Houston Office Phoenix Office P. O. Box 924826 410 N



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Houston Office Phoenix Office

P.O. Box 924826 410 No. 44th St., Suite 700

Houston, TX 77092 Phoenix, AZ 85008

rap.exdir@mindspring.com (602) 685-4112

Maurice A. Parker

Executive Director



S

eptember 30, 2002

U.S. Department of Transportation

Docket Management System

400 Seventh Street S.W.

Room CL-401

Washington D.C. 20591
Re: Petition of Regional Aviation Partners for a Rulemaking or Exemption Permitting Small Aircraft Operators to Comply With the FARs Applicable to Commuter Operations
Petitioner, Regional Aviation Partners (“RAP”), respectfully petitions the Federal Aviation Administration ("FAA"), to permit direct air carriers conducting domestic operations, within the meaning of Federal Aviation Regulation ("FAR") § 119.3, with airplanes having a passenger seat configuration of more than 9 and less than 31 seats, excluding any crewmember seat, to conduct such operations as commuter operations under the provisions of FAR Part 135 rather than FAR Part 121. Petitioner is a non-profit organization that represents the interests of regional airlines, airline manufacturers, small communities, consumers, business entities, and several of its members are direct air carriers that currently operate such aircraft. 1 RAP petitions the FAA, pursuant to FAR § 11.61(a), to amend FAR § 119.21 to include a new subsection (d) as follows:
Persons who are subject to the requirements of paragraph (a) (1) of this section may conduct operations with airplanes having a passenger-seat configuration of 30 seats or fewer, excluding each crewmember seat, in accordance with the requirements of paragraph (a) (4) of this section, provided they obtain authorization from the Administrator.
Petitioner assumes that conforming amendments to FAR Parts 119, 121, and 135 will also be necessary.
In the alternative, petitions the FAA, on behalf of each of its member air carriers, which currently conduct domestic operations with such airplanes, pursuant to FAR § 11.61(b), to exempt these carriers from FAR § 119.21(a) (1) (and other provisions, as may be required) and to permit such carriers to conduct such operations with smaller aircraft as commuter operations under FAR § 119.21(a) (4) and part 135.
Pursuant to FAR §11.81(f), the following Federal Register summary is proposed for this exemption petition:

U.S. Department of Transportation

Docket Management System

Re: Petition for Rulemaking or Exemption Relating to FAR Part 121

September 30, 2002

Page 2


Petitioner, on behalf of its direct air carrier members and similarly situated

Part 121 operators, requests relief from FAR § 119.21(a) (1) and other provisions

to permit direct air carriers conducting domestic operations with airplanes having

a passenger-seat configuration of 30 seats or fewer, excluding each crewmember

seat to comply with the provisions of FAR § 119.21(a) (4) and FAR Part 135 rather

than FAR Part 121.


I. Background:
In 1995, the FAA adopted a rule change requiring certain FAR Part 135 operators to operate scheduled air service under the more stringent guidelines of FAR Part 121, as part of the Commuter Safety Initiative. The rule change became enforceable in 1997, after the Administrator determined that safety considerations under the “One Level of Safety Rule” would benefit the flying public, who utilize commuter air carrier services by requiring former FAR Part 135 carriers in scheduled service to operate under the more stringent FAR Part 121 requirements. FAR Part 121 was originally crafted to govern the major carriers, which fly the largest commercial aircraft, carrying more passengers, for extreme distances, under far more strenuous conditions than the 10-30 seat airliner. The FAA projected over a 10-year period (1996 to 2005), that the proposed rule change “has the potential” to prevent approximately 94 accidents under FAR Part 135. The FAA further predicted an estimated benefit of $393 million (1994 discounted dollars), although it is not clear who would benefit from the projected savings.2 To date, neither projection has been realized. We urge the FAA to reexamine the rule change in light of current statistics and make the appropriate corrections to FAA policy and regulations.
II. Review and Discussion of the Necessity for the Exemption or Rulemaking:

The grant of exemptions to the petitioners, or the amendment of the FARs, will be in the public interest and will have no negative effect on the “safe flight of civil aircraft in air commerce”. 3 The following summarizes evidence supporting a grant of the rule change or requested exemptions:

U.S. Department of Transportation

Docket Management System

Re: Petition for Rulemaking or Exemption Relating to FAR Part 121

September 30, 2002

Page 3

A. Commuter operations under 14 C.F.R. Part 135, before the rule, change provided a level safety for 10-30 seat aircraft equivalent to the stricter standards of 14 C.F.R. Part 121.4

The safety standards imposed by FAR Part 121 have proven redundant as applied to 10-30 seat commuter aircraft. In 1995, when the regulation was announced, statistical accident data confirmed the transition was unwarranted.5 More importantly, the FAA seems to concede redundancy when it stated that “(p)art 135 is considered to provide a level of safety comparable to part 121.”6 From 1991 to 1996, the accident rate for 10-30 seat airplanes fell precipitously, by more than 85%, providing clear proof that the safety standards under FAR Part 135 provided more than an equivalent level of safety. Figure 1 further illustrates steady, then rapid descent of the part 135 accident rate prior to the rule change. In 1991, the rate decreased from .78 accidents per 100,000 departures to .12 accidents per 100,000 departures in 1995.

Conversely, the rates for 10-30 seat airplanes operating under the stricter FAR Part 121 rules have increased during the five year period since the rule change. After the rule change the accident rate increased from .12 accidents per 100,000 departures to .40 accidents per 100,000 departures in 2001 under the more strict requirements of FAR Part 121.7

“This improvement in the safety record of part 135 operations is not a statistical fluke. To the contrary, this improvement has been significant in its magnitude and long-term in its duration. According to FAA, the 'accident rate per 100,000 departures was one-fourth the accident rate in 1980.' 60 FR 16,232/1. Given this improvement, it appears that the real reason for FAA’s proposal has to do not with safety, but with something entirely different: media coverage and public perception. In the agency’s own words:

'Media attention to [several] commuter-type accidents has increased concern about the safety of these operations. ….Some members of the public are questioning whether they are receiving an appropriate level of safety in small
U.S. Department of Transportation

Docket Management System

Re: Petition for Rulemaking or Exemption Relating to FAR Part 121

September 30, 2002

Page 4

propeller-driven airplanes as compared to the level of safety they receive in large jets.” 60 FR 16,232/1.'"8



"As FAA well knows, clusters of airline accidents will occasionally occur purely by chance. When they do, they will be the focus of intense media attention and, undoubtedly, of political attention as well. In allowing one such cluster to become the rationale for an expansion of its regulations, FAA is setting a dangerous precedent. This is especially true, given the admitted public misperception of the cluster which led to this rulemaking, and of airline safety in general. As the agency notes,

'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.” 60 FR 16,232/2 . . . ''"9



Figure 1


U.S. Department of Transportation (source: http://ntsb.gov/aviation, August 1, 2002)

U.S. Department of Transportation

Docket Management System

Re: Petition for Rulemaking or Exemption Relating to FAR Part 121

September 30, 2002

Page 5


Before the rule change, the FAA expressed obvious reservations about imposing FAR Part 121 on commuter aircraft. The agency acknowledged that “the differences between parts 121 and 135 reflect differences in the size of the aircraft and the scope of the operations”.10 The FAA further acknowledged that “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 more than 30 passenger seats.” 11

Since the rule change, it has become increasingly clear that commuter aircraft in general and 10-30-seat aircraft in particular are over-regulated under FAR Part 121. By way of example, pilot training requirements under FAR Part 121 clearly exceed what industry service providers believe is required for the safe operation of 10-30 seat aircraft. 12 The increase in training costs alone is ahead of the FAA’s 10-year cost projection of the impact on 10-30 seat aircraft 13

Using figures provided by Mesa Air, Inc., the cost of training a Beech 1900D Captain increased from $2800 for eight hours to $19,400 for forty hours or, an increase of 593%. The increase costs for a First Officer is from $2100 for six hours to $19,400 for forty hours or an increase of 824%.14

U.S. Department of Transportation

Docket Management System

Re: Petition for Rulemaking or Exemption Relating to FAR Part 121

September 30, 2002

Page 6


Modifications to Pilot Training Requirements
FAR 121 FAR 135

Initial Training (CA) 40-Hours (@ $485/Hr) 8-Hours (@ $350/Hr)

Initial Training (FO) 40-Hours 6-Hours
Initial Operating Experience (CA) 25-Hours/Incl. 4-Landings 10-Hours Incl. 11-

Landings


Initial Operating Experience (FO) 25-Hours/4-Landings None
Landing Currency 3-Every 90-Days 3-Every 90-Days (Day)

(Day/Night Irrelevant) 3-Every 90-Days (Night)



B. The FAA did not fully appreciate the enormous, adverse economic impact 14 C.F.R. Part 121 would have on the commuter industry and small communities.

In 1995, the FAA estimated the cost of compliance with FAR Part 121 would total “$275 million over 10 years, with a present value of $199 million.”15 Regional Aviation Partners estimates that training costs alone resulting from the rule change far exceed the FAA projected estimates of $275 million over 10 years.16


The total estimated costs of the proposed rule as projected by the FAA are as follows:
Area          10-19      20-30     Total     Present 

Seats  Seats Cost Value
----------------------------------------------------------------------- 
Operations ...........  $141.8 .......  $58.5 .....  $200.3 ......  $141.2 
Maintenance .............. 0.1 .......... 0.0 ......... 0.1 .......... 0.1 
Cabin Safety ............ 11.7 .......... 8.8 ........ 20.5 ......... 15.2 
Part 119 ................. 1.6 .......... 0.4 ......... 2.0 .......... 1.7 
Certification ........... 51.4 .......... 0.7 ........ 52.1 ......... 41.0 
Total .................. 206.6 ......... 68.4 ....... 275.0 ........ 199.2 
----------------------------------------------------------------- 
While the most costly impact of the rule change was the increase in training costs. A significant increase in both fares and subsidy rates created an unintended consequence for the EAS program.
U.S. Department of Transportation

Docket Management System

Re: Petition for Rulemaking or Exemption Relating to FAR Part 121

September 30, 2002

Page 7

The increased operating costs resulted in a drastic decline in air service to rural and small communities. A recent GAO report illustrates this problem:


" . . .if total EAS-subsidized passenger enplanements in 2002 equal the total for 2000, the average subsidy per passenger in the continental United States will rise to an estimated $229 . . .almost tripling from the $79 average subsidy per passenger in 1995."17
During FY 2001/FY 2002, subsidy rates to several communities increased to more than $400 per passenger, resulting in the communities being eliminated from EAS eligibility. Among the communities losing air service as a result of the increased subsidy rates are:
Year City/Community Reason for Elimination

1999 Sterling/Rock Falls, IL Subsidy exceeded $200.00

1999 Mt. Vernon, IL Subsidy exceeded $200.00

1999 Fairmont, MN Subsidy exceeded $200.00

2000 Goodland, KS Subsidy exceeded $200.00

2000 Lamar, CO Subsidy exceeded $200.00


2001 Mattoon/Charleston, IL Subsidy exceeded $200.00

2001 Yankton, SD Subsidy exceeded $200.00

2001 Ottumwa, IA Subsidy exceeded $200.00
2002 Utica, NY Subsidy exceeded $200.00

2002 Gallup, NM Subsidy exceeded $200.00


C. The FAA must provide relief or 10-30 seat operators while the infrastructure and economic incentive still exists.
The FAA concedes that “(t)he 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.”18 The GAO, supported this position when they proposed as one of several options a means to control operating costs by “better matching capacity with community use by increasing the use of smaller aircraft; i.e., aircraft with less than 10 seats, representing a return to FAR Part 135!”19 The FAA acknowledged that certain operators could not survive the economic burden

U.S. Department of Transportation

Docket Management System

Re: Petition for Rulemaking or Exemption Relating to FAR Part 121

September 30, 2002

Page 8

placed on them by the new FAR Part 121 certification, and they reiterated a process for granting exemptions was in place. Thus, supporting the presumption that air carriers could seek exemptions from the rule, where appropriate:
. . . 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.”20
In spite of the comments noted above, the FAA creates a contradiction by stating in other published documents the following:
. . . The agency prepared an initial regulatory flexibility analysis to examine regulatory alternatives that reduce the economic burden on small entities. Nevertheless, the FAA determined that the proposed rule should not include alternative compliance requirements because any alternative would not meet the agency’s safety objectives.21

The FAR Part 121 rule change has disproportionately increased the operating expenses of regional air carriers such that many carriers have reduced or eliminated turbo prop service altogether. The safety enhancements projected by the FAA at the time of the rule change have not been realized. And while the rule change has not resulted in the anticipated safety benefits, it has caused serious economic harm to rural communities.


The DOT expected to see a reduction in the accident rate for 10-30 seat aircraft with the rule change; however, the accident rate was actually higher as illustrated in Figure 2.

U.S. Department of Transportation

Docket Management System

Re: Petition for Rulemaking or Exemption Relating to FAR Part 121

September 30, 2002

Page 9


Figure 2


U.S. Department of Transportation (source: http://www.ntsb.gov/aviation, August 1, 2002)
The projected safety enhancements of the rule change have combined to significantly raise fares and EAS subsidy rates to the point where the DOT has eliminated communities from the program.22 Ultimately, the FAA must reexamine the original decision to include 10-30 seat aircraft under FAR Part 121. The FAR Part 135/121 rule change is a major factor fueling the erosion of rural air service requiring twin engine aircraft with two pilots; the type of service, designated by Congress as the standard for providing essential air service to small communities.23 The GAO report dated April, 2000 provides further insights into the effects of the FAR Part 135/121 rule change in rural communities:

U.S. Department of Transportation

Docket Management System

Re: Petition for Rulemaking or Exemption Relating to FAR Part 121

September 30, 2002

Page 10


“Between 1995 and 1999, the number of air carriers serving subsidized EAS communities decreased from 17 to 11.24 In 1995, eight airlines carried about 80 percent of the passengers receiving EAS-subsidized air service in the continental United States. In 1999, as noted earlier, 80 percent of the EAS subsidized passengers in the continental United States were carried by only four airlines. DOT officials reported that fewer airlines now compete to serve any given route because of dwindling interest in the program among carriers, principally because the major carriers and their code-sharing commuter partners control entire regions around hubs.”25
The DOT failed to adequately assess impact of deregulation on the industry regional carriers, which in particular, were forced to adapt to market forces for their mere survival. While some carriers were fortunate to obtain lucrative code-share arrangements, those who did not were forced to increasingly depend on dwindling EAS funds26 to serve small communities. Many small markets were abandoned by carriers which could not provide competitive service under the rule change and limited EAS subsidy funding.
The DOT accurately reports that the Commuter Safety Initiative was the primary cause of the increase in operating expenses for small commuter carriers.27 In computing the need for this initiative, the FAA 's calculation that the "rule has the potential to prevent approximately 94 accidents"28 was based on a "broad-based accident rate", instead of using calculations based on "specific types of [preventable] accidents," the approach used in the past rulemakings.29
The FAA’s projection that the rule change would prevent 94 accidents has not been realized. Based on NTSB statistics, the accident rate for 10-30 seat airliners prior to the rule change during the five year period covering 1991 – 1995 under FAR part 135 was 2.8 accidents annually. After the rule change, 1996 – 2001, the accident rate for 10-30 seat airliners under the more restrictive rules of FAR part 121 saw the rate escalate to 5.83 accidents annually, while the accident rate for 1-9 seat aircraft operating under FAR part 135 during this period was 6.0 accidents, which is

U.S. Department of Transportation

Docket Management System

Re: Petition for Rulemaking or Exemption Relating to FAR Part 121

September 30, 2002

Page 11
statistically identical to the accident rate before the rule change under the former FAR Part 135. Clearly, operating under a more strenuous rule was not the solution.


D. Equivalent Level of Safety
The allowance of an exemption or amended rule for 10-19 and 20-30 seat airliners to resume commuter operations under FAR Part 135 would provide a level of safety at least equal to that provided by the FAR Part 121. In support of this argument, we offer the following: A review of the accidents per 100,000 departures to for 10-30 seat aircraft operating under FAR Part 135, as illustrated in Figure 1, reflect a “striking” decline in the 5-year period “before” the change to FAR Part 121. In the 5-year period since the rule change, the accident rate per 100,000 departures under FAR Part 121 has seen a sharp increase exceeding 250%.30
These statistics clearly demonstrate that the rule change has failed to meet the FAA’s objective of increased safety. The rule change should be reconsidered in light of this failure. Apparently, the FAA did not consider that any reduction in the accident rates under FAR Part 135 would provide a corresponding “increase” in the accident rate under FAR Part 121. This brings us to a very elementary observation. The Commuter Safety Initiative (One Level of Safety Rule) did not result in a lower numbers of accidents and increased safety standards to the flying public for 10-30 seat airliners under FAR Part 121!
E. Public Interest Considerations:
The increased costs resulting from the transition away from FAR 135 to FAR 121 operations rendered 10-19 and 20-30 seat aircraft virtually unusable in a climate where their use has extensive potential utility and benefit. Commuter carriers cannot operate these aircraft profitably under the stringent regulations imposed by FAR 121 without modification or exemption. This hard economic reality led to the only U.S. manufacturer of these aircraft being forced to prematurely stop production of these aircraft, many years ahead of their useful life. As a result of high operating costs and low passenger enplanements, small carriers have withdrawn service from unsubsidized rural markets previously served by 10-30 seat airliners. The negative impact of the rule change on the Essential Air Service (EAS) program, airline manufacturers and rural communities was clearly not anticipated in the FAA’s projections.31 Small community regional airports in rural America were hardest hit by the FAR 121 transition. Runways, facility improvements, additional fire equipment and personnel required to service FAR Part 121 aircraft far exceed the budget capabilities of many rural airport authorities. Many small airports cannot
U.S. Department of Transportation

Docket Management System

Re: Petition for Rulemaking or Exemption Relating to FAR Part 121

September 30, 2002

Page 12
accommodate regional jets or afford the additional financial burden of the FAR Part 139 requirements associated with operations under FAR Part 121. For these communities, the 10-

19/20-30 seat aircraft operating in a FAR Part 135 environment provide the only viable access to the national air transportation system.


With six years of experience after the rule change, the accident rate under FAR Part 135 reflects no statistical improvement, while the accident rate under FAR Part 121 significantly increased during the same period.

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