Commuter Operations and General Certification and Operations Requirements

SUMMARY: This proposed rule would require certain commuter operators

that now conduct operations under part 135 to conduct those operations

under part 121. The commuter operators that would be affected are those

conducting scheduled passenger-carrying operations in airplanes that

have a passenger-seating configuration of 10 to 30 seats and those

conducting scheduled passenger-carrying operations in turbojets

regardless of seating configuration. The proposed rule would revise the

requirements concerning operating certificates and operations

specifications. The rule would also propose certain management

officials for all operators under parts 121 and 135. The need for this

rulemaking is supported by a study conducted by the National

Transportation Safety Board (NTSB), testimony at Congressional

hearings, and accident statistics. The proposed 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 persons or property by air for

compensation or hire.

DATES: Comments must be received on or before June 27, 1995.

ADDRESSES: Send or deliver comments on this notice in triplicate to:

Federal Aviation Administration, Office of the Chief Counsel,

Attention: Rules Docket (AGC-200), Room 915G, Docket No. , 800

Independence Avenue SW., Washington, DC 20591. Comments may also be

submitted to the Rules Docket by using the following Internet address:

[email protected] Comments must be marked Docket No. .

Comments may be examined in the Rules Docket between 8:30 a.m. and 5

p.m. on weekdays, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Alberta Brown, Federal Aviation

Administration, 800 Independence Avenue SW., Washington, DC 20591;

telephone (202) 267-8248.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to participate in the making of this

proposed rule by submitting such written data, views, or arguments as

they may desire. Communications should identify the regulatory docket

or notice number and be submitted in triplicate to the address above.

All communications received on or before the closing date for comments

will be considered by the Administrator before taking further

rulemaking action. Persons wishing the FAA to acknowledge receipt of

their comments submitted in response to this notice must submit with

those comments a pre-addressed, stamped postcard on which the following

statement is made: ``Comments to Docket No. .'' The postcard will be

dated and time stamped and returned to the commenter. All comments

submitted will be available, both before and after the closing date for

comments, in the Rules Docket for examination by interested persons. A

report summarizing each substantive public contact with FAA personnel

concerned with this rulemaking will be filed in the docket.

Availability of NPRM

Any person may obtain a copy of this NPRM by submitting a request

to the Federal Aviation Administration, Office of Public Affairs,

Attention: Public Inquiry Center (APA-230), 800 Independence Avenue,

SW., Washington, DC 20591, or by calling (202) 267-3484. Requests must

identify the notice number of this NPRM. Persons interested in being

placed on the mailing list for future NPRMs should also request a copy

of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking

Distribution System, which describes the application procedures.

Outline of NPRM

I. Introduction

II. History

III. The Problem and Recent FAA Actions

A. Accident Rate for Commuter Operations

B. Public Perception

C. Congressional Hearings

D. NTSB Study

E. Recent FAA Actions

IV. The Proposal

V. Major Issues

A. Applicability

B. Aircraft Certification

C. Flight Time Limits and Rest Requirements

D. Age 60 Rule

E. Dispatch System

F. Major Equipment Items

G. Airports

H. Proposed Effective Date and Compliance Schedule

VI. Discussion of Specific Proposals

A. Part 119 Summary

B. 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. Subpart Q--Flight Time Limitations and Rest Requirements:

Domestic Air Carriers

13. Subpart R--Flight Time Limitations Flag Air Carriers

14. Subpart S--Flight Time Limitations: Supplemental Air

Carriers and Commercial Limitations

15. Subpart T--Flight Operations

16. Subpart U--Dispatching and Flight Release Rules

17. Subpart V--Records and Reports

C. Proposed Part 119 Explanation

VII. Regulatory Evaluation Summary

VIII. The Proposed Amendment

Background

I. Introduction

Currently, scheduled passenger-carrying air transportation

operations under common carriage are conducted under the Federal

Aviation Regulations (FAR) of 14 CFR part 121 and part 135. 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 or 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 operator 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 differences between parts

121 and 135 [[Page 16231]] reflect differences in the size of the

aircraft and the scope of the operations. Part 135 is considered to

provide a level of safety comparable to part 121; however, the FAA

continually evaluates changes in the industry and the aviation

environment that may necessitate upgrading the regulations in order to

continue to fulfill the agency's statutory requirement.

II. History

For most of the history of aviation safety regulations, one

dividing line served to separate the regulations that determined

airplane design and type certification, flight operations, maintenance,

pilot, and economic requirements. The dividing line between these sets

of regulations was first established in 1953 and was based on the

maximum certificated takeoff weight (MCTW) of an airplane.

Airplanes with an MCTW of 12,500 pounds or less were small

airplanes and were operated under part 135. Airplanes with an MCTW of

more than 12,500 pounds were considered large airplanes. Large

airplanes, which were generally designed to carry 20 or more

passengers, were used for scheduled air transportation while small

airplanes, which were generally designed to carry fewer than 10

passengers, were used for on-demand air taxi service. 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, and

the companies that received them became household names to the air

traveling public (Eastern, American, Delta, Pan Am, TWA, etc.). In

contrast, on-demand air taxi operators numbered in the thousands.

Before 1970, the typical air taxi operator was a fixed-base

operator, usually at a small airport, that owned fewer than five

airplanes and 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 were capable of carrying more

than 10 passengers, and pushed the passenger capacity of the small

airplanes higher until it approached 20 passengers. As these airplanes

became available, some air taxi operators began to offer services that

resembled the services of the major airlines. There was an economic

incentive for these new commuter-type operators to buy these airplanes

and operate under the less restrictive requirements of part 135. As

part 135 operators acquired more of these airplanes, the nature of some

part 135 operations changed dramatically from the traditional small

airplane air taxi operation to a scheduled commuter operation. Although

the number of these scheduled operators grew, 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, with air carriers given more

freedom to enter and exit markets without prior government economic

approval. This caused major changes throughout the airline industry.

One of the most significant changes was the ability of the major

carriers to eliminate service to smaller points that proved to be

uneconomical for the size of aircraft they operated and to be replaced

at those points by the smaller commuter carriers. Under this 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 the smaller communities as well

as feeder service from the smaller points to the larger cities to

connect with the major carriers' operations. This became commonly known

as the `hub and spoke' system. The most significant effect of these

changes was that the traditional two categories of operations had been

replaced by three categories of operations. The new category contained

scheduled commuter operations that were neither traditional air taxis

nor 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

operators 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. Certain part 135 operators

(depending on type of engines and passenger-seating capacity) are now

required to have cockpit voice recorders, flight data recorders (except

some 10- to 19-seat airplanes), and ground proximity warning systems.

Despite the FAA's realignment of part 135, 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 most instances.

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

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

operator'' means those operators and scheduled passenger-carrying

operations conducted under part 135 in airplanes with a passenger-

seating capacity of 30 or fewer seats. This is the FAA's current use of

the word ``commuter,'' which does not include scheduled passenger-

carrying operations conducted under part 121 in airplanes with a

seating capacity of 31 to 60 seats. 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. 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 and is not used in this document.

III. The Problem and Recent FAA Actions

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 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.

The typical airplane flown in commuter operations under part 135 is

a turbopropeller-powered 19-seat airplane such as the Brazilian-made

[[Page 16232]] Embraer Bandeirante, the German-made Dornier 228, the

British-made BAE 31 Jetstream, and the U.S.-made Fairchild Metro and

Beechcraft 1900. These modern airplanes have advanced electronics and

are type certificated for two pilots. They cruise at 250 knots at an

altitude of 25,000 feet. 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. A summary of the most pertinent of these accidents follows:

On December 1, 1993, a Jetstream 31, operated by Express

II (operated as Northwest Airlink), crashed at Hibbing, Minnesota, on

an instrument approach, killing 18 people. A major factor in the

accident was the captain's failure to follow standard operating

procedures in his decision to use an excessive descent rate during the

approach.

On January 7, 1994, a Jetstream 41, operated by Atlantic

Coast Airlines (as United Express), stalled while executing an

instrument landing system approach to the Port Columbus Airport in

Columbus, Ohio. Of the eight people on board, five died and three

survived. The National Transportation Safety Board (NTSB) found that

the flightcrew flew an unstabilized approach, failed to monitor

airspeed, improperly responded to the stall warning, and allowed the

airplane to stall.

On December 13, 1994, a Jetstream 3200, operated by

Flagship Airlines (as American Eagle), crashed at Raleigh-Durham, North

Carolina, on an instrument approach, killing the two pilots, and 15 of

the 18 passengers. The cause of the accident is not yet known.

These accidents involved commuter flights conducted under part 135.

Media attention to these and other commuter-type accidents has

increased concerns about the safety of these operations.

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 as

compared to the level of safety they receive in large jets. 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. Code sharing arrangements range from

marketing agreements to ownership of the code-sharing partner by the

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. The first time the passenger realizes

this is during boarding the smaller airplane. Despite the practice of

the affiliate commuter using a similar uniform and airplane paint

scheme as the major airline, the passenger realizes that the type of

service has changed: there is a stairway off the tarmac rather than a

ramp at the terminal; there is less leg room and less room for carry-on

baggage; there is more noise; the flight is at a lower altitude; etc.

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.

As stated earlier in this notice, 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. One would not expect, nor would it be feasible,

for a 6-seat airplane operated as an on-demand air taxi to meet all of

the requirements that a scheduled 350-seat transport category jet must

meet. There are inherent differences between the 6-seater and the large

jet. The 6-seater cannot accommodate all the safety equipment or

redundant systems of a large jet. On the other hand, the 6-seater may

fill a need by being more maneuverable and capable of using smaller

airports, etc.

While some of the differences in the requirements between part 121

and part 135 reflect differences in the size and operation of the

airplanes, other differences do not, such as how many hours a pilot may

fly, what emergency equipment must be carried, and what procedures must

be followed in icing conditions. 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. Testimony was presented by the FAA Administrator, the Chairman of

the NTSB, the president of the Regional Airline Association, the

president of the Airline Pilots Association, the president of the

Airline Dispatchers Federation, and the director of the Aviation

Consumer Action Project.

Most testimony supported the view that the requirements for 10- to

30-seat commuter operations should be as restrictive as those for

airplanes with 31 or more seats under part 121; that safety equipment

such as flight data recorders, ground proximity warning systems, and

Traffic Alert and Collision Avoidance System (TCAS) should be required

on airplanes used in commuter service; that pilot training should be

the same in part 135 commuter operations as is in part 121; and that

part 135 commuter operations should use a dispatch system.

III.D. NTSB Study

In November 1994, the 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.

The findings of the study relevant to this rulemaking are as

follows:

(1) The commuter air carrier industry has experienced major growth

in passenger traffic and changes in its operating characteristics since

1980. There has been a trend toward operating larger, more

sophisticated airplanes, and many carriers have established code-

sharing arrangements with major airlines. The regulations in part 135

have not kept pace with many of the changes in the industry.

(2) Pressure on part 135 pilots to accomplish several tasks, such

as obtaining weather information, [[Page 16233]] calculating minimum

fuel load, and calculating weight and balance, between flights in short

periods of time increases the risk of critical mistakes that could

jeopardize the safety of flight.

The key NTSB recommendations based on these findings are to revise

the FAR such that:

All scheduled passenger service conducted in airplanes

with 20 or more passenger seats would be conducted according to the

provisions of 14 CFR part 121.

All scheduled passenger service conducted in airplanes

with 10 to 19 passenger seats would be conducted in accordance with 14

CFR part 121, or its functional equivalent, wherever possible.

The FAA published all of the NTSB recommendations in the Federal

Register and requested public comments on the recommendations (59 FR

63185, December 7, 1994). Thirty-nine comments were received.

Commenters included small air carriers, trade associations, aircraft

manufacturers, airport operators, and individuals.

Of the comments relevant to this rulemaking, most generally support

expanding the operational rules of part 121, except for flight time

limitations, to commuter operations under part 135. Several commenters

express concern about specific requirements that might apply.

Commenters had considerable reservations about applying certain part

121 equipment requirements to smaller airplanes. The FAA considered all

of the comments in developing this proposed rule.

III.E. Recent FAA Actions

Recently the FAA issued a number of proposed rules that would

increase the safety of commuter operations under part 135. In August

1992, the FAA proposed a new part 142 that would contain certification

and operating rules for training centers. The purpose of that

rulemaking is to provide standardized quality pilot training for

individuals, operators, and air carriers and to increase the

accessibility of flight simulators and flight training devices for

pilot training. (57 FR 35888, August 11, 1992.) The FAA intends to

issue a final rule by May 1995.

In July 1993, the FAA proposed to amend the airworthiness standards

for normal, utility, acrobatic, and commuter category airplanes by

upgrading the requirements for seat restraint systems and increasing

the downward inertia load factor for items of mass within the cabin.

The proposal also would upgrade the flammability standards for seat

cushions in airplanes used by commuter operators. These proposed

amendments would improve the occupant protection provisions for these

types of airplanes and would provide seat restraint requirements and

flammability standards commensurate with those for transport category

airplanes. (58 FR 38028; July 14, 1993) The FAA received an additional

report on commuter airplane accident data analysis in October 1994.

Based on the fact that General Aircraft Manufacturers Association had

requested additional information be made available before the NPRM was

published, a notice to reopen the comment period was issued October 28,

1994, and published November 4, 1994. The reopened comment period

closed March 4, 1995.

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

qualification requirements to require certificate holders that conduct

commuter operations under part 135 with airplanes requiring two pilots

or having 10 or more passenger seats to comply with the part 121

training, checking, and qualification requirements. The proposed rule

would also mandate crew resource management training for pilots,

dispatchers, and flight attendants in part 121. (59 FR 64272, December

13, 1994) The FAA intends to issue a final rule by mid 1995.

While these measures along with the earlier amendments to part 135

continue to make the requirements between parts 121 and 135 similar,

some differences remain. Eliminating these differences would increase

safety in commuter operations.

IV. The Proposal

The FAA proposes in this rulemaking to eliminate the differences in

requirements for scheduled passenger operations using airplanes with a

passenger-seating configuration of 10 or more. While a distinction

still exists between large air carriers and on-demand air taxis, the

FAA believes that the distinction should no longer be maintained for

scheduled passenger operations and that all scheduled operations in

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

comply with part 121 requirements. In addition, the FAA proposes that

all turbojets used in scheduled passenger-carrying operations under

part 135 comply with part 121 requirements regardless of seating

capacity.

The FAA Administrator, when prescribing safety regulations, is

required by statute to consider ``the duty of an air carrier to provide

service with the highest possible degree of safety in the public

interest.'' (49 U.S.C. 44701(d)(1)(A)) The FAA considers that the most

appropriate way to meet this statutory mandate and to reduce the

accident rate for current part 135 commuters operating airplanes with

10 to 30 passenger seats is to require scheduled passenger operations

in those airplanes to meet most of the minimum requirements of part 121

that are relevant to the type of operation and size of the airplane.

Typically, the FAA revises safety regulations when specific events

(such as accidents or incidents) indicate a need to raise or adjust

certain standards. In most instances when standards are revised the FAA

can discuss specific reasons for each change and can estimate whether

each change is cost beneficial. This proposed rulemaking does not lend

itself to this type of item by item justification and cost benefit

analysis because it is difficult to precisely state which rule, in

isolation from other rules, will prevent an accident or incident.

The numerous proposed revisions that would result from requiring

affected part 135 commuter operators to comply with most part 121

requirements cannot readily be evaluated according to specific

accidents that would be prevented. The FAA is proposing to apply much

of the part 121 requirements on affected part 135 commuters because the

agency believes that for those commuters the part 121 approach is

appropriate for the type of operations these affected commuters conduct

and that the part 121 approach to safety will reduce the accident rate

for those operators. The proposed revisions cumulatively would increase

the level of safety by requiring certain improvements in flightcrew

qualifications, cabin safety equipment and cabin materials, airplane

preformance requirements, aircraft operational control, and aircraft

maintenance. Some proposed requirements would be simply a necessary

part of the overall revision. For example, compliance with the manual

requirements of part 121, which are similar to the requirements for

affected commuters in part 135, would necessitate developing,

producing, and distributing new manuals to reflect the many operational

changes that would result. A dispatch system, for example, would

require numerous manual changes. Compliance with the manual

requirements simply reinforces many safety requirements found

elsewhere. It also sets forth the operator's approved procedures for

dealing with various situations. The impact of such a change cannot be

evaluated separately in terms of accidents prevented, but manual

[[Page 16234]] changes are an essential part of changing a part 135

operation to a part 121 operation.

Other revisions, such as requirements for certain cabin safety

equipment and materials, are cumulative; that is, each requirement

works as part of the overall change to increase the survivability rate

in accidents. Increasing the safety level, including passenger

survivability in accidents, is the result of many distinct requirements

associated with emergency equipment, crewmember training, passenger

briefing, and aircraft interior design. Over time, these improvements

in cabin safety have saved many lives, prevented injuries, and

prevented damage to property, though it would be almost impossible to

determine how many lives have been saved or injuries prevented by any

specific requirement. The basic justification for many of these

requirements is that they make sense if the goal is to get passengers

out of an accident alive.

The same is true for many of the proposed revisions in this

rulemaking. The overall approach to regulating under part 121 has

proven to provide the highest level of safety in air transportation in

the world. Therefore, wherever feasible and logical, the FAA proposes

to apply the part 121 approach to the affected commuters in order to

increase safety in these operations. Because the accident rate for part

135 commuters using aircraft configured with 10-30 seats is .33 per

100,000 departures, these proposed changes will yield safety benefits

that outweigh costs even if the rule is only 75% effective.

V. Major Issues [See Table 1]

In the development of this rulemaking, the FAA addressed several

major issues. One of these issues is applicability, the question of

where to draw the dividing line for commuter operations. Currently

scheduled passenger-carrying operations in airplanes with a passenger-

seating configuration of more than 30 seats must comply with part 121

requirements. Commuter operations under part 135 include scheduled

passenger-carrying operations in airplanes of 30 seats or less. While

this proposal is drawing the part 121 dividing line at scheduled

passenger-carrying operations using airplanes having a passenger-

seating configuration of 10 or more, it can be argued that all

passenger-carrying airplane operations under part 135, including on-

demand air taxi operators, should meet the safety requirements of part

121. Another major issue is aircraft type certification. Some of the

airplanes being affected by this rulemaking are type certificated under

part 23 requirements for commuter category airplanes (or earlier

versions--SFAR 23 or 41), which are in some respects less stringent

than the requirements in part 25 for transport category airplanes. The

issue is whether all airplanes used by affected commuters should be

type certificated under part 25 as transport category airplanes, so

that at some point in the future only part 25-certificated airplanes

could be used in scheduled passenger-carrying operations. The FAA also

considered several issues connected with operational safety. These

issues include airmen qualifications, crew flight time requirements,

the need for dispatch systems, and compliance with safety equipment

requirements. The FAA also considered the issue of operating into and

out of airports that do not meet part 139 (Certification and

Operations: Land Airports Serving Certain Air Carriers) requirements.

Table 1.--Summary of Modifications Considered

----------------------------------------------------------------------------------------------------------------

Effective date of required upgrade is as stated, Upgrade will apply to all Upgrade will Upgrade will

measured from the rule publication date airplanes including new and apply to apply to future

-------------------------------------------------- future certificated newly certificated

------------------------------- manufactured airplanes

and future -----------------

certificated

Issue/Requirement W/I 12 months W/I years airplanes

(#) -------------- After 3/24/95

After years#

----------------------------------------------------------------------------------------------------------------

1. Passenger Seat Cushion Flammability........... ................ 2 ............ ................

2. Cargo and Baggage Compartments................ ................ ........... 4 ................

3. Fuel Tank Access Covers....................... ................ ........... ............ Yes.

4. Lavatory Fire Protection...................... ................ 2 ............ ................

5. Access to Emergency Exits..................... ................ ........... ............ Yes.

6. Ditching Emergency Exits...................... ................ 2 ............ ................

7. Two-discharge Fire Extinguishers.............. ................ ........... ............ Yes.

8. Damage Due to a Failed Prop. Blade............ ................ ........... ............ Yes.

9. Bird Strike Damage............................ ................ ........... ............ Yes.

10. Flammability of Interior Materials........... ................ ........... 4 ................

11. Dynamic Seat Testing......................... ................ ........... ............ Yes.

12. Floor Proximity Lighting..................... ................ 2 ............ ................

13. Redundant Control Systems.................... ................ ........... ............ Yes.

14. Exterior Emergency Exit Markings............. Yes............. ........... ............ ................

15. Separation of Pitot Tubes.................... ................ ........... ............ Yes.

16. Pitot Heat Indication System................. ................ 4 ............ ................

17. Landing Gear Aural Warning................... ................ 2 ............ ................

18. Takeoff Warning System....................... ................ ........... 4 ................

19. Self Locking Nuts, Fasteners................. ................ ........... ............ Yes.

20. Dual Control System.......................... ................ ........... ............ Yes.

21. Reinforcement Near Propellers................ ................ ........... ............ Yes.

22. Exterior Emergency Lighting.................. ................ 2 ............ ................

23. Emergency Exit Handle Illumination........... ................ 2 ............ ................

24. Performance & Obs. Clearance................. Yes............. ........... ............ ................

25. Accelerate-stop Requirements................. Yes............. ........... ............ ................

26. First Aid Kits-new req., 10-19 Pax........... Yes............. ........... ............ ................

27. Emergency Medical Kits, 20-30 Pax............ Yes............. ........... ............ ................

28. Wing Ice Light............................... Yes............. ........... ............ ................

29. Fasten Seat Belt Light....................... Yes............. ........... ............ ................

[[Page 16235]]30. Third Attitude Indicator....... Yes............. ........... ............ ................

31. Airborne Weather Radar....................... Yes............. ........... ............ ................

32. Protective Breathing Equipment............... ................ 2 ............ ................

33. Single Point Inertial Harness................ ................ ........... 1 ................

34. Cabin Ozone Concentration.................... Yes............. ........... ............ ................

35. Retention of Galley Equipment................ Yes............. ........... ............ ................

36. Transponders................................. Yes............. ........... ............ ................

37. Cargo in Pax Compartment..................... Yes............. ........... ............ ................

38. Two Landing Lights........................... ................ ........... ............ Yes.

----------------------------------------------------------------------------------------------------------------

V.A. Applicability

The FAA is proposing that in addition to the operations already

covered by part 121, those 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

this document operators of those airplanes may be referred to as ``the

affected operators'' or ``the affected commuters'' or words to that

effect.) The proposed dividing line would bring most commuter

operations now conducted under part 135 into part 121. There are

scheduled operations using airplanes of less than 10 passenger seats

conducted under part 135 but they typically occur in geographic areas

such as Alaska and Hawaii where air transportation is virtually the

only feasible mode of transportation and where the operational

environment is unlike other air transportation environments. They

typically are short-haul operations often carrying only four to six

passengers. They resemble air taxi operations more than commuter

operations even though the flights are scheduled.

The NTSB, as stated earlier in this preamble, recommends that the

FAA revise the regulations so that all scheduled passenger service in

airplanes with 20 or more passenger seats be conducted under part 121

and that scheduled passenger service conducted in airplanes with 10 to

19 passenger seats be conducted under part 121 or its functional

equivalent wherever possible. This proposal is in line with the NTSB

recommendation. While all certificate holders operating airplanes in

scheduled passenger-carrying operations with a 10 or more passenger

seat configuration would come under part 121, if compliance with

certain requirements would not be feasible for certain airplanes, the

proposed rule would provide an exception or appropriate alternate

standards. (All significant exceptions are specifically covered in the

subpart discussion of this preamble.)

The proposed rule would also change the definition of

``scheduled.'' The frequency of operations test of five round trips per

week would be eliminated. For a discussion of this issue, see the part

119 discussion in section VI.A of this preamble.

All turbojets used in scheduled passenger-carrying operations,

regardless of the seating configuration, would be moved over to part

121 because the typical type of operation of these airplanes warrants a

higher safety standard. The FAA believes that currently no turbojets

are being used in scheduled passenger-carrying operations under part

135 and that this part of the proposed applicability would not affect

any current operator. The FAA seeks comments on whether any turbojets

are being operated in scheduled passenger-carrying operations under

part 135 and would be affected by this rulemaking.

On-demand air taxi operations are not being included in the

proposal because these operations are unlike commuter or major air

carrier operations. In addition, the NTSB recommendations and the

accidents that spawned this rulemaking involve only commuter

operations. Any part 135 certificate holder who conducts on-demand

operations could be authorized to conduct its operations under certain

part 121 rules [see proposed section 119.21(c)].

Single-engine airplanes are not included in the proposed rule

because part 121 applies only to multiengine airplanes. Single-engine

airplanes would continue to operate under part 135 whether scheduled or

not. However, part 135 would apply to scheduled passenger-carrying

operations with airplanes with a seating capacity of 9 or less

passenger seats. Therefore, single-engine airplanes with a seating

capacity of more than 9 passenger seats would also be prohibited from

conducting scheduled operations under part 135. In effect, this

rulemaking would require single-engine airplanes with 10 or more

passenger seats now operated in scheduled passenger-carrying operations

under part 135 to reduce the passenger-seating capacity to 9 or less.

Single-engine airplanes that are used in nonscheduled operations in

common carriage may continue to operate under the on-demand rules of

part 135.

The primary impact on the use of single engine-airplanes would be

on operations in Alaska. The FAA specifically requests comments on the

potential impact on Alaskan operations. Comments should contain as much

factual information as possible and should address possible alternative

requirements where the commenter believes that this proposal would

cause unjustified limitations on current airplane operations in Alaska.

Rotorcraft operations would remain under part 135; however,

additional standards for scheduled passenger-carrying rotorcraft

operations may be considered at a future date. Also, additional

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

future.

V.B. Aircraft Certification

Airplanes operated under part 121 are type certificated under part

25 (or a predecessor or are subject to special airworthiness

requirements in part 121), [[Page 16236]] which specifies airworthiness

standards for transport category airplanes. Those airplanes operated

under part 135 that have a passenger-seating configuration of 20 to 30

seats are also type certificated under part 25. Other airplanes

operated under part 135 are permitted to be type certificated under

part 23, which specifies airworthiness standards for normal, utility,

acrobatic, and commuter category airplanes. Airplanes operated under

part 135 and having a passenger-seating configuration of 10 to 19 seats

are type certificated under the commuter category airworthiness

standards of part 23 (or a predecessor to commuter category airplanes,

e.g., SFAR 23, SFAR 41). To be type certificated under the normal

category of part 23, the airplane must have a maximum certificated

takeoff weight of less than 12,500 pounds. Nothing prohibits a

manufacturer from type certificating a 10- to 19-seat airplane under

part 25.

An applicant for type certification of a turbopropeller-powered

airplane with a passenger seating capacity of 19 or less passenger

seats has the option of requesting type certification in either the

commuter category under the provisions of part 23 of the FAR or the

transport category under the provisions of part 25 of the FAR. Commuter

category type-certification standards differ in some areas from the

corresponding transport category type-certification standards. In some

of those areas, airplanes with a passenger seating capacity of 19 or

less passenger seats can achieve the same level of safety without full

compliance with the standards of part 25 because of their size,

airspeed, or other pertinent parameters.

In the interest of establishing a common approach for all airplanes

with 10 or more passenger seats used in scheduled passenger-carrying

operations under part 121, the FAA proposes to amend part 121 to

require all airplanes for which an application for type certification

is made after March 24, 1995, including those with 10- to 19-passenger

seats, to be type certificated in the transport category if they are

operated in scheduled passenger operations. In order to ensure that

this proposed change would not place any undue burden on an applicant

for type certification of airplanes that could otherwise be type

certificated in the commuter category, the FAA plans to review the

standards of parts 23 and 25. If it is determined that the level of

safety intended by part 25 could be achieved for those airplanes with

19 or fewer passenger seats through compliance with a particular

standard of part 23 in lieu of the corresponding standard of part 25,

part 25 would be amended to offer the part 23 standard as an option.

Areas identified for further review in this regard include:

Sec. 25.21(f) Measurement of wind 10 meters above the surface,

Sec. 25.251 Vibration and buffeting,

Sec. 25.361 Engine torque,

Sec. 25.812(b) Exit sign size, and

Sec. 25.812(l) Inoperative lighting.

The FAA specifically requests comments concerning the above

subjects and standards of part 23 commuter category that could be

considered as optional standards for part 25. It must be emphasized

that any standard adopted as an option must achieve the same level of

safety as that currently intended by part 25. Although this study is

prompted by the 10- to 19-passenger airplanes that would be operated

under part 121, any changes made to part 25 in this regard would apply

to type certification of each 10- to 19-passenger airplane in the

transport category. Any changes to part 25 that are deemed appropriate

would be the subject of a future notice of proposed rulemaking.

The FAA also proposes 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 with certain performance and equipment requirements in

part 121. Some of these part 121 requirements would be based on part 25

requirements. The FAA proposes specific compliance dates, recognizing

that for some airplanes the cost of retrofitting may result in

discontinuing use of the airplane and replacing that airplane with a

part 25 certificated airplane.

V.C. Flight Time Limits and Rest Requirements

Subpart Q of part 121 establishes the flight time limits and rest

requirements for flight crewmembers used by domestic air carriers.

Flight time limits and rest requirements for flight crewmembers used by

flag and supplemental operators are established in subparts R and S,

respectively. The comparable limits in part 135 are in subpart F.

In 1985 (50 FR 29319; July 18, 1985), the FAA issued changes to the

flight time limitation and rest requirements in parts 121 and 135.

These changes clarified and improved the flight time limits and rest

requirements in part 121 for domestic operations and for the first time

established cumulative weekly, monthly, and annual flight time

limitations in part 135. The flight time limitations for scheduled

operations under part 135 are less restrictive than those for domestic

part 121 operations. Currently under part 121, domestic flight time

limits (Sec. 121.471) are 1,000 hours per calendar year, 100 hours per

calendar month, and 30 hours in any consecutive 7 days. Flag flight

time limits (Sec. 121.481) are 1,000 hours per 12-calendar-month

period, 100 hours per calendar month, and 32 hours in any 7 consecutive

days. Under part 135 (Sec. 135.265), scheduled passenger-carrying

operations must comply with flight time limits of 1,200 hours per

calendar year, 120 hours per calendar month, and 34 hours in any 7

consecutive days.

For comparison purposes:

------------------------------------------------------------------------

121 domestic 121 flag 135

------------------------------------------------------------------------

1,000.................. 1,000 1,200

100.................... 100 120

30..................... 32 34

------------------------------------------------------------------------

At the time these rules were issued, the FAA believed that the less

restrictive cumulative flight time limits of part 135 were acceptable

because part 135 operators had not previously had any cumulative

limitations and the less restrictive limits allowed for some

flexibility for operations that necessitated more flight hours during

peak seasons.

There is no longer a justification for the difference in cumulative

flight time limits between commuter operations conducted under part 121

and those conducted under part 135. Both types of operators are

conducting similar types of operations in similar environments. In some

instances the same operator is flying operations under both parts 121

and 135 and applying the less restrictive flight time limits for its

part 135 operations. The only significant differences are in the size

of the airplanes and the number of passengers, differences that do not

justify less restrictive flight time limits for crewmembers.

Therefore, the FAA proposes that the part 121 domestic flight time

limits and rest requirements would apply to affected commuter operators

when conducting operations within the United States. 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, when these operators use these same airplanes for

nonscheduled operations, those airplanes would be required to comply

[[Page 16237]] with supplemental flight time limitations and rest

requirements of subpart S of part 121. (See the discussion under part

119 of the preamble for further information on flag and supplemental

operations.)

The flight time limitations and rest requirements for flag and

supplemental operations were not updated in 1985 when domestic limits

were. In view of this, the FAA is developing an NPRM that it plans to

issue in mid-1995 that would set forth a common approach to reduce the

effects of fatigue on crewmembers in all kinds of operations under

parts 121 and 135.

Section 135.261(b)(1) allows scheduled passenger-carrying

operations conducted solely within the State of Alaska to comply with

the nonscheduled limitations of part 135. This rulemaking does not

propose to include an exception for Alaska under part 121 flight time

limits. This proposal, in effect, would eliminate this option in Alaska

for scheduled passenger-carrying operations of airplanes with 10 or

more passenger seats. The FAA believes this is necessary because pilots

in Alaska are flying in the same type of scheduled operations as pilots

in other parts of the country and are subject to the same fatigue

factors. The FAA does, however, recognize that Alaskan operations pose

certain unique problems, and the FAA requests comments on alternatives

that could be considered.

V.D. Age 60 Rule

Section 121.383 prohibits a certificate holder from using the

services of any person as a pilot on an airplane engaged in operations

under part 121 if that person has reached his or her 60th birthday and

prohibits any person from serving as a pilot on an airplane engaged in

part 121 operations if that person has reached his or her 60th

birthday. Part 135 does not have any age limitation. The FAA proposes

to impose one age limit on all pilots employed in part 121 operations,

including those pilots currently employed in certain part 135 scheduled

operations.

The Age 60 Rule, as the requirement has come to be known, has been

the subject of considerable attention by the FAA, pilot groups, and

others. The FAA is presently considering whether, in the interest of

safety, the Age 60 rule should be maintained as is or revised to allow

pilots to continue to fly in part 121 operations past their 60th

birthday. If the FAA determines that it is appropriate to propose a

different age limitation, it will propose to apply the revised

limitation to all part 121 operations, including those commuter

operations affected by this rule.

V.E. Dispatch System

Parts 121 and 135 require operators to exercise operational control

over all flights conducted by the operator. 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 a daily basis

which are necessary to operate specific flights safely. These

activities include, but are not limited to, crew and airplane

scheduling, reviewing weather and NOTAM's (Notices to Airmen), and

flight planning. Operational control systems vary according to the kind

of operation, the complexity of operations, and the means of

communication used to exercise operational control. Parts 121 and 135,

in pertinent part, provide for three general types of operational

control systems: Aircraft dispatch, flight following, and flight-

locating systems.

While part 121 requires certificate holders conducting domestic and

flag operations to have aircraft dispatch systems to exercise

operational control of flights, part 135 does not. A certificate holder

that conducts domestic or flag operations under part 121 must use a

certificated aircraft dispatcher. The aircraft dispatcher in

conjunction with the pilot in command (PIC), establishes the flight

plan and monitors the flight from flight release to flight completion.

The aircraft dispatcher provides the PIC with information on weather

changes, fuel level, weight and balance, and destination airport

conditions and capabilities; and, jointly with the PIC, makes decisions

affecting the continuing safety of the flight. Under part 135

operations the PIC is typically responsible for these operational

control functions. The following sections describe the three types of

operational control in the FAR.

Aircraft Dispatch Systems. Section 121.395 requires operators

subject to the flag or domestic rules of part 121 to use certificated

aircraft dispatchers who, along with the PIC, under Secs. 121.533 and

121.535, are jointly responsible for exercising operational control

over certain aspects of flights. A PIC may not initiate or continue a

flight unless both the PIC and the aircraft dispatcher controlling the

flight agree that the flight can be conducted safely as planned under

reported and forecast conditions. The FAR require that both the

aircraft dispatcher and the PIC sign a dispatch release. Section

121.463 requires that each aircraft dispatcher be familiar with all

essential operating procedures for that segment of the operation over

which he or she exercises dispatch jurisdiction. Before dispatching any

flight, an aircraft dispatcher must be thoroughly familiar with the en

route and terminal weather conditions and the status of communications,

navigation, and airport facilities. Section 121.601 requires that the

aircraft dispatcher provide the PIC with a preflight briefing on each

of these items. An aircraft dispatcher must monitor the progress of

each flight under the dispatcher's control until the flight has landed

or passed beyond the dispatcher's area of control or until the

dispatcher is relieved by another dispatcher. Flight monitoring, at a

minimum, must include monitoring the flight's fuel supply, remaining

flight time, terminal weather trends, en route winds and weather, and

the status of airport and navigational facilities. Section 121.99

requires that rapid and reliable two-way radio communications between

each flight and the dispatcher be available at any time in the flight.

Once initiated, a flight must continue to its destination as planned

and in accordance with the conditions of the dispatch release unless,

in the opinion of either the PIC or the dispatcher, it is unsafe to do

so. In such cases, the dispatch release must be amended. Section

121.557 authorizes the PIC to deviate from the conditions of the

dispatch release to the extent necessary for safety in an emergency.

When the PIC exercises this authority, the regulation requires the PIC

to keep both air traffic control (ATC) and dispatch fully informed of

the progress of the flight.

Flight Following Systems. Operators subject to part 121

supplemental rules (charter operations, all-cargo operations, etc.) are

not required to have dispatch systems because such systems are

impractical for operators who do not fly to the same destinations on a

scheduled basis. Section 121.537 requires operators who are subject to

the supplemental rules of part 121 to place the major responsibility

for operational control of flights with the director of operations. The

director of operations may delegate authority for the control of the

flight to other employees (known as flight followers). Flight following

personnel are not required to be certificated aircraft dispatchers.

Under a flight following system, PIC's are responsible for preflight

planning and for the safe conduct of the flight. A PIC may not begin a

flight unless the PIC is thoroughly familiar with reported and forecast

weather conditions on the route [[Page 16238]] to be flown and has

obtained all available reports on airport conditions and irregularities

of navigation facilities that may affect the safety of the flight. A

flight release specifying the conditions under which the flight will be

conducted is prepared and signed by the PIC before the flight may

depart. Section 121.597(b) prohibits the PIC from signing the release

until the director of operations or the flight follower, if delegated

the authority, concurs that the flight can be safely conducted as

planned. During the flight the PIC must obtain any additional available

information on meteorological conditions and navigational and airport

facilities that may affect the safety of the flight. The operator is

responsible for ensuring that the PIC has the means to obtain this

information. The operator is not required to provide the capability for

inflight radio communications between the director of operations or

flight follower and the PIC. The director of operations is responsible

for monitoring the progress of each flight from its point of origin to

its arrival at the destination.

Flight Locating Systems. While Sec. 135.77 requires that each

operator exercise operational control, part 135 does not specify a

particular means of exercising continuous operational control of all

aspects of the flight. Since part 135 operations range from visual

flight rule operations in simple airplanes to extended overwater

operations in jet transport airplanes, the regulations allow the

operator to use a means that is appropriate to the operating

conditions. Part 135 does not require operators to prepare a formal

release authorizing a specific flight. Section 135.69 requires that the

operator restrict or suspend operations when either the PIC or the

operator becomes aware of a hazardous condition. The operator's manual

must provide for adequate briefing and trip planning procedures to

ensure that all safety requirements are fulfilled. Part 135 operators

commonly delegate release authority to PIC's. Section 135.79 requires

that each operator maintain at least a flight locating system for those

flights for which an FAA flight plan is not filed. The system must

provide for the timely notification of an FAA facility or a search and

rescue facility if an airplane is overdue or missing. Part 135

operators may require PIC's to file ATC flight plans as a means of

complying with this requirement. Part 135 operators are not required to

have the capability to contact flights while they are airborne. Part

135 does not specify the qualifications or titles of individuals

authorized to release or follow flights.

FAA Dispatch Proposal. For scheduled passenger-carrying operations,

the safest means for maintaining operational control is an aircraft

dispatch system. This allows for information relevant to the flight to

be accessed and passed on to the pilot throughout the flight. It also

provides the pilot with verification of pilot calculations related to

weight and balance, fuel load, etc., since these detailed calculations

are also performed by the aircraft dispatcher. Weather changes en

route, airport and airport facility, and other essential information is

made available to the pilot through the dispatcher. If an inflight

emergency occurs, the pilot and the dispatcher can communicate on the

safest measures to follow.

While the safety benefits of a dispatch system are significant,

there is substantial cost involved in establishing a dispatch system

because dispatchers must be hired and trained and dispatch centers and

equipment must be available for communicating. In addition, some part

135 operators who would be subject to part 121 requirements as a result

of this rulemaking already use an aircraft dispatch system.

The Congressional hearings on commuter operations included

presentations directly related to requiring dispatchers for commuter

operations conducted under part 135. Arguments for part 135 dispatchers

included the following: (1) NTSB said that a lack of direct management

oversight and inexperienced crews may have contributed to some part 135

commuter accidents and that a dispatcher may provide an additional

safety enhancement; (2) the Airline Dispatchers Federation (ADF) said

that dispatchers can prevent accidents by assisting the pilot with

preflight planning and providing safety information throughout flights.

ADF added that using dispatchers would not be costly because carriers

would save fuel. They also said that sufficient staff may already exist

to handle dispatcher duties. ADF representatives testified that pilots

should fly the airplane and let dispatchers take over some of the

traditional pilot workload (e.g., flight planning to include fuel

planning, weather checks, weight and balance calculations).

Contrary to ADF's suggestion about dispatchers taking over some of

the pilots' work load, the FAA believes that, although the aircraft

dispatcher initially performs certain calculations, the pilot is still

required to check the dispatcher's calculations before flight. The

redundancy of the dispatch system provides assurance that the

calculations are accurate. This is especially important in fast turn-

arounds, common in commuter operations.

The NTSB safety study on commuter airline safety (as cited earlier)

reports that for 20 commuter airlines that were surveyed: 4 provide

licensed dispatch services (these 4 also conduct part 121 scheduled

operations); 16 provide weather information to the pilot at each

station through computerized services, station agents, or ramp

personnel; at 19 airlines, the pilots calculate weight and balance for

each flight; and at 11 airlines, the pilots are responsible for

calculating the minimum fuel load for each flight.

The NTSB found that pressures on part 135 pilots to accomplish

several tasks--such as obtaining weather information, calculating

minimum fuel load, and calculating weight and balances--between flights

in short periods of time increase the risk of critical mistakes that

could jeopardize safety.

Pilot responses to questions in the survey about dispatch services

and comments made during a public forum conducted by NTSB indicated

that it was extremely difficult for the pilots to accomplish the tasks

correctly in the amount of time they had during turn-arounds. Pressure

to perform the tasks rapidly is most extreme for newly employed

captains and first officers who are concerned that their performance

evaluations will suffer if they are responsible for flight delays.

Pilots reported that they would feel more confident if their weight and

balance and fuel calculations were verified by a trained and licensed

dispatcher.

The NTSB safety study recommendations include requiring principal

operations inspectors 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. (NTSB

recommendation A-94-193)

To correct these identified problems, the proposed rule would

require all affected commuters to meet all part 121 dispatch

requirements, including dispatcher qualification requirements,

recordkeeping, and flight release requirements. Affected commuters who

would conduct some nonscheduled flights under part 121 supplemental

rules could use a flight following method for the nonscheduled flights.

[[Page 16239]] The FAA does, however, recognize that Alaskan operations

pose certain unique problems, and the FAA requests comments on

alternatives that could be considered.

V.F. Major Equipment Items

Part 121, subpart K, contains certain equipment requirements for

airplanes operated under that part. Some of these items of equipment

are considered major because they are relatively costly to buy and

install and they provide major safety benefits. These items include

flight data recorders (Secs. 121.343 and 135.152), traffic alert and

collision avoidance system (Secs. 121.356 and 135.180), airborne

weather radar (Secs. 121.357 and 135.173), low altitude windshear

(Sec. 121.358), and cockpit voice recorders (Secs. 121.359 and

135.151). Of the above items, airborne weather radar is the only

equipment requirement that would be added for 10- to 19-passenger-

configurated airplanes under this proposal. Each major equipment

requirement affected or not affected by the proposed rule is discussed

below.

Flight Data Recorders (FDR). FDR are required in part 121 for all

large airplanes. Stated simply, the regulations require operators to

equip certain airplanes at specified times with digital FDR that have

6, 11, or 17 data parameters depending on the date of type

certification or manufacture of the airplane. FDR are required in part

135 for multiengine turbine-powered airplanes with a passenger-seating

configuration of 10 to 19 seats that were brought on to the U.S.

register after October 11, 1991. This means that airplanes manufactured

after that date or brought into the country and registered after that

date must have FDR, but airplanes previously registered do not have to

be retrofitted with FDR. Airplanes having a passenger-seating

configuration of 20 or more seats must be equipped with FDR no matter

when they were registered.

FDR are an essential tool for determining the causes of airplane

accidents. As cockpit technology has advanced FDR have been developed

to capture more information on the flight characteristics of an

airplane and thereby yield more helpful information in determining the

causes of accidents.

Concurrent with this rulemaking, the FAA had determined that the

FDR regulations in part 121 need to be updated to address technological

advances in airplanes and FDR equipment. The FAA had made a preliminary

decision to issue a proposal on FDR in the near future. Subsequent to

its review, the NTSB, on February 22, 1995, issued three

recommendations concerning FDR changes, and a public meeting is

scheduled for April 20, 1995. In light of these developments, it would

not be prudent to require affected operators to comply with current

part 121 requirements at this time. This proposal would therefore

maintain the status quo on FDR requirements, pending future rulemaking.

Traffic Alert and Collision Avoidance System (TCAS). Both parts 121

(Sec. 121.356) and 135 (Sec. 135.180) require TCAS. Section 121.356(a)

requires TCAS II with an appropriate class of Mode S transponders for

airplanes with more than 30 seats. Section 121.356(b) requires

passenger or combination cargo/passenger airplanes with seating

configurations of 10 to 30 seats to have an approved TCAS by December

31, 1995 (59 FR 67584; December 29, 1994).

In both part 121 and part 135, a TCAS II System installed in a 10-

to 30-seat airplane must be capable of coordinating with TCAS units

that meet TSO C-119.

Section 121.356(c) requires that the manuals required by

Sec. 121.131 shall contain certain information in the TCAS II System.

Section 135.180(b) has a similar requirement stating that the flight

manual required by Sec. 135.21 shall contain certain information on

TCAS I.

Since the requirements for 10- to 30-seat airplanes are

substantially the same, affected commuters would be able to comply with

the part 121 requirements. The manual requirements in part 121 would be

updated to apply to TCAS I as well as TCAS II.

Airborne Weather Radar. Section 121.357 requires an approved

airborne weather radar on all transport category airplanes. Part 135

has requirements identical to part 121 for large transport category

airplanes in passenger operations (Sec. 135.175), but part 135

requirements are less restrictive for airplanes with a passenger-

seating configuration of 10 to 19 seats (that is, nontransport

category) (Sec. 135.173). These airplanes may have either airborne

weather radar or airborne thunderstorm detection equipment. Both parts

121 and 135 contain exceptions for operations in the states of Hawaii

and Alaska and parts of Canada.

While most commuters operating under part 135 probably have

airborne weather radar, some of the 10- to 19-passenger-seat airplanes

may not. Airborne weather radar provides a higher level of safety than

thunderstorm detection equipment because it provides pilots with a more

accurate presentation of the relative location and distance of

potentially severe weather conditions. Radar may be tilted up or down

to show the maximum tops of thunderstorm areas and may be adjusted to

display the relative density and strength of the area of potentially

severe weather. With radar in an aircraft it is feasible to maneuver

safely through an unanticipated entrance into severe weather

conditions.

This proposal would require all affected operators to have airborne

weather radar on their airplanes.

Low-Altitude Windshear. Low-altitude windshear equipment provides a

warning to the flightcrew if windshear is in the area and provides

guidance for avoiding windshear. Section 121.358 requires low-altitude

windshear equipment on turbine-powered airplanes. The definition in

Sec. 121.358(d)(1) for turbine-powered excludes turbopropeller-powered

and piston-powered airplanes. Part 135 does not require low-altitude

windshear equipment. Both part 121 and part 135 (Secs. 121.404 and

135.10) require windshear training for crewmembers; part 121 requires

ground and flight (simulator) training while part 135 requires ground

training.

The proposed rule would not require low-altitude windshear

equipment for turbopropeller-powered or piston-powered airplanes since

these airplanes are already excluded under the part 121 definition. The

performance characteristics of these airplanes make them better able to

escape from an inadvertent windshear encounter. The turbopropeller

engines and straighter wings of these airplanes enable lift and

acceleration to be more immediately applied, thus making the airplanes

better able to escape from inadvertent windshear encounters.

If any turbojet-powered airplane is being used in scheduled

passenger-carrying operations under part 135, it would have to comply

with the part 121 low-altitude windshear equipment requirements. The

FAA requests information on any operator who would be affected by this

requirement.

Cockpit Voice Recorders (CVR). CVR provide accident investigators

with information about the flight which helps to determine the cause of

an accident or incident and thereby helps to prevent future accidents.

Section 121.359 requires CVR on all large turbine-engine-powered

airplanes and on large pressurized airplanes with four reciprocating

engines. Section 135.151(a) requires one standard of CVR on all

multiengine turbine-powered airplanes or rotorcraft having a passenger-

seating configuration of six or more and for which two pilots are

required by type certification, and Sec. 135.151(b) requires another

standard [[Page 16240]] for all multiengine turbine-powered airplanes

or rotorcraft having a seating configuration of 20 or more seats.

The proposed rule would not change current CVR requirements. These

standards, updated in 1988, continue to be appropriate to the types of

operations involved. The requirements now in part 135 for 10- to 19-

seat airplanes would be incorporated into part 121 under the proposed

rule.

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

operation.

Part 139 prescribes regulations governing the certification and

operation of land airports that are served by any scheduled or

nonscheduled passenger air carrier operating airplanes with a seating

capacity of more than 30 passengers. Therefore, part 135 commuter

operators may use airports that are not FAA certificated.

Part 139 contains requirements for aircraft rescue and fire

fighting equipment, airport guidance signs, airfield inspection

procedures, airport staff training, airfield discrepancy reporting

(Notices to Airmen), airfield pavement maintenance standards, emergency

plans, snow and ice control plans, and runway and taxiway standards.

The statutory authority for the FAA to certificate airports, as

specified in 49 U.S.C. 44706(a), limits that authority to an airport

``that serves an air carrier operating aircraft designed for at least

31 passenger seats.'' The NTSB has recommended that the FAA seek

legislative expansion of the statute to include in the Airport

Certification Program all airports served by air carriers that provide

scheduled passenger carrying service and revise part 135 to permit

scheduled passenger operations only into airports certificated under

the standards in part 139.

In response to the NTSB recommendation, the FAA in conjunction with

the Department of Transportation, is proposing legislation which would

grant the agency the authority to certificate any airport which

receives scheduled service by an air carrier utilizing airplanes

designed for 10 or more passenger seats. If approved, this legislation

would add approximately 200 airports to the FAA's airport certification

program.

Until such legislation is enacted, according to the proposed rule,

affected commuters would be permitted to operate into other than part

139 certificated airports. Should the FAA receive expanded authority

over airport certification, the FAA would, through rulemaking, propose

standards that are sufficiently flexible to cover the range of airports

presently served under part 135. These standards could not, in all

cases, be at the level currently required under part 139 for part 121

operations.

In anticipation of receiving the necessary legislative authority,

the FAA has proposed a task to the Aviation Rulemaking Advisory

Committee (ARAC). The task requests ARAC to recommend what requirements

in part 139 should be applicable to these airports. In making these

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. The ARAC task allows all segments of the

industry the opportunity to provide input into this effort at the

earliest stages and will serve as the basis for rulemaking if the

legislative authority is granted.

V.H. Proposed Effective Date and Compliance Schedule

The FAA proposes an effective date of 30 days and a general

compliance date of 1 year. The FAA also proposes delayed compliance

dates for certain actions as listed below. Proposed Secs. 121.2 and

135.2 set out the compliance schedule and an accelerated compliance

option, as discussed below.

Under the proposal, affected operators would comply with each

requirement in part 121 unless an exception is provided in part 121.

Therefore, it is important for affected operators to examine and

comment on the potential impact on their operations of every part 121

requirement and not just those requirements specifically discussed in

this NPRM.

It is the FAA's intention that if a final rule is adopted as a

result of this NPRM, the final rule would be published not later than

December 31, 1995, and that within 1 year of that date, that is, by

December 31, 1996, all affected operators that have air carrier

certification or operating certificates issued under part 135 at the

time of publication would have completed the approval process and

obtained new operations specifications giving them authority to conduct

domestic or flag operations under part 121.

Under this proposal, persons who submit applications for or obtain

air carrier certificates or operating certificates after 30 days after

the effective of the final rule would be required to obtain part 121

operations specifications; however, these new entrants would meet the

same requirements as the affected commuters, i.e., delayed dates for

compliance and retrofit.

The FAA proposes longer compliance dates than the proposed 1-year

general compliance date for some equipment requirements. These

requirements, which fall into two categories, retrofit requirements and

requirements for newly manufactured airplanes, are explained later in

the preamble under the applicable part 121 subpart and are set out in

proposed Secs. 121.2 and 135.2 (these two sections are identical). In

each case, the FAA has calculated the compliance time in consideration

that, even if each of the retrofits were to be started immediately, it

would take considerable time to accomplish them fleet-wide. Factors

that mitigate for a period longer than one year include:

The necessity for redesign of approved structures and

systems, and the extent of those redesigns.

The requirement to test such redesigns, including the

effect of the redesign on other systems.

The availability of FAA resources for witnessing tests and

for making findings of compliance.

The labor and airplane downtime necessary to accomplish

the retrofits.

The availability (or lack thereof) of appropriate

materials and parts, and qualified designers and installers. The short

lead times from suppliers and other entities not subject to direct

control of operators are also relevent, especially since affected

operators may be competing for the same resources.

The effect of achieving compliance of other requirements

that would be imposed by this or other rulemakings. (For example, the

compliance period for the proposed requirements for flammability for

compliant seat cushions and flotation-capable seat cushions would

coincide.)

The longer compliance times are summarized as follows:

Two-year retrofit period. The following would require to be

retrofitted within 2 years after the publication date of the final

rule:

Landing gear aural warning device (Sec. 121.289).

Ditching emergency exits requirements in Sec. 25.807(e)

(Sec. 121.293(a)). [[Page 16241]]

Lavatory fire protection (Sec. 121.308).

Floor proximity lighting, emergency exit handle

illumination, and interior and exterior emergency lighting

(Sec. 121.310 (c), (d), (e), and (h)).

Passenger seat cushion flammability and flotation

(Secs. 121.312(c) and 121.340).

Protective breathing equipment (Sec. 121.337(b)).

For example, compliance with the lavatory fire protection

requirements would include redesigning existing lavatories to

incorporate automatic fire extinguishers and other hardware, where none

had existed before. In attempting to comply with the passenger seat

cushion requirements, affected operators may end up competing for

suppliers' cushion materials. The incorporation of PBE equipment in

cockpits, where space may be scarce, may necessitate design compromises

that must be carefully evaluated.

Four year retrofit. The following would be required to be

retrofitted within 4 years after the publication date of the final

rule:

Pitot heat indication system (Sec. 121.342).

Additional factors may mitigate for proposing requirements to apply

only to newly manufactured airplanes. In addition to consideration of

the extent of redesigning and replacing existing systems and

structures, the need to revise and re-tool manufacturing processes

frequently will be relevant.

Newly manufactured within 1 year. The following would be required

of newly manufactured airplanes operated in scheduled service 1 year

after the publication date of the final rule:

Safety belts and shoulder harnesses (Sec. 121.311(f)).

Compliance with this requirement would mandate that use of each

belt and harness system, when buckled, allows each flight crewmember to

perform their duties, including reaching controls on the flight deck;

this may entail a redesign to ensure the proper crewmember-to-control

interface.

Newly manufactured within 4 years. The following would be required

of newly manufactured airplanes operated in scheduled service 4 years

after the publication date of the final rule:

Takeoff warning system (Sec. 121.293(b)).

Compartment interior flammability (Sec. 121.312(a)).

Cargo and baggage compartments (Sec. 121.314).

Compliance with the cargo and baggage compartment requirements, for

example, would involve redesigning the airplanes to incorporate

detector and extinguisher systems; in addition, new compartment liner

materials would be incorporated. Compliance would likely necessitate

the incorporation of redesigned mechanical, structural, and electrical

systems to support the new systems. Designs and materials that have

been approved for transport category airplanes may or may not ``work''

in other certificated airplanes; design and testing resources would be

expended to confirm whether they do. Space within the fuselages of

affected airplanes will likely be at a premium, thus limiting many

design alternatives. The availability of (or lack thereof) design,

part, and material support may be noticeably affected by competition

for them among several operators.

To ensure an orderly transition to part 121 operations, the FAA

proposes that a transition plan be submitted by each affected commuter

within 60 days of the publication date of the final rule. Such a plan

would enable operators to transition to part 121 operations efficiently

and methodically, while giving the FAA the information it needs to

allocate FAA inspector resources appropriately to ensure that all

affected commuters receive both help and oversight as they move to part

121 operations.

Proposed Secs. 121.2(g) and 135.2(g) set out the elements of the

transition plan. It must contain a calendar of events and show detailed

plans for obtaining new part 121 operations specifications, showing

compliance with all applicable part 121 requirements, and purchasing

and installing equipment within the time allowed for each equipment

requirement. Specific discussion of such items as developing and

implementing a dispatch system, updating manuals to meet part 121

requirements, and conducting any necessary proving tests would be

included in the plan. The plan should also address how compliance with

this rule would be coordinated with the implementation of the new rule

requiring training under part 121, subparts N and O. (See discussion

under ``FAA Related Actions,'' above.)

The FAA requests comments on the proposed effective date and

compliance schedule. The FAA encourages affected operators to achieve

compliance sooner than the 1-year general compliance date and delayed

compliance dates and would like to provide incentives that the FAA can

reasonably provide. The FAA requests comments on possible incentives

for early compliance.

VI. Discussion of Specific Proposals

VI.A. Part 119--Certification: Air Carriers and Commercial Operators:

Summary

Purpose of Part 119. Part 119 is a proposed new part that

consolidates into one part the certification and operations

specifications requirements for persons who operate under parts 121 and

135. These regulations are currently in SFAR 38-2, which replaced the

certification and operations specification requirements in parts 121

and 135 in response to the Airline Deregulation Act of 1978.

Part 119 was originally proposed in 1988 (53 FR 39853; October 12,

1988; Docket No. 25713). Based on comments received on the definition

of ``scheduled operation'' in the NPRM, the FAA published a

Supplemental Notice of Proposed Rulemaking (SNPRM) in 1993 (58 FR

32248; June 8, 1993; Docket No. 25713).

In this NPRM, the FAA is republishing the entire text of part 119

for comment because of the length of time since the first NPRM, the

number of changes that have been made to the proposed text, and the

significance of the changes to part 119 that are proposed as a result

of this NPRM.

In this section of the preamble, changes to proposed part 119 that

are the result of this NPRM are explained. Other changes to part 119

that are not related to this NPRM are discussed later in the preamble,

after the discussion of the proposed changes to parts 121 and 135.

The FAA requests comments on all aspects of part 119. However,

comments already received on the first NPRM and the SNPRM for part 119

will be considered before issuing part 119 as a final rule; therefore,

commenters do not need to repeat statements already submitted to the

FAA.

Changes to Part 119 as a Result of this NPRM. Proposed Sec. 119.3

contains definitions for the 5 kinds of operations conducted under

parts 121 and 135 (Domestic, Flag, and Supplemental in part 121 and

Commuter and On-demand in part 135). The FAA proposes to move the

affected commuters to part 121 by changing the definitions for

``Commuter operations,'' ``Domestic operations,'' and ``Flag

operations.''

The most important change to the proposed definitions of ``domestic

operations'' and ``flag operations'' is that instead of applying to

airplanes with more than 30 passenger seats, the definitions would

apply to airplanes with more than 9 passenger seats. However, scheduled

passenger-carrying operations conducted with turbojet-

[[Page 16242]] powered airplanes are defined as ``domestic

operations,'' or ``flag operations,'' regardless of the number of

passenger seats. Minor changes are also made in the part of the

definitions that specifically identify which operations are considered

``domestic'' and ``flag.'' ``Domestic operations'' generally mean

operations are conducted between points within the 48 contiguous states

and the District of Columbia, or between any two points within any

state, territory or possession of the U.S. ``Flag operations''

generally mean operations conducted between any point within Alaska or

Hawaii, or any territory or possession of the U.S., and any point

outside the U.S., Alaska, Hawaii, or possession of the U.S.--and, any

point outside Alaska, Hawaii, or any territory or possession of the

U.S. Flag operations also include operations conducted between any

point within the 48 contiguous states or the District of Columbia and

any points outside the contiguous states or the District of Columbia.

The definition of ``commuter operation'' would be changed so that

smaller airplanes used in scheduled passenger operations would be

considered commuter--those conducted with airplanes that have 9 or less

passenger seats, except for turbojet-powered airplanes, as explained

above, and those that are conducted with rotorcraft, regardless of the

size.

A change to the definition of ``scheduled operation'' may have an

effect on certain operations that are not currently considered

``commuter operations.'' Under SFAR 38-2 and as previously proposed in

part 119, the only operations that are considered commuter are those

with a frequency of operations of at least five round trips per week on

at least one route between two or more points according to published

flight schedules. Scheduled operations with a lesser frequency are

conducted under the on-demand rules. In this NPRM, the FAA proposes to

eliminate the frequency test so that an operation with as few as one

scheduled flight per week would have to be conducted under either the

commuter rules of part 135 (for airplanes configured with 9 or fewer

passenger seats) or the domestic or flag rules of part 121 (for

airplanes configured with more than 9 passenger seats). This change is

being proposed so that all scheduled passenger operators would be

required to follow the applicable rules, i.e., domestic, flag, or

commuter. The FAA is not aware of any operations that would be affected

by eliminating the frequency test and specifically requests comments on

the impact of this proposed change.

The definitions of ``on-demand operation'' and ``supplemental

operation'' have been rewritten to make it clearer which operations

fall into these categories. They have not changed significantly from

current rules or from the NPRM, except for one important difference.

This NPRM does not change the basic dividing line between on-demand and

supplemental operations (more than a 30-passenger-seat configuration or

more than 7,500 pound payload capacity is a supplemental operation),

except that if a specific airplane with a passenger-seating

configuration of 10 to 30 seats is used in domestic or flag operations

as a result of this rule, any nonscheduled operation conducted with

that airplane must be conducted under the part 121 supplemental rules,

instead of under the on-demand rules of part 135. This is necessary

because an airplane must be listed in a certificate holder's operations

specifications as either a part 121 or a part 135 airplane; it cannot

be switched back and forth between parts without a major investment of

time and resources by both the operator and the FAA. Switching between

parts entails many things, including airplane conformity checks,

equipment checks, and record checks.

Section 119.21 contains the regulatory roadmap that requires

domestic, flag, and supplemental operations to be conducted under part

121 and commuter and on-demand operations to be conducted under part

135. (See also Table 2 for a visual aid to the operating rules that

apply to different kinds of operations.) This section has been

reorganized and rewritten to make it easier to follow. It contains a

provision that allows commuter operations to be conducted under

domestic or flag rules, if the certificate holder obtains authorization

from the Administrator. Likewise, part 135 on-demand operations may be

conducted under the supplemental rules of part 121, if the certificate

holder obtains authorization from the Administrator.

Section 119.49, Contents of Operations Specifications, specifies

all of the items that are listed in each certificate holder's

operations specifications. Although no substantive changes are being

proposed for this section, affected commuters should carefully review

this section because they would need to obtain revised operations

specifications that allow them to conduct operations under part 121.

Generally, affected commuters who conduct domestic operations would

need to obtain operations specifications for domestic operations, while

affected commuters who operate internationally would need to obtain

operations specifications for flag operations. The items included in

operations specifications for commuter operations are the same as for

domestic and flag operations except that, under Sec. 119.49(a)(4),

domestic and flag operations must also list provisional and refueling

airports. Affected commuters would need to identify these airports for

their operations.

Table 2.--Operating Rules That Apply for Different Kinds of Operations

--------------------------------------------------------------------------------------------------------------------------------------------------------

Part 121

Size/weight of Part 121 domestic Part 121 flag supplemental (Not Part 135 commuter Part 135 on-demand Part 125 (Not

aircraft (Scheduled) (Scheduled) scheduled) (Scheduled) (Not scheduled) scheduled)

--------------------------------------------------------------------------------------------------------------------------------------------------------

Airplanes (Common

Carriage):

9 No\1\............... No\1\............... No\2\............... Yes\1\.............. Yes\2\.............. No

seats and 7500 lbs.

10-30 seats and Yes................. Yes................. No\2\............... No.................. Yes\2\.............. No

7500

lbs.

>30 seats or Yes................. Yes................. Yes................. No.................. No.................. No

>7500 lbs.

Airplanes (When

common carriage is

not involved):

20 No.................. No.................. No.................. No.................. No.................. Yes

seats or 6000 lbs.

[[Page 16243]]

Rotorcraft:

Common carriage No.................. No.................. No.................. Yes................. Yes................. No

and when common

carriage is not

involved.

--------------------------------------------------------------------------------------------------------------------------------------------------------

\1\Turbojet-powered airplanes used in scheduled passenger-carrying operations must comply with part 121 regardless of passenger seating or payload

capacity.

\2\If turbojet-powered airplanes and other airplanes with 10-30 seat configurations are used for part 121 Domestic or Flag operations, non-scheduled or

charter operations with that airplane shall be conducted under part 121 supplemental rules.

Also, current FAA policy and guidance require a 121 operator to

have detailed operations specifications for intended VFR operations.

Part 135 is more liberal in the conduct of VFR operations allowed. FAA

believes that a higher level of safety is gained by conducting

operations under instrument flight rules (IFR). Therefore IFR

operations are seen as the standard; VFR operations, although still

allowed, would be an exception approved only through operations

specifications.

Before the FAA approves an affected commuter for domestic or flag

operations and issues the new operations specifications, an FAA

inspector would need to review all of the certificate holder's

operations and procedures to ensure that the certificate holder has

made the changes necessary in its operations to comply with part 121

rules. The FAA inspector would review and approve such items as the

dispatch system, revised manuals, procedures for complying with part

121 flight time and rest requirements, completion of airplane proving

flights, etc. The FAA will provide guidance to the affected commuters

so that they can prepare for this approval process.

Requirements for the types and qualifications of management

personnel for parts 121 and 135 operations are consolidated in proposed

part 119. Sections 119.65 and 119.69 contain the types of management

positions required for part 121 and part 135 operations, respectively.

Sections 119.67 and 119.71 specify the qualifications for individuals

in those positions. Section 119.65 proposes that part 121 operations

have a Director of Safety, a Director of Operations, a Chief Pilot, a

Director of Maintenance, and a Chief Inspector. Section 119.69 proposes

that part 135 operations have only a Director of Operations, a Chief

Pilot, and a Director of Maintenance. However, Sec. 119.65(b) contains

a provision that the Administrator may approve positions or numbers of

positions other than those listed above for a particular operation if

the certificate holder can show that safety can be maintained with

fewer or different categories of management personnel.

The FAA is proposing in Sec. 119.65 that each certificate holder

that conducts operations under part 121 must have a Director of Safety.

This person would be responsible for keeping the highest management

officials of the certificate holder fully informed about the safety

status of the certificate holder's entire operation. In its recent

survey of 21 commuter airlines, the NTSB found that the person most

likely approached by pilots with safety concerns was the Chief Pilot or

the Director of Operations, the persons also responsible for the day-

to-day management of line operations. The FAA agrees with the NTSB

that, although other management personnel should be informed and aware

of safety concerns, a safety officer can be most effective when

functioning independently of those with responsibility for day-to-day

operations. For this reason, ideally the Director of Safety should not

also be assigned to any of the other required management positions in

Sec. 119.65 (Director of Operations, Chief Pilot, Director of

Maintenance, Chief Inspector), nor should the Director of Safety report

to any of those positions, but should instead report to only the

highest management levels at the airline. However, the FAA realizes

that this could create a problem for smaller operators with fewer

management level positions. The FAA invites comments on how to

structure an independent safety function in airlines of different sizes

and is particularly interested in responses to questions such as:

Should the rules require that the Director of Safety be a separate

position, totally independent of other management positions? What would

be the burden of such a requirement? If, following a review of the

comments received, the FAA decides to adopt a mandatory separation of

function, the final rule will specifically require this.

The qualification requirements for management positions are similar

for parts 121 and 135 operations, except that the qualifications for

Director of Operations and Director of Maintenance are more stringent

for part 121 than for part 135. Under Sec. 119.67(a), a Director of

Operations for a part 121 operation must have both 3 years supervisory

or managerial experience within the last 6 years and 3 years experience

as a pilot in command (PIC) of a large airplane. If the person is

becoming the Director of Operations for the first time, the three years

as a PIC must have been within the last 6 years. Under Sec. 119.71(a),

a Director of Operations for a part 135 operation must have either 3

years supervisory or managerial experience within the last 6 years or 3

years experience as a PIC. Again, if the person is becoming Director of

Operations for the first time, the three years of PIC experience must

have been within the last 6 years. Under Sec. 119.67(c), a Director of

Maintenance for a part 121 operation must have 5 years experience

within the past 5 years in one or a combination of maintaining the same

category and class of airplane as the certificate holder uses or

repairing airplane in the same category and class of airplane as the

certificate holder uses in a certificated airframe repair station.

In addition the person must have 1 year of supervisory experience

in maintaining the same category and class of airplane as the

certificate holder uses. Under Sec. 119.71(e), a Director of

Maintenance for a part 135 operation must have either 3 years

experience within the past 3 years maintaining the same category and

class of aircraft as the certificate holder uses or 3 years experience

within the past 3 years repairing aircraft in the same category and

class of aircraft as the certificate holder uses in a certificated

airframe repair station, including 1 year in the capacity of approving

aircraft for return to service. Under Sec. 119.67(e) affected commuters

who currently employ persons as Director of Operations, Director of

Maintenance, or Chief Pilot who do not meet the airman, managerial, or

supervisory experience [[Page 16244]] requirements in proposed

Sec. 119.67 may request the Manager of the Flight Standards Division in

the region of the certificate-holding district office to authorize the

continued employment of those individuals. The certificate holder must

be able to show that those individuals have comparable aeronautical

experience that qualifies them to serve as Director of Operations,

Director of Maintenance, or Chief Pilot for a part 121 operation.

Proposed Sec. 119.67(e) does not allow for a waiver of the airman

certification requirements by the Managers of the Flight Standards

Division for those management positions.

VI.B. Part 121 Discussion

The FAA has evaluated each requirement in part 121 to determine

what effect compliance would have on affected operators. The following

discussion describes (1) any proposed revisions to part 121 that would

be necessary so that affected operators can comply with the

requirement; and (2) any requirements that would be new or different

for affected operators and that would impose a burden on the affected

operators. If the FAA has determined that current part 121 and 135

requirements are identical or similar or that the change in compliance

would not impose a burden, the requirements are not for the most part

discussed.

Since all of part 121 would apply to affected operators unless

otherwise stated in the proposed rule, each affected operator and

individual should evaluate all of part 121, not only the proposed

revisions, to determine how the proposed rule would affect them. The

FAA invites comments on any effects of this proposed rule whether or

not the requirements have been specifically addressed in this notice.

Discussion of subpart A revisions appears in the part 119 portion

of the preamble. Subparts B-D would be reserved since the current

substance of these subparts would be subsumed under part 119.

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

Section 121.97 requires all domestic and flag operators to show

that each route it submits for approval has enough airports that are

properly equipped and adequate for the proposed operation. They must

also have an approved system to disseminate this information to

appropriate personnel. Part 135 has similar requirements, but part 121

does require additional information. The FAA believes this would not

have a significant impact on operators affected by this rule change.

Section 121.99 requires all domestic and flag operators to have a

two-way air/ground communications system between each airplane and the

appropriate air traffic control facility, along the entire route. In

the 48 contiguous States and the District of Columbia, the

communications system between each airplane and the dispatch center

must be independent of any system operated by the United States. This

would be a new requirement for the affected operators.

Section 121.101 requires each domestic and flag operator to show

that enough weather reporting facilities are available along each route

to ensure weather reports and forecasts necessary for the operation.

For operations within the 48 contiguous States and the District of

Columbia, these reports must be prepared by the National Weather

Service. For other areas, a system must be approved by the

Administrator. Section 135.213 has similar requirements, except the

pilot in command is allowed to use various other sources, including his

own weather assessment, for VFR operations. This section also requires

reports of adverse weather phenomena. The FAA proposes that affected

operators comply with part 121.

Section 121.107 requires each domestic and flag operator to have

enough dispatch centers, adequate for the intended operation. This

would be a new requirement for affected operators.

See the Dispatch System discussion in the ``Major Issues'' section

of this NPRM for further discussion of this subpart.

VI.B.2. Subpart F--Approval of Areas and Routes for Supplemental Air

Carriers and Commercial Operators

This subpart is similar to subpart E, except it applies to

supplemental operations, and discusses flight following requirements.

This subpart would apply in cases where an affected operator uses an

airplane that is also used in domestic operations to conduct a

nonscheduled operation, as discussed above in Section VI.A.--Part 119

Summary.

See the Dispatch System and Flight Following System discussion in

the ``Major Issues'' section of this NPRM for further discussion of

this subpart.

VI.B.3. Subpart G--Manual Requirements

Manual requirements: Contents and personnel: Under subpart G of

part 121 certificate holders are required to prepare and keep current a

manual containing policies, procedures, applicable regulations, and

other information necessary to allow crewmembers and ground personnel

to conduct the operations properly (see Sec. 121.133 and Sec. 121.135).

While the requirements of parts 121 and 135 are similar, part 121

manual requirements contain a more extensive list of manual contents

(Sec. 121.135). Under part 121 the manual or appropriate parts must

also be furnished to more personnel, such as aircraft dispatchers,

flight attendants, and made available to others, such as station

agents. The effect of these differences between compliance with part

121 versus compliance with part 135 would be significant for commuter

operators. The proposal would require developing, producing, and

distributing new manuals appropriate to part 121. In addition,

Sec. 121.137 requires the air carrier to issue a manual or appropriate

parts to each crewmember and requires each crewmember to keep the

manual up to date and have it with him or her when performing assigned

duties. Part 135 does not require that flight attendants be issued a

manual; however, it does require that persons to whom a manual is

issued must keep it up-to-date (see Sec. 135.21). The FAA believes that

each crewmember should have his or her own manual containing up-to-date

information and regulations pertinent to the crewmembers assigned

duties. For flight attendants the manual would contain information

about inflight medical emergencies, airplane evacuations, water

landings, and other emergencies.

Airplane flight manual. Section 121.141 requires each certificate

holder to keep a current approved airplane flight manual for each type

of transport category airplane that it operates and to carry in each

transport category airplane either the current flight manual or the

manual required by Sec. 121.133 if that manual contains the flight

manual information. Part 135 does not have a comparable requirement;

however, part 135 operators currently must comply with Sec. 91.9, which

requires an approved airplane flight manual on board the airplane if

that manual has been developed. All operators affected by this proposal

would already have an approved airplane flight manual. The requirement

under part 121 is more permissive, allowing appropriate parts of the

certificate holder's manual to be developed and carried instead of the

flight manual and allowing some modifications of flight manual

information if they are approved by the Administrator. This action

proposes to include airplanes used by affected commuters under the

manual requirements of Sec. 121.141 and the

[[Page 16245]] applicability statement of the current rule would be

revised accordingly.

VI.B.4. Subpart H--Airplane Requirements

Subpart H of part 121 contains airplane requirements that apply to

all certificate holders operating under part 121. Section 121.153

contains general requirements (e.g., airplanes must be in an airworthy

condition) that would add no additional burden to airplanes presently

operated under part 135.

Section 121.157 contains type certification requirements for

various types of airplanes operated under part 121. Paragraph (a) of

Sec. 121.157 contains requirements that apply to airplanes type

certificated before July 1, 1942. While it is unlikely that any

airplanes of this vintage are presently operating under part 135

(except possibly an occasional DC-3) these requirements would be

appropriate to such operations and therefore would not be changed.

Paragraph (b) of Sec. 121.157 states that except for C-46 type

airplanes covered in paragraphs (c) and (d), no airplane type

certificated after June 30, 1942 may be operated under part 121

``unless it is certificated as a transport category airplane'' and

meets applicable airplane performance operating limitations as

specified in paragraphs (a), (b), (d), and (e) of Sec. 121.173. Since

most of the 10-to-19 passenger airplanes that would be affected by this

proposal were type certificated in the commuter category (or one of the

predecessors of the commuter category) a new exception to paragraph (b)

is proposed as a new paragraph (e).

Paragraphs (c) and (d) of Sec. 121.157 apply to C-46 type airplanes

and would not have any impact on this rulemaking since no C-46 type

airplanes are presently operating under part 135.

Current paragraph (e) of Sec. 121.157 would be deleted because

helicopters are no longer operated under part 121.

Proposed new paragraph (e) would allow nontransport category

airplanes type certificated after December 31, 1964, to be operated

under part 121 if they were type certificated in the commuter category

or fall into one of the categories listed below (referred to as

``commuter category predecessors'') and meet the additional

airworthiness requirements of subpart I as made applicable by the

proposed amendments to that subpart:

1. Airplanes type certificated before July 1, 1970, in the normal

category that meet special conditions issued by the Administrator for

airplanes intended for use in operations under part 135.

2. Airplanes type certificated before July 19, 1970, in the normal

category that meet the additional airworthiness standards in Special

Federal Aviation Regulation No. 23.

3. Airplanes type certificated in the normal category that meet

additional airworthiness standards in appendix A of part 135.

4. Airplanes type certificated in the normal category and that

comply with either section 1.(a) or section 1.(b) of Special Federal

Aviation Regulation No. 41.

Proposed new paragraph (f) would require that to be operated under

part 121 newly type certificated airplanes (i.e., those for which an

application is submitted after the publication of this NPRM) must be

type certificated under part 25. For newly type certificated airplanes

this change would, in effect, reinstate the requirement that airplanes

operated under part 121 must be transport category airplanes.

Notwithstanding this proposal, the FAA recognizes that some present

requirements of part 25 may not be appropriate for all propeller-

driven, multiengine airplanes with less than 20 passenger seats

(present airplanes used by affected commuters). Therefore the FAA, as

previously discussed, has undertaken a comparative review of parts 23

and 25 and will in the near future propose changes to part 25 as

appropriate to accommodate these airplanes which would previously have

been type certificated in the commuter category under part 23.

Single-engine airplanes. Section 121.159 prohibits operation of

single-engine airplanes under part 121. No change to this prohibition

is proposed in this rulemaking since the FAA does not consider single-

engine airplanes acceptable to part 121 standards. For example, a

single-engine airplane could not meet part 121 requirements, such as

the one-engine-inoperative requirements of Sec. 121.191. This section

is amended to delete an obsolete reference to Sec. 121.9.

Airplane limitations: Type of route. Section 121.161 requires that

a two-engine or three-engine airplane must be within 1 hour flying time

from an adequate airport at normal cruising speed with one engine

inoperative. While part 135 does not contain a comparable requirement,

the FAA believes that this requirement can be met by present part 135

operators with the possible exception of some Alaskan operations. Since

Sec. 121.161 contains authority for deviations if approved by the FAA

(AC 120-42 contains acceptable criteria), this requirement should not

impose any undue burden.

This section also requires (with some exceptions for older

airplanes) part 25 ditching certification for extended overwater

operations, which the FAA believes should be applied to the operations

that would be moved from part 135 to part 121 by this proposal.

Therefore, no changes are proposed to this requirement.

The FAA invites specific comments on the potential impact of these

proposals on operations in Alaska.

Proving tests. Section 121.163 provides proving test requirements

for Part 121. Section 135.145 requires 25 hours of proving tests for

certificate holders that operate turbojet airplanes or airplanes for

which two pilots are required by this chapter for operations under VFR

if that airplane or an airplane of the same make and similar design has

not been previously proved in any operations under part 135. Like

Sec. 135.145, Sec. 121.163 requires proving tests for materially

altered airplanes. However, in contrast, under Sec. 121.163, proving

tests apply to each airplane to be operated under part 121; it also

describes three types of proving tests. Under Sec. 121.163 and

Sec. 135.145, additional proving tests are required after the aircraft

type certification tests. In other words, the initial operator of a

type of airplane must conduct at least 100 hours of proving tests

acceptable to the FAA, which can be reduced in appropriate

circumstances. Moreover, for each kind of operation (e.g., domestic,

flag, supplemental) that an operator conducts, 50 hours of proving

tests are required, which are also reducible in appropriate

circumstances.

For existing airplanes, in each case the FAA would assess whether

to reduce proving test hours required by Sec. 121.163(b) for the target

operators that would be subject to Sec. 121.163 if this proposal is

adopted. Factors that might be considered in any request for reduction

in proving test hours include the operator's experience and performance

in part 135 operations.

VI.B.5. Subpart I--Airplane Performance Operating Limitations

Subpart I contains airplane performance operating limitations that

apply to all part 121 certificate holders; however, not every section

in subpart I applies to every certificate holder. For example,

Secs. 121.175 through 121.187 apply to reciprocating engine-powered

transport category airplanes, and Secs. 121.189 through 121.197 apply

to turbine-powered-engine transport category airplanes (with an

exception for certain reciprocating-powered airplanes that have been

converted to turbo-propeller-powered). Sections 121.199 through 121.205

apply to nontransport category airplanes. [[Page 16246]]

Sections 135.361 through 135.395 are virtually identical to

Secs. 121.171 through 121.205; the main differences reflect the absence

of a dispatch system in part 135 operations. Section 135.363 makes

clear that the term ``large nontransport category airplane'' as used in

the subpart means an airplane type certificated before July 1, 1942.

This language does not appear in part 121 because it is understood from

the context in part 121 that the term ``nontransport category

airplane'' is referring to older airplanes that were type certificated

before the transport category was established. This clarification was

needed in part 135 because of the existence of commuter category

airplanes, most of which fit the definition of ``large'' and are also

``nontransport category'' airplanes. Part 135 addresses performance

operating limitations for commuter category airplanes in Sec. 135.398

by referencing Secs. 135.385 and 135.387, which parallel Secs. 121.195

and 121.197. The FAA believes that airplanes type certificated in the

commuter category (or its predecessors) that would be operated under

part 121 under this proposal should be required to meet, and are

capable of meeting, the same performance operating limitations that now

apply only to airplanes type certificated in the transport category.

Therefore, the FAA proposes to delete the term ``transport category''

throughout subpart I and to include language where appropriate to

except airplanes type certificated before January 1, 1965, that were

not certificated in the transport category. This proposal would have

the effect of requiring airplanes type certificated in the commuter

category or a commuter category predecessor to be operated under the

performance operating limitations of Secs. 121.175 through 121.197, as

applicable.

VI.B.6. Subpart J--Special Airworthiness Requirements

Subpart J contains special airworthiness requirements that, as

stated in the applicability section (Sec. 121.211), apply to all

certificate holders. While this is semantically accurate, it is

confusing because the airplane description in Sec. 121.213 in fact

describes pre-1942 nontransport category and pre-October 1946 transport

category airplanes thereby limiting the applicability of Secs. 121.215

through 121.283 to those airplanes. Sections 121.285 through 121.291

apply across-the-board to present part 121 operations.

To clarify the applicability of this subpart, the FAA proposes to

expand Sec. 121.211 to include the substance of Sec. 121.213. As

proposed, Sec. 121.211 would break the special airworthiness

requirements into three categories: (1) Those that apply to certain

older type certificated airplanes (Secs. 121.215 through 121.283); (2)

those that apply to all airplanes operating under part 121

(Secs. 121.285 through 121.291); and (3) those that would apply to

airplanes presently operating under part 135 (proposed new

Sec. 121.293).

Cargo carried in the passenger compartment. Section 121.285

requires that cargo carried in passenger compartments must be stowed in

a fully enclosed bin or carried aft of a bulkhead or divider and

properly restrained. Section 135.87 allows operators to carry cargo in

an approved cargo compartment instead of a fully enclosed bin and to

carry restrained cargo anywhere in the passenger compartment if it is

restrained by a net that meets the requirements of Sec. 23.787(e). The

FAA considers that it is not practical to require airplanes now

operating safely under part 135 to install fully enclosed cargo bins or

to be otherwise as limited as required by Sec. 121.285. Therefore, FAA

proposes to amend Sec. 121.285 to add an exception for commuter

category (and predecessor) airplanes that would have the effect of

allowing cargo to be carried in the passenger compartment as it is

today.

Landing gear aural warning device. Section 121.289 contains a

requirement for a landing gear aural warning device for large

airplanes. Thus, at present this section applies to any airplane with a

maximum certificated takeoff weight of more than 12,500 pounds.

Appendix A of part 135 requires a landing gear warning device for

airplanes having retractable landing gear and wing flaps, but the

device need not be aural. The FAA considers that the cost of replacing

a warning light with a warning sound would be minimal. Therefore, this

section would apply to any airplane that presently operates under part

135 and that would be required by this proposal to operate under part

121. To allow adequate time for airplanes without aural warning devices

to be retrofitted, the FAA proposes a compliance date of 2 years after

the publication date of the final rule.

Emergency evacuation and ditching demonstrations. Section 121.291

contains requirements for conducting demonstrations of airplane

evacuation and ditching procedures. The FAA requires these

demonstrations upon introduction of a new type and model of airplane

into passenger-carrying operations. For airplanes with a seating

capacity of more than 44 passengers, an actual evacuation demonstration

must show that the full capacity of the airplane and the crewmembers

can be evacuated within 90 seconds. Also, for airplanes with more than

44 passenger seats a partial demonstration is required, as specified in

Sec. 121.291(c). Demonstrations are not required for airplanes with

fewer than 44 passenger seats.

Under Sec. 121.291(d) any certificate holder operating or proposing

to operate one or more landplanes of any size in extended overwater

operations must conduct a simulated ditching in accordance with

Appendix D to part 121. The purpose of the ditching demonstration is to

show that the certificate holder's training and procedures for a new

type and model of airplane are satisfactory. The simulated ditching

does not specifically require the use of flight attendants; the FAA

proposes to apply this rule to any affected commuter operator who

conducts extended overwater operations, whether or not flight

attendants are used in the operation.

The FAA intends to apply this provision to the affected commuter

operators only when a new type and model of airplane is introduced

after the effective date of the final rule. If a certificate holder has

been using an airplane in scheduled passenger-carrying operations

before the effective date of the final rule and the FAA has not found

any serious deficiencies with its ditching procedures during the past 5

years during either normal or National Aviation Safety Inspection

Program (NASIP) inspections that have not been satisfactorily

corrected, the FAA may make a determination that the operator's

crewmember emergency training and ditching procedures are adequate.

The FAA proposes to amend Sec. 121.291 to clarify that the partial

demonstration and emergency evacuation procedures apply only to

airplanes with more than 44 passenger seats.

New special airworthiness requirements (retrofit) and requirements

applicable to future manufactured airplanes. In general, airplanes

currently flown under part 121 must be transport category airplanes;

that is, type certificated under part 25 or one of its predecessors

(see Sec. 121.157). The only exceptions are several models of airplanes

that were type certificated before the transport category was

established. For these earlier airplanes, part 121 contains special

requirements established to ensure that transport category standards

would be met to the maximum extent feasible. By requiring that

airplanes previously operated under part 135 meet most part 121

[[Page 16247]] requirements, the FAA would ensure that these airplanes

type certificated in the commuter category or its predecessors, for the

most part, meet part 121 safety standards. However, because these

airplanes were not type certificated in the transport category, the FAA

has reviewed part 25 to determine whether any additional requirements

should be added to part 121 either as a retrofit requirement or a

requirement that applies only to airplanes manufactured after some

future date. There are two such requirements and each is discussed

separately in this section of the preamble.

Ditching emergency exits. Section 25.807(e) contains requirements

for ditching emergency exits in transport category airplanes.

Regardless of whether or not the airplane is certificated for ditching,

it must have exits that are usable while the airplane is afloat, in

case ditching occurs during an overwater climb-out or approach. The

ditching exits for transport category airplanes with 10 or more

passenger seats must meet at least the dimensions of a Type III

passenger emergency exit (20 inches wide by 36 inches high).

Part 23, as recently amended by Amendment 23-46 (59 FR 25772; May

17, 1994), now contains requirements for ditching exits; however, all

of the normal or commuter category airplanes currently in service were

type certificated before that amendment became effective. The FAA

proposes to amend part 121 (proposed new Sec. 121.293(a)) to require

ditching exits for nontransport category airplanes type certificated

after December 31, 1964. Unlike those required for transport category

airplanes, the ditching exits would only have to be as large as those

currently required by Sec. 23.807(b) (19 inch by 26 inch ellipses).

Compliance would be required 2 years after the publication date of the

final rule. This proposed requirement would not entail adding new

exits. The overwing exits of most airplanes type certificated under

part 23 would probably qualify as ditching exits. Part 25 airplanes

intended for non-part 121 transportation sometimes comply by providing

a sheet metal dam that can be installed in the passenger entry doorway.

If it is necessary to consider a floor-level exit as a ditching exit in

a nontransport category airplane, a similar sheet metal dam could be

provided. Therefore, the FAA believes that the cost of this proposal is

minimal.

Takeoff warning system. Section 25.703 requires an aural warning to

the flightcrew at the beginning of the takeoff roll when the wing

flaps, leading edge devices, wing spoilers, speed brakes, and

longitudinal trim devices are not in a position that would allow a safe

takeoff. Part 23 does not require a takeoff warning system; in

addition, part 23 airplanes typically do not have multiple types of

devices. Accidents have occurred on transport category airplanes when

the flightcrews initiated takeoffs when the airplanes were not in the

proper configurations for takeoff. While the FAA is not aware of any

incidents or accidents involving airplanes used by affected commuters,

the FAA believes the cost of this modification on future manufactured

airplanes is moderate. The FAA proposes that airplanes manufactured

after a date 4 years after the publication date of the final rule would

be required to have a takeoff warning system as required by Sec. 25.703

except that a warning would not be required for any device if it is

demonstrated that takeoff with that device in the most adverse position

would not create a hazardous condition (see proposed Sec. 121.293(b)).

VI.B.7. Subpart K--Instrument and Equipment Requirements

Instrument and equipment requirements are contained in part 121,

subpart K and part 135 subpart C. The requirements are in addition to

the airplane and equipment requirements of part 91. The discussion

below emphasizes all new or revised equipment requirements except for

major equipment such as flight data recorders and airborne weather

radar, which are previously discussed in the ``Major Issues'' section

of this notice.

The proposal would require commuter operators to comply with part

121 airplane and equipment requirements except in areas that will be

specifically discussed.

Sections 121.303, 121.305, and 121.307 require certain airplane

instruments and equipment. Most of the airplanes used by affected

commuters already have these instruments and equipment as required

under part 135 (Secs. 135.143 and 135.149). Some of the part 121

equipment is required under part 135 only for IFR or for VFR over-the-

top and VFR night operations. Under this proposal this equipment would

be required for all operations.

Lavatory fire protection. Section 121.308 currently requires

lavatory smoke detection systems, or equivalent, and automatically

discharging fire extinguishers in lavatory receptacles for towels,

paper, or waste for passenger-carrying transport category airplanes.

Although mitigated somewhat by the typically shorter flight stage

lengths, a passenger's temptation to smoke illicitly in a lavatory

(when there is one), exists in nontransport category airplanes used in

air carrier service as well as in transport category airplanes. This is

particularly true today, since smoking has been banned on most domestic

airline flights. Furthermore, the consequences of illicit smoking could

be equally catastrophic regardless of how the airplane was type

certificated. Therefore, the FAA proposes to apply the requirements of

Sec. 121.308 to airplanes formerly operated under part 135 that are

equipped with lavatories. Section 121.308 would be amended to delete

the references to transport category. The FAA proposes that the

required equipment be installed within 2 years after the publication

date of the final rule.

Emergency equipment. Section 121.309(b) requires that each item of

emergency and flotation equipment must be inspected regularly in

accordance with inspection periods established in the operations

specifications to ensure its condition for continued serviceability and

immediate readiness to perform its intended emergency purposes. Section

135.177(b) contains a similar requirement for part 135 operators of

airplanes with more than 19 seats. The FAA proposes requiring affected

commuter operations, including those with airplanes of 10 to 19 seats,

to comply with the existing part 121 requirement. Other provisions in

this proposal would require additional emergency equipment to be

installed by the new part 121 operators. This requirement would mandate

only that the equipment be inspected in accordance with the established

periods.

Hand-held fire extinguishers. Sections 121.309(c) and 135.155

contain the requirements for hand-held fire extinguishers aboard

airplanes. The requirements are basically the same, except that part

121 requires that at least two of the required hand fire extinguishers

must contain Halon, or equivalent. Part 135 does not require any Halon

fire extinguishers. Part 121 requires a hand-held fire extinguisher to

be conveniently located for use in each galley located in a compartment

other than a passenger, cargo, or crew compartment. Part 121 also

requires that at least one hand fire extinguisher be conveniently

located and easily accessible for use in the galley when the galley is

in a passenger compartment. The FAA proposes that the affected

commuters comply with the part 121 requirements for fire extinguishers.

The FAA proposes to amend Sec. 121.309(c)(7) to require that at least

one of the fire extinguishers in the passenger compartment must be a

Halon fire [[Page 16248]] extinguisher or equivalent. The FAA has in

prior rulemakings addressed the need to allow Halon equivalents because

the availability of Halon may be limited in the future (see, for

example, 56 FR 15452, April 16, 1991).

First aid kits and medical kits. Section 121.309(d) requires that

both approved first aid kits and approved emergency medical kits be

carried on board passenger-carrying airplanes. The medical kits are

intended to be used only by medically qualified persons, such as

doctors, who may be on board the airplane. Section 135.177(a)(1)

requires first aid kits to be carried on board airplanes with more than

19 passengers.

The FAA believes that, regardless of the size of the airplane,

flight attendant requirement, or other factors, inflight emergencies

could occur and a first aid kit may be needed. In the absence of a

flight attendant, a flight crewmember or a passenger could use the

first aid kit. Therefore the FAA proposes that first aid kits be

required for all airplanes with more than 9 passenger seats operating

under part 121.

The medical kit contains medical supplies such as certain drugs,

syringes, and needles. Although medical kits may be used only by

medically qualified personnel, flight attendants are required to be

familiar with the medical kit and its contents. Since a flight

attendant can monitor the security and use of the medical kit, medical

kits should be required only on airplanes that are required to have a

flight attendant. Additionally, if the FAA were to require a medical

kit on 10-19 seat airplanes, that would mean that a pilot could be

required to leave the flight deck to administer the use of the kit.

Moreover, security and location of the kit pose additional problems for

requiring a medical kit on an airplane where there is no flight

attendant. Therefore, the FAA proposes to amend Sec. 121.309(d) to

require medical kits only for airplanes that are required to have a

flight attendant. However, following review of the comments received,

if the FAA decides to require a medical kit onboard 10-19 seat

airplanes, the final rule will specifically require the medical kit for

such airplanes.

Affected commuters should be aware of a recent rule requiring

disposable latex gloves for both first aid kits and medical kits. The

changes to part 121 in that rulemaking would apply also to commuters

affected by this NPRM. (See 59 FR 52640; October 18, 1994, and 59 FR

62276; December 2, 1994.)

Crash ax. Section 121.309(e) requires that each airplane be

equipped with a crash ax, while Sec. 135.177 requires a crash ax only

for airplanes with a passenger seating configuration of more than 19

passengers. Crash axes are intended to be used by crewmembers to escape

from the flight deck in the event of an accident. In airplanes that do

not have a separate flight deck and lockable door, crash axes normally

would not be needed by the flight crewmembers to escape from the flight

deck. The FAA therefore proposes in Sec. 121.309 to retain the present

requirement for crash axes only in airplanes that have a separate

flight deck and lockable door.

Emergency evacuation lighting and marking requirements. Section

121.310(c), by referencing Sec. 25.812(e), requires emergency

evacuation lighting for passengers when all sources of illumination

more than 4 feet above the cabin aisle are totally obscured. This

requirement, which was adopted to enable passengers to find the

emergency exits when the cabin is filled with dense smoke, applies to

all transport category airplanes regardless of how many passenger seats

they have. There is no corresponding requirement in part 23 or in part

135 for airplanes having a passenger-seating configuration of less than

20 seats. The FAA believes that applying this requirement to propeller-

driven airplanes with 10 to 19 passenger seats is consistent with the

present requirements for transport category turbojet-powered airplanes

with similar seating capacities because the need to ensure conspicuous

lighting of the exit is the same for nontransport category airplanes as

for transport category.

Section 121.310(d) for emergency light operation requires that each

light required by paragraphs (c) and (h) must be operable manually and

must operate automatically from the independent lighting system. These

requirements would apply to affected commuters. In

Sec. 121.310(d)(2)(i) each light must be operable manually both from

the flightcrew station and from a point in the passenger compartment

that is readily accessible to a normal flight attendant seat. Under the

proposed rule this requirement would be modified for affected commuter

operations that would not be required to have a flight attendant.

Section 121.310(e) requires that an exit operating handle may not

be used if its brightness decreases below a specified level. Section

135.178(e) contains an identical requirement for airplanes having a

passenger seating configuration of more than 19 seats. Under this

proposal the requirement would also apply to airplanes with a passenger

configuration of 10-19 seats. Compliance with this requirement can be

demonstrated by assuring that the exit operating handle is well

illuminated by the emergency lighting system or by using a self-

illumination system.

Section 121.310(f) contains standards for access to various exit

types that, by virtue of Sec. 121.157, presently apply only to

transport category airplanes. Section 135.178(f) is identical for

airplanes having a passenger configuration of more than 19 seats. The

FAA considers that because of the sizes and configurations (that is, 10

to 19 passenger-seat configurations) of the airplanes and because of

the type certification requirements of part 23 applicable to these

exits, it is not necessary to apply these requirements to the

nontransport category airplanes operating under part 135 that would be

affected by this rulemaking. Therefore, the FAA proposes to amend

Sec. 121.310(f) to exclude commuter category (or predecessor)

airplanes.

Section 121.310(g) (and its parallel requirement in Sec. 135.178(g)

for more than 19 passenger seat airplanes) require emergency exits to

be marked on the outside by a 2-inch band contrasting in color with the

surrounding fuselage. This requirement was adopted to enable ground

rescue personnel to locate the exits more rapidly in an emergency

condition. Most airplanes with a passenger-seating configuration of

less than 20 seats operating under part 135 already meet this

requirement and, for those that do not, compliance would merely require

painting the bands around each exit. By proposing to require compliance

with this requirement, the FAA would standardize the presentation of

exit markings for the benefit of ground rescue personnel at minimum

cost. Compliance would be required within 1 year after the publication

date of a final rule.

Section 121.310(h) requires airplanes for which the application for

type certification was made before May 1, 1972, to meet the exterior

emergency lighting standards of Sec. 25.812, in effect on April 30,

1972, or any later standards in effect if the application for type

certification was made later. The lighting is provided for two

purposes. One is to preclude passengers from hesitating as they leave

the airplane because they cannot see what they are stepping into. The

other is to preclude injuries when the airplane has come to rest on

uneven, rocky, or wooded terrain. The need for such lighting is not

related in any way to the size of the airplane. The FAA proposes to

require non-transport category airplanes type certificated after

December 31, 1964 (i.e., part 23 normal and utility category)

[[Page 16249]] to comply with Sec. 25.812 in effect April 30, 1972,

within 2 years after the publication date of a final rule.

The FAA proposes that airplanes with a passenger seating

configuration of less than 20 seats previously operated under part 135

be required to comply with the above described emergency lighting

systems (that is, emergency exit signs, interior lighting, exit

handles, and exterior lighting) and, except for the marking requirement

discussed above, proposes a compliance date 2 years after the

publication date of a final rule. Because of the potentially high cost

of this proposed retrofit requirement, the FAA invites comments on the

feasibility of meeting these part 121 emergency lighting requirements

and of alternative means of achieving an acceptable level of safety.

Seatbacks. Section 121.311 prohibits a certificate holder from

taking off or landing unless passenger seats are in the upright

position. Section 135.117 requires only that passengers be briefed that

seats should be in the upright position. The FAA proposes that affected

commuters be required to comply with Sec. 121.311.

Seat belt and shoulder harnesses on the flight deck. Section

121.311(f) requires a combined seat belt and shoulder harness, with a

single-point release that meets the requirements of Sec. 25.785. Part

135 does not contain a requirement for a single-point release system

although the FAA believes that virtually all commuter category

airplanes being manufactured today have such a system. To ensure that

this is the case for newly manufactured airplanes the FAA proposes to

require that airplanes manufactured after 1 year after publication of

final rule meet the requirements of Sec. 121.311(f).

Interior materials and passenger seat cushion flammability. Section

25.853(b) was amended in 1984 to require seat cushions to meet greatly

enhanced flammability standards. At the same time, Secs. 121.312(b) and

135.169(a) (but not for commuter category airplanes) were amended to

require airplanes already in service to meet the improved seat cushion

flammability standards after November 1987. In the 7 years that have

passed since that date, the improved cushions are credited with saving

a number of passengers' lives.

The seat cushion flammability standards apply to all transport

category airplanes regardless of the passenger capacity. In the case of

an inflight cabin fire the probability that a fire would occur in a

commuter or normal category airplanes is exactly the same as in a

transport airplane. Once a fire occurs, occupants are presented with

exactly the same hazards as in a transport category. The need for seat

cushions meeting the same flammability standards, therefore, is exactly

the same. Fires are generally caused by fuel tanks being ruptured

during a crash. The improved seat cushion standards provide

considerable additional protection in a postcrash fire; they also

provide considerable protection for airplanes of all passenger

capacities from inflight fires. Tests have shown that cushions meeting

these standards are much less likely to ignite and sustain a flame than

those that do not meet the standards. Preventing a fire from occurring

is the best possible form of fire protection. If a fire does occur,

compliance with the improved seat cushion flammability standards slows

the spread of the fire through the cabin and provides more time to

bring it under control. Therefore, the FAA proposes to require

nontransport category airplanes type certificated after December 31,

1964, to comply with the same seat cushion flammability standards that

apply to other airplanes operated under part 121. Compliance would be

required by a date 2 years after the publication date of the final rule

or on the first replacement of the cushions, whichever occurs first.

The proposed rule would allow for granting deviations for up to 2

additional years when justified by unique integral-seat cushion

configurations.

In addition to the flammability standards that already existed in

part 25, that part was amended in 1986 to require large surface-area

components (e.g., sidewalls, bulkheads, ceilings, etc.) to pass tests

using the Ohio State University (OSU) radiant rate of heat release test

apparatus. The OSU test requirements for large surface-area materials

were not made applicable to airplanes with a seating capacity of 19 or

less seats. For those airplanes, the flammability standards that

previously existed in part 25 were considered adequate and appropriate.

The costs of retrofitting existing airplanes now would not be

commensurate with the minimal increase in safety that would result.

However, the FAA finds that it is reasonable to propose that

nontransport category airplanes newly manufactured after 4 years after

the publication date of the final rule comply with Sec. 121.312(a) by

meeting the same large-surface area component flammability requirements

currently required for transport category airplanes.

Cockpit and door keys. Section 121.313 requires that there be a

lockable door between the cockpit and the cabin and that there be a key

for each cockpit door that is readily available to each crewmember.

Currently, part 135 does not address this issue. The FAA proposes that

the affected commuters be required to comply with the part 121 rule if

there is a door with a lock or a door that can be retrofitted with a

lock. (Curtains or accordion doors are not considered lockable doors.)

If a lockable door already exists or can be retrofitted, the

certificate holder would be required to provide a cockpit key that is

readily available to each crewmember. The language of Sec. 121.313(f)

would be changed to exclude airplanes that do not have cockpit doors.

Cargo and baggage compartments. Part 25 (as referenced in

Sec. 121.314) contains requirements for cargo or baggage compartment

liners, smoke detection, and fire extinguishment for various classes of

compartments. The compartment classification system, also duplicated in

Sec. 121.221 (which as previously discussed applies only to certain

airplanes type certificated before November 1, 1946), is based on the

compartment's accessibility for fire detection and extinguishment. Part

25 was amended in 1989 to require the liners of Class C and D

compartments to meet more stringent flammability standards. Section

121.314 was also adopted at that time to require the improved liners in

existing transport category airplanes on a retroactive basis.

Part 23 contains no classification system or requirements for

compartment fire protection; however, a proposed rule to add comparable

requirements was issued on July 22, 1994, (59 FR 37620). While the cost

of providing liners, smoke detection, and fire extinguishers in the

cargo or baggage compartments of existing part 23 airplanes would be

prohibitive, the FAA believes that it would be appropriate to require

liners, smoke detection, and fire extinguishment for remote cargo or

baggage compartments in newly manufactured part 23 airplanes.

Therefore, the FAA proposes to require this modification for commuter

category (or its predecessor) airplanes manufactured 4 years or more

after the publication date of the final rule.

There is no service history of specific problems from the absence

of this equipment. Because of the potential high cost of compliance,

the FAA specifically requests comments describing how this safety

objective can be achieved, including alternatives such as requiring

only liners and smoke detection. The FAA needs to obtain specific and

detailed information concerning cost and other problems associated with

this proposal in order to make an informed decision at the final rule

stage of this rulemaking. [[Page 16250]]

Fuel tank access covers. As a result of the 1985 Manchester British

Air Tours accident (in which a piece of metal from the aircraft engine

punctured the fuel tank access panel and created a fire),

Sec. 25.963(e) was amended in 1989 to require that all covers located

in an area where a strike by foreign objects is likely must have as

much resistance to fire or debris penetration as the surrounding

structure. Concurrent with this amendment, Sec. 121.316 was amended to

require airplanes already in service to comply with Sec. 25.963(e) on a

retrofit basis. These requirements pertain to all transport category,

turbine-powered airplanes. Due to their smaller size and turbo-

propeller configuration, part 23 nontransport airplanes generally do

not present the same hazard. Fuel tanks of current designs are located

in the wings well aft of the strike zone of any engine debris. Also,

these part 23 airplanes are likely to have access covers that provide

no less resistance to fire or debris penetration than the surrounding

wing structure. The FAA considers that it would be a waste of resources

to require a demonstration of compliance. Therefore, the FAA does not

propose to require part 23 nontransport airplanes to comply with

Secs. 25.963(e) and 121.316. Since Sec. 121.316 applies only to

``turbine-powered transport category'' airplanes, no rule change is

needed. The FAA points out that transport category airplanes previously

operated under part 135 would have to comply with Sec. 121.316.

Oxygen requirements. Sections 121.327 through 121.335 cover

supplemental oxygen requirements and oxygen equipment requirements. The

requirements are similar to the oxygen requirements in Sec. 135.157

except that for certain airplanes, part 121 requires less oxygen. Each

affected commuter who would have to comply with part 121 oxygen

requirements as a result of this rulemaking should readily be able to

operate its airplanes in accordance with the oxygen requirements

specified in part 121.

Portable oxygen for flight attendants. Section 121.333(d) requires

that each flight attendant shall, during flights above 25,000 feet,

carry portable oxygen equipment with at least a 15-minute supply of

oxygen, unless there are enough portable oxygen units with masks or

spare outlets and masks are distributed through the cabin to ensure

immediate availability of oxygen to each flight attendant, regardless

of his or her location at the time of cabin depressurization. Part 135

does not have a similar requirement for portable oxygen for flight

attendants. The FAA proposes that affected commuters who use flight

attendants in their operations and that operate above 25,000 feet be

required to comply with the part 121 requirement.

Protective breathing equipment (PBE). Section 121.337 contains

requirements for equipping the flight deck and passenger compartments

of transport category airplanes with PBE. Part 135 does not currently

require any type of PBE.

There are two kinds of PBE with two sets of approval criteria. PBE

may be portable or built into the airplane (fixed or sedentary). A PBE

unit consists of an oxygen supply and facial protection, such as a full

face mask, smoke hood, or face mask and goggles. A fixed or portable

PBE is installed in the airplane for use by flight crewmembers while

they are at their stations. Portable PBE that meets applicable criteria

and is approved may be used on the flight deck and/or throughout the

airplane.

Section 121.337(b)(8) requires PBE, either fixed or portable, to be

conveniently located on the flight deck and easily accessible for

immediate use by each flight crewmember. In addition,

Sec. 121.337(b)(9) requires that for combatting fires a portable PBE

must be located on or close to the flight deck with easy access by each

flight crewmember for fighting fires. A portable PBE in the passenger

compartment must be located within 3 feet of each hand fire

extinguisher. Both of these requirements provide that the Administrator

may authorize another location if special circumstances exist that make

compliance impractical and the proposed deviation would provide an

equivalent level of safety.

The proposed rule would require affected commuters to comply with

the PBE requirements of Sec. 121.337. To be in compliance, an airplane

with a passenger-seating configuration of 10 to 19 seats would have to

have at least three PBE: one PBE, fixed or portable, for each flight

crewmember at their station, and an additional portable PBE on the

flight deck for use in fighting fires. An airplane with a passenger-

seating configuration of 20 to 30 seats would have to have at least

four PBE: One PBE, fixed or portable, for each flight crewmember at

their station; an additional portable PBE on the flight deck for

fighting fires; and a portable PBE in the passenger compartment located

within 3 feet of the required hand fire extinguisher.

The applicability of the current rule would be revised to include

other than transport category airplanes. Section 121.337(b)(9)(iv)

would also be revised to except airplanes having a passenger-seating

configuration of fewer than 20 seats and a payload capacity of 7,500

pounds or less from the requirement to have a PBE in the passenger

compartment. The exception is needed because these airplanes are not

required to have a flight attendant; the portable PBE on the flight

deck would be used by a flight crewmember for fighting a fire.

There are major safety benefits to requiring PBE. PBE prevents

injury or death of crewmembers from smoke or harmful gasses and enables

them to continue flying the airplane and assisting passengers. PBE

decreases the likelihood of death or injury to passengers because

crewmembers will not be incapacitated by smoke or harmful gasses and

thus are able to continue to perform their duties. Finally, PBE allows

crewmembers to fight fires without succumbing to smoke inhalation,

thereby decreasing the risk of passenger injury and death. The FAA

proposes to apply the PBE requirement to affected commuters because

fires occur at least as frequently in airplanes used by affected

commuters as they do in the larger airplanes currently operated under

part 121. Fires can have worse effects in smaller airplanes because

there is less room to move passengers away from the source of the fire.

Also, since there is less cabin volume, the smoke may become worse more

quickly.

The FAA proposes to require compliance with Sec. 121.337 by a date

2 years after the publication date of the final rule.

Additional life rafts for extended overwater operations. Sections

121.339 and 135.167 require that airplanes engaged in extended

overwater operations provide enough life rafts of a rated capacity and

buoyancy to accommodate the occupants of the airplane. In addition,

Sec. 121.339 requires excess rafts so that all occupants of the

airplane can be accommodated in the event of the loss of one raft of

the largest rated capacity.

A life raft, which is approximately the size of a suitcase before

it is inflated, is an important piece of survival equipment in an

emergency ditching. Rafts facilitate rescue efforts by keeping

passengers together and helping to prevent hypothermia. The FAA

believes that the affected commuters that engage in extended overwater

operations should be required to meet the part 121 requirements. As

with current part 121 certificate holders, affected commuters can apply

for waivers, and the FAA can decide, on a case-by-case basis, if a

waiver is appropriate. These waivers are issued pursuant to

Sec. 121.339(a) which [[Page 16251]] permits the Administrator to allow

deviation from the requirement to carry certain equipment for extended

overwater operations. Since there are few extended overwater operations

conducted by commuters, the FAA does not expect this proposed

requirement to have a significant impact.

Flotation devices. Unless an airplane is equipped with life

preservers, flotation cushions are required in Sec. 121.340 for each

passenger whenever an airplane is used in any overwater operation. In

parts 121 and 135, life preservers are required only for extended

overwater operations, (Secs. 121.339 and 135.167). Therefore, airplanes

used in extended overwater operations would already be equipped with

life preservers, so they would not need to have flotation cushions.

Section 121.340 has been applied so that virtually every airplane is

equipped with either flotation cushions or life preservers, because it

is practically impossible to operate any place without flying over a

body of water of sufficient depth to require some sort of flotation

means.

The advantage of requiring flotation means is that if an airplane

crashes in the water, occupants would be provided some protection. Many

of the most active airports have runways with takeoff or landing

approaches over water. While ditchings (anticipated water landings) in

the high seas are relatively rare events, crashes in the water at the

end of runways are less rare and can result in drownings.

Therefore, the FAA proposes that airplanes equipped with 10 or more

seats operating in scheduled passenger operations and not already

equipped with life preservers be equipped with flotation cushions. To

allow any replacement of seat cushions to be coordinated with the seat

cushion flammability requirements of Sec. 121.312(c), the FAA proposes

a compliance date of 2 years after the publication date of the final

rule.

Pitot heat indication system. Section 25.1326 requires a pitot heat

indication system to indicate to the flightcrew when a pitot heating

system is not operating. Part 23 currently requires pitot heat systems

for airplanes approved for IFR flight or flight in icing conditions,

but doesn't address the requirement for a pitot heat indication system.

This new requirement applies to new type certification and will not

affect existing in-service commuter airplanes or future production of

currently approved commuter airplanes. Section 121.342 currently

requires a pitot heat indication system on all airplanes that have a

pitot heating system installed.

In recommendation A-92-86, the National Transportation Safety Board

(NTSB) recommended that small airplanes certificated to operate in

icing conditions and at altitudes of 18,000 feet mean sea level and

above should be modified to provide a pitot heat operating light

similar to the light required by Sec. 25.1326. As recommended by the

NTSB, part 23 is currently being amended to require such indication for

commuter category airplanes (Notice 94-21, 59 FR 37620, July 22, 1994).

The FAA proposes to amend Sec. 121.342 to require nontransport

category airplanes type certificated after December 31, 1964, to

incorporate pitot heat indication systems. Affected commuters would

have to comply within 4 years after the publication date of this

rulemaking.

Flight data recorders. Section 121.343 requires operators to equip

certain airplanes with flight data recorders (FDR) that have certain

data parameters. Section 135.152(a) requires FDR in multiengine

turbine-powered airplanes with a passenger configuration of 10 to 19

seats that were brought onto the U.S. register after October 11, 1991.

Section 135.152(b) requires FDR on multiengine, turbine-powered

airplanes having a passenger seating configuration of 20 to 30 seats.

As discussed in the ``Major Issues'' section of this notice, the

FDR requirements would continue unchanged under the proposal.

Therefore, the current applicable requirements in part 135 would be

moved into part 121 by reference in proposed Sec. 121.344.

Radio equipment. Sections 121.345 through 121.351 cover radio

equipment requirements. Part 121 specifies radio equipment requirements

for operations under VFR over routes navigated by pilotage, for

operations under VFR over routes not navigated by pilotage or for

operations under IFR or over-the-top, and for extended overwater

operations. The requirements are more specific and restrictive than

those in Sec. 135.161. The radio equipment requirements in part 121 are

cumulative; that is, the regulations prescribe basic radio equipment

requirements for VFR over routes navigated by pilotage and additional

equipment for VFR over-the-top or IFR. Most part 121 operations are

conducted under IFR. The proposed rule would require affected commuters

to comply with part 121 radio equipment requirements. Because

additional equipment would be required for VFR conditions in operations

under part 121, the FAA requests comments on the appropriateness of the

part 121 requirements for operations presently conducted under part 135

and, if inappropriate, commenter recommendations for alternate

requirements.

Emergency equipment for operations over uninhabited terrain.

Section 121.353 prescribes the emergency equipment needed for

operations over uninhabited terrain areas for flag and supplemental air

carriers and commercial operators. The requirements include pyrotechnic

signaling devices, emergency locator transmitters (ELT's), and survival

kits equipped for the route to be flown. Similar requirements exist in

part 135 for airplanes having a passenger-seating configuration of more

than 19 passengers. (Secs. 135.177 and 135.178). The proposed rule

would require compliance with Sec. 121.353. Survival kits would be a

new requirement for affected commuter

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