My Flying News

Sorry, the title of this article is a mouthful. Reading and writing about Federal Regulations can lead to uncontrolled naps. To summarize, the FAA proposes changing the rules that may affect air travel to smaller cities and rural communities and some “shared charter” and “private jet by the seat” operators.

The FAA proposes doing away with exceptions for Part 380 Public Charter operators. They contend that based on the size and complexity of aircraft and the frequency of flights, changes to the rules are needed. This means many public charter flights may have to be operated under Part 121 instead of Part 135.

Here is the link to the Notice of Intent from the FAA:

https://www.faa.gov/sites/faa.gov/files/Notice-of-Intent_FAA-2023-1857_08242023_1.pdf

What are Part 121 and Part 135?

When aircraft are operated in the United States, they mostly fall under one of three sets of FARs (Federal Aviation Regulations) issued by the Federal Aviation Administration (FAA): Part 91, Part 135, and Part 121.

These distinct parts provide pilots and operators the “rules of the sky.” There are more parts, but these are the primary 3. Part 91 covers private operations and is not directly related to this article.

Part 135 and FAR Part 121 govern different types of commercial air operations. The main differences between FAR Part 135 and FAR Part 121 are related to the types of operations they cover, the size of aircraft, and the level of regulation required.

FAR Part 121 applies to large commercial air carriers, typically scheduled airlines, such as Delta, American Airlines, and United. It covers scheduled air transportation and large passenger-carrying aircraft operations.

Part 121 is more comprehensive and stringent in terms of regulatory requirements. Commercial airlines operating under Part 121 must adhere to stricter maintenance, crew training, and operational rules. These airlines are subject to more extensive safety, maintenance, and operational standards.

Part 135 pertains to on-demand air carriers, often referred to as commuter or charter operators. It covers a range of operations, including air taxi services, commuter airlines, and charter services.

Part 135 is generally less stringent than Part 121, reflecting the smaller scale and often more diverse nature of operations covered. Operators under Part 135 have certain flexibility regarding aircraft maintenance and crew qualifications. However, they are still subject to FAA oversight to ensure safety standards are met.

What is Part 380, what is the exception, and does it provide a “loop-hole”?

Part 380 of the Code of Federal Regulations pertains to public charter flights. Public charters are non-scheduled air transport services sold to the general public with a published itinerary and specified departure date.

A Public Charter Operator can advertise flights and sell seats. This Public Charter entity submits a prospectus to the DOT and receives approval. This entity is usually not the charter operator but instead contracts with air carriers to operate the flight(s).

An example of this would be a tour or travel company that advertises and sells a vacation package on specific dates. The travel company then contracts with air carriers to operate the flights.

According to the current rules and definitions, public charters may be conducted as “on-demand operations” if the aircraft operator uses airplanes, including jet-powered airplanes, with 30 or fewer passenger seats. In other words, operations may be conducted under Part 135 instead of Part 121, and herein lies the rub.

Many Part 135 Air Carriers take advantage of this exception and operate these flights using regional jet airline-type aircraft such as CRJs and ERJs. They will remove 20 seats from these 50-seat aircraft to fall within the 30-seat rule. If they operated with 31 seats instead of 30 seats, they would have to operate under the more stringent and more expensive Part 121 rules.

This is the exception the FAA is proposing doing away with and intends to issue an NPRM. Many people in the industry see this as a loop-hole rather than an exception.

What does the FAA think of Part 380, and what is a NPRM?

NPRM, or Notice of Proposed Rulemaking, is a formal process used by federal agencies, in this case, the Federal Aviation Administration (FAA), to propose and seek public comments on new regulations or changes to existing regulations. It is a way for the FAA to get public feedback before changing rules.

As of the date of this article, the FAA has issued a Notice of Intent of an NPRM. This means an NPRM is coming. As you can read in the brief excerpt below, the FAA believes that some of these public charter operations are getting large enough to need additional oversight.

…in light of recent high-volume operations, appear to be offered to the public as essentially indistinguishable from flights conducted by air carriers as supplemental or domestic operations under 14 CFR part 121. Specifically, the size, scope, frequency, and complexity of charter operations conducted as “on-demand” operations under the part 135 operating rules has grown significantly over the past 10 years…

https://www.faa.gov/sites/faa.gov/files/Notice-of-Intent_FAA-2023-1857_08242023_1.pdf

If the FAA issues the NPRM and the new rules are passed, some portion or all public charter flights will have to be operated under Part 121 instead of Part 135.

Why Now?

According to the FAA, this has been a growing issue over the last 10 years. Why did the FAA finally decide to issue the Notice of Intent?

The main reason was that recently, a large Part 121 airline, SkyWest, Inc., announced entry into the business. They created a subsidiary, SkyWest Charters, to be operated under Part 135. This made a considerable amount of noise and brought a lot of attention.

Larger airlines have also increased their lobbying. They say it is unfair that these companies operate scheduled flights but do not have to comply with the same rules.

Operators like JSX particularly bother some of the airlines. They are both the public charter, and the operator, or at least the parent company, owns both entities. They added a loop-hole on top of the loop-hole. They poach first-class customers from the airlines and operate out of private terminals.

What is EAS, and will the rule changes affect it?

Essential Air Service (EAS) is a U.S. government program designed to ensure that small and rural communities can access air transportation services. The program aims to maintain a minimal level of scheduled air service to these communities, which might only be economically viable for commercial airlines to operate with some form of subsidy or assistance.

Not all Part 380 flights are essential. In addition, not all subsidized flights fall under the EAS program. Some local communities sponsor flights to have air service and offer “public charters.” These communities serve as the public charter operators and partner with Part 135 and Part 121 Air Carriers operators to provide air service.

How will New Rules Affect the Aviation Industry?

Many public charter flights would have to be operated under Part 121 instead of Part 135. This will increase costs and strain smaller operators in their efforts to recruit pilots. Ultimately, the cost increase will be passed on to the traveling public.

My Opinion: I Agree with the FAA, but Something’s Got to Give

I generally agree with the FAA, although I am waiting to see a more specific, nuanced proposal from the Feds as to where they will draw lines.

The FAA is absolutely correct about the size, scope, frequency, and complexity of some of these charter operations. If you would take a few of the largest operators, we are talking about tens and tens of thousands of annual flights.

For transparency, I have worked as a pilot for a Part 380 0peartor. I have a personal interest in seeing better work rules for pilots. It always bugged me that Part 135 has no specific duty day for pilots, and operators work under a “good to start, good to finish” legal interpretation. This is a subject for another post, but switching to Part 121 would solve it, as pilots operating under Part 121 have more specific duty and rest rules.

That said, something has to give regarding the pilot shortage. Although the shortage has been good for pilot pay, where will operators get our future generations of pilots from? These Part 135 operators are a vital training ground for younger, lower-time first officers.

The positive aspect of SkyWest Charters would be providing a transition for retiring Captains, all while training the next generation. We need more opportunities for young folks to gain experience and achieve the 1500 hours required by the Part 121 rules.