4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 91, 119, 121, 125, 127, and 135 [Docket No. 28154; Amendment Nos. 91-245, 119 (New), 121-251, 125-23, 127-45, and 135-58; SFAR 50-2, SFAR 71, SFAR 38-12] RIN: 2120-AF62 Commuter Operations and General Certification and Operations Requirements AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. _________________________________________________________ SUMMARY: This rule requires certain commuter operators that now conduct operations under part 135 to conduct those operations under part 121. The commuter operators affected are those conducting scheduled passenger-carrying operations in airplanes that have passenger-seating configurations of 10 to 30 seats (excluding any crewmember seat) and those conducting scheduled passenger-carrying operations in turbojet airplanes regardless of seating configuration. The rule revises the requirements concerning operating certificates and operations specifications for all part 121, 125, and 135 certificate holders. The rule also requires certain management officials for all certificate holders under parts 121 and 135. The rule is intended to increase safety in scheduled passenger-carrying operations and to clarify, update, and consolidate the certification and operations requirements for persons who transport passengers or property by air for compensation or hire. EFFECTIVE DATE: January 19, 1996 FOR FURTHER INFORMATION CONTACT: Alberta Brown, (202) 267-8321; Katherine Hakala, (202) 267-8166; or Dave Catey, (202) 267-8166; Federal Aviation Administration, 800 Independence Avenue, SW, Washington, DC 20591. SUPPLEMENTARY INFORMATION: Outline of Final Rule I. Introduction II. History III. The Problem and Related FAA Action A. Accident Rate for Commuter Operations B. Public Perception C. Congressional Hearings D. NTSB Study E. Related FAA Action IV. The Proposed Rule and General Description of Comments V. Major Issues A. General Justification B. Applicability C. Aircraft Certification D. Flight Time Limits and Rest Requirements E. Age 60 Rule F. Dispatch System G. Airports H. Effective Date and Compliance Schedule VI. Discussion of Specific Proposals A. Part 121 Discussion 1. Subpart E--Approval of Routes: Domestic and Flag Air Carriers 2. Subpart F--Approval of Routes: Approval of Areas and Routes for Supplemental Air Carriers and Commercial Operators 3. Subpart G--Manual Requirements 4. Subpart H - Airplane Requirements 5. Subpart I - Airplane Performance Operating Limitations 6. Subpart J - Special Airworthiness Requirements 7. Subpart K--Instrument and Equipment Requirements 8. Subpart L--Maintenance, Preventive Maintenance, and Alterations 9. Subpart M--Airman and Crewmember Requirements 10. Subpart N and O--Training Program and Crewmember Qualifications 11. Subpart P--Aircraft Dispatcher Qualifications and Duty Time Limitations: Domestic and Flag Air Carriers 12. Subparts Q, R, and S--Flight Time Limitations and Rest Requirements: Domestic, Flag, and Supplemental Operations 13. Subpart T--Flight Operations 14. Subpart U--Dispatching and Flight Release Rules 15. Subpart V--Records and Reports B. Part 119-- Certification: Air Carriers and Commercial Operators VII. Discussion of Comments Related to Costs and Benefits VIII. Regulatory Evaluation Summary IX. The Amendments Background I. INTRODUCTION On March 29, 1995, the Federal Aviation Administration (FAA) published a Notice of Proposed Rulemaking (NPRM) on “Commuter Operations and General Certification and Operations Requirements” (Notice No. 95-5; 60 FR 16230.) In Notice 95-5, the FAA proposed that commuter operations conducted in airplanes with 10-30 passenger seats be conducted under the domestic or flag rules of part 121 of title 14 of the Code of Federal Regulations. Currently, scheduled passenger- carrying operations in airplanes with passenger-seating configurations of over 30 seats or more than 7,500 pounds payload capacity are conducted under part 121. Scheduled passenger-carrying operations in airplanes with passenger-seating configurations of 30 seats or less and 7,500 pounds or less payload capacity are conducted under part 135. Part 121, which provides the safety requirements for all major air carriers (as well as for any certificate holder conducting scheduled or nonscheduled operations with airplanes configured with more than 30 passenger seats), is generally considered to have more restrictive requirements than part 135. The regulatory changes were introduced in order to address the continually changing needs of the industry and to fulfill the agency's statutory requirement. This is the final rule, based on Notice 95-5. II. HISTORY Historically, the maximum certificated takeoff weight (MCTW) of an airplane determined both an airplane’s categorization and operating requirements. Beginning in 1953, airplanes with an MCTW of 12,500 pounds or less were defined as “small airplanes” and were permitted to carry fewer than 10 passengers in on-demand air taxi service. The rules under which those operations were conducted were eventually codified as part 135. Airplanes with an MCTW of more than 12,500 pounds were defined as “large airplanes,” and most large airplanes carried 20 or more passengers in scheduled air transportation. The Civil Aeronautics Board (CAB) used the large/small dividing line to separate major airline companies, who were required to obtain a Certificate of Public Convenience and Necessity (CPCN) from the CAB in order to operate in interstate commerce as a common carrier, from on- demand air taxi operators, who were exempted from obtaining a CPCN. During this time, the CAB issued only a small number of CPCN's to major, publicly-recognized companies, such as Eastern, American, Delta, Pan Am, TWA, etc. In contrast, on-demand air taxi operators numbered in the thousands. These operators were typically fixed-base, usually at small airports, and owned fewer than five airplanes. They provided on-demand air transportation as well as other services, such as training new pilots and selling and renting small airplanes. Typically, the air taxi portion of such an operator's business was a small part of that business and rarely involved any scheduled operations. Beginning in the late 1960's, airplane manufacturers began to design and build small airplanes, that is, less than 12,500 pounds maximum certified takeoff weight, that were capable of carrying more than 10 passengers, often close to 20. Some air taxi operators began to offer services that resembled the services of the major airlines, given the economic opportunity to operate under the less restrictive requirements of part 135. Though these scheduled commuter operators began to overtake some air taxi operations, they still remained a small percent of the thousands of air taxi operators. In 1978, as a result of the Airline Deregulation Act, the airline industry was deregulated economically and air carriers were given more freedom to enter and exit markets without prior government economic approval. One of the most significant effects of this deregulation was that it allowed major carriers to eliminate service to smaller communities, where such service proved to be uneconomical for the large aircraft the carriers operated. Major carriers were replaced in those communities by the commuter carriers. Under this “hub and spoke” system, the major part 121 air carriers provided service to the large metropolitan airports, while the growing class of scheduled part 135 air carriers provided service between smaller communities as well as feeder service from the smaller communities to the larger cities to connect with the major carriers' operations. With these changes, the traditional two categories of operations became three categories of operations - scheduled commuter operations, traditional air taxis, and traditional major air carriers. Also in 1978, in response to the Airline Deregulation Act, the FAA reissued part 135 standards to upgrade commuter and air taxi safety requirements and make them more like part 121. At that time part 135 certificate holders were required to meet more stringent requirements in several areas, including weather reporting, flightcrew training, maintenance, and qualifications for management personnel. Since 1978, the FAA has issued a number of separate rule changes to further align part 135 safety requirements with those in part 121. Despite this realignment, differences between the regulations still exist. The economic incentive to operate under part 135 still exists because the requirements in part 135 are still less restrictive than the part 121 requirements in many instances. For the remainder of this document the following terms are used in the following ways. "Commuter," "commuter airline," and "commuter operator" mean those operators conducting scheduled passenger-carrying operations under part 135 in airplanes with a passenger-seating capacity of 30 or fewer seats. This current use of the word "commuter" does not include scheduled passenger-carrying operations conducted under part 121 in airplanes with a seating capacity of 31 to 60 seats. The term “commuter category airplane” used in this document refers to airplanes type certificated in that category under part 23 in contrast to airplanes type certificated under part 25 which are transport category airplanes. The term “nontransport category airplanes” is used for commuter category airplanes and SFAR 41 and predecessor normal category airplanes to be operated under part 121, as well as for some older airplanes certificated before the predecessors of part 25 (parts 04 and 4b of the Civil Air Regulations) came into existence. The Department of Transportation (DOT) uses the term "commuter" more broadly to include all scheduled passenger- carrying operations conducted in airplanes with a passenger-seating capacity of 20 to 60 seats. (Note: The High Density Rule, 14 CFR part 93 uses “scheduled commuters” differently. Its meaning under that part is not relevant to its use in this document.) The term "regional," which is used by industry to refer to short-haul, passenger-carrying, scheduled operations conducted under part 121 or part 135, is not generally used by the FAA. III. THE PROBLEM AND RELATED FAA ACTION Recent part 135 commuter accidents have focused public, government, and industry attention on the safety of commuter operations. While the safety level of part 135 commuter operations has continued to improve, accident data, public perception, and recent government inquiries show a need for additional measures. III.A. Accident Rate for Commuter Operations The airline industry that uses airplanes with a passenger-seating capacity of 60 or fewer seats to conduct scheduled operations under parts 121 and 135 is an essential part of the air transportation network in the U.S. These airlines now fly more than all airlines did in 1958. In 1993, over 50 million passengers, 12 percent of the total passenger flights in the country, were flown by these airlines. Half of these passengers were flown in part 135 operations, i.e., in aircraft with 30 or fewer seats. Over the past two decades the safety record of part 135 commuters has greatly improved. The accident rate per 100,000 departures in 1993 was one-fourth the accident rate in 1980. However, the accident rate for commuter airlines operating under part 135 continues to be higher than the rate for domestic part 121 airlines. In the past 2 years, several commuter airline accidents occurred that attracted media and public attention and caused government and industry officials to scrutinize the safety system for commuter operations under part 135. These accidents included the December 1, 1993, crash of a Jetstream 3100, operated by Express II (as Northwest Airlink), at Hibbing, MN; the January 7, 1994, crash of a Jetstream 4100, operated by Atlantic Coast Airlines (as United Express), at Columbus, OH; and the December 13, 1994, crash of a Jetstream 3200, operated by Flagship Airlines (as American Eagle), at Raleigh-Durham, NC. All of these accidents involved fatalities. III.B. Public Perception With the increase in the number of flights to many communities conducted in airplanes with a seating capacity of 30 seats or less, some members of the public are questioning whether they are receiving an appropriate level of safety in small propeller-driven airplanes compared to the level of safety they receive in larger aircraft. This public concern is partly a result of the integration of commuter carriers with major airlines under an arrangement known as code- sharing. The term "code-sharing" refers to the computerized airline reservation system that lists a commuter flight in the reservation system under the same code used by a major carrier. A passenger who books with a major carrier may have a leg of the flight automatically booked with a smaller commuter affiliate of the major carrier. With the media attention to recent commuter accidents, the passenger may also believe that the flight involves more risk because the smaller airplane and its operation may not have to meet the same safety standards. Most passengers probably do not realize that some differences in standards are necessary because of differences in the airplane and operation and that some of the accidents that are categorized by the media as "commuter" accidents occurred in flights that were being conducted under part 121; that is, in airplanes with over 30 passenger seats. The differences in regulations were initially based on differences in the types of operations and differences in the size of airplanes; these differences in many instances still apply. But other differences, such as certain performance and equipment requirements, operational control requirements, and passenger information requirements are not size- or operationally-based. Some differences between the two sets of regulations must be maintained while others can be eliminated to improve the safety of commuter operations. III.C. Congressional Hearings On February 9, 1994, Congress held hearings on the adequacy of commuter airline safety regulations. The purpose of the hearings was to determine if FAA safety regulations should be modified to establish a single standard for all scheduled operations regardless of airplane size. Representatives of government, industry, and the public presented testimony. Most testimony supported the upgrading of safety requirements. III.D. NTSB Study In November 1994, the National Transportation Safety Board (NTSB) published a study on commuter airline safety. (National Transportation Safety Board Safety Study: Commuter Airline Safety, NTSB/SS-94/02.) The study was based on the NTSB's analysis of accident investigations and previous studies, on a recent site survey of airline operations and policies conducted at a representative sample of commuter airlines, and on information obtained from a public forum on commuter airline safety convened by the NTSB. In the study, the NTSB found that the commuter air carrier industry has experienced major growth in passenger traffic and changes in its operating characteristics since the NTSB’s 1980 study of the commuter airline industry. The NTSB found that there has been a trend in the industry toward operating larger, more sophisticated aircraft, and many carriers have established code-sharing arrangements with major airlines. The NTSB concluded that the regulations contained in 14 CFR part 135 have not kept pace with changes in the industry. As a result of the findings, the NTSB issued the following safety recommendations to the FAA: Revise the Federal Aviation Regulations such that all scheduled passenger service conducted in aircraft with 20 or more passenger seats would be conducted in accordance with the provisions of 14 CFR part 121. (A-94-191) Revise the Federal Aviation Regulations such that all scheduled passenger service conducted in aircraft with 10 to 19 passenger seats would be conducted in accordance with 14 CFR part 121, or its functional equivalent, wherever possible. (A-94-192) In the 1994 study, the NTSB examined the differences in flight dispatch requirements between parts 121 and 135. The NTSB found that, in the absence of support from licensed dispatch personnel, it is difficult for a part 135 pilot to accomplish several tasks between flights in the short periods of time available. The lack of support might increase the risk of critical mistakes that could jeopardize the safety of flight. As a result the NTSB issued the following recommendation to the FAA: Require principal operations inspectors (POI) to periodically review air carrier flight operations policies and practices concerning pilot tasks performed between flights to ensure that carriers provide pilots with adequate resources (such as time and personnel) to accomplish those tasks. (A-94-193) The FAA published all of the NTSB recommendations in the Federal Register (59 FR 63185, December 7, 1994) and received public comments generally supporting the expansion of the operational rules of part 121, except for flight time limitations, to commuter operations under part 135. Some commenters had considerable reservations about applying certain part 121 equipment requirements to smaller airplanes. The FAA considered these comments in developing this rule. III.E. Related FAA Action In December 1994, the FAA proposed revisions to the training and qualification requirements of certificate holders conducting commuter operations under part 135. The proposed rule also addressed crew resource management training for pilots, dispatchers, and flight attendants in part 121. (59 FR 64272, December 13, 1994) [Add Final Action] IV. The Proposed Rule and General Description of Comments In Notice 95-5, the FAA proposed to require that all scheduled passenger-carrying operations in airplanes with a passenger-seating configuration of 10 or more seats (excluding any crewmember seat) and all scheduled operations in turbojets (regardless of the number of seats) must be conducted under part 121. The proposal would require certificate holders now conducting scheduled passenger-carrying operations under part 135 in airplanes with a passenger-seating configuration (excluding any crewmember seat) of 10 to 30 seats or in turbojets to be recertificated and to conduct the applicable operations in compliance with part 121 requirements. In some instances the proposed rule revised the requirements of part 121 to make compliance with the requirements feasible for operations in smaller, nontransport category airplanes. In response to Notice 95-5, the FAA has received over 3,000 comments from the public. Of these, most are solely on the issue of the Age 60 Rule. Many of the Age 60 commenters are pilots and other individuals who address the current rule in part 121; very few address the specific Age 60 issue contained in this rulemaking, i.e. the applicability of the Age 60 Rule to pilots of affected commuter airplanes. These comments are summarized in Section V.E., The Age 60 Rule. Approximately 200 comments were received on the substantive issues raised by Notice 95-5. These commenters represent air carriers; manufacturers; associations representing air carriers, manufacturers, pilots, dispatchers, and passengers; State and local governments; the U.S. Small Business Administration; the National Transportation Safety Board; and individuals. While some commenters voice general support for the goals of Notice 95-5, most raise concerns about specific proposals. Industry commenters are particularly concerned about the costs of complying with the proposed rule. The FAA also conducted three public meetings on the proposed rule: on May 18, 1995, in Anchorage, Alaska; on June 14, 1995, in Chicago, Illinois; and on June 21, 1995, in Las Vegas, Nevada. Testimony from the public meetings and written statements submitted at the meetings have been included in the FAA public docket, have been considered by the FAA in developing the final rule, and are discussed in the following discussion of comments along with all written comments that were submitted to the FAA docket. In Notice 95-5, the FAA identified major issues that the agency addressed in developing the proposal. These included applicability of the proposal, aircraft certification issues, flight time limits, the Age 60 Rule, use of a dispatch system, certain equipment items, and the compliance schedule. Comments received on these major issues and the FAA’s response to these comments are discussed in Section V. Comments received on specific proposals and the FAA’s response to these comments are discussed in Section VI. Comments specifically addressing cost issues are discussed in Section VII. Below is a list of some of the major commenters and their associated abbreviations. The full name of each commenter is used when the commenter is first mentioned. In subsequent discussions, the commenter’s abbreviation, as shown below, is used. Abbreviations for Commenters AAAE American Association of Airport Executives AACA Alaska Air Carriers Association ADF Airline Dispatchers Federation AIA Aerospace Industries Association ALPA Air Line Pilots Association APA Allied Pilots Association ASA Atlantic Southeast Airlines GAMA General Aviation Manufacturers Association HAI Helicopter Association International IAPA International Airline Passengers Association NACA National Air Carrier Association NATA National Air Transportation Association NTSB National Transportation Safety Board Penair Peninsula Airways RAA Regional Airlines Association V. Major Issues V.A. General Justification In Notice 95-5, the FAA justified the proposed rule on the basis of the higher accident rate for commuter airlines. Parts of the proposed rule were also supported by the testimony from Congressional hearings on commuter airline safety regulations and by the NTSB study, based on accident investigations and previous studies, which found that part 135 regulations had not kept pace with changes in the industry. Comments: The NTSB and the Air Line Pilots Association (ALPA) generally support the proposal and its justification. A comment from the International Airline Passengers Association (IAPA) supports the rulemaking justification by stating the findings of a recently completed IAPA study of commuter/regional airplane safety records in the United States covering the period 1970 through March 31, 1994. According to IAPA, during that period carriers using airplanes with 30 or fewer seats had 29 fatal accidents with 249 passenger fatalities; over 30 seat regional carriers had 1 fatal accident with 2 passenger fatalities; major airlines had 11 fatal domestic jet accidents with 527 passenger fatalities. In contrast to these comments, many other commenters state that the proposed rulemaking lacked sufficient justification. Recent accident data, say these commenters, have shown significant reductions in accident rates for commuters so that the difference in accident rates for part 121 operations and part 135 commuter operations is minimal. According to at least one of these commenters, if the accidents that occurred in extreme environments such as Alaska are removed, the accident rate under the two parts would be either the same or lower for part 135 commuter operations. According to some commenters, the recent accidents cited in Notice 95-5 were all caused by pilot error and thus would not have been prevented by this rulemaking but could have been prevented by improvements in training. Some commenters state that the proposed rule is the result of public, media, and agency overreaction to recent commuter accidents and that both the public and the media drew inaccurate conclusions about commuter airline safety from these accidents. According to these commenters, instead of hastily proposing rules based on incomplete information, the agency should have informed the public that many so-called commuter operations are already being conducted under part 121. Several commenters state that the proposed rule will decrease safety because in order to avoid the proposed restrictions, certificate holders now operating airplanes with a seating capacity of 10 to 19 passenger seats will switch to reciprocating-powered airplanes with a passenger seating capacity of 9 or less in order to continue to operate under part 135. Furthermore, some commenters state that if fares are significantly increased to pay for the more restrictive requirements, passengers may choose ground transportation, which has a much higher accident rate. Several commenters state that the proposed rule would have a significant economic impact on small airline operators, in some cases forcing them to close their businesses, thus eliminating air transportation to some locations. In addition, according to some commenters, the proposed rule would have a negative impact on competition, particularly in the foreign market because the cost of U.S. manufactured airplanes would increase. FAA Response: The FAA does not agree with the assessment that the proposed rule lacked sufficient justification. The FAA recognizes the validity of some of these comments especially in regard to unintended safety decrements if the aircraft performance portions of the proposed rule were adopted on the schedule proposed. While the FAA recognizes the improvements in the accident data for commuter airlines in recent years, it intends through this rulemaking, and other related rulemaking actions underway, to reduce the accident rate even further. Several commenters have questioned the need for a rule that would move affected commuters into part 121 domestic or flag operations. For instance two commenters argue that a dispatch system would not have prevented the three accidents cited by the FAA in the NPRM. It would be a mistake to assume that the FAA is basing this final rule on just those three accidents. Similarly, it would be a mistake to conclude that the FAA is justifying this rule on merely “perceptions” of a problem. Those accidents were catalysts for the Government to focus on the differences in the part 121 accident rate and the accident rate for 10- to 30-seat part 135 commuters. Over the next 15 years affected commuters are expected to have had 67 more accidents than they would have had if the accident rate for part 135 affected commuters were the same as that for part 121 scheduled operators. The FAA believes that adoption of this rule will significantly close the accident rate gap over time. The FAA believes that the part 121 regulatory scheme for scheduled operations is more appropriate for the 10- to 30-seat scheduled operations. The added safety features and requirements in part 121 domestic/flag rules, including the dispatcher system, will increase safety for the affected commuters. Because most accidents are caused by human errors, rules such as the part 121 training rules and the dispatcher system rules are some of the most valuable tools in reducing the number of these kinds of accidents. Rules that most directly relate to preventing accidents caused by human errors are being imposed on the affected commuters on a faster schedule than many of the other rules (e.g., aircraft performance and certain equipment retrofits). It can be reasonably anticipated that applying part 121 operating rules, including these two groups of rules, can begin to immediately and significantly reduce the accident rate for affected commuters. For instance, the FAA anticipates that requiring operators to have someone (i.e., a certificated dispatcher) double check the work of the pilot and provide the flight crew with updates on weather and alternate airports can reduce some human factor errors. The FAA believes that if the flight crew is subjected to more stringent flight and duty safeguards (either the current part 121 domestic flight and duty rules or the rules in a soon to be issued NPRM in which the FAA will propose to overhaul all the flight and duty regulations), the dangers of fatigue causing a human factors error will be reduced. Enhanced part 121 training (which is being required of affected commuters in an associated final rule) will also reduce some human factor errors. It is critically important to impose the bulk of the part 121 regulatory scheme on affected commuters because the absence of any significant portion of that regulatory scheme may lessen the effectiveness of the rest of the safety features in the part 121 regulatory scheme. Even the best trained and well rested pilot is a human being and, therefore, subject to making errors. With a dispatcher system, the chances of pilot miscalculations or oversights could be reduced. Moreover, a dispatcher can assist the flight crew in making enroute plans for an alternate airport (which might be necessary due to weather problems, air traffic control problems, airplane equipment problems, fuel problems, etc.) while the crew focuses on flying the airplane. It is reasonable to conclude that the accident rate for affected commuters can be reduced to a level closer to that of current part 121 domestic operations by eliminating most of the regulatory differences that the two different regulatory schemes allowed. While major air carriers may require commuter affiliates to follow certain part 121 standards, and in some cases even exceed some part 121 standards, no part 135 commuter operator currently operates under part 121 operations specifications or totally complies with all part 121 standards (e.g., many part 121 requirements are based on the assumption that transport category airplanes are operated). Most importantly, no part 135 commuter is required by current FAA regulation to comply with part 121 requirements. Recent accidents brought to public attention the differences between part 135 and part 121 and the lack of continuing justification for these differences. As Notice 95-5 pointed out, the distinction between these two types of operations was, in the beginning, an obvious necessity. Major air carriers engaged in public transportation were entirely different from the small on-demand, air taxi operator. But with the development and growth of what has come to be known as commuter service, the line between the two has blurred. Certain segments of the commuter industry have continued to develop commuter category airplanes, holding the line at 19 passenger seats in order to stay within the limits of the less restrictive airworthiness regulations for nontransport category aircraft. This has created the potential for the further development of commuter airplanes specifically designed to stay within the limits of the less restrictive regulations while at the same time becoming as sophisticated or more sophisticated in technology than some transport category airplanes operated by the major carriers. With hindsight, the FAA may not have drawn the line as it currently is but would have attempted from the start to maintain one set of requirements. Until now the line between the requirements has not created a safety concern, but as the commuter market grows, the disparity between the two sets of requirements is of more concern. There is no longer any justification for maintaining two sets of standards for scheduled operations in airplanes with a passenger-seating configuration of 10 or more seats. When a passenger pays for a ticket on an FAA certificated commuter operation, that passenger must be assured of the highest possible level of safety. With respect to commenters’ concerns that the proposed rules will actually decrease safety because certificate holders will switch to reciprocating-powered airplanes, the FAA has modified the proposal, especially in regard to the schedule for some airplanes to meet part 121 airplane performance criteria, to allow operators sufficient time to build up capital or credit to make changes to the existing fleet or to purchase new airplanes that meet the higher performance standards. The FAA does not want to move so fast as to force operators to use airplanes that have even higher accident rates (i.e., airplanes with 9 or fewer seats). The FAA finds that safety and the public interest require extending the proposed compliance dates for imposing part 121 performance criteria requirements and some equipment requirements until it is economically feasible for operators of 10- to 19-seat airplanes to acquire or lease replacement aircraft. The FAA has analyzed the situation and has concluded that many operators of 10-15 seat aircraft would replace those aircraft with 9 or fewer seat aircraft to avoid the sudden imposition of large costs on their current fleets. Without the FAA modifying its proposal with regard to airplane performance requirements, many airplanes would be eliminated from scheduled service at the first compliance date (i.e., 15 months after publication of the final rule) and operators of other airplanes would have to offload passenger seats, thereby causing the economic and safety impacts discussed previously. This modification would be consistent with the National Transportation Safety Board’s (NTSB) recommendation for airplanes with 10- to 19-seats in scheduled service. For those aircraft, the NTSB recommended that scheduled passenger service be conducted in accordance with part 121 “... or its functional equivalent, wherever possible”. Clearly the NTSB used the phrase “wherever possible” because it knew that it was not possible for a substantial portion of the 10- to 19-seat airplane fleet to meet all of the requirements of part 121. The NTSB carefully chose its words when it made its recommendations for 10-19 seat airplanes used in scheduled service. The NTSB recognized that the FAA necessarily had to exercise judgment about which part 121 regulations to impose, which regulations could be modified to achieve functional equivalency, and which regulations simply might not be possible. In regard to comments that higher fares resulting from this rulemaking will cause passengers to switch to less safe modes of transportation, it has been the FAA’s observation that passengers are usually willing to pay for safety. While some may choose to drive rather than fly, that has not stopped the airlines in the past from raising fares. It should also be noted here that the public tolerates a higher accident rate for automobile travel than for airplane travel. If air transportation accident rates approached that of ground travel, most Americans would stop flying. The air transportation industry is very aware of this; it is the main reason that air transportation is safe. As one commenter points out, the recent commuter accidents caused a 12 percent drop in passengers on commuter airlines. That is a significant cost to industry. The FAA has carefully considered the economic impact of the proposed regulations and has reviewed and revised its analysis in light of the comments received. (See Section VIII.) The agency has determined that the impact of the final rule should not disrupt air transportation service and that few, if any, certificate holders will discontinue their commuter operations. During the transition period, the FAA will work with certificate holders who are switching to part 121 requirements to make the switch as smooth as possible. It should also be noted that the compliance schedule provides for a gradual updating of equipment and operations and will allow certificate holders the choice of upgrading or phasing out airplanes that cannot be upgraded without significant cost. Some may argue that there may still be limited circumstances, even with these changes, where the effects of this rule (and related rulemakings on upgraded training requirements and pilot flight time and duty limitations) will be so burdensome as to lead to adverse safety consequences and/or a loss of critical air service. This is neither FAA's intention nor its expectation. Indeed, the entire premise of this rulemaking is that safety standards can and must be improved for the benefit of passengers in 10-30 passenger seat aircraft in scheduled service. Nevertheless, there is in place in 14 CFR 11.25 a process for requesting and granting exemptions from regulatory requirements, including those adopted here. As with any request for exemption, of course, an applicant would have to demonstrate that the public interest justifies such an exemption. In this case, an applicant could show, for example, that it is unable to comply with a particular provision or a particular schedule date due to circumstances beyond its reasonable control (rather than its own failure to act in a timely or prudent manner), that there is convincing evidence that alternative service is unavailable to the public, and that the carrier would be able to maintain an adequate level of safety during the period of the requested exemption. We would expect that any exemption from this rule would be for a limited period only, such as the time required for delivery of a piece of equipment that has been ordered. Our goal would be to permit the air carrier to come into compliance with the rule in an orderly manner, and not simply to delay or avoid the cost of compliance. The FAA considers this rulemaking a positive step towards promoting air transportation by renewing confidence in commuter operations. Most importantly, this rulemaking should reduce the accident rate of the affected commuters to a rate that is closer to that of current part 121 domestic operators. This rulemaking is consistent with the FAA’s obligation in accordance with section 44701(d) of Title 49 of the U.S. Code that when prescribing a regulation or standard to promote safety or to establish minimum safety standards, the Administrator shall consider the duty of an air carrier to provide service with the highest possible degree of safety in the public interest. The intent of this rulemaking is to provide the highest possible degree of safety to affected commuter operations. V.B. Applicability The FAA proposed that part 121 requirements would apply to all scheduled passenger-carrying operations for compensation or hire in airplanes with a passenger-seating configuration of 10 or more seats and to all scheduled passenger-carrying operations for compensation or hire in turbojet-powered airplanes regardless of seating capacity. (Throughout the rest of this document these certificate holders are referred to as the “affected certificate holders” or the “affected commuters.”) Under the proposal, scheduled passenger-carrying operations in non-turbojet airplanes with 9 or fewer passenger seats, on-demand operations with airplanes with 30 or fewer passenger seats, operations in single-engine airplanes, and operations in rotorcraft would continue to be under part 135. The proposed rule would also have eliminated the frequency of operations test of five round trips per week which allowed some part 135 scheduled operations to be conducted under the on- demand rules of part 135. Comments: While no commenters specifically object to applying part 121 requirements to commuter operations in airplanes of 20 to 30 passenger seats, several commenters, many of them small part 135 certificate holders, object to applying part 121 requirements to commuter operations in airplanes of 10 to 19 passenger seats. According to these commenters, the FAA did not sufficiently justify imposing the more restrictive part 121 requirements on operations in these size airplanes and the small certificate holders of these airplanes would not be able to meet the economic burden of the proposal. A few certificate holders state that if the regulations are implemented as proposed they would either have to downgrade their airplanes, reduce the number of passenger seats, or terminate certain services. This is especially the case for small fixed-based certificate holders, who conduct mostly on-demand service with some scheduled service, and for certificate holders who service remote areas such as parts of Alaska, Hawaii, or the islands of Samoa. Commenters also state that the burden is greater for certificate holders not affiliated with a major airline and that drawing the line at 10 or more includes many small, independent certificate holders. According to commenters, these certificate holders provide a different kind of service from what the larger commuter operators provide. One commenter, IAPA, states that part 121 requirements should apply to all scheduled passenger-carrying operations, no matter how many seats are on the airplane. According to this commenter, by leaving out the under 10-seat aircraft from the rulemaking, passengers would be exposed to travel on the least safe aircraft operating in scheduled passenger transportation. According to the commenter, most under 10-seat aircraft are piston-engined, with a lower level of engine reliability and performance. The aircraft are frequently operated in harsh environments thereby exposing passengers to higher risks. Many of the commenters who object to the applicability of part 121 to aircraft with 10 to 19 passenger seats, also object to the definition of “scheduled” in proposed § 119.3. According to these commenters, the effect of the current description in SFAR 38-2 of commuter air carriers that includes 5 round trips per week should not be changed. Apparently some small certificate holders that conduct mostly on-demand service also provide one or two scheduled service flights per week. According to these commenters, if they have to upgrade the airplanes and operations to part 121 to conduct these scheduled flights, they will downgrade the airplanes or terminate the service. The commenters state that they cannot afford to comply with part 121, that the service they provide offers one-of-a-kind service to remote places or resorts, and that in some instances there is no ground transportation to these locations. Several on-demand operators and the National Air Transportation Association (NATA) comment that the FAA should not revise part 135 on- demand requirements either at this time or at any time. These commenters are responding to a statement in Notice 95-5 that additional standards for on-demand air taxi operations may be considered in the future. The General Aviation Manufacturers Association (GAMA) objects to including all scheduled passenger-carrying operations in turbojets under part 121 regardless of the number of passengers. While GAMA agrees with the FAA’s assumption that no turbojets are being used in regularly scheduled part 135 operations, it objects to the applicability because the FAA presented no technical justification for the proposal. GAMA recommends allowing turbojets with a passenger- seating capacity of 9 or less to operate under part 135. Aerospace Industries Association (AIA) also objects that no rationale was presented for including turbojets. AIA states that the proposed rule offers an unfair competitive advantage for normal category turboprops against jets with a passenger-seating capacity of 9 or less. United West Airlines states that it is a small operation with two jets, that it costs $70,000 a year to train its four pilots, and that the proposed rule will put the airline out of business. Two individual commenters recommend that “any scheduled operation with airplanes seating more than 9 passengers but less than 19 passengers” be operated under supplemental rules when that scheduled operation is a code-sharing arrangement with another part 121 scheduled carrier. FAA Response: The so-called “frequency of operation” provision in the SFAR 38-2 definition of commuter air carrier does not exist for current part 121 operations. Affected commuters being upgraded to part 121 by this rule will be required to conduct all of their scheduled operations under part 121 regardless of the number of scheduled operations. However, the FAA has decided to retain the frequency of operations distinction for those operations conducted in airplanes with a passenger-seating configuration of 9 seats or less by revising the definitions of “commuter operation” and “on demand operation” in § 119.3. Therefore, scheduled operations in airplanes with a passenger-seating configuration of 9 or less (except turbojets) and conducted on a particular route with a frequency of fewer than five round trips per week (regardless of whether one or more airplanes are used on the route) would be conducted under the requirements applicable to on-demand operations. The FAA believes that, because of the nature of the operation in which small turbojets, which are type certificated under part 25, are used (e.g., transoceanic, long range, international, etc.), they approximate the operations of larger air carriers. For example, part 135 contains no requirements for long-range navigational equipment or long-range fuel considerations. In an effort to increase the safety for passengers carried in those kinds of operations, the FAA has determined that any scheduled operations of turbojet airplanes should be conducted under part 121. The FAA disagrees with commenters who suggest that commuter operations in code-sharing arrangements should be conducted under the rules for supplemental operations. Code-sharing, although it may affect passengers’ perceptions, is a business/marketing arrangement and is not the basis for an FAA regulatory scheme. Scheduled operations in airplanes with 10 or more passenger seats should come under part 121 domestic or flag, as appropriate, not under supplemental rules. The only operators who currently operate under part 135 on-demand rules that would be required to conduct their operations under part 121 scheduled rules are those who are included because, as discussed above, part 121 does not contain a frequency of operation provision. If circumstances in the future necessitate a change to these rules, commenters will have an opportunity to comment on any proposed changes. Air Tour Industry Comments: Several comments were received from air tour operators in the State of Nevada and the vicinity of the Grand Canyon. Some of these certificate holders would be affected by the rulemaking because they operate nontransport category airplanes of 10 to 19 seats and because they provide point-to-point service; for example, from Las Vegas to Grand Canyon Airport even though the flights are exclusively marketed as sightseeing and not point-to-point travel. Despite the fact that they technically fall into the category of a commuter operator, these commenters claim that they are more like an on-demand operator and that the proposed rule would penalize them for using larger, safer airplanes than their competitors. One of these commenters states that it does not fly city to city, but flies regularly scheduled flights that take off and land at the same airport. This operator states that, because of the nature of the operation and because of the proposed definition changes, it would be required to comply as a scheduled operator. According to the commenters, since they have upgraded from 6-to 9- seat airplanes to 19-seat airplanes, they have been required to install ground proximity warning systems (GPWS), traffic alert and collision avoidance systems (TCAS), cockpit voice recorders (CVR), and flight data recorders (FDR), while their competitors have not been burdened by these costs. According to some of these commenters, this equipment is not beneficial in their operating environment because they typically fly in VFR conditions on short-range flights of an hour or less. The commenters complain that if the proposed rule is implemented, they will be forced to replace the turboprop airplanes with smaller reciprocating-powered planes and will thereby lose some significant safety benefits such as the following: o The two-pilot crew requirement with captains required to hold an Air Transport Pilot rating. o Aircraft certificated to higher levels of aircraft performance. o Aircraft maintenance procedures under the more comprehensive Continuous Airworthiness Maintenance Program. o Safety equipment such as GPWS, TCAS, CVR, and weather radar. One commenter lists some of the more “onerous” proposed requirements: o “Ditchable” exits in case of water landings. o Emergency floor path exits. o Third attitude indicator (in aircraft flown in daylight under visual flight rules). o Portable protective breathing equipment (PBE). A commenter points out that the new aircraft performance requirements would limit maximum operating weight at Grand Canyon due to the high altitude. According to these commenters, switching to smaller airplanes will increase air traffic congestion in the Grand Canyon area, decrease safety for passengers, and double or triple noise levels. According to one commenter, these certificate holders do not have code-sharing partners and while these certificate holders sometimes provide point-to-point service, the flights are typically part of an all-inclusive tour package which includes ground transfers to Las Vegas hotels, sightseeing flights to the Grand Canyon, and motor coach tours of the Grand Canyon. This is totally unlike typical commuter operations. Another commenter, however, says that at least one of the air tour operators does use code-sharing with a major carrier and that the offering of its scheduled flights is available by referencing airline computers all over the world. Some of the commenters cite an NTSB report (“Safety of the Air Tour Industry in the United States,” June 1, 1995) which states that the implementation of SFAR 50-2 has created a safe operating environment for air tour operators over the Grand Canyon. One commenter quotes NTSB as saying, “The level of safety of air tour operations could be improved by creating a national standard for air tour operations that contains definitions specific to the air tour industry and specific requirements, including unique operations specifications, to accommodate localized unique conditions, similar to the special conditions contained in SFAR 50-2.” One commenter states that his company recruits retired airline pilots to provide a high level of experience and stability to the flightcrews. The Clark County Board of Aviation is concerned that the proposed rule could be devastating to individual certificate holders and adversely affect the vitality of the air tour industry in Southern Nevada. The Grand Canyon Air Tour Council states that the proposed expanded definition of “scheduled operations” is the problem and that the definition was changed with no satisfactory explanation or justification. The Office of the Lieutenant Governor of Nevada testified at the public meeting held in Las Vegas that compliance would affect a “$250 million industry that we have worked hard to develop.” FAA Response: The FAA does not agree that air tour operations are totally unlike commuter operations. Much of an air tour flight is like much of a commuter flight. If an air tour operator is conducting scheduled operations, as defined in § 119.3, in airplanes with a passenger-seating configuration of 10 or more, it must comply with part 121 domestic or flag requirements, as applicable. This includes operators who fly from and return to the same point on a scheduled basis. The FAA agrees that certain aspects of air tour operations make them appear to be unlike commuter operations. For example, portions of air tour flights are at lower altitudes, typically over rugged and remote terrain, and often in airspace that is congested with other sightseeing aircraft. The FAA has begun an air tour industry project to study the implications of these differences to safety and to develop regulations, as necessary, to address specific features of air tour operations. If regulations are implemented as a result of the project, they would be in addition to current regulations, as is SFAR 50-2 which prescribes requirements for special conditions relating to flights over the Grand Canyon. The FAA project will consider the recent NTSB study cited by commenters. Because certain part 121 and 135 provisions are being recodified into part 119, SFAR 50-2 and SFAR 71 are being updated to conform to this rulemaking. Alaskan Comments: Several comments were received from certificate holders in Alaska, Alaska government agencies, and others interested in how the proposal will affect Alaskan operations. Currently Alaskan certificate holders conducting scheduled operations in airplanes of 10 to 30 seats comply with part 135. The regulations allow them not to comply with flight time limitations for scheduled operations (§ 135.261(b) and (c)) and instead allow them to follow the regulations for on-demand operations. Alaskan certificate holders using airplanes of more than 30 seats must comply with part 121 supplemental requirements for nonscheduled flights and flag requirements for international and intra-Alaska scheduled operations. Notice No. 95-5 proposed no exceptions for Alaska. Certificate holders whose operations fit the applicability for scheduled operations for airplanes of 10 or more seats would be required to comply with part 121 domestic requirements. International operations would follow flag requirements of part 121 and charter operations would follow supplemental requirements of part 121. Alaskan operators currently operating under part 121 flag rules would have to operate under part 121 domestic rules except for those operations that meet the definition of flag operations in proposed § 119.3. The basic thrust of the comments is that the Alaska environment is unique and that requiring Alaskan commuter operators to comply with part 121 requirements would be devastating to certain certificate holders in Alaska and therefore to certain segments of air transportation. Furthermore commenters point out that most air transportation in Alaska is conducted in small reciprocating-powered airplanes with passenger-seating capacities of under 10 seats. Therefore, the proposed rule would not have a significant effect on air transportation safety in Alaska and would impose an economic burden on a few certificate holders who provide upgraded, i.e., safer, service. According to commenters, the accident rate for airplanes with under 10 seats is much higher than for turbine- powered airplanes with 19 seats. (Accident data analyzed by the FAA verifies that, unlike the rest of the nation, the part of the commuter fleet in Alaska involved in accidents contains a large proportion of under-10- seat aircraft.) Peninsula Airways (Penair), as well as other commenters, states that characteristics of Alaska make commuter operations in the State unlike those in other parts of the country. In particular flights are conducted in the same time zone, pilots do not have long commutes to their jobs, flights are not usually conducted between 9 p.m. and 7 a.m., and operations subject to Air Traffic Control (ATC) are not in congested airspace. This rationale is primarily in defense of using the flight time limit requirements of part 135 nonscheduled operations. Several commenters emphasize the absolute necessity of air travel in Alaska where many of the towns and villages are not accessible by road. They say that Alaskans are dependent on air transportation and the cost of that transportation must remain affordable. High cost items in the proposal, such as the possible need to upgrade airports, the use of a dispatch system, the various equipment requirements, and certain performance requirements, would boost the fares to levels that many residents of Alaska could not afford. The State of Alaska Department of Transportation and Public Facilities states that “the proposed air carrier and airport regulations could devastate Alaska’s heavily aviation dependent economy.” The Alaska Air Carriers Association (AACA) states that the proposed rule would end the growth of the 10- to 19- seat airplane and would increase fares by 67 to 100 percent. The proposed airport legislation is expected to cost the state $100 million. AACA states that the proposed rule would directly affect only 15 certificate holders in Alaska. Two-thirds of the scheduled air carriers use aircraft with a seating capacity of 10 seats or less. ERA Aviation, which currently operates under part 121 flag rules, objects to the proposal to operate as domestic/supplemental. It operates over 100 aircraft, fixed and rotary wing, nationally and internationally. The commenter states that for years Alaska part 121 operators have been operating under flag rules, both for scheduled and nonscheduled operations. This has allowed increased flexibility in crew scheduling, which is necessary because of the length of Alaska routes, the lack of facilities in remote locations, and the lack of road networks or other alternate forms of transportation to outlying communities. Section 119.21 would require these carriers to operate under domestic rules, which would decrease crew scheduling flexibility, add substantially to costs, derogate safety, and probably result in the elimination of vital air transportation services to some outlying communities. The commenter says there is no safety justification for such a change because Alaska part 121 operators have established an excellent safety record under existing rules. They say that, at the very least, Alaska carriers currently operating under flag rules should be allowed to continue to operate under flag rules for both scheduled and nonscheduled operations. A part of the proposal that would have affected several Alaskan certificate holders is the proposal that single-engine airplanes with 10 passenger seats now operating scheduled flights under part 135 would in effect have to remove a seat in order to continue operating in scheduled service under part 135. Single- engine airplanes are ineligible for operation under part 121. The only 10-seat single- engine airplane model involved is the single-engine de Haviland DHC-3 Otter (not to be confused with the twin-engine de Haviland DHC-6 Twin Otter mentioned elsewhere in this notice). According to AACA and other commenters, there is no possible safety benefit in taking a seat out of an airplane, but the cost to certificate holders who want to continue to use these airplanes in scheduled operations will be significant. NATA comments that no accident involving the Otter would have been prevented by limiting the seating to 9 passengers. Furthermore, according to the commenter, the FAA cost on this issue is another example of gross underestimation; actual costs will be 15 times higher (almost $22,000 per aircraft). The City and Bureau of Juneau opposes the proposal to remove a seat from the 10-seat airplanes so that they can operate under part 135. This commenter notes that there will be additional flights, additional noise, and additional congestion on the water and in the air. It notes that it is incomprehensible how the reduction of one seat from the Otter will provide an additional level of safety. Wings of Alaska comments that the most cost-efficient floatplane used in southeast Alaska is the single-engine DHC-3 Otter. Because there is no cost-effective replacement aircraft available for float operations that offers the same capacity as the Otter, replacing them is not an option. Wings states that it operates the Otter about 6 months a year. Four communities that do not have runways receive daily service. Wings purchased five 10-seat Otters in ‘92-93 to improve service to a wilderness sports facility, substantially reducing noise by reducing the number of flights by 50%. Wings notes that considering initial operating experience (IOE) and route check requirements, it is being operated at a higher level of safety than the 10 seat, on-demand aircraft allowed under the rule to be operated in part 135. Wings estimates that the removal of one seat would have cost them $85,000 in 1994. Wings asks that the Cessna Caravan and the Cessna Grand Caravan also be allowed to operate with 10 seats. AACA comments that Ketchikan Air Service, Taquan Air Service, and Wings of Alaska together operate 12 Otters in southeastern Alaska. The NTSB comments that it intentionally excluded airlines that operate exclusively in Alaska from its study of commuter airline safety because of the unique characteristics of the environment in Alaska. The NTSB currently is conducting a study of commercial Alaska aviation including commuter airlines. The NTSB held two public meetings in Alaska during June 1995 and visited a number of scheduled and nonscheduled part 135 certificate holders to collect information for the study. The NTSB intends to compare flying operations in Alaska with the rest of the U.S. The study is scheduled for completion in 1995. Several other commenters mention the study and suggest that the FAA should wait until the study is completed before making any changes to Alaskan regulations. ALPA, GAMA, and other commenters state that safety issues are the same in or out of Alaska and that, therefore, Alaska should not be given a blanket exemption from the rulemaking. ALPA and GAMA state that Alaskan certificate holders, as well as certificate holders in other parts of the country, may need to be exempted from certain requirements that are not applicable to the type of operations being conducted and should go through the standard exemption request procedures in such cases. One comment from an individual pilot in Alaska states that the schedule he flies of 14 days on and 14 days off is exhausting, and that even though he gets 10 hours of rest in each 24 hours, it is not enough over a 14-day period. He is in favor of the proposed flight time limit changes. Some Alaskan certificate holders comment that they rely on experienced pilots who are familiar with the particular demands of Alaskan operations. Penair states that 10 percent of its pilots are age 60 or over and that 20 percent are over age 52. Commenters who oppose the rule suggest either exempting Alaska altogether, not including the 10-to-19 seat airplanes in the rule, or allowing under-19-seat airplanes to be covered under the supplemental rules of part 121 rather than the domestic rules. FAA Response: The FAA agrees with the commenters who state that safety issues are the same in or out of Alaska. The FAA has specifically considered the implications of the proposal on Alaska given its unique characteristics and has determined that the rules should apply to Alaska as proposed. While the NTSB comment on Notice 95-5 states that the NTSB excluded Alaska from its safety study on commuter airline safety, the NTSB states in the report that its findings from the information obtained in the course of the study “apply to operations in Alaska as well as the other 49 states and U.S. Territories.” (“Commuter Airline Safety,” NTSB/SS-94/02). Therefore, this final rule does not provide a blanket exemption for Alaska. In response to the single-engine airplane issue, the FAA has decided to allow an exception to continue. Currently, several part 135 certificate holders conduct scheduled passenger-carrying operations in single-engine airplanes type certificated with two pilot seats in the “cockpit” and 9 passenger seats in the “cabin.” Some certificate holders are authorized to conduct scheduled operations in that airplane, the DHC-3 Otter, under daytime VFR, and carry a tenth passenger in the right-hand pilot seat. In Notice 95-5, the FAA proposed to limit all scheduled operations of single-engine airplanes to the carriage of nine passengers, under all conditions. (60 FR 16235, 16273) The FAA has decided to allow the current practice to continue for operators who currently conduct single-engine operations under daytime VFR with a tenth passenger. Comments on Exemptions/Deviations/Waivers: Currently some certificate holders operating under part 135 that will be affected by this rulemaking have obtained exemptions, deviations, and waivers from certain part 135 requirements. AACA states that AACA has held an exemption on behalf of its members allowing removal and installation of aircraft seats by certain pilots and trained ground personnel under an FAA-approved program. The commenter states that it is unclear whether or not aircraft operated previously under part 135 in Alaska would be allowed to continue this seat removal and installation under part 121 with an appropriate exemption. AACA states that taking away this option would significantly increase air carriers’ costs and diminish their flexibility to utilize aircraft in “combi” (combination cargo/passenger) configurations. AACA recommends that all exemptions, deviations, or waivers held by a part 135 operator automatically be carried over into its part 121 operation. As presently written, Notice 95-5 would require compliance with part 121 first, and only then would the FAA evaluate requests for exemptions to part 121 rules. This places additional and unwarranted operational costs on air carriers transitioning to part 121. FAA Response: The specific exemption referred to by the AACA applies only to operations with airplanes with a passenger-seating configuration of 9 or less, and therefore is not affected by this rulemaking. However, exemptions issued for operations under part 135 do not automatically continue in effect for operations under part 121. Therefore, affected commuters who will in the future be operating under part 121 must reapply for any exemptions they believe should apply to their part 121 operations after the compliance date of this rule. Also, general exemptions issued to present part 121 operators will not apply automatically to new part 121 operators so any new part 121 operator will have to apply to be included in these existing exemptions. V.C. Aircraft Certification The proposed rule would amend part 121 to require each 10- to 19- passenger seat airplane that is to be operated in scheduled operations and for which an application for type certification is made after March 24, 1995, to be type certificated in the transport category. Affected commuter airplanes are type certificated under the requirements of part 23. In Notice 95-5 the FAA stated its intent to review the standards of parts 23 and 25 to see if the level of safety intended by part 25 could be achieved for those airplanes with a passenger-seating configuration of 19 or less through compliance with a particular standard of part 23 or another standard, in lieu of the corresponding standard of part 25. On completion of that review the FAA stated its intent in future rulemaking to consider amending part 25 as necessary to accommodate type certification in the transport category of certain types of airplanes previously type certificated in the commuter category. The FAA also proposed that airplanes configured with 10 to 19 passenger seats already in service or manufactured in the future under an already existing part 23 commuter category type certificate would have to comply by specified compliance dates with certain performance and equipment requirements in part 121. These performance and equipment requirements are discussed later in this preamble. In Notice 95-5 the FAA included a table that set out a list of potential modifications that were being considered for application to airplanes having a passenger-seating configuration of 10-19 seats that were type certificated in the commuter category (or a predecessor) if the airplanes are to be used in scheduled operations under part 121. The table included a column that indicated that for 12 of the 38 issues addressed, the FAA had determined that any required upgrade should apply only to airplanes manufactured under a type certificate for which application is made after March 24, 1995. Since these 12 issues will be the subject of a future NPRM, the FAA is not addressing specific comments on the substance or cost of these issues in this document. Comments: ALPA fully supports the proposal to require newly- designed airplanes to comply with the standards of part 25 and also supports continued use of commuter category airplanes. The commenter does not, however, concur that airplanes type certificated under part 23 normal category (i.e., pre-commuter category) should be permitted to remain in operation with more than 10 passenger seats, even in non-air carrier service. ALPA appears to base its position on differences in performance requirements between commuter category and the predecessor normal category standards. American Eagle supports the proposed rulemaking and states that, “while there may be limited circumstances when aircraft design and/or manufacture may preclude or delay compliance with FAR part 121 or FAR part 25, cost and weight considerations should not be an acceptable barrier to the increase in safety which is derived from applying the higher standards of aircraft airworthiness, airline operations and passenger safety which those regulations provide.” In contrast, six other commenters do not believe that any propeller-driven airplanes with 10 to 19 passenger seats should be required to meet the transport category standards of part 25. Although the commenters’ reasons vary, the comments focus on three basic issues: (1) commuter category standards are appropriate for airplanes of this class; (2) there is no evidence that safety would be enhanced by requiring future airplanes to comply with part 25; and (3) the cost of complying with part 25 would be prohibitive. Similar comments concerning recertification of existing part 23 airplanes under part 25 were also offered, apparently under the misunderstanding that airplanes already type certificated, or derivatives of those airplanes, would have to be recertificated under part 25. Some commenters believe that the airplane certification issue is of such magnitude that it should be held in abeyance for a separate future rulemaking program. In this regard, the commenters assert that extensive changes to part 25 would be needed to accommodate the airplanes otherwise certifiable under part 23 commuter category and that those changes would entail a considerable expenditure of FAA resources. They further believe that any such changes should be subject to harmonization with corresponding standards of the European Joint Aviation Requirements (JAR). Several commenters cite the FAA’s 1977 proposal to require all airplanes used in air carrier service to meet part 25 transport category standards. That proposal was later withdrawn. According to commenters, the part 23 standards of that era were considerably different from those of today's part 23 commuter category. The level of safety expected by the public today is much greater than that tolerated in 1977. A number of other commenters address the proposed retrofitting of existing part 23 normal and commuter category airplanes to meet certain part 25 standards. Those comments are addressed in the section-by-section portion of this preamble (Section VI). One commenter has developed and produces a unique propulsion system in which two turbine engines drive a single propeller through a common gearbox. In addition to the installations already being made in existing airplanes, the commenter anticipates a future installation of this system in an airplane of entirely new design. Since any new model would have to be type certificated under the provisions of part 25 in order to be eligible for operation under part 121, the commenter requests that part 25 be amended to accommodate airplanes with this or similar propulsion systems. FAA Response: Rather than forcing the retirement of part 23 normal category airplanes, as recommended by ALPA, the FAA proposed in Notice No. 95-5 to permit their continued use in air carrier service provided certain changes were made on a retrofit basis to enhance their level of safety. Banning those airplanes would be extremely costly, but most importantly could result in an unintended safety decrement. Indeed, the FAA’s analysis indicates that moving too quickly on the imposition of part 121 standards could have the unintended effect of lowering the level of safety because operators would not be in a financial position to quickly obtain new airplanes and currently there are not enough replacement airplanes available that meet the higher standards. The result could be a shift from 10- to 19- seat turbopropeller airplanes to 9-seat or less reciprocating engine airplanes, which have an even higher accident rate. The six commenters' assertions that commuter category standards of part 23 are appropriate for airplanes of this class and that there is no evidence that safety would be enhanced by type certification under part 25 are, to a certain extent, correct. Through a number of recent amendments and pending amendments, the level of safety established by the commuter category has been and is being enhanced considerably. In many instances, commuter category airplanes must meet standards that are the same as, or very similar to, those of part 25 transport category. Requiring future 10- to 19- passenger seat airplanes to be type certificated under part 25 would complete this effort to ensure that these airplanes used in air carrier service meet the same aircraft certification standards as the larger airplanes. In response to comments that part 23 airplanes could not be type certificated using part 25 standards, the FAA notes that it did not propose in Notice No. 95-5 that part 23 normal or commuter category airplanes presently in operation would have to comply with part 25 standards for type certification. Instead, it proposed that part 23 airplanes that will be required to be operated under part 121 will have to comply with certain part 121 equipment and performance requirements. In response to the individual comment on a unique propulsion system, although the commenter’s request is beyond the scope of this rulemaking, it will be considered during the review of part 25 discussed above. V.D. Flight Time Limits and Rest Requirements The FAA proposed that the part 121 domestic flight time limits and rest requirements would apply to affected commuter operators when conducting operations within the United States. Under the proposal affected commuter operators, when conducting operations to or from the United States, would comply with the flag flight time limitations and rest requirements of subpart R. Additionally, if these certificate holders use these same airplanes for nonscheduled operations, those certificate holders would be required to comply with supplemental flight time limitations and rest requirements of subpart S of part 121. As stated in Notice 95-5, since the flight time limitations and rest requirements for flag and supplemental operations were not updated in 1985 when domestic limits were, the FAA has developed an NPRM that is being issued concurrently with this final rule. (See elsewhere in this issue of the Federal Register.) Comments: Atlantic Southeast Airlines (ASA), Regional Airlines Association (RAA), and Big Sky Airlines comment that the FAA should provide specific and scientifically-based data to support this significant change. Fairchild Aircraft adds that the additional time off duty provided by the proposal will not necessarily be used for rest. NATA comments that there are differences in part 135 operations that justify a different set of flight time limitations and rest requirements: part 135 operations are generally confined to a particular area, pilots of smaller certificate holders rarely commute a long distance to and from work, and pilots have fewer overnight stays as part of their schedules. Air Vegas comments that unless an exception is provided, seasonal operators would have to hire additional crews in order not to exceed the 7-day limit of 30 hours or the monthly limit of 120 hours. This commenter notes that short-term employment of such pilots is next to impossible. Morton Beyer and Associates comments that the cost of hiring additional pilots is expected to add another $250 million to airline costs. Twin Otter International comments that the 1,200 yearly limit in part 135 is based on the part 121 100-hour-per-month concept, and that the regulations really are similar. Several individuals strongly urge the FAA to adopt the part 121 standards for the upgrading commuter pilots. American Eagle comments that it applies part 121 domestic rules to its part 135 operations and believes that all air carriers providing commercial passenger service should use either the domestic or flag rules of part 121. One individual notes that the reduced rest provision in part 135 allows for only 8 hours of rest between scheduled flights. Another individual comments that commuter pilots have a high frequency of takeoffs and landings, fly in the busier low-altitude airspace, deal with more controllers per flight mile, and deal with more weather than their part 121 counterparts. One person comments that certificate holders routinely schedule 3-4 hour breaks to preclude violations of the 8 hours of flight in 24 hours rule; however, the effect of this is to stretch out the duty day. The result is a higher duty time to flight time ratio which is not accounted for in the current rules. IAPA supports the proposal but also expresses concern that the current regulations fail to count, as part of duty time, the time period when flightcrews are on reserve duty, standby duty, or carrying a pager or other telephonic device. IAPA urges the FAA to treat reserve or standby duty as duty time. ALPA comments that while the upgrade to part 121 will result in an improvement in flight time limits and rest requirements, part 121 will continue to be deficient in this area until additional rulemaking action is taken, as promised by the FAA. Alaska commenters argue for maintaining the current regulations. ERA Aviation estimates that if the proposed rule is adopted, it would necessitate at least a 15% increase in the number of pilots it would need, resulting in a $500,000+ increase in costs. Penair finds four reasons for excepting Alaska: operations are conducted in the same time zone, few Alaska pilots commute to their jobs, less than 5% of Alaska operations occur between 9:00 p.m. and 7:00 a.m., and Alaska does not have the congested ATC operations which are found in the lower 48 states. AACA also presents this argument, adding that going from 1,400 hours of duty per year down to 1,000 represents a 29% decrease in productivity. Other Alaska certificate holders, e.g., Wings, Northern Air Cargo, Taquan Air Service, Tanana, endorse the AACA comment. One individual commenter from Alaska opposes any attempt to create exceptions to the requirements for Alaska. This person supports the assertion that Alaskan operations are basically the same as state-side operations and should be afforded no special exemptions. This individual, a pilot who flew over 1,300 hours last year, states that there were many consecutively scheduled 14-hour duty days and many canceled days off. Ten hours of rest may sound adequate, but not for days on end. The individual questions the logic that one is more rested in one geographic area than in another. According to the commenter, duty cycles that are unsafe in the lower 48, are also unsafe in Alaska. Another individual from Alaska states that the FAA has shown no data to indicate any problem with the provisions of § 135.261(b), which allows Alaskan scheduled operators to use § 135.267. The individual states that in 1994, he flew 1320 hours, had 173 days off, slept in his own bed every night, and never had less than 10 continuous hours of rest in any 24-hour period. He believes he probably had more rest and time off than the average long-haul part 121 pilot. The commenter states that the proposed flight/duty time limits would cause scheduling nightmares for operations in rural/remote parts of Alaska. FAA Response: The FAA is holding in abeyance a final decision on the proposed imposition of current part 121 flight time limitations and rest requirements on affected commuters pending a review and disposition of comments on the separate flight and duty rulemaking in which the FAA proposes to overhaul all the flight and duty rules. The separate rulemaking, if adopted, would harmonize flight and rest requirements for all part 121 and part 135 carriers. The FAA anticipates that the separate rulemaking will result in a net cost savings to the industry as a whole. In the meantime, affected commuters will continue to operate under the current part 135 flight and duty rules. This will prevent needless expenditure of resources by affected commuters who would have to implement flight and rest provisions under the commuter rule proposal and then later might have to change their system to comply with the separate rulemaking. For the same reasons the FAA will allow part 121 certificate holders operating in Alaska and Hawaii to continue to follow the flight and duty rules of part 121 applicable to flag operations, even though under this rulemaking these certificate holders are now classified as conducting domestic operations. Accordingly, §§ 121.470, 121.480, and 121.500 include an exception for affected commuters allowing that they continue to comply with flight time limits and rest requirements of part 135. Additionally, § 121.470 will allow existing Alaska and Hawaii intrastate scheduled domestic operations to continue to be conducted under flag rules. V.E. Age 60 Rule Section 121.383(c) prohibits a certificate holder from using the services of any person as a pilot, and prohibits any person from serving as a pilot, on an airplane engaged in operations under part 121 if that person has reached his or her 60th birthday. Part 135 has not had any such limitation. The FAA proposed to impose one age limitation on all pilots employed in part 121 operations, including those pilots currently employed in affected part 135 scheduled operations. The FAA stated in Notice 95-5 that if it determines that it is appropriate to propose a different age limit in another rulemaking action, it will propose to apply the revised limitation to all part 121 operations, including the pilots in commuter operations. Comments: The age limitation question was the subject of over 2,000 written comments (including about 1,000 postcards from members of an airline pilot organization) and oral presentations at public meetings. The overwhelming majority of these comments concern the general question of whether there is a need for an age limit in part 121, and do not address any particular aspects of applying an age rule to commuter pilots. Several commenters, however, state that if commuter pilots are subjected to an age limit, the FAA should adopt a phased-in implementation schedule to avoid abruptly ending the careers of pilots who had not planned on retiring at age 60. Another commenter states that it hires over-age-60 retired part 121 pilots. FAA Response: As discussed above, the FAA has identified a strong need to enhance the safety of commuter operations. Commuter airlines are carrying an increasing number of passengers over an increasing number of miles. While safety has improved over the past two decades, commuter airlines operating under part 135 continue to have a higher accident rate than domestic part 121 airlines. The FAA can no longer justify most distinctions between parts 121 and 135 commuter operations. The part 121 regulatory scheme provides a network of safety features. Because most accidents are caused by human error, rules designed to enhance the performance of pilots are among the most valuable in reducing the number of accidents. Elsewhere in this preamble the FAA discusses other provisions that serve this purpose, such as the critical role of the aircraft dispatch system in double checking the work of the pilot and providing updates on weather and alternate airports. The training requirements for commuter pilots are being upgraded, and eventually part 121 flight and duty time rules or the newly proposed rules will apply to them. The Age 60 Rule provides an additional measure of safety by reducing the risk that age-related degradation will affect pilot performance. A pilot may have the best training in the world, and be well-supported by an aircraft dispatch system, but if the pilot suffers from a subtle age-related degradation in performance, safety will be reduced. Also, the potential safety benefits of training and dispatching may be reduced by human safety lapses that could occur or do occur more frequently with age. The “Age 60 Rule” was adopted by the FAA in 1959 (24 FR 9767, December 5, 1959). At the time Notice 95-5 was issued, the FAA was also considering whether, in the interest of safety, the Age 60 Rule should be retained as is or revised to allow pilots to continue to fly in part 121 operations past their 60th birthday. The FAA completed its review of the Age 60 Rule. In a Disposition of Comments (Disposition) published in the Federal Register, [cite], the FAA announced that it will not propose to change the Age 60 Rule at this time. The Disposition thoroughly discusses the various issues regarding the need for an age limitation and what that age should be, including the issues raised in the comments to Notice 95-5 that concern the Age 60 Rule in general, and those comments will not be further discussed here. This rulemaking deals only with the application of part 121 rules to affected commuter operations. In Notice 95-5 the FAA proposed a general compliance date (that is, a date on which most provisions must be complied with) of 1 year after publication. The Notice also proposed delayed compliance dates for several of the requirements (other than the age limitation), to provide time for the work necessary to comply with the proposed requirements. In this final rule, the FAA has adopted a general compliance date of 15 months after the date of publication of this final rule in § 121.2(c), and also has adopted delayed compliance dates for a number of requirements, giving the air carriers 2, 4, or more years to comply with certain of the new requirements. In response to the comments requesting delayed compliance dates, and after further evaluation, the FAA has considered that there are factors warranting delay in the compliance date for the Age 60 Rule, as it applies to those affected commuters that now will be brought under part 121. The lack of an age limitation in part 135 has created reasonable expectations on the part of both the affected commuter operators and pilots regarding the length of time that the pilots would continue in service: Some of those operators have spent money to hire and train pilots with the expectation that they would serve past the age of 60; and the pilots have not had to plan on leaving their positions at age 60. In fact, certain affected commuters appear to have a practice of hiring retired part 121 pilots, and will no longer be able to do so. Further, this rule requires the affected commuters to make extensive changes in equipment, personnel, and procedures before the general compliance date. Also, final rules have been adopted that impose new requirements for training, including standardized pilot training and crew resource management training. The affected commuters operators should not be required to stop using the services of their over-age-60 pilots in scheduled operations (10 or more seats) and train replacements until these new programs are in place, and the training can be under the new programs. Accordingly, the FAA has determined that the Age 60 Rule, as it applies to certain pilots, should have an extended compliance date. As it applies to pilots newly hired by commuter operators, the Age 60 Rule will apply on the general compliance date indicated in § 121.2(c). Until that date, there will be no age restrictions on the pilots of commuter operations that are upgrading to part 121. After that date, the affected commuters will no longer be able to hire pilots who have reached their 60th birthday (except for pilots who as of that date were employed as pilots for another affected commuter). However, pilots who are employed by affected commuters on that date will be able to continue to serve until December 20, 1999, after which the Age 60 Rule will apply to every pilot under part 121. The delay in applying the rule will provide some relief from the difficulties discussed above. The 4-year compliance period for these pilots will permit the affected commuters to recover services for several more years from those pilots in which they recently have invested in training. Delaying the application of the rule to new hires until the general compliance date will give affected commuters time to adopt new hiring practices, at a time when the operators will have many other new requirements under this rule to comply with. The 4-year compliance period for pilots will give them time to plan for retirement or for changing jobs. It will also give affected commuters additional time to make careful selections of well-qualified pilots and train them under the new training requirements. And, the operators will not have to replace all of their over-age-60 pilots at once, at a time when so many other new requirements must be complied with. V.F. Dispatch System Parts 121 and 135 require certificate holders to exercise operational control over all flights conducted by the certificate holder. “Operational control” is defined in 14 CFR part 1 as “The exercise of authority over initiating, conducting and terminating a flight.” Operational control consists of making decisions and performing activities on an ongoing basis that are necessary to operate specific flights safely. These activities include among other things crew and airplane scheduling, reviewing weather and NOTAM’s (Notices to Airmen), and flight planning. Parts 121 and 135 provide for three general types of operational control systems based on the kinds of operations and the complexity of operations: aircraft dispatch, flight following, and flight locating systems. Part 121 domestic and flag operations require a dispatch system, part 121 supplemental requires a flight following system, and part 135 requires a flight locating system for any flight for which a flight plan is not filed. In Notice 95-5, the FAA proposed that the affected commuters would be required to have a dispatch system. Affected commuters would have to meet all part 121 dispatch requirements, including dispatcher qualification requirements, recordkeeping, and flight release requirements. As proposed, affected commuters that would conduct some nonscheduled flights under part 121 supplemental rules could use a flight following method for the nonscheduled flights. The FAA also stated in Notice 95-5 that Alaskan operations pose certain unique problems and requested comments on alternatives that could be considered for Alaska. Comments: Two individuals suggest that the use of a dispatcher and dispatch system be an option for 10- to 19-seat certificate holders, recommending compliance with existing subpart F of part 121. Both commenters believe that the FAA should seriously consider permitting, at least on an interim 36- month basis, compliance with subpart F flight following requirements in lieu of subpart E dispatch requirements for transition carriers. This will, in their opinions, gain the early momentum of the industry by making it possible for many certificate holders to transition early. A long lead time is necessary to qualify existing personnel as dispatchers under existing part 65. The commenters remind the agency that during the early 1980’s, by the FAA’s own rules, 20- to 30-seat aircraft were subject to part 121 supplemental rules, including the flight following requirements of subpart F. One of these individuals also states that interim compliance with subpart F flight following requirements would ease the transition to subpart E dispatch requirements for affected certificate holders. NATA comments that the FAA lacks understanding on the types of operations 10- to 19-seat certificate holders typically fly and recommends a flight following system instead of a dispatch system. NATA states that many small, independent carriers operating aircraft with 10 to 19 seats may have only 2 to 4 of these types of airplanes and may operate them over only a few selected routes. According to NATA, many of these carriers conduct on-demand operations in addition to their scheduled activity. NATA believes, along with several other commenters, that for operations such as these, to implement a full dispatch system will result in significant cost with little or no benefit. RAA and other commenters suggest that the FAA identify specific safety objectives in requiring a dispatch system for short-haul certificate holders. One commenter believes that a formal dispatch system for all scheduled air carriers should be required, but points out both the pros and cons of requiring such a system. This commenter, as well as others, states that pilots may be shouldering many additional responsibilities other than flying the aircraft in an effort to minimize the cost of flight operations. Due to the task saturation of pilots and other crewmembers, functions involving flight planning, weather analysis, and weight and balance calculations may not be thoroughly performed. According to the commenter, the majority of commuter pilots are, as a rule, very young and inexperienced. These crews must continually perform at peak levels of performance both on the ground and in the air. According to this commenter, as well as others, the use of the flight dispatcher would increase safety, operational efficiency, and productivity. The duties of filing the flight plans, checking NOTAMs, planning fuel requirements dictated by weather, and obtaining ATC routing would be completed by the dispatcher prior to the crew arriving for the flight. Optimum routes based on known ATC or weather delays would be filed, resulting in substantial fuel savings and improved arrival and departure reliability. The pilots would now be able to concentrate on flying and be able to relax and rest between flights. Flight could be more effectively managed, thus saving fuel, maximizing aircraft utilization, and passenger satisfaction. On the other hand, according to the commenter, mandating the dispatch system for part 135 air carriers may create some heavy financial burdens. It will require a facility, communications hardware for the facility and the aircraft, trained personnel, and training for dispatchers. The initial capital outlay would not be recovered for several years. According to the commenter, this mandate will place severe constraints on many less established carriers and may actually result in bankruptcy for some. Many commenters are in favor of the role of the aircraft dispatcher in operational control issues. One commenter states that the requirement for a formal dispatch system is long overdue. One commenter believes that dispatch centers might create a sense of complacency on the part of the flightcrew and, along with other commenters, thinks that automated flight planning and flight following information should be used in lieu of dispatchers and dispatch centers. Two of the commenters advocating automated flight following systems state that the three accidents cited by the FAA in Notice 95-5 would not have been prevented by the use of a dispatcher. One commenter states that in his experience PIC’s typically check dispatcher computations but do not duplicate the computations as the FAA stated in Notice 95-5. The NTSB states that in its 1994 study report, it examined the differences in flight dispatch requirements between parts 121 and 135. The NTSB found that, in the absence of support from licensed dispatch personnel, pressures on commuter airline pilots to accomplish several tasks between flights in shorter periods of time might increase the risk of critical mistakes that could jeopardize the safety of flight. As a result, the NTSB recommended that the FAA require each principal operations inspector (POI) to periodically review air carrier flight operations policies and practices concerning pilot tasks performed between flights. This review was to ensure that carriers provide pilots with adequate resources (such as time and personnel) to accomplish those tasks. According to NTSB, the proposed rulemaking, if implemented, would meet the intent of the safety recommendation (A-94-193). ASA, RAA, and Gulfstream International Airlines support many of the elements of the dispatcher rule. They state that flight dispatch systems that are required under part 121 are extensive since they address the dispatch and en route communications needs for a span of air carriers from international airlines with worldwide flight operations to the largest U.S. regional carriers. ASA supports the requirement for licensed dispatchers, believing that the most qualified candidates for licensing as dispatchers are the individuals currently employed as flight followers. These commenters request that the criteria in § 65.57 be examined to provide guidance for granting a dispatcher certificate based on practical experience as a flight follower under part 135 operations. According to the commenters, many flight followers have passed the written portion of the dispatch license but have not attended formal dispatch school and do not hold licenses. However, they may have extensive practical experience in scheduled air carrier operations performing what is essentially a dispatcher function. According to these commenters, the criteria contained in § 65.57 includes experience in scheduled military operations. The commenters believe that if military experience is applicable, the experience of a flight follower with a scheduled airline should qualify. These commenters also point out that the practical portion of the dispatcher license is administered using a Boeing 727 aircraft. The commenters believe that while many of the functions and decision making circumstances would be the same, the experience of part 135 flight followers, managing flights of high performance turbopropeller-powered aircraft is a considerably more significant and practical measure of their capabilities than military experience or demonstrating their skills in managing a turbojet operation. The commenters believe that the cost and time to send current flight followers to a formal dispatcher school is not justified. Samoa Air comments that since its longest flight is only 70 miles (35 minutes), a dispatch system would not enhance or change any of its current requirements. Samoa has established VFR and IFR fuel requirements to all of its destinations and the requirements do not change. The only alternate airport is the destination airport. Samoa also states that § 121.101 requires each domestic and flag operator to show that enough weather reporting facilities are available along each route to ensure weather reports and forecasts necessary for operations. Section 135.213 allows the pilot in command to use various other sources, including his own weather assessment, for VFR operations. Of the four airports Samoa serves, only one (departure airport) is in controlled airspace with weather reporting facilities and instrument approach procedures. Enroute and terminal weather conditions are received through the ATC tower from their weather station. VHF communications with the tower cover almost the entire route, so the aircraft has ready access to any weather information available and direct information on the status of communications, navigation, and airport facilities. A dispatcher would not enhance safety but would add significant cost. If Samoa is required to provide weather conditions at each airport to the pilot from an approved source and the pilot can not assess the weather himself, the rule change could eliminate all of Samoa’s present operations. Similarly, Inter Island and Air Vegas comment that the requirement for enroute weather reporting is unfeasible because of minimal weather reporting facilities in the certificate holders’ regions. Air Vegas also comments that radio communication in mountainous terrain would be difficult if not impossible with VHF radio systems because mountains block radio transmission. Air Vegas comments that all “dispatcher duties” are currently being accomplished by personnel in the operations department, station managers, and company pilots. All flight following is being done by telephone. The commenter states that current flight following procedures meet part 135 requirements and are operationally safe and efficient. Mesa Airlines comments that due to its short flight segments and the lack of significant weather changes in the areas in which it operates, a dispatch system is not needed. Mesa believes that all enroute communications can be accomplished by ATC. AACA states that the requirements of subpart E come at a time when the availability of weather information in Alaska has been identified as a significant issue adversely affecting aviation activities (proceedings of an NTSB “Aviation Safety in Alaska” forum, May 1995). The Airline Dispatchers Federation supports the dispatch proposal and agrees with the upgrading of current commuter facilities to dispatch centers. It believes this upgrading is necessary because of the extensive use of code-sharing by the aviation industry. The commenter is not in favor of amending part 121 dispatch rules for certificate holders of the 10- to 19- seat category. The commenter provides its estimate of costs to certificate holders that could be affected by the implementation of this rule. The commenter notes that the costs provided by some certificate holders may not be accurate. For example, cost estimates concerning flight planning and performance issues are inaccurate since several airlines use bulk stored flight plans and performance information taken directly from aircraft flight manuals for fuel planning. The commenter also provides its assessment of various aircraft accidents for which it believes dispatchers could have made a difference in changing events that led to the accident (crew fatigue, lack of management oversight, operational control issues, late arriving weather information). ALPA comments that dispatchers should be required to complete their 5-hour inflight operating experience in 10- to 30- seat aircraft, not in larger 60-seat aircraft, as currently allowed. ALPA proposes that § 121.400(b) be amended by adding a group specific to propeller-driven aircraft with a seating capacity between 10-30 seats. AACA comments that due to the operating environment of Alaska, the pilot and not the dispatcher is in a better position to access and evaluate operational control information. The commenter believes that scheduled operations in Alaska more closely resemble the operations conducted under supplemental rules and not domestic or flag operations. The commenter notes that pilots frequently are not in radio communication with company offices directly, but could communicate via Flight Service Station, ATC, or other aircraft. According to the commenter, enroute and destination weather conditions are either not accessible or not available at any time from “official” sources. The commenter notes that three affected certificate holders in Alaska presently have a part 121 type dispatch system in place. AACA further states that the assumption that estimated fuel savings by dispatchers would offset the cost of establishing a dispatch system is not true. AACA recommends that the FAA adopt the flight following supplemental rules of part 121 for Alaskan 10-19 seat certificate holders. AACA also recommends that current part 135 personnel be “grandfathered” for dispatcher certificates if they have been employed as flight followers. The commenter notes that the practical experience dealing with turboprop aircraft and flight planning may be lost to the industry if flight followers are required to take extensive dispatcher training courses, pass a written and practical test, and lose time and money on the job while they obtain an FAA dispatcher certificate. FAA Response: The FAA anticipates that requiring operators to have a certificated dispatcher double check the work of the pilot and provide the flightcrew with updates on weather and alternate airports can reduce human factor errors. With a dispatcher system, the chances of pilot miscalculations or oversights could be reduced. Moreover, a dispatcher can assist the flightcrew in making plans for an alternate airport (which might be necessary due to weather problems, air traffic control problems, airplane equipment problems, fuel problems, etc...) during the flight while the crew focuses on flying the airplane. The FAA disagrees with the recommendation to make the use of a dispatcher and dispatch system optional since that would not address the safety issues involved. The FAA also disagrees that a flight following system is an acceptable alternative to a dispatch system or that dispatch systems are not needed for limited flight distances if there is adequate weather reporting facilities. The use of a dispatch system is based on the type of operation (scheduled), and not the distance of a flight, the number of aircraft, or the type of aircraft being flown. Flight following systems are used for nonscheduled operations, and could be used for nonscheduled operations by affected commuters under the supplemental rules of part 121. Note: The dispatch system requirements apply only to scheduled passenger- carrying operations. The FAA disagrees with the basic idea that the decision making process of operational control of aircraft can be made by automated means. While automation has improved the accuracy and timeliness of flight planning, weather information, and NOTAMs, nothing so far has replaced the decision making capabilities of a certificated dispatcher. Dispatchers receive training in subject matter beyond just flight planning, e.g. crew resource management, hazardous materials regulations. These subjects are just a small representation of the subject matter an aircraft dispatcher must know in order to make operational control decisions. The FAA agrees with the comment that dispatchers are usually in a better position to review weather reports and forecasts than pilots hurrying to accomplish other postflight/preflight aircraft duties. Operational control issues are enhanced when both the pilot in command and the aircraft dispatcher are jointly responsible for the safe conduct of a flight. As several commenters point out the overall level of safety is enhanced when a dispatcher is available to assist and back up the pilots who already may have numerous responsibilities in addition to flying the airplane. Thus, while it may not be possible to pinpoint accidents that have actually been prevented by a dispatch system, there can be little doubt that the existence of a dispatch system contributes to the overall high level of safety of scheduled operations under part 121. The FAA does not agree that use of dispatchers would lead to complacency on the part of the flight crewmembers. Section 121.663 states that for each domestic and flag operation, a dispatch release must be prepared based on information furnished by an authorized dispatcher. The pilot in command and an authorized dispatcher shall sign the release only if they both believe that the flight can be made safely. Dispatchers provide the necessary resources and expertise needed to review operational control issues. In response to comments that in some companies “dispatch” functions are being adequately performed by individuals from three separate departments (operations, station managers, and company pilots), the FAA finds that operational control decisions can not be effectively made by three separate groups of individuals. The perception is that “whoever is available” makes the decision. For effective operational control, the dispatch process should be standardized and consistent. In response to NATA’s and others’ comments on the nature of 10- to 19-seat certificate holders, the FAA finds that these certificate holders are not unique. The same situation currently exists for some part 121 certificate holders who are required to maintain dispatch systems. In response to comments on the issue of limited areas of operation and short flight duration, the requirement for a dispatch facility is not based on distances, the type of aircraft, or weather patterns alone. It is the type of operation (scheduled) an air carrier is currently operating under that determines if dispatch systems are required. The role of the aircraft dispatcher in the operational control of aircraft provides an enhancement to safety that has clearly been established through years of operations by many air carriers in both domestic and flag operations. Continuous communications could be accomplished with HF radios or through satellite communications, both of which can be provided through vendors. The FAA agrees with commenters that for some part 135 certificate holders, personnel will first have to acquire the necessary certificate and then complete required air carrier training requirements for dispatchers. The average dispatcher school curriculum lasts 5 weeks and usually includes instruction on both the written and practical tests. The FAA believes that some part 135 personnel already possess aircraft dispatcher certificates and that these personnel would be required to attend only the air carrier’s dispatcher training program. Regardless, once an air carrier employs a certificated dispatcher, company training would have to be completed. That training would entail 40 hours of basic indoctrination, differences training, initial ground/transition of 30- 40 hours (based on the type of aircraft), and a competency check (see § 121.422). While the FAA does not agree with AACA’s recommendation to “grandfather” dispatcher certificates to current flight followers or flight locating personnel, § 65.57 outlines a means of providing credit for previous experience in order to take the practical test. All dispatcher applicants must complete the appropriate written and practical tests before a certificate can be issued. The FAA agrees that training costs will be incurred to prepare current flight following or flight locating personnel to qualify for a dispatcher certificate, regardless of who pays for the training. Replacement personnel will be needed if the decision by the certificate holder is to send current employees to dispatcher training. There is no requirement for dispatchers to attend a formal school. Section 65.57, entitled experience requirements, allows several options in lieu of a formal school. In response to specific requests to expand the criteria in § 65.57 (aircraft dispatcher experience requirements) to include personnel assigned to flight locating and flight following under part 135, the FAA believes that some part 135 experience is acceptable as equivalent experience in § 65.57. Through current policy and guidance provided to FAA inspectors, a review on a case-by-case could be accomplished to ascertain if an applicant has equivalent experience. In response to comments on the current format of the dispatcher practical exam, § 65.59 requires an applicant for an aircraft dispatcher certificate to pass a practical test with respect to any one type of large aircraft used in air carrier operations. Further, current practical test standards require dispatcher applicants to exhibit adequate knowledge of applicable aircraft flight instruments and operating systems. The scope of the practical test allows for turboprop aircraft and representative commuter operations. Practical tests are developed by the inspector conducting the test and can be designed for any type of large aircraft, including turboprop airplanes. There is only one dispatcher written examination, the Airline Transport Pilot question book. The selection sheet has questions applicable only to dispatchers and not based on any particular make and model of aircraft. The FAA is considering developing written tests geared to commuter-type operations. However, the current written exam is valid in that it tests for areas common to all make and models of aircraft. The test requires knowledge of various subject areas, i.e. the ability to interpret weather information, interpret regulations, handle emergencies, compute weight and balance, etc. The FAA disagrees with the ALPA recommendation to require dispatchers to receive 5 hours of operating experience in aircraft they will actually dispatch. Section 121.463(c) requires the dispatcher to satisfactorily complete at least 5 hours of operating familiarization in one of the types of airplanes in each group he is to dispatch. Section 121.400(b) includes all sizes of propeller- driven aircraft under group 1. Therefore, the FAA allows dispatchers to complete the operating familiarization in airplanes that are not exactly the same size or configuration as the ones they will dispatch. V.G. Airports Section 121.590 requires that no air carrier or pilot conducting operations under part 121 may operate an airplane into a land airport in the U.S.(or territory, etc.) unless the airport is certificated under 14 CFR part 139. Section 135.229 states that no certificate holder may use any airport unless it is adequate for the proposed operations. Part 139 prescribes regulations governing the certification and operation of all land airports that are served by any scheduled or nonscheduled passenger air carrier operating airplanes with a seating capacity of more than 30 passengers. The FAA’s authority is limited by statute (49 U.S.C. 44706(a)) to the 30-passenger-seat dividing line. The FAA, in conjunction with the Department of Transportation, has sought legislation that would grant the agency the authority to certificate any airport that receives scheduled service by a certificate holder utilizing airplanes designed for 10 or more passenger seats. Accordingly, pending Congressional resolution of this issue, affected commuters are permitted to operate into other than part 139 certificated airports. If the FAA receives expanded authority over airport certification, it would propose rulemaking standards that are sufficiently flexible to cover the range of airports presently served under part 135. Comments: Nine comments were received on this issue, with the major concern being that airport legislation currently being considered may include requirements that some communities may not be able to afford which would negatively affect air service to these communities. The Las Vegas Department of Aviation comments that it has purchased and upgraded satellite airports in the Las Vegas area to help relieve the congestion at the McCarran International Airport. The commenter is concerned that the Clark County Department Of Aviation, the Grand Canyon Tour Operators, and the Las Vegas Department of Aviation may not be able to afford additional airport upgrades. This would cause certificate holders that currently operate out of the non-certificated outlying airports to move their operations back to McCarran, thereby increasing traffic congestion and in-flight delays. NATA and Commuter Air Technology concur with the FAA proposal to allow part 135 certificate holders to continue to operate with existing airport requirements, but are concerned about the airport expansion program. NATA prefers that no new airport legislation be adopted and that the proposed regulatory allowance for noncertificated airports be made permanent. A comment from Fairchild Aircraft mentions the Essential Air Service Program enacted by Congress that guarantees air service to small and medium size communities. Fairchild says that the commuter industry responded to that program and provided essential air service to small and medium communities, and that those communities may not be able to afford the proposed airport expansion program. Other commenters state that it would not be feasible to upgrade smaller airports to part 139 standards. One certificate holder states that of the five airports it serves only one meets part 139 standards; at the other airports where the certificate holder provides essential air service “there is no aircraft rescue or fire fighting equipment, airport guidance signs, airfield inspection procedures, airport staff, snow and ice control plan, or airfield pavement maintenance....” The American Association of Airport Executives (AAAE), RAA, Airports Council International-North America, and the National Association of State Aviation Officials would like the airport expansion issue referred to an ARAC committee before seeking federal legislation, to allow ARAC to develop a cost-effective response to NTSB recommendations that takes into account the difference between small airports that serve rural communities and large airports near major cities. ALPA believes that the FAA should require commuters to operate out of part 139 certificated airports in the interest of one level of safety. ALPA recognizes that some airports in remote sites will not be capable of complying with all part 139 requirements. However, ALPA does not believe that an exemption should be provided for aircraft with passenger-seating capacities of 30 or less. Rather certificate holders that serve small airports should apply individually for an exemption or waiver. Commuter Technology expresses concern that a revised part 139 may result in the application of airplane operator security regulations of part 108 and the airport security regulations of part 107 to air carriers using aircraft with a seating capacity of 30 or fewer seats. The commenter believes that the ARAC committee that is tasked with recommending revisions to part 139 should also be tasked with restricting or eliminating the applicability of part 107 to small airports. According to the commenter the application of parts 107 and 108 to commuter air carriers and the airports that serve them could have a radical effect on the economic viability of the air carriers and airports. FAA Response: The FAA has assigned a task to the Aviation Rulemaking Advisory Committee (ARAC) to recommend the requirements in part 139 that should be applicable to airports covered under any expanded legislation that would give the FAA authority to certificate airports serving airplanes with less than 30 passengers. In the meantime, § 121.590 is adopted as proposed to allow affected commuters to use noncertificated airports. In making its recommendations ARAC is to consider accepted industry practices regarding airport safety, personnel available at these airports, costs associated with meeting these requirements (e.g. capital, operating, and maintenance costs), and the types of accidents/incidents that have occurred at these airports. In response to the comment on security programs for airports and operators, no changes to parts 107 and 108 are necessary as a result of this rule because the requirements of those parts are already tailored to the size of the airplane. V.H. Effective Date and Compliance Schedule The FAA proposed an effective date of 30 days and a general compliance date of 1 year after publication of the final rule. The FAA stated in Notice 95-5 that a final rule, if adopted, would be published by December 31, 1995, and that within 1 year of that date, that is, by December 31, 1996, all affected certificate holders that have air carrier certification or operating certificates issued under part 135 at the time of publication would have completed the approval process and obtained new operations specifications giving them authority to conduct domestic or flag operations under part 121. Under the proposal, persons who do not already have air carrier certificates or operating certificates who submit applications for or obtain air carrier certificates or operating certificates after 30 days after the publication date of the final rule would be required to obtain part 121 operations specifications; however, these new entrants would meet the same requirements as the affected commuters, i.e., delayed dates for retrofit of airplanes with certain types of equipment. Proposed § 121.2(c) and § 135.2(c) allow for regular or accelerated compliance with part 121 requirements. Proposed §§ 121.2(g) and 135.2(g) also require an affected certificate holder to submit to the FAA a transition plan for moving from part 135 to part 121. Comments: Eleven comments were received on this issue. Several commenters express a desire for an “incremental” or “phased” compliance schedule. Two commenters are concerned that the proposed “turnkey” recertification event is high risk with no early rewards or benefits. RAA suggests revising proposed §§ 121.2(c) and 135.2(c) to require compliance “not later than” 1 year after final rule publication rather than the proposed “as of,” and adding the word “complete” before “14 CFR part 121 operations specifications.” RAA also suggests adding a new paragraph to the section that would state that a certificate holder may be authorized under its transition plan to comply with portions of part 121 instead of the equivalent portions of part 135 in advance of being issued complete 14 CFR part 121 operations specifications. Accordingly RAA recommends adding to the transition plan requirements of paragraph (g) a new subparagraph to include in the transition plans provisions for interim compliance with portions of part 121 in advance of obtaining complete 14 CFR 121 operations specifications. Other commenters also request provisions for complying with portions of part 121 in advance of obtaining part 121 operations specifications. Other commenters also state concerns about FAA’s capacity to facilitate the transition process on schedule. Two commenters perceive a shortage of trained inspectors and suggest that the compliance date be extended if an adequate number of inspectors are not provided by mid year 1996. GAMA suggests a reevaluation of the implementation schedule of § 121.2(d)(1), citing a questionable number of aircraft certification service personnel to support the extensive design approval activity certain to occur. Another commenter expresses concern over the necessary type certification activity surrounding modifications and suggests that 1 year is an unrealistic compliance deadline given the current FAA Aircraft Certification Office backlog. RAA is concerned that the population of FAA inspectors qualified to perform their duties under part 121 will not be able to respond to the new part 121 air carriers. According to RAA, FAA inspectors must be trained and qualified to help affected commuters achieve the transition. RAA recommends a “fill in the blanks manual” to achieve standardization among FAA regions and districts. If there is an insufficient number of qualified FAA inspectors, the 1996 compliance date should be delayed. ASA proposes a standardized transition program including three elements: (1) a fill-in-the-blanks manual for transitioning carriers; (2) an automatic exemption and incremental approval process; and (3) time schedules from transitioning carriers submitted to FAA. Mesa Airlines recommends pre-formal certification meetings with principal operations inspectors (POI’s) at an early date to familiarize both parties with the certification process outlined in FAA Order 8400.10. According to Mesa, compliance statement development, individual operator transition plans, GOM (general operating manual) development, and formal certificate application should be scheduled for the spring of 1996 to allow adequate review by respective POI’s. According to Mesa this would allow certificate holders to be running their commuter operations under part 121 rules by the summer of 1996. This in turn would allow for a start-up phase for part 121 dispatch operations and modifications to the requirements for proving runs as proposed in § 121.163 and would eliminate the necessity for formal initial operating experience (IOE). There were several comments on specific compliance dates. ALPA is generally pleased with the compliance schedule, but states that the 4- year compliance date for the installation of pitot heat indication systems could be shortened to 2 years, given the relative ease of the modification. Fairchild Aircraft finds fault with the fact that a 2- year delay is provided for compliance with emergency exit handle illumination, but no delay is allowed for compliance with § 121.310(b)(2)(ii), which would require the replacement of exit signs on new commuter category airplanes. Mesa Airlines suggests that compliance with part 121 crew flight and duty limitations be changed to January 1, 1997. FAA Response: The final rule has a 30-day effective date and a general compliance date of 15 months after publication of the final rule. The FAA is extending the general compliance date to be consistent with the compliance date in the training rulemaking referenced in Section III. E, Related FAA Action. Also, the proposed delayed compliance dates for certain retrofit requirements have been modified in response to comments. The final rule also establishes delayed compliance dates for meeting the performance operating limitations of part 121 for certain airplanes. Compliance dates are provided in § 121.2. This section has been reorganized to separate compliance dates for 10-19 seat airplanes and those for 20-30 seat airplanes. Retrofit and performance requirements compliance dates are listed on Table 1 and discussed in the appropriate place in the preamble. Because of the scope and significance of this rulemaking, the FAA has already begun planning for the implementation of the final rule. Training has been provided for inspectors who will be responsible for overseeing the transition of the affected commuters from part 135 to part 121 operations. Additional training planned for Janua