# Commuter Operations and General Certification and Operations Requirements

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URL: https://www.frixlaw.com/law-library/documents/fr%3A95-30545

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** December 20, 1995
- **Citation:** 60 FR 65832

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-30545. Public record. Not legal advice.