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


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


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.