Part 135 Leaders Upset Over FAA Flight Regs

Part 135 industry representatives call a potential FAA plan to apply new Part 121 flight, duty and rest requirements to on-demand operations “alarming” and say such a move would be unworkable. In September FAA released a notice of proposed rulemaking (NPRM) that would update flight, duty and rest regulations for Part 121 carriers. At that time, the agency warned, “Part 135 certificate holders should pay close attention to this NPRM and any final rule.” Noting that Part 135 operations are “very similar” to Part 121 operations, FAA told the Part 135 community to expect to see an NPRM that looks similar, “if not exactly like,” the final rule designed for Part 121 (BA, Sept. 20/3). Commenting on the Part 121 proposal, National Air Transportation Association (NATA) President James Coyne says FAA’s assessment that Part 135 is similar to Part 121 has “generated significant concern in the Part 135 community.” Regional Air Cargo Carriers Association (RACCA) President Stanley Bernstein agrees, saying that the Part 121 proposal, “if enacted in anything close to its present form with applicability to Part 135 operators, would have economically disastrous consequences.” Coyne acknowledges that the NPRM is currently limited to Part 121, but says the stated desire to apply the same regulations “is concerning given the fact that in 2005, the Part 135 industry invested substantial effort to create comprehensive rulemaking recommendations addressing this subject.” FAA should consider the Part 125/135 Aviation Rulemaking Committee (ARC) recommendations, rather than simply applying Part 121 rules to Part 135 operations, Coyne says. The ARC’s suggestions “would dramatically improve upon current regulations while still permitting the operational flexibility inherent to the continued ability to conduct on-demand operations,” Coyne says. That proposal considers science-based fatigue principles, defines and protects rest, provides pilots with more days off and includes hard limits on duty limits, he notes. “That the agency has largely adopted the proposals of the Part 121 industry representatives for crafting the current NPRM but seemingly intends to ignore the Part 135 industry’s proposals ... is alarming,” he adds. Bernstein echoed Coyne’s sentiments. “RACCA is greatly concerned that when the time comes for rulemaking action on Part 135 flight-duty-rest rules, the ARC’s work in this area—the first in more than a decade to achieve reasonable consensus between the regulated entity and the FAA—will be ignored and a new, costly and time-consuming effort will be launched to essentially ‘reinvent the wheel’ of Part 135 flight-duty-rest regulations,” he says. RACCA Chairman Jeanne Cook adds that the ARC proposal “was achieved at the cost of considerable money, time, blood, sweat and tears and represents a valuable work product that must not be ignored.” The Administrative Procedures Act and other laws require FAA to consider the impact on small businesses, Coyne says, adding, “For the agency to state clearly in the preamble its predisposition to impose the Part 121 rules on Part 135 operations absent these analyses sends the unfortunate message to regulated parties that the FAA intends to follow neither the letter nor spirit of the law.” Any rulemaking should consider risk exposure to Part 135, as well as the rule’s impact on small businesses, regardless of what is adopted for 121, Coyne says. The NPRM is tailored for operations that involve scheduling of flight crews far in advance, he adds. “The application of a scheduled pilot regime is problematic for the Part 135 industry because, by its very nature, flights are not always known in advance, and, for some operators, a significant amount of their business depends upon short notice, ad-hoc missions,” Coyne says. Many distinctions exist between Part 121 and 135 operations, Coyne says, noting that the majority of Part 135 certificate holders are small businesses. Many have fewer than 10 aircraft, 25 employees and less than $5 million in annual revenue. At least one-third of Part 135 operations have a single aircraft. “Operations may not justify ... additional employment costs, resulting in operators instead turning business away,” he says. A large number of Part 135 businesses are “single-pilot operators,” who run the entire business, including [performing] pilot duties. The businesses would be forced to comply with more restrictive rules that could put them out of business, Coyne says. Single-pilot operations often tend to involve piston-powered airplanes or helicopters and are not eligible to operate under Part 121. Also, about 10% of Part 135 operators are based in Alaska, which has unique transportation challenges, he says. But only two “purely” Part 121 carriers are based in Alaska, and four others hold dual Part 121 and 135 certificates, Coyne notes. “The economics of operating in the Part 135 world would not support the level of crewing called for by a rule similar to the current NPRM,” Bernstein adds. “This in turn would either result in curtailment or denial of service in many areas where Part 135 operators deliver their cargo, or increases in charges to transport that cargo. This would clearly not be in the public interest.” Bernstein also expressed concern about the impact such rules could have on pilot shortages, saying a number of factors are leading to the U.S. pilot supply and demand lines to cross. “Mandating increased crewing requirements for a given level of Part 135 flying activity will only exacerbate a situation now beginning to manifest itself in the Part 121 world.”