1 Mitchell Kois
From: Ben <[email protected]>
Sent: Tuesday, October 14, 2025 11:11 AM
To: Clerk Mailbox; councilmtgitems
Subject: SMCC Meeting, October 14, 2025, BOTH Item 4B (Minutes of 9/30/25 SMCC meeting Item 5B) and Item 1
Attachments: LETTER and Attachments -- Letter to SM 10-13-2025 Re FAA 2023-1857-merged.pdf
EXTERNAL
PUBLIC COMMENT for BOTH: SMCC 10/14/25 Item 4B (re: Minutes of 9/30/25 SMCC meeting Item 5B) and Item 1
SUBJECT: SMO -- JetSuiteX - FAA-2023-1857 -- Violation of Consent Decree without Written Safety Clearance from FAA and LAX
Dear Santa Monica City Manager, City Council, and Airport Commission, The City of Santa Monica will be in violation of the 2017 Consent Decree if it allows JSX to operate at SMO.
The Consent Decree specifically states in Section II.A. that the City "shall accommodate aircraft operations that can SAFELY take off and land.” Furthermore, it specifically states in Section VI that:
"The City’s operation of the Airport until December 31, 2028 shall conform with (i) the standards set forth in grant assurances 19, 22, 23, 24, 25, and 30; and (ii) all applicable state and federal operational, maintenance, and safety standards. For purposes of this paragraph, the substantive standards of grant assurances 19, 22, 23, 24, 25, and 30 shall apply until December 31, 2028." What do the Grant Assurances say?
Grant Assurance 19 further requires the airport "to be operated at all times in a SAFE and serviceable condition."
Grant Assurance 22 clearly states the City "may establish such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary for the SAFE and efficient operation of the airport" and the City "may prohibit or limit any given type, kind or class of aeronautical use of the airport if such action is necessary for the SAFE operation of the airport or necessary to serve the civil aviation needs of the public." The City must fully comply with the Consent Decree and uphold its responsibility to ensure that only operations meeting all safety and regulatory standards are permitted at SMO.
It is significant and relevant that the region’s major airport authorities, Los Angeles World Airports (which manages both LAX and Van Nuys Airport) and the San Diego County Regional Airport Authority (SAN), have filed strong formal objections to JSX’s operations in the FAA’s Docket Item 4-B
October 14, 2025
Item 4-B
October 14, 2025
2 FAA-2023-1857, based on safety and other concerns. LAX and SMO aircraft operations share their air space and operations are required to be DECONFLICTED. So, if LAX deems JSX operations unsafe, then the Consent Decree is violated.
In their official filings, these major airport operators joined two of the nation’s largest airlines and pilot unions in warning that the Part 135 “public charter” business model exploited by JSX undermines the FAA’s One Level of Safety policy, bypasses TSA and Part 139 certification standards, and erodes the integrity of the national air transportation system.
This point is especially relevant because Van Nuys Airport (VNY), like Santa Monica Airport, is a general aviation facility that lacks Part 139 certification. Even at VNY, a much larger, betterequipped field farther from homes, Los Angeles World Airports (LAWA) has taken a firm stance opposing JSX-type operations for the same safety, security, and compliance reasons now before this the City of Santa Monica (City Council, City Manager, and Airport Commission).
Santa Monica should take an equally careful and principled approach consistent with its regional counterparts, the FAA, and its duties under the 2017 Consent Decree. Otherwise the City will be in clear violation of the Consent Decree.
Attached is a detailed letter and public-docket materials for FAA-2023-1857, including formal comments by Los Angeles World Airports (LAX and VNY), the San Diego County Regional Airport Authority (SAN), Southwest Airlines, American Airlines, and the Southwest Airlines Pilots. These filings, submitted to the U.S. Department of Transportation and the FAA, make clear that JSX’s business model is at the center of an active national rulemaking intended to close the very dangerous JSX loophole the company now seeks to use at Santa Monica.
Santa Monica should not be an enabler of unsafe aviation operations and it must take its responsibility seriously. Unless and until the City receives explicit written clearance from the FAA and LAWA stating that JSX operations at SMO are confirmed to be safe, the City of Santa Monica should delay permitting their JSX operations at SMO. The City should rightly assume that JSX operations at SMO would be UNSAFE, rather than assume they are safe, based on the documented communications of the aviation organizations above and the current actions of the FAA.
Please confirm receipt of this email and attached letter. This letter follows the previous two petition letters that were submitted by email to the City on October 7, 2025 with the Subject Line, "PETITIONS: DEMAND FOR A PUBLIC HEARING and DEMAND FOR AN ENVIRONMENTAL IMPACT REPORT" which included over 100 initial signatories that were gathered in the first two days of signature collection, while the ongoing collection continues to this day.
Please include this email and attached letter in the Public Record regarding JSX, and please disclose this material to any and all parties requesting information regarding JSX at SMO.
Thank you,
Ben Wang
Item 4-B
October 14, 2025
Item 4-B
October 14, 2025
Safety First JetSuiteX !
SUBMISSION FOR THE PUBLIC RECORD
October 12, 2025
Mayor, City Council, and City Manager
City of Santa Monica
1685 Main Street
Santa Monica, CA 90401
Via Email
Re: JSX OPERATIONS AT SMO – FAA Docket FAA-2023-1857, Alignment with FAA Rulemaking Before Acting, Request for EIR and Safety Review, Request for Public Hearing, Submission for the Public Record
Dear Mayor, City Council, and City Manager:
On behalf of a large coalition of residents and organizations of Santa Monica, West Los Angeles, Mar Vista, Venice, Marina del Rey, Rancho Park, Culver City, and adjacent communities, I am submitting this additional letter.
It urges the City to delay any permitting decision on the proposed Commercial Operations Permit (COP) for Delux Public Charter LLC dba JSX Air (JSX) until a full FAA safety review is conducted, an independent Environmental Impact Report is completed, and proper due diligence and process is performed to ensure the City is aligned with the FAA’s rulemaking and guidance. I am also writing again to request a duly noticed public hearing on the proposed initiation of a new commercial air service by JSX at Santa Monica Airport (SMO).
This letter and the attachments (please see ATTACHMENTS 1 and A-E), are submitted to support the above requests. They include:
● Attachment 1 – Notice of Intent - FAA-2023-1857 - Regulatory Definitions of On-Demand Operation, Supplemental Operation, and Scheduled Operation ● Attachment A – Letter from Los Angeles Word Airports - LAX/VNY ● Attachment B – Letter from San Diego Airport - SAN
● Attachment C – Letter from Southwest Airlines
● Attachment D – Letter from Southwest Airlines Pilots Association ● Attachment E – Letter from American Airlines
Introduction and Purpose
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October 14, 2025
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It is significant and relevant that the region’s major airport authorities, Los Angeles World Airports (which manages both LAX and Van Nuys Airport) and the San Diego County Regional Airport Authority (SAN), have filed strong formal objections to JSX’s operations in the FAA’s Docket FAA-2023-1857. In their official filings, these airport operators joined two of the nation’s largest airlines and pilot unions in warning that the Part 135 “public charter” business model exploited by JSX undermines the FAA’s One Level of Safety policy, bypasses TSA and Part 139 certification standards, and erodes the integrity of the national air transportation system.
This point is especially relevant because Van Nuys Airport (VNY), like Santa Monica Airport, is a general-aviation facility that lacks Part 139 certification. Even at VNY, a much larger, better-equipped field farther from homes, Los Angeles World Airports (LAWA) has taken a firm stance opposing JSX-type operations for the same safety, security, and compliance reasons now before this the City of Santa Monica (City Council, City Manager, and Airport Commission). Santa Monica should take an equally careful and principled approach consistent with its regional counterparts and its duty under the 2017 Consent Decree.
Attached are public-docket materials for FAA-2023-1857, including formal comments by Los Angeles World Airports (LAX and VNY), the San Diego County Regional Airport Authority (SAN), Southwest Airlines, American Airlines, and the Southwest Airlines Pilots. These filings, submitted to the U.S. Department of Transportation and the FAA, make clear that JSX’s business model is at the center of an active national rulemaking intended to close the very JSX loophole the company now seeks to use at Santa Monica.
FAA-2023-1857: National Safety Rulemaking Underway
In August 2023 (88 Fed. Reg. 59480), the FAA announced its intent to revise the definitions of “on-demand,” “supplemental,” and “scheduled” operations after determining that certain “public-charter” operators had expanded into high-volume, scheduled-style service under Part 135, creating a two-tier safety system inconsistent with the FAA’s One Level of Safety policy.
Southwest Airlines warned that the Part 380 public-charter JSX loophole undermines this principle and that accident rates for Part 135 carriers are nine times higher and fatality rates ninety-four times higher than for Part 121 airlines. American Airlines explained that these operators sell flights indistinguishable from scheduled service, bypass TSA screening, and engage in regulatory gaming that distorts competition and weakens the nation’s safety architecture. SWAPA urged the FAA to eliminate the JSX loophole entirely, emphasizing that passengers from smaller airports should never face degraded safety. LAWA (LAX/VNY) and SDCRAA (SAN) echoed these concerns and stated that public-charter carriers should operate only from certificated Part 139 airports with fire-rescue and security infrastructure among other basic requirements.
Collectively, these airlines, pilot unions, and nearby airport operators have demanded the end of the exact model JSX now proposes at Santa Monica Airport.
Item 4-B
October 14, 2025
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October 14, 2025
JSX’s Proposal Reflects the Unsafe Model Under Federal Review JSX seeks approval to operate six daily flights (note the CEO stated potentially up to 9 at the Santa Monica Airport Commision) with up to 30 passengers each aboard ATR 42-600 turboprops under Part 135 “public-charter” authority. While described as charter service, JSX’s materials describe regularly scheduled, ticketed operations, the very kind of service the FAA and industry define as de facto scheduled airline operations that belong under Part 121.
Delaying any decision until the City completes full due diligence and the FAA clarifies its final rule will avoid making Santa Monica a reckless and dangerous test case for the JSX loophole federal regulators are currently moving to abolish.
LAX–SMO Airspace Deconfliction and Regional Safety Coordination SMO sits directly beneath the Los Angeles International Airport (LAX) Class B airspace, less than five miles from the LAX final approach corridors. FAA Metroplex data and LAWA briefings confirm that SMO departures and LAX arrivals cannot be fully deconflicted. Their runway centerlines and approach/departure paths intersect, requiring controllers to use strict altitude caps, headings, and timing to keep SMO traffic below and between LAX flows. These procedures work only with low volumes and predictable patterns.
Expanding to scheduled-like JSX operations under the Part 380/135 “public-charter” JSX loophole model would increase flight frequency through this narrow corridor and lengthen exposure from slower-climbing ATR-class aircraft. This is precisely the type of safety concern driving the FAA’s FAA-2023-1857 rulemaking to align public-charter operations with Part 121 airline standards.
Los Angeles World Airports (LAWA), operator of both LAX and VNY, has warned in their letter that even at VNY, a larger and better-equipped airfield, such operations pose safety and compliance risks. If unsafe at VNY, they are even more hazardous at SMO, which sits closer to LAX, within intersecting corridors, and lacks Part 139 certification.
Permitting JSX to operate under these conditions would violate the City’s 2017 Consent Decree, which requires that the City “shall accommodate aircraft operations that can safely take off and land.” When LAWA itself has stated such operations are not safe, the City cannot lawfully or prudently proceed, with full proper due diligence, FAA Safety Review, and coordination with LAWA.
Runway and Operational Safety Deficiencies
Item 4-B
October 14, 2025
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October 14, 2025
Santa Monica’s single 3,500-foot runway, shortened under the 2017 Consent Decree, is below the ATR 42-600 manufacturer’s published takeoff and landing distance requirements for typical temperature, elevation, and loading conditions in Los Angeles. Under Part 121, scheduled airlines must apply a 15% runway-length safety margin to manufacturer performance data and demonstrate compliance with balanced field and accelerate-stop criteria. Under Part 135 however, the regulatory framework JSX seeks to use through the Part 380 “public-charter” JSX loophole, no such safety margin is required, allowing operations with little or no performance buffer. Homes lie within both Runway Protection Zones (RPZs), leaving no physical overrun margin. The FAA’s One Level of Safety policy presumes that aircraft with more than nine passenger seats must operate under Part 121 precisely to prevent these risks. A prudent delay allows independent verification of runway performance margins and mitigations before any decision is taken.
Lack of Airport Certification and Emergency Infrastructure SMO is not Part 139-certificated and lacks required Aircraft Rescue and Fire Fighting (ARFF) capabilities and equipment, crash-response resources, and TSA screening. Introducing unscreened passenger operations without the mandated safety infrastructure is inconsistent with the standards enforced at LAWA and SDCRAA airports and has been expressly condemned as unsafe and inequitable. Deferring action until these gaps are independently analyzed protects the City and the public.
Higher Accident and Fatality Rates for Part 135 Operations According to NTSB data cited by Southwest Airlines, accident rates for Part 135 operators are more than nine times higher per flight hour and fatality rates ninety-four times higher than for Part 121 carriers. Authorizing frequent Part 135 passenger operations from a short, urban runway exposes passengers and nearby residents to a significantly elevated risk of serious accidents. Waiting for the FAA’s final definitions and guidance is the responsible course.
Environmental Impacts Understated and CEQA Compliance Ignored JSX’s Environmental Assessment substitutes data from a larger ATR 72-600, underestimates traffic volumes, and assumes unrealistic car-pooling rates. These flaws invalidate reliance on a CEQA Class 1 (Existing Facilities) exemption and trigger the “unusual circumstances” and “cumulative impacts” exceptions that require a full Environmental Impact Report (EIR). Proceeding without independent review exposes the City to litigation and undermines its own environmental standards. A full CEQA process and EIR before any decision is the appropriate remedy.
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October 14, 2025
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City’s Legal and Financial Exposure Under Federal Obligations Under the 2017 Consent Decree and FAA Grant Assurances 19, 20, 21, 22, and 29, the City must operate the airport safely and maintain federal compliance. Authorizing operations deemed unsafe by federal authorities, other nearby airport operators, and major airlines could expose the City to liability for negligence, nuisance, and breach of grant obligations, violation of the Consent Decree, and even jeopardize FAA indemnity protections in the event of an accident. Delaying action while conducting due diligence limits exposure and aligns with the City’s obligations.
Why a Full CEQA Environmental Impact Report Is Required SMO’s urban location, surrounded by homes, schools, and parks, with occupied RPZs, constitutes an “unusual circumstance” under CEQA §15300.2(c). JSX’s proposed six daily departures (possibly nine), multiple concurrent flight school operations, concurrent helicopter activity, and other private aircraft operations, create cumulative impacts. The applicant’s traffic study, estimating only 46 peak-hour trips, falls just below the 50-trip threshold triggering a Traffic Impact Analysis, but fails to count round-trip rideshare movements. These deficiencies meet CEQA’s fair-argument standard and require a comprehensive EIR before any permitting decision.
JSX’s “Small-Community Access” Argument Is False
JSX claims to provide “critical air access for smaller communities underserved by commercial airlines.” This claim is inaccurate and misleading for SMO. Santa Monica is located at the center of one of the world’s most aviation-rich regions.
● Los Angeles International (LAX): 5 miles — global commercial hub ● Van Nuys (VNY): 11 miles northeast — general aviation ● Burbank (BUR): 13 miles northeast — full scheduled commercial service ● Long Beach (LGB): 21 miles southeast — full scheduled commercial service ● Hawthorne (HHR): 8 miles southeast — general aviation ● Torrance (TOA): 15 miles south — general aviation
● Compton (CPM): 14 miles southeast — general aviation
● Whiteman (WHP): 16 miles northeast — general aviation ● El Monte (EMT): 23 miles east — general aviation
● Camarillo (CMA): 36 miles northwest — general aviation ● Oxnard (OXR): 43 miles northwest — general aviation
● Camarillo (CMA): 36 miles northwest — general aviation Within 25 miles, 9 airports provide comprehensive commercial and charter access. There is no “essential-air-service” gap to fill. Proper process and due diligence prevents legitimizing a false narrative and ensures decisions are grounded in facts, not marketing.
Item 4-B
October 14, 2025
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Airport Certification, Security, and Layout-Plan Compliance SMO lacks Part 139 certification, aircraft rescue and fire fighting, and TSA infrastructure and therefore does not meet the standards necessary for scheduled passenger operations. Federal law (49 U.S.C. §41104(b)) prohibits regularly scheduled charter service using aircraft with more than nine seats at non-certificated airports. Under Grant Assurance 29, the City must maintain an approved Airport Layout Plan (ALP) that reflects all current and proposed uses, but the City only has an Airport Diagram. SMO has no ALP covering ATR 42-600 operations; proceeding without one would constitute non-compliance.
The City should defer any decision until FAA guidance is obtained and ALP requirements are resolved.
Financial Responsibility and Operator Accountability
JSX was in Chapter 11 Bankruptcy only a few years ago. Before any decision, the City must identify the entity exercising operational control and financial liability for JSX’s flights and require verifiable proof of insurance and indemnity sufficient to cover a worst-case event in a dense urban and residential setting. The City should also ensure TSA fees and screening protocols prevent the mixing of screened and unscreened passengers within SMO facilities. A deliberate process with financially accountable actors will surface and address these issues.
The City Should Align Its Timing and Decision-Making with FAA-2023-1857 Regardless of how the FAA ultimately modifies these regulations, Santa Monica should delay its decision until federal direction is clear. The City should formally consult with the FAA Western-Pacific Region and the Office of Airport Compliance, then act in harmony with federal definitions, safety expectations, and any required transition plans. The regulatory process may take time, but safety—not speed—must guide the City’s timeline.
Recommended City Process
To ensure transparency, safety, and legal compliance, the community respectfully requests that the City:
1. Delay any permitting decision on the JSX COP until FAA-2023-1857 is finalized and guidance issued;
2. Transmit the FAA docket materials to the City’s aviation counsel and the FAA Western-Pacific Region for written safety/compliance comments;
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3. Initiate a full CEQA EIR under §15064 (unusual circumstances, cumulative impacts, contrary evidence);
4. Hold a publicly noticed Council hearing with FAA participation;
5. Adopt a process policy that no scheduled or quasi-scheduled passenger service at SMO will be considered until alignment with Part 121-level safety standards and the availability of Part 139/ARFF/TSA infrastructure is independently verified;
6. Require proof of financial responsibility and insurance appropriate to commercial passenger operations in a dense urban environment; and
7. Resolve ALP requirements with the FAA before considering any permit.
Conclusion: Safety and Diligence Over Speed; Process Over Pressure Santa Monica has a long record of environmental stewardship and public-safety leadership. Acting deliberately, not hastily, protects residents, reduces City exposure to liability, and aligns with national safety policy.
Moreover, the region’s leading airports—LAX, Van Nuys (VNY), and San Diego International (SAN), have already taken a clear, unequivocal position against the JSX loophole and business model. Each concluded that allowing such operations is incompatible with modern safety, security, and regulatory standards. Santa Monica should proceed with caution, complete the full process, and align its decision-making with the FAA regulatory changes, not rush into a rubber-stamped permit approval.
Respectfully submitted,
Ben Wang
On behalf of the undersigned residents and organizations of Santa Monica, West Los Angeles, Mar Vista, Venice, Marina del Rey, Rancho Park, Culver City, and adjacent communities.
Attachments
● Attachment 1 – Notice of Intent - FAA-2023-1857 - Regulatory Definitions of On-Demand Operation, Supplemental Operation, and Scheduled Operation ● Attachment A – Letter from Los Angeles Word Airports - LAX/VNY ● Attachment B – Letter from San Diego Airport - SAN
● Attachment C – Letter from American Airlines
● Attachment D – Letter from Southwest Airlines
● Attachment E – Letter from Southwest Airlines Pilots Association
Item 4-B
October 14, 2025
Item 4-B
October 14, 2025
BILLING CODE 4910-13
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA-2023-1857]
RIN 2120–ZA32
Notice of Intent to Consider Revisions to the Regulatory Definitions of “On-Demand Operation”, “Supplemental Operation” and “Scheduled Operation” AGENCY: Department of Transportation (DOT), Federal Aviation Administration (FAA).
ACTION: Notice of Intent.
SUMMARY: This notice alerts the public that the FAA intends to initiate a rulemaking to address the exception from FAA’s domestic, flag, and supplemental operations regulations for public charter operators. To inform this effort, the FAA seeks public comment, data, and other information regarding current and planned public charter flights operated under on-demand rules that appear indistinguishable from flights conducted by air carriers as supplemental or domestic operations. The FAA will review comments received in response to this notice to evaluate the need for and, if necessary, scope of any rulemaking.
DATES: Send comments on or before [Insert date 45 days after date of publication in the Federal Register].
ADDRESSES: Send comments identified by docket number FAA-2023-1857 using any of the following methods:
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• Federal eRulemaking Portal: Go to regulations.gov. Follow the instructions for submitting comments.
• Mail: Send comments to Docket Operations, M-30; U.S. Department of Transportation (DOT), 1200 New Jersey Avenue, SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.
• Hand Delivery or Courier: Take comments to Docket Operations in Room W12- 140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Fax: Fax comments to Docket Operations at 202-493-2251.
Docket: Background documents or comments received may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Jackie Clow, Aviation Safety Inspector, Air Transportation Division, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone:
(202) 267-8166; email: [email protected].
SUPPLEMENTARY INFORMATION:
Comments Invited
The FAA invites interested persons to provide comments, written data, views, or arguments relating to this notice. Send your comments to an address listed under the Item 4-B
October 14, 2025
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ADDRESSES section. The FAA will consider comments received on or before the closing date. All comments received will be available in the docket for examination by interested persons.
Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy. You may review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000, see 65 FR 19477, or you may visit http://www.regulations.gov.
Background
Title 14 CFR part 380 is an economic regulation administered by the Department of Transportation. Currently, under 14 CFR 110.2 of FAA’s safety regulations, public charters operated under the terms of 14 CFR part 380 may be conducted as “on-demand operations” if the aircraft operator is using airplanes, including turbo-jet powered airplanes, with 30 or fewer passenger seats. On-demand operations must be conducted under the operating rules in 14 CFR part 135. See, 14 CFR 119.21 (a)(5) and 135.1(a)(1).
Similarly, public charter operations are excepted from the § 110.2 definition of “scheduled operation” and are included in the definition of “supplemental operation” regardless of whether such operator offers in advance to the public the departure location, departure time, and arrival location of the flight. But for the part 380 exceptions in § 110.2, public charter operators would be required to comply with the operating rules Item 4-B
October 14, 2025
Item 4-B
October 14, 2025
applicable to their operations based on the same criteria as all other air carriers and commercial operators, i.e., 14 CFR part 121.
The FAA intends to initiate a rulemaking to amend Title 14, Code of Federal Regulations (14 CFR) part 110 to address these public charter operations that, 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. While the FAA has adjusted its oversight of these increased operations, the FAA is considering whether a regulatory change may be appropriate to ensure the management of the level of safety necessary for those operations.
The FAA is considering issuing a notice of proposed rulemaking that will seek comment on removing the exceptions for part 380 public charter operators from the definitions in 14 CFR 110.2 and delink FAA’s safety regulations from DOT’s economic regulations. If the FAA were to remove the exceptions, operators would then conduct public charter flights under the operating part applicable to their operation based on the same criteria that apply to all other non-part 380 operators, including the size and complexity of aircraft they operate and the frequency of flights.
Were FAA to amend its regulatory framework, some operators conducting public charter operations would need to transition from operating under part 135 to part 121.
This transition may require affected operators to adjust their service models. As such, this notice solicits comment, data, and other information regarding: the effects of any removal Item 4-B
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Item 4-B
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of the part 380 exception (including any effect on service to small and underserved communities); potential impacts on competition, innovation, and emerging technologies; alternative regulatory structures that could apply to the provision of commercial passenger services under a regime other than part 121 or part 135; if FAA were to adopt a rule, the reasonable period of time needed to allow affected operators to obtain appropriate certificates and authorizations to transition their operations to the applicable operating parts of 14 CFR; and any additional topics interested parties believe should be considered.
The FAA will review all comments submitted to inform its planned rulemaking.
Issued on August 24, 2023.
David H. Boulter,
Acting Associate Administrator, Aviation Safety,
Federal Aviation Administration.
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59480 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Proposed Rules the availability of this material at NARA,
email [email protected], or go to:
www.archives.gov/federal-register/cfr/ibrlocations.html.
Issued on August 23, 2023.
Victor Wicklund,
Deputy Director, Compliance & Airworthiness
Division, Aircraft Certification Service.
[FR Doc. 2023–18567 Filed 8–28–23; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 110
[Docket No. FAA–2023–1857]
RIN 2120–ZA32
Revisions to the Regulatory Definitions
of ‘‘On-Demand Operation’’,
‘‘Supplemental Operation’’ and
‘‘Scheduled Operation’’
AGENCY: Department of Transportation
(DOT), Federal Aviation Administration
(FAA).
ACTION: Request for comments.
SUMMARY: This document alerts the
public that the FAA intends to initiate
a rulemaking to address the exception
from FAA’s domestic, flag, and
supplemental operations regulations for
public charter operators. To inform this
effort, the FAA seeks public comment,
data, and other information regarding
current and planned public charter
flights operated under on-demand rules
that appear indistinguishable from
flights conducted by air carriers as
supplemental or domestic operations.
The FAA will review comments
received in response to this document to
evaluate the need for and, if necessary,
scope of any rulemaking.
DATES: Send comments on or before
October 13, 2023.
ADDRESSES: Send comments identified
by docket number FAA–2023–1857
using any of the following methods:
• Federal eRulemaking Portal: Go to
regulations.gov. Follow the instructions
for submitting comments.
• Mail: Send comments to Docket
Operations, M–30; U.S. Department of
Transportation (DOT), 1200 New Jersey
Avenue SE, Room W12–140, West
Building Ground Floor, Washington, DC
20590–0001.
• Hand Delivery or Courier: Take
comments to Docket Operations in
Room W12–140 of the West Building
Ground Floor at 1200 New Jersey
Avenue SE, Washington, DC, between 9
a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
• Fax: Fax comments to Docket
Operations at 202–493–2251.
Docket: Background documents or
comments received may be read at
https://www.regulations.gov at any time.
Follow the online instructions for
accessing the docket or go to the Docket
Operations in Room W12–140 of the
West Building Ground Floor at 1200
New Jersey Avenue SE, Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Jackie Clow, Aviation Safety Inspector,
Air Transportation Division, Flight
Standards Service, Federal Aviation
Administration, 800 Independence
Avenue SW, Washington, DC 20591;
telephone: (202) 267–8166; email:
[email protected].
SUPPLEMENTARY INFORMATION:
Comments Invited
The FAA invites interested persons to
provide comments, written data, views,
or arguments relating to this document.
Send your comments to an address
listed under the ADDRESSES section. The
FAA will consider comments received
on or before the closing date. All
comments received will be available in
the docket for examination by interested
persons.
Privacy: In accordance with 5 U.S.C.
553(c), DOT solicits comments from the
public to better inform its rulemaking
process. DOT posts these comments,
without edit, including any personal
information the commenter provides, to
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS), which can be reviewed at
www.dot.gov/privacy. You may review
DOT’s complete Privacy Act Statement
in the Federal Register published on
April 11, 2000, see 65 FR 19477, or you
may visit https://www.regulations.gov.
Background
Title 14 CFR part 380 is an economic
regulation administered by the
Department of Transportation.
Currently, under 14 CFR 110.2 of FAA’s
safety regulations, public charters
operated under the terms of 14 CFR part
380 may be conducted as ‘‘on-demand
operations’’ if the aircraft operator is
using airplanes, including turbo-jet
powered airplanes, with 30 or fewer
passenger seats. On-demand operations
must be conducted under the operating
rules in 14 CFR part 135. See, 14 CFR
119.21(a)(5) and 135.1(a)(1). Similarly,
public charter operations are excepted
from the § 110.2 definition of
‘‘scheduled operation’’ and are included
in the definition of ‘‘supplemental
operation’’ regardless of whether such
operator offers in advance to the public
the departure location, departure time,
and arrival location of the flight. But for
the part 380 exceptions in § 110.2,
public charter operators would be
required to comply with the operating
rules applicable to their operations
based on the same criteria as all other
air carriers and commercial operators,
i.e., 14 CFR part 121.
The FAA intends to initiate a
rulemaking to amend title 14, Code of
Federal Regulations (14 CFR), part 110
to address these public charter
operations that, in light of recent highvolume 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 ‘‘ondemand’’ operations under the part 135 operating rules has grown significantly
over the past 10 years. While the FAA
has adjusted its oversight of these
increased operations, the FAA is
considering whether a regulatory change
may be appropriate to ensure the
management of the level of safety
necessary for those operations.
The FAA is considering issuing a
notice of proposed rulemaking that will
seek comment on removing the
exceptions for part 380 public charter
operators from the definitions in 14 CFR
110.2 and delink FAA’s safety
regulations from DOT’s economic
regulations. If the FAA were to remove
the exceptions, operators would then
conduct public charter flights under the
operating part applicable to their
operation based on the same criteria that
apply to all other non-part 380
operators, including the size and
complexity of aircraft they operate and
the frequency of flights.
Were FAA to amend its regulatory
framework, some operators conducting
public charter operations would need to
transition from operating under part 135
to part 121. This transition may require
affected operators to adjust their service
models. As such, this document solicits
comment, data, and other information
regarding: the effects of any removal of
the part 380 exception (including any
effect on service to small and
underserved communities); potential
impacts on competition, innovation,
and emerging technologies; alternative
regulatory structures that could apply to
the provision of commercial passenger
services under a regime other than part
121 or part 135; if FAA were to adopt
a rule, the reasonable period of time
needed to allow affected operators to
obtain appropriate certificates and
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Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Proposed Rules 59481 authorizations to transition their
operations to the applicable operating
parts of 14 CFR; and any additional
topics interested parties believe should
be considered.
The FAA will review all comments
submitted to inform its planned
rulemaking.
Issued on August 24, 2023.
David H. Boulter,
Acting Associate Administrator, Aviation
Safety, Federal Aviation Administration.
[FR Doc. 2023–18615 Filed 8–28–23; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 1120
[Docket No. FDA–2013–N–0227]
RIN 0910–AH91
Proposed Requirements for Tobacco
Product Manufacturing Practice;
Extension of Comment Period
AGENCY: Food and Drug Administration,
HHS.
ACTION: Proposed rule; extension of
comment period.
SUMMARY: The Food and Drug
Administration (FDA or the Agency) is
extending the comment period for the
proposed rule entitled ‘‘Requirements
for Tobacco Product Manufacturing
Practice’’ published in the Federal
Register of March 10, 2023, by 30 days.
The Agency is taking this action in
response to a request for an extension to
allow interested persons additional time
to submit comments.
DATES: FDA is extending the comment
period on the proposed rule published
March 10, 2023 (88 FR 15174), by 30
days. Either electronic or written
comments must be submitted by
October 6, 2023.
ADDRESSES: You may submit comments
as follows. Please note that late,
untimely filed comments will not be
considered. The https://
www.regulations.gov electronic filing
system will accept comments until
11:59 p.m. Eastern Time at the end of
October 6, 2023. Comments received by
mail/hand delivery/courier (for written/
paper submissions) will be considered
timely if they are received on or before
that date.
Electronic Submissions
Submit electronic comments in the
following way:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
Comments submitted electronically,
including attachments, to https://
www.regulations.gov will be posted to
the docket unchanged. Because your
comment will be made public, you are
solely responsible for ensuring that your
comment does not include any
confidential information that you or a
third party may not wish to be posted,
such as medical information, your or
anyone else’s Social Security number, or
confidential business information, such
as a manufacturing process. Please note
that if you include your name, contact
information, or other information that
identifies you in the body of your
comments, that information will be
posted on https://www.regulations.gov.
• If you want to submit a comment
with confidential information that you
do not wish to be made available to the
public, submit the comment as a
written/paper submission and in the
manner detailed (see ‘‘Written/Paper
Submissions’’ and ‘‘Instructions’’).
Written/Paper Submissions
Submit written/paper submissions as
follows:
• Mail/Hand Delivery/Courier (for
written/paper submissions): Dockets
Management Staff (HFA–305), Food and
Drug Administration, 5630 Fishers
Lane, Rm. 1061, Rockville, MD 20852.
• For written/paper comments
submitted to the Dockets Management
Staff, FDA will post your comment, as
well as any attachments, except for
information submitted, marked and
identified, as confidential, if submitted
as detailed in ‘‘Instructions.’’
Instructions: All submissions received
must include the Docket No. FDA–
2013–N–0227 for ‘‘Requirements for
Tobacco Product Manufacturing
Practice.’’ Received comments, those
filed in a timely manner (see
ADDRESSES), will be placed in the docket
and, except for those submitted as
‘‘Confidential Submissions,’’ publicly
viewable at https://www.regulations.gov
or at the Dockets Management Staff
between 9 a.m. and 4 p.m., Monday
through Friday, 240–402–7500.
• Confidential Submissions—To
submit a comment with confidential
information that you do not wish to be
made publicly available, submit your
comments only as a written/paper
submission. You should submit two
copies total. One copy will include the
information you claim to be confidential
with a heading or cover note that states
‘‘THIS DOCUMENT CONTAINS
CONFIDENTIAL INFORMATION.’’ The
Agency will review this copy, including
the claimed confidential information, in
its consideration of comments. The
second copy, which will have the
claimed confidential information
redacted/blacked out, will be available
for public viewing and posted on
https://www.regulations.gov. Submit
both copies to the Dockets Management
Staff. If you do not wish your name and
contact information to be made publicly
available, you can provide this
information on the cover sheet and not
in the body of your comments and you
must identify this information as
‘‘confidential.’’ Any information marked
as ‘‘confidential’’ will not be disclosed
except in accordance with 21 CFR 10.20
and other applicable disclosure law. For
more information about FDA’s posting
of comments to public dockets, see 80
FR 56469, September 18, 2015, or access
the information at: https://
www.govinfo.gov/content/pkg/FR-2015-
09-18/pdf/2015-23389.pdf.
Docket: For access to the docket to
read background documents or the
electronic and written/paper comments
received, go to https://
www.regulations.gov and insert the
docket number, found in brackets in the
heading of this document, into the
‘‘Search’’ box and follow the prompts
and/or go to the Dockets Management
Staff, 5630 Fishers Lane, Rm. 1061,
Rockville, MD 20852, 240–402–7500.
FOR FURTHER INFORMATION CONTACT:
Matthew Brenner, Center for Tobacco
Products, Food and Drug
Administration, Document Control
Center, 10903 New Hampshire Ave.,
Bldg. 71, Rm. G335, Silver Spring, MD
20993, 877–287–1373,
[email protected].
SUPPLEMENTARY INFORMATION: In the
Federal Register of March 10, 2023 (88
FR 15174), FDA published a proposed
rule entitled ‘‘Requirements for Tobacco
Product Manufacturing Practice.’’ The
proposed rule provided a 180-day
period for submission of public
comments.
The Agency has received a request for
an extension of the comment period for
the proposed rule. The request
conveyed concern that the comment
period does not allow sufficient time to
develop a meaningful or thoughtful
response to the proposed rule.
FDA has considered the request and
is extending the comment period for the
proposed rule for 30 days, until October
6, 2023. FDA believes this extension is
appropriate because of the complexity
of the material being posted. The
Agency believes that a 30-day extension
allows adequate time for interested
persons to submit comments.
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1 As discussed below, VNY is a federally-obligated general aviation airport which does not hold an airport operating certificate issued under Title 14, Code of Federal Regulations, Part 139. 2 A “scheduled operation” is currently defined as “any common carriage passenger-carrying operation for compensation or hire conducted by an air carrier or commercial operator for which the certificate holder or its representative offers in advance the departure location, departure time, and arrival location. It does not include any passenger-carrying operation that is conducted as a public charter operation under part 380.” 14 C.F.R. § 110.2.
LAX
Van Nuys
City of Los Angeles
Karen Bass
Mayor
Board of Airport
Commissioners
Karim Webb
President
Matthew M. Johnson
Vice President
Vanessa Aramayo
Courtney La Bau
Victor Narro
Nicholas P. Roxborough
Valeria C. Velasco
Beatrice Hsu
Interim Chief Executive
Officer
October 13, 2023
Mr. David H. Boulter
Associate Administrator, Aviation Safety
Federal Aviation Administration
800 Independence Avenue S.E.
Washington, D.C. 20591
RE: FAA Request for Comments Regarding Revisions to the Regulatory Definitions of “On-Demand Operation,” “Supplemental Operation,” and “Scheduled Operation;” Docket No. FAA-2023-1857
Dear Associate Administrator Boulter,
Los Angeles World Airports (“LAWA”), the owner and operator of the Los Angeles International Airport (“LAX”) and Van Nuys Airport1
(“VNY”), appreciates this opportunity
to comment on the Federal Aviation Administration’s (“FAA”) potential rulemaking to revise the above-referenced regulatory definitions. LAWA urges the FAA to move forward expeditiously with this proposed rulemaking. As explained below, the exemption of public charter operations from the definition of a “scheduled operation”2 results in a regulatory loophole that allows public charter operators to avoid safety requirements applicable to other scheduled passenger service and has generated considerable confusion regarding the airports at which public charter operators may lawfully occur and the manner in which they must be accommodated. The FAA should align its regulatory definitions with reality: public charter operations are, in every practical sense, scheduled passenger-carrying operations and should be held to the same level of safety as other scheduled operations.
LAWA focuses its comments on two important facets of the potential rulemaking that should be addressed in any forthcoming Notice of Proposed Rulemaking: (1) regularly scheduled public charter operators should only be permitted to operate at airports which have an airport operating certificate; and (2) at such certificated airports, airport sponsors must retain the flexibility to accommodate public charter operators in a manner that best ensures the safety, efficiency, and financial integrity of the airport, and the comfort and convenience of its customers.
1. Public charter operations should be permitted to operate only at airports which have been issued an airport operating certificate.
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3 Certain airports in Alaska are exempt from these requirements. 4 See U.S. General Accounting Office, Commuter Airports Should Participate in the Airport Certification Program (Nov. 1987), at https://www.gao.gov/assets/rced-88-41.pdf; National Transportation Safety Board, Commuter Airline Safety at 92–93 (Nov. 1994). 5 Federal Aviation Reauthorization Act of 1996, Pub. L. No. 104-264 § 404 (Oct. 9, 1996). 6 69 Fed. Reg. 6,380 (Feb. 10, 2004).
7 Id. at 6,419–20.
Under existing law, scheduled operations using aircraft designed for more than nine seats may only occur at a “certificated airport,” which is an airport that has been issued an airport operating certificate pursuant to Title 14, Code of Federal Regulations, Part 139.3 Thus, were the FAA to include public charter operations within the definition of a scheduled operation, public charter operations would be clearly limited to certificated airports. LAWA supports this result for three reasons: (i) it would hold public charter operators to the same safety standards as any other scheduled passenger service; (ii) it is consistent with existing law; and (iii) it respects an airport proprietor’s choice as to whether or not to accommodate scheduled passenger service at its airports – all as Congress intended.
A. Public charter should be held to the same level of safety as other scheduled operations.
Congress and the FAA have long recognized that airports must satisfy certain minimum standards to most safely accommodate the unique needs of commercial passenger-carrying operations. Initially, the FAA’s statutory authority to establish minimum safety standards for the operation of airports was limited to those which served passenger aircraft with more than 30 seats. But, in response to a series of incidents and resulting investigations involving smaller commuter aircraft,
4 the FAA sought and obtained a significant expansion of its statutory authority.5
In 2004, the FAA finalized a rulemaking that substantially overhauled Part 139, Certification of Airports.
6 For the first time, the FAA’s rule required airports that desired to serve (or continue serving) scheduled operations in aircraft designed for more than nine seats to obtain an airport operating certificate, and prohibited scheduled carriers from serving a non-certificated airport. The FAA has detailed scores of safety benefits resulting from this rulemaking.7
In the years since, the FAA has revised Part 139 on several occasions to improve the safety of commercial passenger aviation.
Like any other scheduled passenger-carrying operation, public charter operators should be required to operate only at those airports that have been issued an airport operating certificate. From the perspective of the general public, there is little functional difference between booking travel on a commercial airline and booking travel with a public charter operator. But differences in the level of safety and security between these two business models may be myriad. While other commenters have appropriately emphasized key distinctions between the operations of on-demand and scheduled carriers, such as required crew training, rest times, and safety management systems, the FAA should also consider the differences in the airports each business model is permitted to serve. There is no justification for denying public charter customers the safety benefits of Part 139 simply Item 4-B
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8 49 U.S.C. § 41104(b). There are exceptions from this prohibition for the State of Alaska and in other circumstances that are not implicated by the FAA’s proposed rulemaking or LAWA’s comments.
9 Id. § 41104(b)(2).
10 LAWA’s counsel requested clarification from the Assistant General Counsel for the Office of Aviation Consumer Protection, Blane A. Workie, by letter dated July 17, 2023. 11 49 U.S.C. § 40102(a)(2).
because they have chosen to fly with a carrier that has opted for a non-traditional business model.
B. Existing law prohibits public charter operations at non-certificated airports.
Limiting public charter operations to certificated airports is not only sound safety policy, but LAWA believes it is also what Congress has already directed.
After expanding the FAA’s authority to issue airport operating certificates, but before the FAA’s 2004 update to Part 139, Congress adopted the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR-21”). Now codified at Section 41104(b), AIR21 provided:
[A]n air carrier, including an indirect air carrier, may not provide, in aircraft designed for more than 9 passenger seats, regularly scheduled charter air transportation, for which the public is provided in advance a schedule containing the departure location, departure time, and arrival location of the flight, to or from an airport that . . . does not have an airport operating certificate issued under part 139 of title 14, Code of Federal Regulations.8 Congress defined “regularly scheduled charter air transportation” for the purposes of Section 41104(b) only by what it is not: “operations for which the departure time, departure location, and arrival location are specifically negotiated with the customer or the customer’s representative.”9
VNY is served by several public charter operators using aircraft with more than nine seats.
As these public charter operators appear to be operating at VNY in flagrant disregard of Section 41104(b), LAWA recently requested they explain the legality of their operations.
One public charter operator responded by claiming Section 41104(b) does not apply to it.
LAWA has asked the U.S. Department of Transportation (“U.S. DOT”) to confirm whether the public charter operator’s explanation reflects the official position of the U.S. DOT, but has not yet received a response.10 But, in any event, LAWA believes Section 41104(b) clearly prohibits regularly scheduled public charter operations at non-certificated airports today, even without any change to FAA regulations.
First, Section 41104(b)’s prohibition extends to “an air carrier, including an indirect air carrier.” An “air carrier” is broadly defined as any “citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation.”11 An air taxi operator or Item 4-B
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12 14 C.F.R. § 298.3(a).
13 See, e.g., Letter from R. Jackson to Congressman R. Woodall dated April 21, 2015 (“[A]n air ambulance operator . . . that holds DOT economic authority to operate as a registered air taxi under 14 CFR Part 298 and an FAA air carrier operating certificate under 14 CFR Part 135, is an ‘air carrier’ for purposes of the ADA preemption provision [codified at 49 U.S.C. § 41713(b).”), at https://perma.cc/8743-8QC9. 14 14 C.F.R. § 380.2.
15 See, e.g., Young v. UPS, 575 U.S. 206, 226 (2015) (“We have long held that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause is rendered superfluous, void, or insignificant.”) (cleaned up).
16 Bhd. of R.R. Trainmen v. Balt. & Ohio R.R., 331 U.S. 519, 528–29 (1947). commuter air carrier plainly falls within this definition; indeed, the U.S. DOT’s regulations expressly establish air taxi operators and commuter air carrier as specific classifications of “air carrier.”12 Moreover, the U.S. DOT has routinely interpreted other statutory language generally applicable to “air carriers” as applying to air taxi operators and commuter air carriers.13
Second, Section 41104(b)’s prohibition expressly includes “an indirect air carrier.” The U.S.
DOT specifically defines a public charter operator as an indirect air carrier authorized to engage in the formation of groups for public charters.14 Further, we are not aware of a situation in which the U.S. DOT would issue a certificate of public convenience and necessity to an indirect air carrier. Interpreting Section 41104(b) to apply only to air carriers which have been issued such a certificate would therefore render the phrase “including an indirect air carrier” a nullity, contrary to well established canons of statutory construction.15 Third, the only explanation offered by the public charter operator in its response to LAWA was that the title of Section 41104, which contains several statutory limitations other than that codified at subsection (b), is “Additional limitations and requirements of charter air carriers.” The operator argued the term “charter air carrier” is defined as “an air carrier holding a certificate of public convenience and necessity that authorizes it to provide charter air transportation” and, since they hold no such certificate, none of the provisions codified under Section 41104 should apply to them. But the term “charter air carrier” is not used in Section 41104(b) and it is well-established that “the title of a statute and the heading of a section cannot limit the plain meaning of the text.”16 The “plain meaning” of Section 41104(b) clearly prohibits regularly scheduled public charter operations using aircraft designed for more than nine passenger seats at airports like VNY.
LAWA recognizes that Section 41104(b) is administered by the U.S. DOT and generally outside the scope of the FAA’s potential rulemaking. LAWA intends to continue its outreach to the U.S. DOT regarding Section 41104(b) and take appropriate action if it is determined that those regularly scheduled charter operations today occurring at VNY are unlawful. But the FAA need not wait. LAWA urges the FAA to move forward expeditiously and hold regularly scheduled public charter to the same standards as any other scheduled operation, thereby giving effect to Congress’ clear directive to limit regularly scheduled public charter operations to certificated airports.
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17 49 U.S.C. § 44706(b) (emphasis added). 18 Id. § 44706(f). 19 69 Fed. Reg. at 6,417.
20 For example, one popular public charter operator filed litigation in federal court regarding accommodation disputes at the Westchester County Airport and the John Wayne Airport.
C. Airport proprietors and their communities should be afforded the choice of whether or not to accommodate scheduled public charter operations.
Any regulatory loophole which allows regularly scheduled public charter to operate at noncertificated airports is also inconsistent with the statutory framework that affords airport proprietors a choice of whether or not to seek an airport operating certificate and, therefore, whether to accommodate scheduled operations.
Federal law does not require an airport proprietor to obtain an airport operating certificate.
Rather, the FAA may “issue an airport operating certificate to a person desiring to operate an airport” that serves scheduled operations.17 Congress could not have been clearer that this choice was committed solely to an airport proprietor’s discretion: “Nothing in [Title 49] may be construed as requiring a person to obtain an airport operating certificate if such person does not desire to operate an airport described in subsection [44706](a).”18 Indeed, in promulgating the 2004 revisions to Part 139, the FAA made clear that only airports “that want to continue to serve” scheduled operations with aircraft over nine seats need apply for an airport operating certificate.19
LAWA has determined not to pursue Part 139 certification for VNY, but public charter operators – which for all practical purposes are scheduled passenger-carrying operations – have nevertheless asserted a right to operate at VNY, citing their current regulatory classification as “on-demand” operations. Again, LAWA believes regularly scheduled public charter is already prohibited under existing law, but the FAA should eliminate any uncertainty by including public charter operations within the definition of “scheduled” operations. Prohibiting scheduled public charter at non-certificated airports allows airport proprietors such as LAWA to retain their discretion as to whether to accommodate scheduled operations.
2. Regardless of whether the FAA modifies its regulatory definitions, the FAA should make clear that the definitions have no bearing on accommodation issues.
The regulatory classification of public charter operators has also led to considerable confusion (and, in some cases, contentious litigation) regarding their accommodation at federally-obligated airports.20 Regardless of whether and how the FAA modifies its regulatory definitions, the FAA should make clear that the definitions set forth at 14 C.F.R.
Section 110.2 are intended only to establish the FAA certification and operating rules applicable to different categories of air carriers, and do not bind airport sponsors with respect Item 4-B
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21 FAA, Airport Improvement Program Assurances ¶ 22(a). 22 Id. ¶ 22(e).
23 Id. ¶ 22(h).
24 Id. ¶ 24.
to their proprietary decisions about how best to accommodate public charter and other kinds of operations (where they may lawfully occur).
Sponsors of federally-obligated airports must make their airports available “on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport.”21 With respect to air carriers, the Airport Improvement Program (“AIP”) grant assurances provide:
Each air carrier using such airport (whether as a tenant, non-tenant, or subtenant of another air carrier tenant) shall be subject to such nondiscriminatory and substantially comparable rules, regulations, conditions, rates, fees, rentals, and other charges with respect to facilities directly and substantially related to providing air transportation as are applicable to all such air carriers which make similar use of such airport and utilize similar facilities, subject to reasonable classifications such as tenants or non-tenants and signatory carriers and non-signatory carriers. Classification or status as tenant or signatory shall not be unreasonably withheld by any airport provided an air carrier assumes obligations substantially similar to those already imposed on air carriers in such classification or status.22 Airport sponsors are also permitted to “establish such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport,”23 and must “maintain a fee and rental structure for the facilities and services at the airport which will make the airport as self-sustaining as possible.”24
Within the parameters established by these grant assurances, airport sponsors often distinguish between private charter and scheduled airline service in airport rules and regulations to ensure operational efficiency, appropriate security, financial integrity, and a positive and consistent experience for airport customers. For example, some airport sponsors may require scheduled airline operations to operate out of an airport terminal (and levy fees commensurate with such operations) while requiring private charter to use an airport’s fixed-base operator facilities.
However, an airport sponsor’s rules and regulations and policies do not necessarily align with the FAA’s existing regulatory classification of public charter as an “on-demand” operation. For example, LAWA’s existing rules and regulations for LAX provide, “No air Item 4-B
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25 LAWA, Rules and Regulations ¶ 15.1.1, at https://perma.cc/BV7D-KX5Q. carrier shall operate scheduled service unless in possession of a valid LAX Air Carrier Operating Permit (ACOP).”25
The FAA should make clear that an operation’s regulatory classification for FAA purposes has no bearing on an airport sponsors’ authority to make reasonable classifications among different types of air carriers for legitimate proprietary reasons. For example, regardless of the FAA’s regulatory classification, airport sponsors should be expressly permitted to establish rules governing the use of airport facilities which are based upon the public-facing character of particular operations or their operational requirements, even if, for the airport’s purposes, some “on-demand” operations are treated as “scheduled.” In particular, the FAA has previously recognized an airport sponsor’s proprietary interest in managing where certain operations may occur on its airport and establishing appropriate rates and charges to recover costs incidental to aeronautical operations. Airport sponsors must consider a variety of factors in making these decisions, including the capability of airport facilities to accommodate secure or non-secure operations, mitigating airside and landside congestion, contractual obligations to other aeronautical operators, impacts on revenue generation, and the safety and comfort of airport customers. Flexibility is particularly important in light of many public charter operators’ desire to operate non-sterile or under the Transportation Security Administration’s Twelve-Five Standard Security Program. The potential that unscreened passengers may be flying to an airport to connect to flights operated from sterile areas of the airport – and vice versa – raises a host of operational issues that airport sponsors must resolve.
The FAA should clarify that the definitions of “on-demand” and “scheduled” operations are intended only to address the level of certification required by the FAA, and expressly recognize that airport sponsors may legitimately distinguish among commercial aircraft operators that make different uses of the airport, consistent with its grant assurance obligations.
Sincerely,
Beatrice Hsu
Interim Chief Executive Officer
BH:SB:os
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October 13, 2023
Mr. David H. Boulter
Associate Administrator, Aviation Safety
Federal Aviation Administration
U.S. Department of Transportation
Docket Operations (M-30)
1200 New Jersey Avenue SE
Washington, D.C. 20590-0001
RE: Request for Comments Regarding Revisions to the Regulatory Definitions of “On-Demand Operation”, “Supplemental Operation”, and “Scheduled Operation” – Docket Number FAA-2023-1857 Dear Associate Administrator Boulter:
As the Federal Aviation Administration (FAA) initiates its rulemaking to address the exception from FAA’s domestic, flag, and supplemental operations regulations for public charter operators, the San Diego County Regional Airport Authority (SDCRAA) offers this letter to express comments on the topic.
The SDCRAA supports the FAA proceeding with a notice of proposed rulemaking removing the exceptions for Part 380 public charter operators from the definitions in 14 CFR 110.2. As the Federal Register notice explains, “if the FAA were to remove the exceptions, operators would then conduct public charter flights under the operating part applicable to their operation based on the same criteria that apply to all other nonPart 380 operators.” Due to the significant increase in charter operations that, as again noted in the Federal Register notice, are “essentially indistinguishable from flights conducted by air carriers as supplemental or domestic operations under 14 CFR part 121”, it is important that the FAA make modifications to ensure that such operations are not treated differently than air carrier operations under Part 121 at public-use airports in the United States.
Airports have scarce physical and financial resources such that it would be difficult to design and construct infrastructure that would be unique to public charter operators.
An airport’s proprietary rights in using its facilities in the most efficient way should be respected regardless of how the FAA decides to classify these carriers. If public charters are to be operated from an airport’s terminal infrastructure, this infrastructure was Item 4-B
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designed to ensure compliance with federal security requirements and not designed for an air service paradigm where security could be bypassed. Additionally, all air carriers utilizing airport terminal infrastructure should be treated similarly as it pertains to rates, fees, and charges for the use of such facilities.
The SDCRAA looks forward to further steps in the FAA’s proposed rulemaking and will provide further comments as necessary in the proceeding.
Sincerely,
Kimberly J. Becker
President/CEO
San Diego County Regional Airport Authority
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Molly A. Wilkinson
Vice President/Head – Regulatory and International Affairs October 13, 2023
David H. Boulter
Associate Administrator for Aviation Safety
Federal Aviation Administration
800 Independence Avenue, SW
Washington, DC 20591
Re: Docket FAA-2023-1857 – Request for Comments Regarding Regulatory Definitions of OnDemand Operation, Supplemental Operation, and Scheduled Operation Dear Associate Administrator Boulter:
American Airlines, Inc. (American) commends the Federal Aviation Administration (FAA) for its intent to undertake rulemaking to address public charter operations authorized under 14 CFR part 380 that are conducted under the operating rules of 14 CFR part 135. As the FAA develops a proposed rule, American offers the following points for consideration.
FAA Regulations Should Not Be Gamed: American shares the FAA’s concern regarding public charter operations that “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.” 88 Fed. Reg. 59480 (Aug. 29, 2023). These public charter operations sell individual tickets on pre-scheduled flights operated under Part 135, amounting to “scheduled charter” service that provides a facsimile of the common carriage scheduled service that Part 121 air carriers offer. Tickets for such flights can be found in search results on widely used online travel booking platforms, alongside offerings by Part 121 airlines.
One scheduled charter operator claimed recently that, as compared to Part 121 air carriers, it has “built a better mousetrap” by exploiting the exception for public charter operators under existing FAA regulations for domestic, flag, and supplemental operations. FAA regulations are not a game to be outwitted, and an exception that encourages such a mindset deserves reconsideration.
These Operations Are Becoming More Prevalent: The scheduled charter phenomenon is concerning in light of what the FAA correctly recognizes is the emergence of “high-volume operations” that have grown in “size, scope, frequency, and complexity” as they exploit Part 380 to provide scheduled charter service under Part 135. Id. Our review of DOT data indicates that the number of scheduled charter operators has grown from ten in 2013 to forty-four in 2022. DOT data further reflect that the number of approved scheduled charter flights grew from approximately 6,000 in 2013 to about 106,000 in 2022—roughly a seventeen-fold increase. Unlike scheduled charter operations that connect underserved markets through Small Community Air Service programs, some scheduled charter operations have proliferated in markets otherwise served by Part 121 air carriers, drawing competitive advantage through leveraging less stringent regulatory requirements for Part 135 operations. Per DOT data, in 2014 only about 2% of passengers in Part 135 operations traveled on flights between larger cities (defined as flights between a city that includes at least one large hub airport and a city with at least one large hub or medium hub airport, as defined by the FAA). By the first quarter of 2023—as the scheduled charter model emerged—that proportion grew to 31%. According to DOT data, in the first quarter of 2023, the single highest-volume scheduled charter operator flew 70% of its passengers between larger cities (defined the same way as above), with virtually complete overlap of these routes with the availability of nonstop regularly scheduled service by Part 121 air carriers.
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Molly A. Wilkinson
Vice President/Head – Regulatory and International Affairs Aviation Security Architecture Is Being Undermined: Although some scheduled charter service operates from airport terminals where passengers are screened through a traditional Transportation Security Administration (TSA) checkpoint, that is not currently a requirement. Scheduled charter passengers also are not required to pay the TSA’s security fee. This security posture for scheduled charter is not an incidental byproduct, but rather it is actively marketed to customers and acknowledged as integral to the business model.
The misuse of the exception for public charter operators under existing FAA regulations for domestic, flag, and supplemental operations distorts competition and degrades our nation’s aviation system. It is appropriate that, as the FAA previews, “some operators conducting public charter operations would need to transition from operating under part 135 to part 121” and “adjust their service models.” Id. American appreciates the FAA’s stewardship and encourages the FAA to pursue this rulemaking expeditiously.
Sincerely,
Molly A. Wilkinson
Vice President/Head - Regulatory Affairs and International Affairs American Airlines, Inc.
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Andrew Watterson
Chief Operating Officer
2702 Love Field Drive
Dallas, TX 75235
October 2, 2023
Mr. David H. Boulter
Associate Administrator, Aviation Safety
Federal Aviation Administration
800 Independence Avenue SE
Washington, D.C. 20591
Re: Request for Comments Regarding Regulatory Definitions of OnDemand Operation, Supplemental Operation, and Scheduled Operation, Docket FAA-2023-1857
Dear Associate Administrator Boulter,
Southwest Airlines (Southwest) supports the Federal Aviation Administration’s (FAA) review of its current rules and practices that permit certain scheduled passenger airlines to avoid compliance with 14 CFR Part 121 (Part 121), the FAA’s highest level of safety regulations, which all other scheduled passenger airlines that operate aircraft with greater than nine seats must meet.
1 This so-called “public charter loophole” should be
closed swiftly, and the safety of flying public and flight crew members should be the FAA’s only consideration. We urge the FAA to take all steps necessary to expeditiously close the “public charter loophole” and return to the One Level of Safety principle for all passenger airlines operating a published schedule and using aircraft with ten or more seats.
I. The FAA Committed to “One Level of Safety” for Scheduled Passenger Operations in 1995, but Inexplicably Changed Course Two Years Later by Creating a Carve-out for Part 380 Operations.
Bringing all scheduled passenger operations into compliance with Part 121 – the gold standard in aviation safety2 – is essential for public safety and expected by the traveling public. In 1995, both the Department of Transportation (DOT) and FAA established the One Level of Safety principle for all scheduled passenger operations using aircraft with 10 or more seats by requiring all such operations to be conducted under 1 This letter is in response to the FAA’s Request for Comments, 88 Fed. Reg. 59480, August 29, 2023. 2 The FAA has repeatedly recognized that Part 121 regulations represent the highest level of aviation safety and that all passenger airlines operating in scheduled service with greater than 10 seats are expected to meet the same minimum standards. See e.g., then-FAA Administrator Randy Babbitt’s testimony to the Senate Commerce Committee (June 10, 2009).
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Part 121.3 Known as the “Commuter Rule,” this common-sense approach assured all airline passengers and crew that their air carrier would be required to meet the FAA’s most rigorous safety standards whether operating 30-seat, 50-seat, or 150-seat aircraft.
The FAA articulated numerous reasons how this rule would enhance flight safety and summarized the basis of the new rule as follows: “There is no longer any justification for maintaining two sets of standards for scheduled operations in airplanes with a passengerseating 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.”
4 The government’s commitment to One Level of Safety was inexplicitly abdicated in 1997, however, when the FAA removed flights operated under Part 380 public charter rules from the definition of “scheduled operations.”5 The FAA made this change via a rulemaking that it called “mostly editorial or typographical in nature.”6 The effect of this “clarification” was to categorically allow all Part 380 flights to operate under FAR Part 135 – even those that provide scheduled service to the public (i.e., sell seats to individually ticketed passengers from a published flight schedule with specified departure and arrival times, and departure and arrival locations) as “public charters.” This exemption was made without regard to the scale of operations, geographical scope, or frequency of such service. The Final Rule and the Notice of Proposed Rulemaking that came before it provide no substantive justification for such a sweeping, categorical exemption. This change was in stark contrast to the FAA’s 1995 One Level of Safety rule that was based on an exhaustive analysis of flight safety data and the expected public benefits of upgrading safety requirements for commuter operations. The blanket exemption for public charter operators is especially baffling given that DOT’s Part 380 public charter regulations are purely economic in nature. Part 380 has no safety component and therefore cannot substitute for, nor justify an exemption from, an FAA safety regulation.
It is important to put the FAA’s creation of this blanket exemption for public charters in the proper historical context. In 1997, when the FAA was finalizing changes to the 3See “Commuter Operations and General Certification and Operations Requirements,” 60 Fed. Reg. 65,832 (Dec. 20, 1995). This rule followed a 1994 NTSB study and congressional scrutiny of Part 135 carriers’ safety records.
4 60 Fed. Reg. 65,835-36.
5 In 1997, the FAA amended the definitions section of 14 CFR Part 119 removing public charter operations conducted under 14 CFR Part 380 from the definition of “scheduled operations.” 62 Fed. Reg. 13,248 (March 19, 1997).
6 62 Fed. Reg. 5077 (Feb. 3, 1997). We doubt that such an “editorial or typographical” proposal could have been intended at the time to create a wholesale exemption from Part 121 safety standards for an entire category of air transport operations.
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Commuter Rule, public charters were in their infancy as an air travel option – so much so that the dubious “editorial clarification" that created the blanket exemption was noncontroversial among stakeholders. There was no substantive discussion of the implications of such a definitional change in the rulemaking and no comments were even filed in response to it.
7 Importantly, there was no indication whatsoever in 1997 that such an obscure “clarification” would become a gaping regulatory loophole which would allow today’s large and growing public charter segment, particularly flights operated with aircraft of 10-30 seats, to operate at lower levels of safety than all other scheduled air services.
According to DOT data, the number of public charter flights with 30 or fewer seats increased from 2,078 in CY 2008 (the earliest year in DOT’s database) to 189,075 in CY 2022, an increase of more than 9,000%.
8 Further, as new carriers and their investors look to enter the market or established carriers alter business models for competitive, financial, or operational reasons, many of them will likely take advantage of this loophole, which will only reduce the safety of the U.S. aviation system. Such an outcome was not only unforeseen by the FAA but almost certainly unintended as well. Thus, the issuance of this Request for Comments and the FAA’s reevaluation of the blanket exemption is not only strongly warranted but in fact long overdue.
II. Although the FAA has Made Critical Strides in Improving Safety in Passenger Operations, Substantial Differences Remain Between Part 121 and Part 135 Safety Requirements.
In the 27 years since issuing its 1995 final rule, the FAA has made significant enhancements to Part 121 safety regulations, including requiring the use of Safety Management Systems (SMS),
9 as well as elevated requirements for training,
maintenance, and operations. Among these changes was the “1,500-hour rule,” which increased the minimum flight hours needed to earn an Airline Transport Pilot (ATP) license from 250 hours to 1,500 hours. In Part 121 operations any pilot operating a flight must hold a current ATP license. Part 135 carriers are exempt from the majority of these critical safety regulations, including the 1,500-hour rule for first officers. Again, there is no sound reason why the traveling public should be unknowingly exposed to a lower level of safety simply because an operator has obtained public charter status and therefore is 7 The Final Rule states that “no comments were received on the proposed definitions and the changes…are adopted as proposed.” 62 Fed. Reg. 13248.
8 See https://www.transportation.gov/policy/aviation-policy/licensing/public-charters. 9 Southwest acknowledges that FAA has issued a Notice of Proposed Rulemaking that would require SMS for Part 135 operators. 88 Fed. Reg. 1932.
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permitted to operate on a scheduled basis utilizing pilots who are permitted to fly with far fewer training hours than those operating under Part 121.
Many other substantive differences exist between Parts 121 and 135 requirements that create a bifurcated system of safety in the current regulatory model. For example, Part 121 operators are required to have and maintain certificated flight dispatchers and dispatch centers to ensure proper operational control of each flight. Dispatchers working in concert with pilots to safely plan and operate flights creates an additional layer of safety that is not required for Part 135 carriers. Allowing Part 380 public charters to operate scheduled service without this safety enhancement is difficult to reconcile with the FAA’s findings in the 1995 final rule which stated as follows:
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.10
Part 121 also subjects carriers to stringent pilot rest requirements and requires carriers to develop and maintain systems to manage fatigue risk, including fatigue education and awareness programs. Part 135, in contrast, requires some level of rest periods for pilots, but fatigue management and education programs are not a requirement. Looking forward, Part 135 operators will be exempt from the proposed requirement for Part 121 operators to install a “secondary flightdeck barrier” between the cabin and flightdeck on newly manufactured aircraft,11 a requirement specifically directed by Congress and conceived in the wake of the 9-11 terrorist attacks to enhance safety of all passengers and crew.
III. The Safety Data is Clear: Part 121 Operators Have a Much Lower Accident Rate than Part 135 Operators, Giving FAA Good Cause to Act Quickly to Close the Regulatory Loophole.
The National Transportation Safety Board (NTSB) has published data that shows that Part 135 operators as a group have an inferior safety record to Part 121 carriers. For example, in 2021, the NTSB published an extensive compilation and analysis of accident 10 60 Fed. Reg. 65,835.
11 “Installation and Operation of Flightdeck Installed Physical Secondary Barriers on Transport Category Airplanes in Part 121 Service.” 87 Fed. Reg. 46,892
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and fatality rates for different categories of air carriers for the 20-year period from 2001 to 2020.12 According to the NTSB report, the accident rate per 100,000 flight hours for Part 135 operators over the 20-year period was more than 9 times greater than the accident rate for Part 121 scheduled operators over the same period. Further, the fatality rate from Part 135 operations was approximately 94 times greater than that of Part 121 carriers.13 These alarming differences in the safety records between Part 135 versus Part 121 air carriers make it even more urgent that the FAA promptly rescind the blanket exemption that allows Part 380 carriers with 10-30 seat aircraft to provide scheduled passenger service under Part 135 instead of Part 121.
It is worth noting that the FAA recognized a similar discrepancy in the safety data of Part 135 vs Part 121 operations when it promulgated its “one level of safety” rule in 1995. According to the FAA, “[t]he accident rate per 100,000 departures in 1993 was one fourth the accident rate in 1980. However, the accident rate for commuter airlines operating under part 135 continues to be higher than the rate for domestic part 121 airlines.”
14 Based on this safety data, the FAA correctly concluded “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 allowed.”15
In addition, a 1994 safety study by NTSB, titled “Commuter Airline Safety,”16 which was central in informing the FAA’s 1995 rulemaking, found that, at the time, the Part 135 industry had experienced unprecedented growth, changes in operational characteristics, and a move toward operating larger, more sophisticated aircraft. Part 135 carriers had also begun to enter into codeshare agreements with Part 121 airlines. The NTSB concluded that Part 135 regulations did not provide an adequate level of safety for the size and scope of these operations. Moreover, NTSB found that the lack of a flight dispatch function placed too much pressure on Part 135 pilots to accomplish multiple critical dispatch tasks in a short period of time which increased the risk for human error that could directly impact flight safety. In the FAA’s 1995 NPRM, two key NTSB recommendations are cited:
12 See https://www.ntsb.gov/safety/data/Documents/AviationAccidentRates_2001-2020_20211014.xlsx. (NTSB Accident/Fatality Report).
13 NTSB Accident/Fatality Report, Comparing table Six, “Accidents, Fatalities, and Rates, 2001 through 2020, for US Air Carriers Operating Under 14 CFR 121, Scheduled Service,” and Nine, “Accidents, Fatalities, and Rates, 2001 through 2020, for US Air Carriers Operating Under 14 CFR 135, On-Demand Operations” (the category used by FAA for Part 380 Operations). 14 60 Fed. Reg. at 65,833.
15 60 Fed. Reg. at 65,835-36.
16 NTSB Safety Study, “Commuter Airline Safety,” November, 1994.
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1. All scheduled passenger service conducted in airplanes with 20 or more passenger seats would be conducted according to the provisions of 14 CFR part 121.
2. All scheduled passenger service conducted in airplanes with 10 to 19 passenger seats would be conducted in accordance with 14 CFR part 121, or its functional equivalent, wherever possible.
Based on NTSB’s recommendations, evaluation of accidents that had occurred involving Part 135 operations, and public perception, the FAA proposed its 1995 rule for aircraft with 10-30 seats. Omitting aircraft with nine seats or less from the requirement made sense as most of those aircraft could not meet the certification and equipment requirements of Part 121 in any event. In the NPRM, the FAA proposed to:
apply much of the part 121 requirements on affected part 135 commuters because the agency believes that for those commuters the part 121 approach is appropriate for the type of operations these affected commuters conduct and that the part 121 approach to safety will reduce the accident rate for those operators. [Emphasis added.] The proposed revisions cumulatively would increase the level of safety by requiring certain improvements in flightcrew qualifications, cabin safety equipment and cabin materials, airplane preformance [sic] requirements, aircraft operational control, and aircraft maintenance.17
Now, in 2023, the FAA should apply the same logic as the Part 135 industry continues to evolve and grow. In order to provide the highest level of safety to the traveling public, it is imperative that the FAA return to the One Level of Safety principle, especially given the growth and evolution in Part 135 operations in the years since the Commuter Rule was proposed and finalized.
IV. The FAA Must End the “Legal Fiction” Created in the CFR Definition of “Scheduled Operation” and Establish a Clear Policy that the Highest Level of Safety will be Required for ALL Scheduled Passenger Airlines that Use Aircraft with More than Nine Seats.
At a minimum and with the aforementioned facts and arguments in mind, Southwest respectfully urges the FAA to conduct a formal rulemaking that will:
1. Amend the Definition of “Scheduled Operation” found in Section 110.2 of Title 14, Code of Federal Regulations (Title 14) by striking the last sentence (i.e., “It does not include any passenger-carrying operation that is conducted as a public charter operation under part 380 of this title”). By striking this 17 60 Fed. Reg. 16,233.
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sentence, the FAA would end the legal fiction that classifies some scheduled operations as non-scheduled operations. This would not only advance safety but restore common sense and public expectations by matching the legal definition to reality. As the Air Line Pilots Association has correctly noted in a prior regulatory filing, “[i]f it walks, talks, and quacks like a duck, then it’s a duck.”18 In this case, if a passenger airline offers in advance to the public the departure location, departure time, and arrival location of the flight, then it is a scheduled operation.
2. Amend Title 14 by inserting a new subsection that states unequivocally:
“Declaration of Policy.—Notwithstanding any other requirement in this chapter, it is the policy of the Federal Aviation Administration to uphold one level of safety for any common carriage passenger-carrying operation for compensation or hire conducted by an air carrier or commercial operator for which the certificate holder or its representative offers in advance the departure location, departure time, and arrival location, and uses an aircraft with a passenger-seat configuration of greater than 9 seats, excluding each crewmember seat, regardless of whether the operation is conducted under Part 380.”
V. Conclusion.
Southwest will never compromise on the issue of safety and, for this reason, urges the FAA to return to the fundamental One Level of Safety principle. Whether flying on an aircraft with 10 seats or 250 seats, the flying public deserves nothing less than to be assured of a consistent and rigorous level of aviation safety. Southwest urges the FAA to move quickly to take appropriate action so that there will never be a situation in the future where Congress and the public ask why the FAA failed to take action to protect the traveling public when it was possible to do so.
There is no reasoned basis for allowing different levels of safety among the nation’s scheduled passenger airlines, and the distinction that exists today is especially indefensible as there is no operational basis for it. The FAA should put an end to this arbitrary and historically unintended exemption by reaffirming the bedrock principle that all scheduled passenger carriers must adhere to the highest levels of safety. If the FAA declines to take that action, it will not only legitimize the lower level of safety that exists in public charter operations today, but it will also invite more carriers to adopt the same business model and scale it to larger and larger operations, resulting in an even more pervasive degradation of aviation safety. The FAA must not let that happen. 18 “ALPA Calls on DOT to Close Part 135 Loophole” (July 6, 2023).
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Sincerely,
_______________________
Andrew Watterson
Copy to:
The Honorable Polly Trottenberg, FAA
The Honorable Katie Thomson, FAA
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BEFORE THE
FEDERAL AVIATION ADMINISTRATION
UNITED STATES DEPARTMEN TOF TRANSPORTATION
WASHINGTON, DC
_____________________________________________
)
In the matter of: )
) Docket No.: FAA-2023-1857
Notice of Intent to Consider Revisions to the )
Regulatory Definitions of “On-Demand )
Operation”, “Supplemental Operation” and )
“Scheduled Operation” )
__________________________________________)
COMMENT OF SOUTHWEST AIRLINES PILOTS ASSOCIATION
The Southwest Airlines Pilots Association (“SWAPA”) respectfully submits this Comment to the Federal Aviation Administration’s the Notice of Intent to Consider Revisions to the Regulatory Definitions of “On-Demand Operation”, Supplemental Operation” and “Scheduled Operation” [Dkt. No. FAA-2023-1857-0001].
SWAPA urges the Federal Aviation Administration to take action to eliminate the Part 380 public charter loophole. The use of this loophole undermines the safety and security standards established by the Airline Safety and FAA Extension Act of 2010 and goes against the stated goal of One Level of Safety.
Passengers traveling from towns like Pierre South Dakota should not be subject to a degraded level of safety just because they live and fly out of a small airport. Nor should they have to decode the fine print on a carrier’s website to determine what rules and level of safety they can expect.
If a carrier advertises, schedules, sells and operates scheduled service, it should operate as a scheduled carrier under Part 121 and adhere to the applicable safety and security standards mandated by the FAA.
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Eliminating this loophole will send a clear message that carriers seeking creative ways to skirt safety and security regulations need not apply. Inaction on this critical issue will serve as an endorsement of a lower level of safety and encourage carriers to establish or expand operations utilizing the loophole.
Respectfully submitted,
/s/ Casey Murray
Casey Murray
SOUTHWEST AIRLINES PILOTS
ASSOCIATION
1450 Empire Central Drive
Suite 737
Dallas, Texas 75247
Tel.: (214) 722-4256
[email protected]
/s/ Anthony U. Battista
Anthony U. Battista
CONDON & FORSYTH LLP
7 Times Square, 18th Floor
New York, New York 10036
Tel.: (212) 490-9100
[email protected]
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