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


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


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


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


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


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


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


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


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


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


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


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


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