford

which would negatively affect air service to these communities.

The Las Vegas Department of Aviation comments that it has purchased

and upgraded satellite airports in the Las Vegas area to help relieve

the congestion at the McCarran International Airport. The commenter is

concerned that the Clark County Department of Aviation, the Grand

Canyon Tour Operators, and the Las Vegas Department of Aviation may not

be able to afford additional airport upgrades. This would cause

certificate holders that currently operate out of the non-certificated

outlying airports to move their operations back to McCarran, thereby

increasing traffic congestion and in-flight delays.

NATA and Commuter Air Technology concur with the FAA proposal to

allow part 135 certificate holders to continue to operate with existing

airport requirements, but are concerned about the airport expansion

program. NATA prefers that no new airport legislation be adopted and

that the proposed regulatory allowance for noncertificated airports be

made permanent.

A comment from Fairchild Aircraft mentions the Essential Air

Service Program enacted by Congress that guarantees air service to

small and medium size communities. Fairchild says that the commuter

industry responded to that program and provided essential air service

to small and medium communities, and that those communities may not be

able to afford the proposed airport expansion program.

Other commenters state that it would not be feasible to upgrade

smaller airports to part 139 standards. One certificate holder states

that of the five airports it serves only one meets part 139 standards;

at the other airports where the certificate holder provides essential

air service ``there is no aircraft rescue or fire fighting equipment,

airport guidance signs, airfield inspection procedures, airport staff,

snow and ice control plan, or airfield pavement maintenance. . . .''

The American Association of Airport Executives (AAAE), RAA,

Airports Council International-North America, and the National

Association of State Aviation Officials would like the airport

expansion issue referred to an ARAC committee before seeking federal

legislation, to allow ARAC to develop a cost-effective response to NTSB

recommendations that takes into account the difference between small

airports that serve rural communities and large airports near major

cities.

ALPA believes that the FAA should require commuters to operate out

of part 139 certificated airports in the interest of one level of

safety. ALPA recognizes that some airports in remote sites will not be

capable of complying with all part 139 requirements. However, ALPA does

not believe that an exemption should be provided for aircraft with

passenger-seating capacities of 30 or less. Rather certificate holders

that serve small airports should apply individually for an exemption or

waiver.

Commuter Technology expresses concern that a revised part 139 may

result in the application of airplane

[[Page 65848]]

operator security regulations of part 108 and the airport security

regulations of part 107 to air carriers using aircraft with a seating

capacity of 30 or fewer seats. The commenter believes that the ARAC

committee that is tasked with recommending revisions to part 139 should

also be tasked with restricting or eliminating the applicability of

part 107 to small airports. According to the commenter the application

of parts 107 and 108 to commuter air carriers and the airports that

serve them could have a radical effect on the economic viability of the

air carriers and airports.

FAA Response: The FAA has assigned a task to the Aviation

Rulemaking Advisory Committee (ARAC) to recommend the requirements in

part 139 that should be applicable to airports covered under any

expanded legislation that would give the FAA authority to certificate

airports serving airplanes with less than 30 passengers. In the

meantime, Sec. 121.590 is adopted as proposed to allow affected

commuters to use noncertificated airports. In making its

recommendations ARAC is to consider accepted industry practices

regarding airport safety, personnel available at these airports, costs

associated with meeting these requirements (e.g. capital, operating,

and maintenance costs), and the types of accidents/incidents that have

occurred at these airports.

In response to the comment on security programs for airports and

operators, no changes to parts 107 and 108 are necessary as a result of

this rule because the requirements of those parts are already tailored

to the size of the airplane.

V.H. Effective Date and Compliance Schedule

The FAA proposed an effective date of 30 days and a general

compliance date of 1 year after publication of the final rule. The FAA

stated in Notice 95-5 that a final rule, if adopted, would be published

by December 31, 1995, and that within 1 year of that date, that is, by

December 31, 1996, all affected certificate holders that have air

carrier certification or operating certificates issued under part 135

at the time of publication would have completed the approval process

and obtained new operations specifications giving them authority to

conduct domestic or flag operations under part 121.

Under the proposal, persons who do not already have air carrier

certificates or operating certificates who submit applications for or

obtain air carrier certificates or operating certificates after 30 days

after the publication date of the final rule would be required to

obtain part 121 operations specifications; however, these new entrants

would meet the same requirements as the affected commuters, i.e.,

delayed dates for retrofit of airplanes with certain types of

equipment.

Proposed Sec. 121.2(c) and Sec. 135.2(c) allow for regular or

accelerated compliance with part 121 requirements. Proposed

Secs. 121.2(g) and 135.2(g) also require an affected certificate holder

to submit to the FAA a transition plan for moving from part 135 to part

121.

Comments: Eleven comments were received on this issue. Several

commenters express a desire for an ``incremental'' or ``phased''

compliance schedule. Two commenters are concerned that the proposed

``turnkey'' recertification event is high risk with no early rewards or

benefits.

RAA suggests revising proposed Secs. 121.2(c) and 135.2(c) to

require compliance ``not later than'' 1 year after final rule

publication rather than the proposed ``as of,'' and adding the word

``complete'' before ``14 CFR part 121 operations specifications.'' RAA

also suggests adding a new paragraph to the section that would state

that a certificate holder may be authorized under its transition plan

to comply with portions of part 121 instead of the equivalent portions

of part 135 in advance of being issued complete 14 CFR part 121

operations specifications. Accordingly RAA recommends adding to the

transition plan requirements of paragraph (g) a new subparagraph to

include in the transition plans provisions for interim compliance with

portions of part 121 in advance of obtaining complete 14 CFR 121

operations specifications. Other commenters also request provisions for

complying with portions of part 121 in advance of obtaining part 121

operations specifications.

Other commenters also state concerns about FAA's capacity to

facilitate the transition process on schedule. Two commenters perceive

a shortage of trained inspectors and suggest that the compliance date

be extended if an adequate number of inspectors are not provided by mid

year 1996. GAMA suggests a reevaluation of the implementation schedule

of Sec. 121.2(d)(1), citing a questionable number of aircraft

certification service personnel to support the extensive design

approval activity certain to occur. Another commenter expresses concern

over the necessary type certification activity surrounding

modifications and suggests that 1 year is an unrealistic compliance

deadline given the current FAA Aircraft Certification Office backlog.

RAA is concerned that the population of FAA inspectors qualified to

perform their duties under part 121 will not be able to respond to the

new part 121 air carriers. According to RAA, FAA inspectors must be

trained and qualified to help affected commuters achieve the

transition. RAA recommends a ``fill in the blanks manual'' to achieve

standardization among FAA regions and districts. If there is an

insufficient number of qualified FAA inspectors, the 1996 compliance

date should be delayed.

ASA proposes a standardized transition program including three

elements: (1) a fill-in-the-blanks manual for transitioning carriers;

(2) an automatic exemption and incremental approval process; and (3)

time schedules from transitioning carriers submitted to FAA.

Mesa Airlines recommends pre-formal certification meetings with

principal operations inspectors (POI's) at an early date to familiarize

both parties with the certification process outlined in FAA Order

8400.10. According to Mesa, compliance statement development,

individual operator transition plans, GOM (general operating manual)

development, and formal certificate application should be scheduled for

the spring of 1996 to allow adequate review by respective POI's.

According to Mesa this would allow certificate holders to be running

their commuter operations under part 121 rules by the summer of 1996.

This in turn would allow for a start-up phase for part 121 dispatch

operations and modifications to the requirements for proving runs as

proposed in Sec. 121.163 and would eliminate the necessity for formal

initial operating experience (IOE).

There were several comments on specific compliance dates. ALPA is

generally pleased with the compliance schedule, but states that the 4-

year compliance date for the installation of pitot heat indication

systems could be shortened to 2 years, given the relative ease of the

modification. Fairchild Aircraft finds fault with the fact that a 2-

year delay is provided for compliance with emergency exit handle

illumination, but no delay is allowed for compliance with

Sec. 121.310(b)(2)(ii), which would require the replacement of exit

signs on new commuter category airplanes. Mesa Airlines suggests that

compliance with part 121 crew flight and duty limitations be changed to

January 1, 1997.

FAA Response: The final rule has a 30-day effective date and a

general compliance date of 15 months after publication of the final

rule. The FAA is extending the general compliance

[[Page 65849]]

date to be consistent with the compliance date in the training

rulemaking referenced in Section III. E, Related FAA Action. Also, the

proposed delayed compliance dates for certain retrofit requirements

have been modified in response to comments. The final rule also

establishes delayed compliance dates for meeting the performance

operating limitations of part 121 for certain airplanes. Compliance

dates are provided in Sec. 121.2. This section has been reorganized to

separate compliance dates for 10-19 seat airplanes and those for 20-30

seat airplanes. Retrofit and performance requirements compliance dates

are listed on Table 1 and discussed in the appropriate place in the

preamble.

Because of the scope and significance of this rulemaking, the FAA

has already begun planning for the implementation of the final rule.

Training has been provided for inspectors who will be responsible for

overseeing the transition of the affected commuters from part 135 to

part 121 operations. Additional training planned for January 1996 will

focus on the recertification and transition process. Extensive guidance

material is being prepared to assist the inspectors during the

transition process. Portions of this material will also be made

available to the affected commuters.

The FAA agrees with Mesa Airlines that meetings between POI's and

affected commuters would help facilitate the preparation of the

transition plan, which is due 90 days from today, and the planning

necessary to ensure that normal operations can continue during the

transition phase. The FAA believes that the training given to its

inspectors, the guidance material being prepared, and a cooperative

working relationship between the affected commuters and the FAA will

ensure a smooth transition to part 121 operations.

The transition plan must include the certificate holder's proposed

calendar of events that shows how and when it plans to make changes in

its operations to meet the requirements of part 121. The transition

plan should also show detailed plans for accomplishing activities and

necessary retrofits for requirements with delayed compliance dates. The

POI and the certificate holder will schedule the inspections necessary

to show compliance with part 121 requirements. When the inspections are

complete and the FAA has determined that the certificate holder can

comply with part 121, the FAA will issue new operations specifications.

Until the new operations specifications are issued, the existing

operations specifications remain in effect. In any case the existing

operations specifications expire on: (1) The date the new operations

specifications are issued; or (2) 15 months from this date of

publication, whichever is earlier. Affected certificate holders who

want to comply with certain part 121 requirements in advance of being

issued complete 14 CFR part 121 operations specifications could include

in their transition plan a phased schedule including advance compliance

for certain part 121 requirements, subject to their POI's approval.

Table 1--Summary of Modifications shows the compliance dates for

certain retrofit and performance requirements for affected commuters.

Many of these are required by the end of the basic 15-month compliance

period. Affected commuters should be aware that by the specified date

they must comply with all part 121 requirements, not just the ones

listed on Table 1. Although the table includes additional items that

were not listed in the table in Notice 95-5, no new requirements are

involved. Not all requirements are in the table. The purpose of the

table is to show the compliance dates for certain equipment and

performance requirements that necessitate advance planning for

purchasing and installation. Many of the delayed requirements apply to

airplanes in the current fleet, while others apply only to newly

manufactured airplanes.

It should also be noted that Sec. 121.2(h) requires a certificate

holder to comply with corresponding part 135 requirements, as

applicable, in the interval between the effective date of this rule and

when the certificate holder is in compliance with the part 121

requirements. In addition, the intent of Sec. 121.2(h) is also included

in specific sections that have delayed compliance dates.

This table does not apply to certificate holders currently

operating under part 121. The passenger seating configuration numbers

provided in the chart do not mean that the requirement applies only to

that size airplane but rather that the requirement is new for that size

airplane.

Table 1.--Summary of New Equipment and Performance Modifications for Affected Commuters

----------------------------------------------------------------------------------------------------------------

Effective date of required upgrade is as Upgrade will apply to all airplanes Upgrade will apply to all

stated, measured from the rule including newly manufactured airplanes newly manufactured

publication date ------------------------------------------ airplanes

------------------------------------------ Within ----------------------------

Issue/requirement Within 15 months years (#) After years (#)

----------------------------------------------------------------------------------------------------------------

1. Passenger Seat Cushion Flammability, ........................... 15

10-19 Pax Secs. 121.2, 121.312(c).

2. Lavatory Fire Protection, 10-30 Pax ........................... 2

Secs. 121.2, 121.308.

3. Exterior Emergency Exit Markings, 10- Yes.

19 Pax Sec. 121.310(g).

4. Pitot Heat Indication System, 10-19 ........................... 4

Pax Secs. 121.2, 121.342.

5. Landing Gear Aural Warning, 10-19 Pax ........................... 2

Secs. 121.2, 121.289.

6. Takeoff Warning System, 10-19 Pax ........................... ........... 4.

Secs. 121.2, 121.293.

7. Emergency Exit Handle Illumination, 10- ........................... 2

19 Pax Secs. 121.2, 121.310(e)(2).

8. First Aid Kits, 10-19 Pax Sec. Yes.

121.309(d)(1)(i).

9. Emergency Medical Kits, 20-30 Pax Sec. Yes.

121.309(d)(1)(ii).

10. Wing Ice Light, 10-19 Pax Sec. Yes.

121.341(b).

11. Fasten Seat Belt Light and Placards, Yes \1\ ........... 21.

10-19 Pax Secs. 121.2, 121.317.

12. Third Attitude Indicator, 10-30 Pax:.

Turbojet............................. Yes \2\.

Turboprop Secs. 121.2, 121.305(j)... ........................... 152 15 months.\2\

13. Airborne Weather Radar, 10-19 Pax Yes.

Sec. 121.357.

14. Protective Breathing Equipment, 10-30

Pax.

Sec. 121.2.......................... ........................... 2

[[Page 65850]]

Sec. 121.337(b)(8)--Smoke and fume

protection

Sec. 121.337(b)(9)--Fire fighting

(20-30 only)

15. Safety Belts and Shoulder Harnesses, ........................... ........... 15 months.

Single point inertial harness, 10-19 Pax

Secs. 121.2, 121.311(f).

16. Cabin Ozone Concentration, 10-30 Pax Yes.

Sec. 121.578.

17. Retention of Galley Equipment, 10-30 Yes.

Pax Secs. 121.576, 121.577.

18. Ditching approval, 10-30 Pax Secs. Yes \3\.................... 153

121.2, 121.161(b).

19. Flotation means, 10-30 Pax Secs. ........................... 2

121.2, 121.340.

20. Door Key and Locking Door, 20-30 Pax Yes.

Sec. 121.313(f) & (g).

21. Portable O2, 20-30 Pax Sec. 121.327- Yes.

121.335.

22. Additional life rafts, 10-30 Pax Sec. Yes.

121.339.

23. First Aid Oxygen, 20-30 Pax Sec. Yes.

121.333(e)(3).

24. Enroute radio communications, 10-30 Yes.

Pax Sec. 121.99.

25. Latex gloves, 10-30 Pax Sec. Yes.

121.309(d)(2).

26. Passenger information cards, 20-30 Yes.

Pax Sec. 121.571(b).

27. Flashlights-additional for flight Yes.

attendant and pilot, 10-30 Pax Sec.

121.549(b).

28. Flashlight holder for flight Yes.

attendant, 20-30 Pax Sec. 121.310(l).

29. DME, 10-30 Pax Sec. 121.349(c)...... Yes.

30. Single engine cruise performance Yes.

data, 10-30 Pax (required for

determining alternates) Sec. 121.617.

31. Performance, Obstruction Clearance, Yes.\4\.................... 154

and Accelerate-stop Requirements, 10-19

Pax Secs. 121.2, 121.157, 121.173(b),

121.189(c).

----------------------------------------------------------------------------------------------------------------

\1\ In-service airplanes must comply within 15 months. They may use lights or placards. Newly manufactured

airplanes must comply with seat belt sign requirements of Sec. 121.317(a) within 2 years.

\2\ Turbojet airplanes must comply within 15 months. Newly manufactured turboprop airplanes must comply within

15 months. In-service 10-30 pax turboprop airplanes must comply within 15 years.

\3\ Transport category must comply within 15 months. Nontransport category can operate for 15 years without

ditching approval.

\4\ Commuter category airplanes must comply within 15 months. SFAR 41 and predecessor category airplanes must

comply within 15 years.

VI. Discussion of Specific Proposals

In this section specific proposals for part 121 and part 119 are

summarized, comments received are discussed, and the FAA's response to

those comments is given. In Section VII comments received on the costs

and benefits of the proposed rule are addressed. The part 121

discussion, which applies to the affected commuters, appears first

(Section VI.A). Table 2 provides a listing of comparable sections in

part 135 for each specific requirement discussed in this portion of the

preamble. This is followed by a discussion of part 119 issues, which

apply to all certificate holders under part 121 and part 135 (Section

VI.B).

Table 2.--Comparable Sections in Parts 121 and 135

[This table shows the comparable sections in parts 121 and 135 for each issue discussed in this preamble.

Affected commuters, however, must comply with all sections in part 121 that are applicable to their operations,

not just the ones listed in this table or discussed in this preamble]

----------------------------------------------------------------------------------------------------------------

Subject 135 Section 121 Section

----------------------------------------------------------------------------------------------------------------

Subparts E and F--Approval of 135.213............................... 121.97, 121.99, 121.101, 121.107.

Routes: Domestic, Flag, and

Supplemental Operations.

Subpart G--Manual Requirements... 135.21, .23........................... 121.133, .135, 121.137.

--Contents and personnel..... ...................................... 121.141.

--Airplane flight manual

Subpart I--Airplane Performance 135.365-.387.......................... 121.175-.197.

Operating Limitations.

Subpart J--Special Airworthiness ...................................... 121.217.

Requirements.

--Internal doors............. 135.87................................ 121.285.

--Cargo carried in the 135 App. A............................ 121.289.

passenger compartment.

--Landing gear aural warning ...................................... 121.291.

device.

--Emergency evacuation and

ditching demonstration.

--New special airworthiness ...................................... 121.293(a) (new).

requirements (retrofit) and

requirements applicable to

future manufactured

airplanes.

--Ditching emergency exits... ...................................... 121.293(b) (new).

--Takeoff warning system

Subpart K--Instrument and

Equipment Requirements:

--Third attitude indicator... 135.149............................... 121.305(j).

--Lavatory fire protection... 135.163 (a), (h)...................... .....................................

--Emergency equipment ...................................... 121.308.

inspection.

--Hand-held fire 135.177(b)............................ 121.309(b).

extinguishers.

--First aid kits and medical 135.155............................... 121.309(c).

kits.

[[Page 65851]]

--Crash ax................... 135.177(a)(1)......................... 121.309(d).

--Emergency evacuation 135.177(a)(2), 135.178(c)-(h)......... 121.309(e), 121.310(c)-(h).

lighting and marking

requirements.

--Seatbacks

--Seatbelt and shoulder 135.117............................... 121.311(e), 121.311(f).

harnesses on the flight deck.

--Interior materials and 135.169(a)............................ 121.312(b).

passenger seat cushion

flammability.

--Miscellaneous equipment.... ...................................... 121.313 (c), (f), (g).

--Cockpit and door keys...... ...................................... 121.313(f).

--Cargo and baggage ...................................... 121.587.

compartments.

--Fuel tank access covers.... ...................................... 121.314, .221.

--Passenger information...... ...................................... 121.316.

--Instruments and equipment 135.127............................... 121.317, 121.323.

for operations at night.

--Oxygen requirements

--Portable oxygen for flight 135.157............................... 121.237-.335, 121.333(d).

attendants.

--Protective breathing ...................................... 121.337.

equipment (PBE).

--Additional life rafts for 135.167............................... 121.339.

extended underwater

operations.

--Flotation devices

--Pitot heat indication ...................................... 121.340.

system.

--Radio equipment............ 135.158............................... 121.342.

--Emergency equipment for 135.177, .178......................... 121.353.

operations over uninhabited

terrain.

--TCAS

--Flight data recorders...... 135.180............................... 121.356.

--Airborne weather radar..... 135.152 (a), (b)...................... 121.343.

--Cockpit voice recorders.... 135.173, .175......................... 121.357.

--Low-altitude windshear 135.151............................... 121.359.

systems.

--Ground proximity warning 135.153............................... .....................................

system (GPWS).

Subpart L--Maintenance,

Preventive Maintenance, and

Alterations:

--Applicability.............. 135.411(a)(2)......................... 121.361.

--Responsibility for 135.413............................... 121.363.

Airworthiness.

--Maintenance, preventive 135.423, .425......................... 121.365, .367.

maintenance, and alteration

organization.

--Manual requirements........ 135.427............................... 121.369.

--Required inspection 135.429............................... 121.371.

personnel.

--Continuing analysis and 135.431............................... 121.373.

surveillance.

--Maintenance and preventive 135.433............................... 121.375.

maintenance training

programs.

--Maintenance and preventive ...................................... 121.377.

maintenance personnel duty

time limitations.

--Certificate requirements... 135.435............................... 121.378.

--Authority to perform and 135.437............................... 121.379.

approve maintenance,

preventive maintenance, and

alterations.

--Maintenance recording 135.439(a)(2)......................... 121.380(a)(2).

requirements.

--Transfer of maintenance 135.441............................... 121.380a.

records.

Subpart M--Airman and Crewmember

Requirements:

--Flight attendant complement 135.107............................... 121.391.

--Flight attendants being 135.128(a)............................ 121.391(d).

seated during movement on

the surface.

--Flight attendants or other ...................................... 121.391(e), 121.417, 121.393 (new).

qualified personnel at the

gate.

Subparts N and O--Training ...................................... 121.400-121.459.

Program and Crewmember

Requirements.

Subpart P--Aircraft Dispatcher ...................................... 121.461-121.467.

Qualifications and Duty Time

Limitations: Domestic and Flag.

Air Carriers

Subparts Q, R, and S--Flight Time 135.261-135.273....................... 121.470-121.525.

Limitations and Rest

Requirements: Domestic, Flag,

and Supplemental Operations.

Subpart T--Flight Operations:

--Operational control........ 135.77, .79, 135.75, 135.69, .19...... 121.533, .535, 121.537, 121.547,

121.551, .553.

--Admission to the flight ...................................... 121.557, .559, 121.565 (new).

deck.

--Emergency procedures....... 135.117, .127......................... 121.571(a), 121.533, .573, 121.585.

--Passenger information...... 135.91(d)............................. 121.574.

--Oxygen for medical use by 135.121, 135.87, .122................. 121.575, 121.577.

passengers.

--Alcoholic beverages........ ...................................... 121.578(b).

--Retention of items of mass. 135.93................................ 121.579.

--Cabin ozone concentration.. ...................................... .....................................

--Minimum altitudes for use 135.75, 135.23(q)..................... 121.581, 121.586.

of autopilot.

--Forward observer's seat

--Authority to refuse 135.87, 135.229, .217................. 121.589, 121.590.

transportation.

--Carry-on baggage........... ...................................... 121.617(a).

--Airports

Subpart U--Dispatching and Flight

Release Rules:

--Flight release authority... ...................................... 121.597.

[[Page 65852]]

--Dispatch or flight release 135.211............................... 121.611.

under VFR.

--Operations in icing 135.227, .341, 135.345................ 121.629.

conditions.

--Fuel reserves.............. 135.209, .223......................... 121.639, .641, 121.643, .645.

Subpart V--Records and Reports... 135.65(c), 135.415(a)................. 121.701(a), 121.703 (a), (e).

--Maintenance log: Airplane.. 135.417............................... 121.705(b).

--Mechanical interruption 135.439(a)(2), 135.443................ 121.707, 121.709.

summary report.

--Alteration and repair ...................................... .....................................

reports.

--Airworthiness release or ...................................... 121.711, .713, 121.715.

airplane log entry.

--Other recordkeeping

requirements.

----------------------------------------------------------------------------------------------------------------

VI.A. Part 121 Discussion

VI.A.1. Subpart E--Approval of Routes: Domestic and Flag Air Carriers

Section 121.97 requires each domestic and flag operator to show

that each route it submits for approval has enough airports that are

properly equipped and adequate for the proposed operation. The operator

must also have an approved system to disseminate this information to

appropriate personnel. Although part 135 has similar requirements, part

121 requires more information.

Section 121.99 requires each domestic and flag operator to have a

two-way air/ground communication system between each airplane and the

appropriate air traffic control facility, along the entire route. In

the 48 contiguous States and the District of Columbia, the

communications system between each airplane and the dispatch center

must be independent of any system operated by the United States. This

would be a new requirement for the affected certificate holders.

Section 121.101 requires each domestic and flag operator to show

that enough weather reporting facilities are available along each route

to ensure weather reports and forecasts necessary for the operation.

For operations within the 48 contiguous States and the District of

Columbia, these reports must be prepared by the National Weather

Service. For other areas, a system must be approved by the

Administrator. Section 135.213 has similar requirements, except that

the pilot in command is allowed to use various other sources, including

his own weather assessment, for VFR operations. This section also

requires reports of adverse weather phenomena. The FAA proposed that

affected certificate holders comply with part 121.

Section 121.107 requires each domestic and flag operator to have

enough dispatch centers, adequate for the intended operation. This

would be a new requirement for affected certificate holders, as

discussed in Section V.F., Dispatch System.

Comments: ALPA comments that the upgrade to part 121 represents a

major improvement over part 135. ALPA also comments that Subparts E and

F should be upgraded to require that each pilot have a set of approach

and navigation charts rather than having to share a set. ALPA provides

supportive information, such as an NTSB recommendation (A-95-35) for a

similar requirement.

Several comments were received on the enroute radio communication

requirements of Sec. 121.99. ASA and RAA question the need for airline

provided enroute radio communication capability for short-haul flights

and request that the requirement be reconsidered. According to these

commenters, the average enroute times for affected certificate holders

is less than an hour. For such short flights there is little time

during the enroute portion of a flight for company communication. The

cost of installing company communications would be high and safety

would not be diminished without company communication since the crew

can be contacted through Air Traffic Control.

AACA points out that this would be a new requirement for affected

commuters. Intrastate Alaskan operations now conducted under flag

operations rules will be conducted under domestic rules and would be

required to comply with the independent communications systems

requirements. Because of low altitudes, VFR flight operations, and the

lack of Remote Communications Outlet at many locations, maintaining

communications will require construction of a large communications

infrastructure. When operators in Alaska use flag rules, AACA

interprets Sec. 121.99 to not require the communications system be

independent of any system operated by the United States.

FAA Response: The ALPA suggestion on requiring that each pilot have

a separate set of navigation and approach charts is beyond the scope of

this rulemaking; however, the FAA is planning to initiate a separate

rulemaking on the issue.

Section 121.99 requires each domestic and flag air carrier to have

a two-way radio communication system that is independent of any system

operated by the United States. FAA flight service stations and air

traffic control facilities that are currently providing radio

communication service for certificate holders are used for the control

of aircraft and were never intended to be used by individual

certificate holders to relay information that is the certificate

holder's responsibility, such as scheduling changes or weather

information. Hence, an additional expense would be incurred by

certificate holders required to contract for communication services

through commercial services. However, it is believed that most part 135

certificate holders already have facilities and communications

equipment that satisfy the dispatch requirements under part 121.

The FAA believes that there is a need for a two-way air-ground

radio communication system that will ensure reliable and rapid

communications over the entire route between each airplane and the

appropriate dispatch office and between each airplane and the

appropriate air traffic control unit. The need to show that each

operator has a two-way radio system is not new. However, the

requirement to have an independent system is new for operations of

affected commuters and intrastate Alaska and Hawaii operations

previously conducted under flag operations rules. While no commenters

focus on Sec. 121.97 or Sec. 121.117, the FAA

[[Page 65853]]

points out under Secs. 121.97(b)(4)(i) and 121.117(b)(4)(i) affected

operators will be required to comply with airport data requirements

which include applicable performance requirements of Subpart I. For

affected airplanes these performance requirements will be found in new

appendix K to part 121 as referenced in subpart I.

VI.A.2. Subpart F--Approval of Routes: Approval of Areas and Routes for

Supplemental Air Carriers and Commercial Operators

This subpart is similar to subpart E except that it applies to

supplemental operations and prescribes flight following requirements.

Under the proposal, this subpart would apply in cases where an affected

operator uses an airplane that is also used in domestic operations to

conduct a nonscheduled operation. On this issue, no comments were

received and the final rule is adopted as proposed.

VI.A.3. Subpart G--Manual Requirements

Manual requirements: Contents and personnel: Under subpart G of

part 121 certificate holders are required to prepare and keep current a

manual containing policies, procedures, applicable regulations, and

other information necessary to allow crewmembers and ground personnel

to conduct the operations properly (see Sec. 121.133 and Sec. 121.135).

While the requirements of parts 121 and 135 are similar, part 121

manual requirements contain a more extensive list of manual contents

(Sec. 121.135). Under part 121 the manual or appropriate parts must

also be furnished to more personnel, such as aircraft dispatchers and

flight attendants, and made available to others, such as station

agents. Notice 95-5 stated that the effect of these differences between

compliance with part 121 versus compliance with part 135 would be

significant for commuter operators. The proposal would require

developing, producing, and distributing new manuals appropriate to part

121. In addition, Sec. 121.137 requires the air carrier to issue a

manual or appropriate parts to each crewmember and requires each

crewmember to keep the manual up to date and have it with him or her

when performing assigned duties. Part 135 does not require that flight

attendants be issued a manual; however, it does require that any person

to whom a manual is issued must keep it up-to-date (see Sec. 135.21).

Comments: Fairchild Aircraft states that Sec. 121.137 would require

at least one copy of the manual specified by Sec. 121.133 to be carried

in the airplane and that this is a reasonable proposal that they fully

support. Fairchild Aircraft also states that Sec. 121.141(b)(2)

contains a reference to ``rotorcraft'' which should be deleted.

ALPA states that the key to an efficient, safe airline operation

can normally be found in the manuals developed by the airline. ALPA

supports the FAA in adopting all facets of Subpart G. ALPA also states

that Sec. 121.135(b)(2) should be amended by removing, ``in the case of

supplemental air carriers and commercial operators,'' so that the

paragraph reads: ``Duties . . . of the ground organization, and

management personnel.'' According to ALPA, the requirement to include

in the manual duties and responsibilities of management personnel would

no longer be applicable only to supplemental and commercial operators

since proposed part 119 requires management personnel for all

certificate holders.

One commenter states that Sec. 121.133 should require compliance

with the certificate holder's manuals.

Metro International Airways states that the cost of new manuals

would be excessive for small businesses and that an outline of

procedures would be a more useful reference than a highly detailed

manual.

FAA Response: All but one of the comments received regarding the

manual requirements support the implementation of Subpart G of part

121. Only one comment regarding the costs associated with the manuals

required by Sec. 121.131 was received.

Additionally, the FAA has received requests from certificate

holders that would like to begin the process of transition prior to

implementation of the rule. This would allow those certificate holders

to spread the cost of manual production and distribution over a longer

period of time. The question of phased-in-implementation is not unique

to this issue and is addressed elsewhere in this document.

The FAA agrees with ALPA's suggestion to revise the wording of

Sec. 121.135(b)(2). This is not a substantive change from Notice 95-5

because Sec. 119.65(e) also requires that manuals contain the duties

and responsibilities of required management personnel. The FAA also

agrees with Fairchild's suggestion to delete the word ``rotorcraft''

from Sec. 121.141(b)(2). These recommendations are appropriate. In the

final rule Secs. 121.135(b)(2) and 121.141(b)(2) are revised

accordingly.

In response to the comment that Sec. 121.133 should require

compliance with the certificate holder's manual, the holder of an air

carrier certificate with operations specifications to operate under

part 121 must comply with the regulations in part 121 (and other

applicable regulations). Requirements for preparing and maintaining a

manual serve the purpose of supplying information to personnel.

Information in the manual must be accurate and consistent with the

regulations. Since the manual may also include company policy and

guidance to personnel, all portions of the manual are not enforceable

as regulations. The language of the manual requirements does, however,

imply that the certificate holder must adhere to all of the contents of

the manual and that the certificate holder's personnel must use the

manual in conducting operations.

In response to the comment that the manual requirements will be a

burden for small businesses and that an outline of procedures would be

more helpful to personnel, small certificate holders are already

meeting the manual requirements of part 135; this rulemaking requires

an update of manuals and broader distribution of the manuals. An

outline of procedures could be used as guidance in addition to the

manuals or as part of a manual, but under current part 135 it would not

suffice as meeting the manual requirements.

In the final rule Sec. 121.133 has been revised to update the

terminology.

VI.A.4. Subpart H--Airplane Requirements

For comments and FAA responses to the requirements in Sec. 121.157,

Aircraft certification and equipment requirements, see the discussion

in Section V. C., Aircraft Certification.

Single-engine airplanes. Section 121.159 prohibits operation of

single-engine airplanes under part 121. No change to this prohibition

was proposed since the FAA does not consider single-engine airplanes

acceptable to part 121 standards. Under the proposal, this section was

amended to delete an obsolete reference to Sec. 121.9. No comments were

received on this issue and the final rule is adopted as proposed. For a

related discussion on the operation of single-engine Otters, see

``Applicability: Alaska,'' in Section V.B.

Airplane limitations: Type of route. Section 121.161(a) requires

that a two-engine or three-engine airplane except a three-engine

turbine powered airplane must be within 1-hour flying time from an

adequate airport at normal cruising speed with one engine inoperative,

unless otherwise approved by the Administrator. Part 135 does not

contain a comparable requirement; however, the FAA proposed that

[[Page 65854]]

affected commuters would comply with the requirements of

Sec. 121.161(a).

Section 121.161(b) contains a separate requirement that (with some

exceptions for certain older airplanes) no person may operate a land

plane in extended overwater operations unless it is certificated or

approved as adequate for ditching. The FAA proposed that affected

commuters would also comply with the requirements of Sec. 121.161(b).

In Notice 95-5, the FAA invited specific comments on the potential

impact of these proposals on operations in Alaska.

Comments: Several comments were received on the Sec. 121.161(a)

requirement to be within 1 hour of an airport with one engine

inoperative. One commenter suggests that Sec. 121.161 be rewritten to

reflect today's environment, since no airport in the U.S. is more than

1 hour away for these commuter airplanes. The commenter also states

that the rule should specify the requirements for two-engine operations

over the water.

Fairchild and AIA both state that Sec. 121.161(a) would require

single-engine cruising speed data and this data is unlikely to be

included in some Airplane Flight Manuals (AFM). The commenters also

state that there appears to be no safety benefit and it will be

difficult to show compliance. According to these comment

This text is long and has been trimmed here. Open the source document for the complete record.