Exemption No. 9382

UNITED STATES OF AMERICA\
DEPARTMENT OF TRANSPORTATION\
FEDERAL AVIATION ADMINISTRATION\
WASHINGTON, DC 20591

In the matter of the petition of

**SOUTHWEST AIRLINES COMPANY** **Regulatory Docket No. FAA-2006-25466**

for an exemption from §§ 121.391(a) and

121.393(b) of Title 14, Code of

Federal Regulations

# GRANT OF EXEMPTION

On July 24, 2006, Mr. Michael G. Van de Ven, Southwest Airlines Company
(Southwest),

2702 Love Field Drive, P.O. Box 36611, HDQ-1EX, Dallas, Texas,
75235-1611, petitioned the Federal Aviation Administration (FAA) on
behalf of Southwest for an exemption from

§§ 121.391(a) and 121.393(b) of Title 14, Code of Federal Regulations
(14 CFR). The proposed exemption, if granted, would allow Southwest to
substitute a pilot for one required flight attendant crewmember during
boarding at an intermediate stop and to reduce the number of required
flight attendants onboard during the deplaning of passengers at an
intermediate stop.

**The petitioner requests relief from the following regulations:**

> Section 121.391(a) which states, that each certificate holder must
> provide at least the following flight attendants on each
> passenger-carrying airplane used:
>
> \(1\) For airplanes having a maximum payload capacity of more than
> 7,500 pounds and having a seating capacity of more than 9 but less
> than 51 passengers---one flight attendant.
>
> \(2\) For airplanes having a maximum payload capacity of 7,500 pounds
> or fewer and having a seating capacity of more than 19 but fewer than
> 51 passengers---one flight attendant.
>
> \(3\) For airplanes having a seating capacity of more than 50 but
> fewer than 101 passengers---two flight attendants.
>
> \(4\) For airplanes having a seating capacity of more than 100
> passengers---two flight attendants plus one additional flight
> attendant for each unit (or part of a unit) of 50 passenger seats
> above a seating capacity of 100 passengers.
>
> Section 121.393(b) states, that on each airplane for which flight
> attendants are required by §121.391(a), but the number of flight
> attendants remaining on board is fewer than required by §121.391(a),
> the certificate holder must meet the following requirements:
>
> \(1\) The certificate holder must ensure that:

(i) The airplane engines are shut down;

> \(ii\) At least one floor level exit remains open to provide for the
> deplaning of passengers; and
>
> \(iii\) the number of flight attendants on board is at least half the
> number required by §121.391(a), rounded down to the next lower number
> in the case of fractions, but never fewer than one.
>
> \(2\) The certificate holder may substitute for the required flight
> attendants other persons qualified in the emergency evacuation
> procedures for that aircraft as required in §121.417, if these persons
> are identified to the passengers.
>
> \(3\) If only one flight attendant or other qualified person is on
> board during a stop, that flight attendant or other qualified person
> must be located in accordance with the certificate holder\'s
> FAA-approved operating procedures. If more than one flight attendant
> or other qualified person is on board, the flight attendants or other
> qualified persons must be spaced throughout the cabin to provide the
> most effective assistance for the evacuation in case of an emergency.

**The petitioner supports its request with the following information:**

> The petitioner states that § 121.393(b) already authorizes Southwest
> to reduce its complement of flight attendants onboard the aircraft at
> intermediate stops to one flight attendant once the aircraft is in a
> static mode, parked at the gate with the engines off and a floor-level
> exit open, and that its proposed procedures are already in compliance
> with the referenced sections of the regulation.
>
> The petitioner states that, until recently, Southwest had permitted up
> to two flight attendants to exit the aircraft for numerous safety,
> security, operational, customer service, and personal reasons once the
> aircraft was parked at the gate with the engines off and a floor-level
> exit open. The petitioner adds that, while every attempt was made to
> have all flight attendants back onboard prior to the enplanement of
> new passengers, it was understood and accepted that operational
> requirements would, on occasion, necessitate the boarding of new
> passengers without the full complement of flight attendants in their
> boarding positions. The petitioner states that Southwest has operated
> in this manner safely for over 35 years without passenger injury
> attributable to a reduced complement of flight attendants at
> intermediate stops. The petitioner adds that not once in that 35-year
> period has a situation occurred which represented even a threat to
> passenger safety as a result of a reduced number of flight attendants
> during an intermediate stop.
>
> The petitioner states that its petition for exemption was prompted by
> a fundamental change in the FAA's interpretation of §§ 121.391(a) and
> 121.393(b), promulgated as internal FAA guidance through Flight
> Standards Information Bulletin for Air Transportation 01-03A (FSAT
> 01-3A) without public notice and comment under the Administrative
> Procedure Act (APA), 5 U.S.C. § 553. The petitioner states that
> without basis in either the regulatory language or history, the
> FSAT 01‑03A interpretation significantly restricted the period of time
> in which less than a full flight attendant complement is authorized
> onboard the aircraft, at an intermediate stop, *i.e.*, only during the
> time following passenger deplanement and prior to the start of new
> passenger enplanement.
>
> The petitioner states that this petition seeks formal FAA approval of
> alternative procedures that serve the public interest and provide for
> an equivalent, if not greater, level of safety, originally proposed to
> its acting principal operations inspector (POI) on May 13, 2005. This
> procedure would allow Southwest to reduce its complement of flight
> attendants to no less than one during the deplanement process but
> would require all three flight attendants onboard during passenger
> enplanement at intermediate stops, while retaining authority to
> substitute a pilot trained in emergency evacuation procedures for the
> forward cabin flight attendant during the boarding process in cases of
> operational necessity.
>
> The petitioner states that the regulatory history of § 121.393(b),
> formerly § 121.391(e), fully supports Southwest's petition to reduce
> the number of flight attendants onboard at intermediate stops during
> passenger deplanement and to allow a pilot to substitute for the
> forward cabin flight attendant during passenger enplanement. The
> petitioner states that prior to 1982 no regulation addressed the
> required number of flight attendants on aircraft on the ground when
> passengers remained aboard. At that time, § 121.391(a) mandated one
> flight attendant for every 50 passenger seats (or portion thereof) on
> each airplane used. The petitioner states that common industry
> practice permitted less than the full flight attendant complement
> onboard when aircraft were parked at a gate and that aircraft were not
> considered to be "in use" when stationary with doors open and engines
> off.
>
> In its review of the regulatory history, the petitioner states that
> the FAA issued a new interpretation from the Office of the FAA Chief
> Counsel regarding § 121.391 via memo to the FAA Regional Flight
> Standards Division Chiefs on June 2, 1980. The petitioner states that
> this interpretation stated that the minimum complement of flight
> attendants required by
>
> § 121.391 must be onboard at all time when passengers are on the
> aircraft, including during the boarding process and at intermediate
> stops. The petitioner states that the Air Transport Association of
> America (ATA) and its member airlines strongly disagreed with this
> interpretation and petitioned the FAA for rulemaking "to amend §
> 121.391(a) to allow less flight attendants than presently required to
> be on board a passenger-carrying airplane when passengers are onboard
> other than during flight time." (46 FR 12981; February 19, 1981).
>
> The petitioner states that the FAA, in issuing its final rule in
> response to the 1980
>
> ATA petition, overturned the Chief Counsel's interpretation, which was
> found to impose "unnecessary requirements" since safety was not
> compromised by less than a full complement of flight attendants during
> ground stops (47 FR 56460 (December 16, 1982)). The petitioner states
> that the FAA specifically concluded: "The current regulation provides
> that all required flight attendants not only must be on board the
> aircraft during flight time but also must remain on board during
> intermediate stops. Analysis of the safety issues involved reveals
> that this is not necessary and precludes such personnel from
> performing other related duties. Such duties include aiding elderly or
> handicapped passengers, accompanying minors, and coordinating with
> ground personnel." *Id.* The petitioner states that the FAA
> accordingly promulgated § 121.391(e) to require only one-half the
> number of flight attendants required by 14 CFR (rounded down to the
> nearest whole number, but not less than one) at intermediate stops
> where passengers remain onboard, so long as one floor-level exit is
> open and the aircraft engines are off.
>
> The petitioner further states that the preamble discussion to the
> final rule notes "when boarding begins, the full contingent of flight
> attendants has generally returned to their duties on the airplane."
> *Id.* at 56462. The petitioner states that the FAA thus recognized and
> accepted the fact that flight attendant duties off the aircraft would,
> on occasion, preclude the full complement of flight attendants being
> onboard during passenger enplanement. The petitioner states that the
> controlling factor as to when the full complement of flight attendants
> was to be required onboard was not if passengers are in the process of
> deplaning or boarding, but rather if the aircraft doors were closed
> for engine startup and departure.
>
> The petitioner also states that the FAA noted in the preamble language
> that:
>
> The FAA Office of Aviation Safety recently conducted a search of data
> of air carrier incidents at the gate before engine startup resulting
> in emergency evacuation. This survey covered 6 years and revealed four
> evacuations resulting from a bomb threat, smoke in the cabin,
> auxiliary power unit (APU) torching, and engine torching. This record
> indicates that there is no significant safety problem connected with
> reducing the number of flight attendants at the gate during
> intermediate stops. This reduction is acceptable since the aircraft is
> parked at the gate in a static mode in a level attitude with engines
> stopped and at least one floor-level exit is already open and
> available for immediate evacuation use. This exit is usually connected
> to a jetway which furnishes additional protection from possible
> dangers outside the airplane. Crewmembers, mechanics, baggage,
> security personnel, and other ground personnel are nearby to assist in
> the event of an emergency. *Id.* at 56461-62.
>
> The petitioner states that the granting of this petition for exemption
> is thus fully warranted by the regulatory history and safety analysis
> underlying § 121.391(e), now § 121.393(b).
>
> The petitioner continues that on May 14, 1985, John H. Cassady, FAA
> Assistant Chief Counsel, Regulations and Enforcement Division, issued
> an internal legal opinion (hereinafter the "Cassady memorandum")
> asserting that § 121.391(a) requires a full flight attendant
> complement onboard during passenger deplanement and boarding at
> intermediate stops. The petitioner states that the basis for the
> Cassady memorandum was that an airplane is being "used" at all times
> when passengers are onboard, as opposed to when engines are operating
> and the aircraft is in actual motion. The petitioner states that the
> Cassady memorandum amounted to a substantive regulatory change without
> public notice and comment and disregarded the unambiguous language and
> regulatory intent of § 121.391(e), as well as the FAA's safety
> justification for issuance of the regulation.
>
> The petitioner states that the ATA again petitioned the FAA on August
> 29, 1985, seeking clarification of the interplay of § 121.391(a) and
> (e) and requesting a stay of enforcement of the Cassady memorandum.
> The petitioner states that the ATA petition stated that the Cassady
> memorandum ignored the events, the conclusions, and the findings which
> led to the issuance of Amendment 121-180 (47 FR 56460; December 16,
> 1982). ATA stated that
>
> § 121.391(a) established the minimum number of flight attendants on
> each passenger- carrying aircraft based on the number of seats and the
> rationale for establishing a minimum number of flight attendants was
> based on safety concerns in flight as well as to ensure evacuation
> assistance to passengers in survivable accidents. Per ATA's petition,
> the risk of a passenger threatening accident while aboard an aircraft
> parked at a gate, with a cabin door open and a stair or jetway
> attached, is extremely remote. Additionally, the possibility of an
> incident requiring a flight attendant's assistance to the passengers
> is far less likely when parked at the gate than during flight time.
> The petitioner states that ATA reported to its members on August 30,
> 1985, the FAA granted the requested stay of enforcement of the Cassady
> memorandum upon receipt of the ATA's petition.
>
> The petitioner states that on August 8, 1986, the FAA Director of
> Flight Standards, AFS‑1, issued Action Notice A8430.5 to FAA Regional
> Directors, which stated, in pertinent part:
>
> Because of the apparent inconsistency between paragraphs (a) and (e)
> it has been determined that § 121.391 needs to be clarified. A
> rulemaking project has been established to accomplish that
> clarification.
>
> Pending any amendment to § 121.391, the following guidance will be
> utilized when applying that regulation.
>
> \(3\) At intermediate stops where passengers remain on board the
> aircraft, at least the number of persons specified in § 121.391(e)
> must be aboard the aircraft. This includes that period of time during
> which passengers are deplaning or boarding. (FAA AFS-1 Action Notice
> A8430.5; August. 8, 1986.)
>
> The petitioner states that AFS-1 thereby reaffirmed the meaning and
> intent of the 1982 final rule and properly directed that no
> enforcement action should be taken against air carriers for conducting
> passenger deplanement or enplanement operations at intermediate stops
> with less than a full complement of flight attendants onboard, unless
> and until § 121.391(e) was amended through a formal Administrative
> Procedure Act rulemaking proceeding.
>
> The petitioner states that the FAA issued a notice for proposed
> rulemaking (NPRM) in 1989 to clarify § 121.191(a) and (e) because the
> text of the regulation did not specifically mention passenger
> enplaning and deplaning. (54 FR 15134 (April 14, 1989)). The
> petitioner states that in this NPRM, the FAA once again concluded that
> the regulation, as interpreted by the FAA's Chief Counsel's Office,
> may contain an unnecessary requirement for a full complement of flight
> attendants at times other than flight time. The petitioner states that
> the FAA therefore proposed to permit a reduced complement of flight
> attendants onboard passenger-carrying airplanes at all stops, to
> include specifically the passenger enplaning and deplaning phases,
> provided certain conditions were met. *Id.* The petitioner adds that
> no final action was taken on the NPRM for unknown reason, and in 1996,
> the rulemaking was withdrawn due to the considerable lapse of time
> since the issuance of the NPRM. (61 FR 29000; June 6, 1996)). In the
> interim, § 121.391(e) was renumbered as § 121.393(b) without change to
> the regulatory language. The petitioner states that the 1982 rule, as
> originally promulgated and reaffirmed in Action Notice A8430.5, was
> unchanged and has so remained, and thus a reduced complement of flight
> attendants continues to be authorized by the regulations during the
> duration of an intermediate stop, including the deplaning and
> enplaning phases.
>
> The petitioner states that the issue again surfaced in 2001 with the
> issuance of FSAT 01‑03A, which cited the 1985 Cassady memorandum as
> authority for FAA inspectors to require the full flight attendant
> complement onboard during passenger deplaning and boarding. The
> petitioner states that Southwest strongly protested to its POI and to
> officials at FAA headquarters in the Flight Standards service and
> Chief Counsel's Office, that FSAT 01-03A was issued in clear
> contravention of regulatory language and intent, without public notice
> and comment, and in total disregard of the 1985 enforcement stay and
> subsequent Action Notice A8430.5. The petitioner states that following
> numerous discussions between Southwest officers and FAA officials at
> various levels, Southwest's Vice President, Governmental Affairs, was
> finally informed personally on August 10, 2001, by the FAA
> Administrator that Southwest could continue operating with less than
> the full complement of flight attendants during passenger deplanement
> and boarding, as the FAA had determined this practice was not in
> violation of the Code of Federal Regulations.
>
> The petitioner states that throughout 2002 and most of 2003, Southwest
> continued to allow its crews to operate with less than the full
> complement of flight attendants during the deplaning and boarding
> phases at intermediate stops without incident or further FAA
> objection. The petitioner states that in late 2003, despite the prior
> assurances from the FAA Administrator, Southwest's Certificate
> Management Office (CMO) renewed its efforts to force Southwest to
> conform its operational practices to the Cassady interpretation.
> Effective April 2004, the Air Transportation Operations Inspector's
> Handbook, FAA Order 8400.10, was amended to instruct FAA inspectors
> that, pending amendment to § 121.393, the Cassady interpretation was
> endorsed by the Flight Standards Service for enforcement purposes.
>
> The petitioner states that after numerous communication exchanges
> between Southwest and the FAA, Southwest's Vice President, Inflight
> Services, proposed the compromise procedure to Southwest's acting POI,
> which required all three flight attendants onboard during passenger
> boarding but allowed a reduction to one flight attendant during
> deplanement. The petitioner stated that Southwest still maintained,
> however, that § 121.393(b) permitted a reduced flight attendant
> complement during the boarding phase and proposed to retain authority
> to permit a pilot to substitute for the forward cabin flight attendant
> during passenger boarding so long as it did not interfere with the
> pilot's preflight responsibilities. The petitioner states that
> Southwest implemented these new procedures on August 1, 2005, having
> received no response from the acting POI.
>
> The petitioner states on April 11, 2006, the Manager of the Southwest
> CMO wrote Southwest's Executive Vice President, Aircraft Operations,
> directing Southwest to discontinue the practice of allowing pilots to
> substitute for flight attendants during passenger boarding. That
> letter, and ensuing discussions with officials at FAA headquarters,
> eventually led to the filing of this petition for exemption. The
> petitioner maintains, however, that its cabin procedures are fully
> compliant with the language and intent of § 121.393(b), as that
> regulation was promulgated in 1982. The petitioner states it is,
> therefore, petitioning for a limited exemption from enforcement of §
> 121.393(b), as that regulation is interpreted pursuant to the Cassady
> memorandum and revised FAA Order 8400.10 to allow for a reduced
> complement of flight attendants during deplanement at intermediate
> stops and the substitution of a pilot for one flight attendant during
> passenger boarding.
>
> The petitioner states that granting the petition is in the public
> interest, as it would enable Southwest and its flight attendants to
> continue performing necessary safety, operational, and service
> responsibilities to which the traveling public is entitled without
> having to increase Southwest's average 25-minute aircraft ground time
> between flights. The petitioner states that Southwest is the Nation's
> leading provider of low-fare airline service and is recognized by the
> U.S. Department of Transportation and the public at large as a primary
> competitive force in commercial aviation to ensure that affordable air
> transportation services are available to travelers and shippers in
> this country. The petitioner states that Southwest's ability to offer
> low fares is predicated on its operational efficiencies and relatively
> high aircraft utilization, which hinges on Southwest's short average
> aircraft turn time, allowing Southwest to operate additional flights
> per aircraft per day and offer the public lower fares.
>
> The petitioner states that the denial of this petition would
> undoubtedly result in increased ground time in order for flight
> attendants to conclude off-aircraft duties prior to the commencement
> of passenger enplanement, leading to widespread flight delays
> throughout Southwest's system or require increased scheduled ground
> times, resulting in higher costs and ultimately higher fares. The
> petitioner states that the grant of this petition, at no increased
> safety risk, will greatly help preserve low-fare airline competition
> for the benefit of the traveling public.
>
> The petitioner also states that Southwest's procedures provide an
> equivalent level of safety. The petitioner states that emergency
> evacuations while aircraft are parked at a gate with engines off are
> extremely rare. The petitioner states that a search of the National
> Transportation Safety Board accident database discloses only four
> emergency evacuations in all part 121 air carrier operations from 1983
> to the present when aircraft were parked at a gate with an open
> passenger entry door. The petitioner states that in the event of an
> evacuation being ordered during passenger deplanement while an
> aircraft is parked at the gate, with engines off and an open
> floor-level exit, the fact that a flight attendant had stepped off the
> plane prior to the last passenger would have no safety impact. The
> petitioner states the passengers would already be in the process of
> exiting, at least one flight attendant would be at the rear of the
> cabin to provide instructions, and additional company personnel would
> be in the cockpit or exit door vicinity to provide any necessary
> assistance and direction. The petitioner also states that the
> substitution of a pilot for the forward cabin flight attendant during
> passenger boarding would similarly pose no greater safety risk as all
> Southwest pilots hold type ratings for the Boeing 737, the only
> aircraft Southwest operates, and have received extensive training in
> all aircraft systems and emergency equipment, as well as
> familiarization in cabin evacuation procedures and commands. The
> petitioner states that pilots are also capable of shouting evacuation
> commands and will be as effective as a flight attendant in commanding
> passenger attention during a cabin evacuation, since most passengers
> view a pilot in uniform as the ultimate operational authority figure
> onboard the aircraft.
>
> The petitioner states that pilot substitution during boarding would
> only occur during ground stops at which all of the pilot's preflight
> duties are complete and in the event both pilots need to perform
> operational or safety functions in the cockpit, operations center, or
> on the ramp; passenger enplanement would not commence unless all three
> flight attendants had completed their off-aircraft duties and were in
> assigned boarding positions. The petitioner states that in Southwest's
> operating procedures the majority of the preflight cockpit duties are
> performed by the first officer; therefore, on the majority of
> Southwest's flights, the captain typically positions himself/herself
> at the forward entry door to greet customers, regardless of whether
> the lead flight attendant is also present. The petitioner states,
> therefore, allowing a pilot to substitute for a flight attendant
> during the boarding process on an occasional flight has no adverse
> impact on passenger or flight safety.
>
> Finally, the petitioner requests that notice of this petition be
> waived for good cause under
>
> § 11.87 since granting this exemption would not set a precedent but
> recognize a practice followed for decades by Southwest and other
> airlines under the FAA's differing interpretations of § 121.393(b),
> with no increased risk to aviation safety or detriment to the
> traveling public. The petitioner states that the FAA's internal
> advisory documents repeatedly changing the interpretation of §
> 121.393(b) never gave rise to a requirement for public notice and
> comment; therefore, this petition for exemption should not either. The
> petitioner states that if publication were required, however, the
> following summary of the petition is proposed, in accordance with §
> 11.81(f):
>
> Southwest Airlines Company petitions the Federal Aviation
> Administration for limited relief from enforcement of 14 CFR §§
> 121.391(a) and 121.393(b) as interpreted according to FSAT 01-03A and
> FAA Order 8400.10, vol. 3, ch. 16, sec. 4, par. 2295, to the extent
> such interpretation: (1) requires a full complement of flight
> attendants onboard a passenger-carrying aircraft during the
> deplanement of passengers at an intermediate stop; and/or (2)
> prohibits a pilot qualified in emergency evacuation procedures from
> substituting for the forward cabin flight attendant during the
> enplanement of new passengers at an intermediate stop.

The FAA found that the petition, if granted, would set a precedent.
Therefore, to allow an opportunity for the public to comment on the
petition, a summary of this petition was published in the [Federal
Register]{.underline} on September 6, 2006 (71 FR 60790). The comment
period was reopened on October 16, 2006 (71 FR 52609). The FAA received
12 unique comments from airlines, labor organizations, and individual
commenters: 8 supporting and 4 opposing a grant of exemption. Also the
petitioner, upon request, provided additional information during the
comment period. This information was included in the petitioner's
supportive documentation.

> American Airlines (American) supports a grant of exemption and states
> that there is no increased risk to safety by allowing the number of
> flight attendants to be reduced during the deplaning process or for a
> pilot to substitute for the forward flight attendant during the
> boarding process. American states its intent to request similar relief
> during boarding and deplaning and the FAA should only grant Southwest
> relief to the extent it will also provide similar relief to other
> carriers.
>
> Delta Airlines (Delta) supports a grant of exemption and also asks for
> a grant of similar relief. Delta concurs with the petitioner that the
> relief requested ensures a consistent level of safety and supports the
> needs of individual crewmembers and passengers, such as obtaining
> wheelchairs or walking unaccompanied minors off the aircraft. Delta
> states that under current staffing and regulatory constraints this is
> not possible and can lead to missed flights or regulatory sanction by
> the Department of Transportation for failure to provide necessary
> services to customers in a timely fashion. Delta states that allowing
> a flight attendant to step off the aircraft during the deplaning of
> passengers to facilitate the above- mentioned requirements or for
> other reasons supports the needs of its customers and crewmembers
> while maintaining the high level of safety expected by its customers.
> Delta adds that by allowing trained and qualified pilots to perform
> the duties of the forward flight attendant during boarding or
> deplaning, safety is never degraded and service to customers is
> enhanced. Delta concurs with the petitioner's request that pilot
> substitution would only take place when necessary and only after
> completion of all required pilot duties.
>
> AirTran Airways (AirTran) supports a grant of exemption and also asks
> for a grant of similar relief. AirTran states that the grant will
> provide enhanced safety procedures for all parties while allowing
> carriers to provide additional assistance to passengers without
> impacting safety of aircraft, crew, or passengers. AirTran states that
> such efforts are critical to increase passenger numbers and improve
> the economics of the entire industry. AirTran states that regardless
> of the reason, a flight attendant would only leave the aircraft if
> other crewmembers fully trained and qualified to handle the deplaning
> process were on board. AirTran adds that station official would always
> be near the aircraft to assist during deplaning and that carriers with
> limited operations as particular airports experience a greater need
> for flight attendants to leave the aircraft during deplaning.
>
> US Airways, Inc. (US Airways), and America West Airlines, Inc.
> (America West), support a grant of exemption and request that the FAA
> grant each carrier similar relief to that requested by Southwest
> Airlines. The carriers agree with the petitioner and other commenters
> that the requested relief would continue to provide the high level of
> safety expected by the traveling public, while supporting the needs of
> individual crewmembers and giving carriers greater ability to assist
> passengers. US Airways and America West state that no flight attendant
> would exit the aircraft without ensuring that the number of other
> fully trained and qualified crewmembers required by regulation remain
> onboard and that the substitution of a fully trained and qualified
> pilot for the forward flight attendant would only occur when
> operationally necessary and never when it would interfere with or
> disrupt required preflight duties.
>
> US Airways and America West state that the grant of exemption would
> give their employees more flexibility to assist individuals and prove
> a better experience for the traveling public without posing additional
> risk to passengers, employees, or aircraft. The commenter also states
> that in the event of an emergency, the location of the aircraft at the
> gate with the engines shut down would enable assistance from both the
> airport and tarmac area.
>
> An individual commenter supports a grant of exemption, provided the
> following limitations are met: First, one qualified flight attendant
> must be present per 50 passengers remaining on board. Second, a pilot
> should not substitute for a qualified flight attendant unless he/she
> is trained in passenger evacuation procedures and techniques to the
> same extent that a flight attendant is trained.
>
> An individual commenter supports the grant of exemption and states it
> would not decrease the level of safety practices by Southwest. The
> commenter states that numerous duties require a flight attendant to
> vacate the plane while the aircraft is in static mode at the gate. The
> commenter states that while these attendants are out of the cabin of
> the aircraft during deplanement, there would never be a time with less
> than one flight attendant onboard the aircraft as well as other
> Southwest employees, such as pilots of the aircraft and ground
> personnel, which are familiar with Boeing 737 emergency evacuation and
> exit procedures. The commenter states that, therefore, during
> deplanement and turnaround time while the aircraft is in static mode,
> there would never be a lower level of safety due to these other
> personnel onboard the aircraft.
>
> The commenter states that all Southwest pilots hold a Boeing 737 type
> certificate, which requires them to be familiar with that aircraft's
> emergency evacuation procedures. The commenter states that the
> "substitution" of a pilot for a flight attendant would not impede the
> pilot's duties regarding preflight operations. The grant of exemption
> would allow Southwest to continue to offer its quick turnaround
> service without decreasing an exemplary safety standard. The commenter
> states that flight attendants are often running late and rushing from
> flight to flight. The commenter states that requiring Southwest to
> wait for all three flight attendants to be onboard at intermediate
> stops for passenger enplanement would frequently delay the aircraft's
> departure time. The commenter states that allowing a pilot to fill in
> for the forward flight attendant would greatly increase turn-around
> time and airline efficiency.
>
> The Southwest Airlines Pilots' Association (SWAPA) supports a grant of
> exemption. It states that Southwest has safely used the procedures for
> which it now seeks a limited exemption at intermediate stops for 35
> years; during which time, there has never been a passenger injury
> attributable to a reduced complement of flight attendants. SWAPA
> agrees with the petitioner that emergency evacuation while aircraft
> are parked at a gate are extremely rare due to an absence of
> safety-related issues during intermediate stops when the engines are
> turned off and a floor-level exit is open.
>
> SWAPA states that having a flight attendant off the aircraft prior to
> the last passenger deplaning does not diminish safety, because
> passengers are already in the process of exiting, at least one flight
> attendant is in the rear of the cabin to provide instructions and
> pilots, and operations agents and provisioning agents are in the
> cockpit or exit door vicinity to provide any necessary assistance and
> directions. SWAPA also states that allowing a pilot to substitute for
> the forward cabin flight attendant during passengers' boarding will
> not compromise safety and requires no additional crewmember training,
> as all Southwest pilots receive extensive training in aircraft systems
> and emergency equipment, as well as familiarization with cabin
> evacuation procedures and commands. SWAPA states that pilots are no
> less capable of conveying evacuation commands than are flight
> attendants and will be at least as effective in commanding passenger
> attention during a cabin evacuation since most passengers view a pilot
> in uniform as the ultimate operations authority figure onboard the
> aircraft.
>
> Finally, SWAPA states that reducing the number of flight attendants
> onboard would not detract from a pilot's ability to provide full-time
> attention to the safe operation of the aircraft, since pilot
> substitution would occur only during ground stops and only when all of
> the pilot's postflight/preflight duties are complete. In the event
> both pilots are needed to complete additional pre or postflight
> responsibilities, passenger enplanement would not begin until all
> three flight attendants are in their assigned boarding positions.
> Additionally, Southwest's operating procedures assign the bulk of the
> preflight cockpit duties to the first officer; therefore, it is
> already a common practice for the captain to position himself/herself
> at the forward entry door to greet customers, regardless of whether
> the forward flight attendant is also present. SWAPA states, therefore,
> allowing a pilot to substitute for a flight attendant during the
> boarding process has no adverse impact on passenger oversight or
> aircraft safety. SWAPA states that a denial of exemption will result
> in increased ground time for flight attendants to complete their
> off-aircraft duties prior to boarding, which would lead to widespread
> flight delays throughout Southwest\'s system or require increased
> scheduled ground times, resulting in higher costs and, ultimately,
> higher fares.
>
> The Transport Workers Union of America, AFL-CIO (TWU), supports a
> grant of exemption. The TWU states that Southwest flight attendants
> have historically followed safety procedures that allow for the care
> of passengers remaining on board flights at an intermediate stop. The
> TWU states that the current regulation allows flight attendants to
> carry out other off-airplane duties such as taking care of special
> needs customers and making sure that operation issues are reliably
> satisfied, as well as allowing the flight attendants to attend to
> their own needs, such as required lavatory visits or obtaining food.
> The TWU states that Southwest's experience has been that the subject
> procedures do not leave passengers fending for themselves in
> emergencies, rather Southwest flight attendants have been diligent
> with their duties and have stepped off the aircraft with just cause
> while ensuring that their duties are fully and safely performed by
> other members of the flightcrew. The TWU also states that allowing a
> flight attendant the opportunity to step off the aircraft gives the
> flight attendant the ability to observe passengers prior to boarding
> and to avert on board problems.
>
> The TWU comments that the first officer does the bulk of the preflight
> work in the Southwest system, and therefore, pilots would not be
> foregoing their preflight duties. The TWU adds that the unique culture
> at Southwest Airlines allows for flight attendants to work closely
> with pilots thus enhancing crew resource management. The TWU agrees
> with other commenters that a pilot or another trained flight
> crewmember is best qualified to stand in the place of a flight
> attendant.
>
> The TWU states that the grant of exemption is in the public interest
> due to the nature and economics of providing safe, quality service to
> the public at an affordable price. The TWU states that Southwest, as a
> low cost carrier, has given many the opportunities to fly from point
> to point, therefore benefiting the public and the airline industry as
> a whole, which has grown and continues to be sustained because of the
> free market that allows competitiveness.
>
> The Association of Flight Attendants-CWA, AFL-CIO (AFA), opposes a
> grant of exemption and urges the FAA to deny it in full. AFA states
> that a grant of exemption is not in the public interest and that it
> would reduce the safety standard on which the public relies to help
> ensure safe deplaning and boarding in the presence of flight attendant
> crew. AFA states that when new passengers are boarded, they have not
> received a safety briefing and it is critical that the minimum flight
> attendant crew per §121.391(a) be on board. AFA expresses concerns
> about onboard fire caused by overheating of lithium and lithium-ion
> batteries. AFA also states concern about security, stating that
> leaving one flight attendant to deplane upwards of 130 passengers at
> an intermediate stop is contrary to FAA and Transportation Security
> Administration guidance that flight attendants should be alert to
> unusual or suspicious behavior by assessing each passenger's behavior
> and use effective teamwork in doing this and responding properly.
>
> The Air Line Pilots Association, International (ALPA) opposes a grant
> of exemption. ALPA states that the petitioner has not provided
> specific information on emergency evacuations at the gate in the
> subject configuration, nor cases to demonstrate the efficacy of its
> proposed procedures. ALPA states that the petitioner has not made
> specific claims regarding the impact of the requested procedures on
> the normal activities and duties of the flight crewmember that might
> be tasked with additional emergency evacuation duties, which may
> detract from the pilot's ability to provide full time and attention to
> the safe operation of the aircraft. ALPA states that operational
> demands on the flightcrew during preparation for a flight provide them
> with less opportunity to observe unusual events that would be more
> quickly recognized by a flight attendant. ALPA states that a grant of
> exemption would result in the reduced capacity for the observation and
> monitoring of passengers for unsafe or aberrant behavior or other
> abnormal occurrences or conditions which could pose a risk to the safe
> and secure operation of an aircraft.
>
> ALPA states that the petition does not address the impact of the
> requested procedures on flight crewmember training, nor does the
> petition provide recommendations for specific procedures designed to
> ensure that pilots are well prepared to perform the required
> evacuation duties as are flight attendants.
>
> The International Brotherhood of Teamsters (IBT) Airline Division
> opposes a grant of petition. The IBT states the FAA interpretation
> that all required flight attendants must be on board for boarding and
> deplaning, including at intermediate stops, is consistent with safety
> and security and should not be weakened by granting an exemption to
> this petitioner or others. The IBT states that the need to have all
> required flight attendants onboard for all boarding, deplaning, and
> intermediate stops is greater given the security threat post September
> 11 and that a reduced number of flight attendants cannot be expected
> to adequately attend to safety and security duties during the disorder
> of boarding and deplaning. IBT also states that it is illogical to
> expect a flight crewmember to fill in for a flight attendant, as
> he/she has critical pre-flight duties of his/her own to attend to and
> can ill afford to be distracted by assuming the responsibilities of
> cabin crew.
>
> The Association of Professional Flight Attendants (APFA) opposes a
> grant of exemption. APFA states that the petitioner did not
> substantiate its statement that Southwest's procedures provide an
> equivalent level of safety. APFA states that the petitioner did not
> provide information on current company policies, procedures, and
> practices in place which would ensure situations occurring during a
> stop can be resolved by customer service agents or other
> company/airport/ground personnel without the need for a flight
> attendant to exit the aircraft leaving less than minimum crew on board
> to handle any safety, security, and medical situation that may arise.
> APFA also states that the petitioner did not address other events that
> occur more frequently during the boarding and deplaning process, such
> as medical emergencies. The commenter adds that under Southwest's
> current procedures, the carrier has occasionally departed the gate
> with less than minimum required flight attendant crew. APFA states the
> use of pilots to replace flight attendants does not equate to the same
> level of safety or confidence that is needed during emergency
> situations, as pilots only have familiarization with cabin evacuation
> procedures and commands instead of "hands-on" annual recurrent
> training that allows for proficiency and solely qualifies flight
> attendants as opposed to pilots or ground personnel.

**The FAA\'s analysis is as follows:**

> The FAA has considered fully the petitioner's supporting information
> as well as the comments submitted in response to the announcement in
> the [Federal Register]{.underline} supporting and opposing the
> petition on behalf of Southwest. The FAA finds that the proposed
> exemption would provide a level of safety equivalent to that provided
> by the regulations. The FAA also finds that the proposed exemption
> would be in the public interest.
>
> In evaluating whether a grant of exemption to the petitioner would
> provide a level of safety equivalent to that of the affected sections,
> the FAA considered first the scope of the petitioner's request. The
> petitioner specifically requests relief from § 121.393(b)(2) to allow
> the substitution of a pilot for one required flight attendant during
> boarding at an intermediate stop only.
>
> Additionally, the petitioner is requesting relief from § 121.391(a)
> during deplaning at an intermediate stop only to allow the number of
> required flight attendants to be reduced to the number required by
> existing § 121.393(b)(1)(iii).
>
> The FAA has previously considered the safety concerns associated with
> reducing minimum flight attendant crew during intermediate stops and
> determined that the unique conditions existing during intermediate
> stops allow a reduction in minimum flight attendant crew from that
> required by § 121.391(a) \[47 Federal Register 56460,
>
> December 16, 1982\]. These conditions include: the airplane is
> stationary in a level attitude with at least one floor-level exit
> open; all engines are shut down, thus mitigating the risk of an
> emergency arising from engine torching or overheating; and additional
> personnel are nearby to assist in the event of an emergency. These
> conditions are the same during boarding and deplaning at an
> intermediate stop. Therefore, it is also appropriate to reduce minimum
> required flight attendant crew from that required by
>
> § 121.391(a) and to allow the substitution of other personnel trained
> in emergency evacuation.
>
> The AFA and IBT Airline Division both state that a grant of exemption
> allowing a substitution of a pilot for a flight attendant crew during
> boarding at an intermediate stop reduces the level of safety
> maintained under the current regulations. The AFA specifically
> expresses concern about the threat of fire from lithium and
> lithium-ion batteries found in laptop computers. The FAA has
> considered this specific concern and does not concur. Both pilots and
> flight attendants receive emergency training in accordance with §
> 121.417.
>
> Section 121.417 requires training in the location, function, and
> operation of portable fire extinguishers, with emphasis on the type of
> extinguisher to be used on different classes of fires; training in
> emergency situations to include fire on the surface; one-time drill
> training to combat an actual fire with at least one type of installed
> hand fire extinguisher or approved fire extinguisher appropriate for
> the type of actual fire; and recurrent drill training on each type of
> installed hand fire extinguisher. Pilots and flight attendants,
> therefore, are equally trained and qualified to combat a fire during
> the boarding process that might be caused by a lithium or lithium-ion
> battery.
>
> The FAA does recognize, however, that flight attendants perform many
> regulatory safety functions during the boarding process. Examples of
> these functions include monitoring the passenger cabin during
> refueling operations, scanning passenger carry-on baggage to ensure
> compliance with both § 121.585 and the air carrier's operating
> specifications, and verifying compliance with the approved exit seat
> program. When a pilot is substituting for a flight attendant during
> boarding at intermediate stops, alternate procedures for these other
> safety functions must be developed and implemented by the air carrier
> in order to maintain a level of safety equivalent to that of a
> complete flight attendant minimum crew. The development of the
> alternate procedures may require both revision to other approved
> programs, such as the carry-on baggage program or the exit seat
> program, and additional training provided to the crewmember or
> crewmembers assigned these additional duties.
>
> ALPA commented on the lack of procedures presented in the petitioner's
> request to ensure that a pilot is prepared to perform required
> evacuation procedures in the event he/she is substituting for a flight
> attendant during boarding at an intermediate stop. Section 121.397,
> Emergency and emergency evacuation duties, requires each certificate
> holder to develop functions to be performed in an emergency or
> situation requiring emergency evacuation for each category of required
> crewmember, as appropriate, for each type and model of airplane.
> Additionally, § 121.397 requires that the functions be realistic and
> that they can be practically accomplished. The certificate holder must
> also describe the functions in its manual system. Therefore, in order
> to use the relief provided in this exemption the certificate holder
> would have to review its manuals to ensure that realistic procedures,
> that can be practically accomplished, have been included for a pilot
> to conduct an evacuation while substituting for a flight attendant
> during boarding at an intermediate stop.
>
> The FAA received comments from an individual, ALPA, APFA expressing
> concern about the training received by a pilot to perform an emergency
> evacuation with the same effectiveness as a flight attendant in the
> event that the pilot were substituting for a flight attendant during
> boarding at an intermediate stop. In considering these comments, the
> FAA reviewed the requirements of § 121.417, Crewmember emergency
> training, which requires each training program to provide emergency
> training with respect to each required crewmember, as appropriate*,*
> for each crewmember and the certificate holder (emphasis added).
> Section 121.417 requires training in emergency assignments; individual
> instruction in the location, function, and operation of emergency
> exits in the emergency modes with the evacuation slide/raft pack
> attached; instruction in the handling of emergency situations,
> including evacuation; and emergency drill training in each type of
> emergency exit in the emergency mode, including the actions and forces
> required in the deployment of the emergency evacuation slides.
>
> In the event a certificate holder intends to apply the relief granted
> in this exemption and substitute a pilot for a required flight
> attendant during boarding at an intermediate stop, the certificate
> holder must ensure that each pilot has been trained appropriately in
> accordance with § 121.417. Appropriate training may require additional
> emergency training in procedures developed by the certificate holder
> to comply with § 121.397(a), such as the necessary functions to be
> performed in an emergency or a situation requiring emergency
> evacuation.
>
> AFA specifically commented that passengers boarding during an
> intermediate stop have not received the passenger safety briefing
> required by § 121.571; therefore, the minimum required flight
> attendant crew should be present during boarding. None of the
> passengers boarding at an intermediate stop have received the
> passenger safety briefing. This is regardless if the entire required
> flight attendant crew is present or if a pilot is substituting for one
> of the required flight attendant crew. As discussed above, in order to
> substitute a pilot for a flight attendant during boarding at an
> intermediate stop, a certificate holder would have developed emergency
> evacuation duties for the substituting pilot in accordance with §
> 121.397 and trained the pilot per § 121.417. The FAA finds that the
> substituting pilot would be similarly qualified as a flight attendant
> to evacuate a passenger who had not received the passenger safety
> briefing.
>
> During the deplaning phase at an intermediate stop, each passenger has
> already received all required safety information and has had an
> opportunity to review the passenger safety information card and all
> posted signs and placards. In addition, the suitability of all exit
> seat passengers has been verified by a crewmember, and the exit seat
> passengers have had an opportunity to ask questions about their exit
> seat responsibilities. Additionally, during deplaning, passengers are
> in the process of leaving the airplane in an orderly fashion through
> one or more floor level exits with pre-positioned gateways or stairs.
> These factors also ensure that the deplaning phase of a flight takes
> much less time than the boarding phase, which lessens the exposure
> time and risk of an emergency which might require an evacuation.
> Therefore, the FAA finds that the relief requested provides an
> appropriate level of safety.
>
> Several commenters, including ALPA and the IBT Airline Division,
> expressed concerns about the impact of additional emergency evacuation
> duties on a pilot substituting for a flight attendant at an
> intermediate stop and how the additional duties might detract from a
> pilot's ability to attend to the safe operation of the airplane or
> similarly how a pilot's pre-flight duties might interfere with his/her
> ability to adequately monitor the boarding of passengers at an
> intermediate stop. The FAA understands these concerns and agrees that
> pilot substitution for a flight attendant during boarding at an
> intermediate stop must not interfere with the safe operation of the
> airplane. In some instances, however, it might still be possible for a
> pilot to substitute for a flight attendant during the boarding process
> at an intermediate stop, such as when all pilot preflight duties have
> already been completed or if the pilot preflight duties at the
> intermediate stop are assigned to only one pilot.
>
> When both pilots are required to perform preflight duties, passenger
> boarding at an intermediate stop should not proceed until all flight
> attendant crewmembers required by
>
> § 121.391(a) are onboard the airplane. It is also not appropriate for
> a pilot to substitute for a flight attendant from his/her seat on the
> flight deck, as the relative isolation of the pilot would not provide
> the same level of safety as a crewmember positioned in the passenger
> cabin. A pilot seated on the flight deck would not be in a position to
> provide his/her full attention to passenger boarding in the passenger
> cabin.
>
> The AFA, ALPA, and the IBT Airline Division expressed concerns
> relating to security during deplaning with a reduced flight attendant
> crew at an intermediate stop or with a pilot substituting for a flight
> attendant during boarding at an intermediate stop. The FAA has
> considered these concerns and has determined that the petitioner's
> proposal would provide an equivalent level of safety to that provided
> by the current regulations. Current regulations require all
> crewmembers to receive crewmember security training. Additionally,
> during deplaning, exiting passengers, as well as additional airline
> personnel, are available to assist the remaining flight attendant(s)
> with unruly or threatening passengers. When boarding at an
> intermediate stop, with a pilot substituting for one of the required
> flight attendants, positioning the pilot in the passenger cabin allows
> the pilot to both observe the behavior of each boarding passenger and
> to access the interphone in the event that the flight attendants in
> the aft of the airplane are faced with a security concern.
>
> In addition to providing an equivalent level of safety, the FAA finds
> that a grant of this exemption is in the public interest. In some
> instances of boarding and deplaning at intermediate stops, a flight
> attendant may be called upon to assist passengers outside of the
> passenger cabin with safety functions such as: assisting a
> non-ambulatory passenger into or out of a wheelchair; providing
> medical assistance to a passenger; requesting support from airport law
> enforcement; or maintaining the chain of custody of an unaccompanied
> minor. A grant of this exemption allows a certificate holder to permit
> a flight attendant to leave the passenger cabin to provide additional
> safety functions for the traveling public during boarding and
> deplaning at intermediate stops. This is in the public interest.

# The FAA's Decision

In consideration of the foregoing, I find that a grant of exemption is
in the public interest. Therefore, pursuant to the authority contained
in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator,
Southwest Airlines is granted an exemption from 14 CFR §§ 121.391(a) and
121.393(b) to allow Southwest to substitute a pilot for one required
flight attendant crewmember during boarding at an intermediate stop and
to reduce the number of required flight attendants onboard during the
deplaning of passengers at an intermediate stop, subject to the
following conditions and limitations:

# Conditions and Limitations

1.  Southwest, before conducting any operation under this exemption,
    must obtain amended operations specifications authorizing it to
    exercise the privileges of this exemption.

2.  Southwest, before conducting any operation under this exemption,
    must submit to and have approved by its POI that Southwest has:

    a.  Developed approved procedures;

    b.  Satisfactorily conducted approved crewmember training in
        procedures specified in this exemption below; and

    c.  Revised all affected Southwest manuals to include those
        procedures.

3.  In order to satisfy the requirements set forth in Condition No. 2,
    Southwest must include:

    a.  Approved procedures regarding the substitution of a pilot for
        one flight attendant during boarding at an intermediate stop.
        The procedures must include at least the following:

        i.  An explicit requirement that the airplane engines must be
            shut down and at least one floor-level exit must remain open
            for the deplaning of passengers.

        ii. Functions to be performed by the pilot and remaining flight
            attendants in an emergency or situation requiring emergency
            evacuation.

        iii. Procedures to ensure that the substitution of a pilot for a
             flight attendant during boarding at an intermediate stop
             does not interfere with the safe operation of the flight.
             When both pilots are required to perform preflight duties,
             passenger boarding at the intermediate stop must not
             commence until the flight attendant crew required by 14 CFR
             § 121.391(a) is onboard the airplane. When substituting for
             a flight attendant during boarding at an intermediate stop,
             the pilot must be located in the passenger cabin.

        iv. Procedures to ensure that other regulatory safety functions
            performed by the flight attendants, including but not
            limited to monitoring passengers during refueling, scanning
            passenger carry-on baggage during boarding, and verifying
            suitability of exit seat passengers, are being accomplished
            by the crewmembers remaining on the airplane.

    b.  Approved procedures regarding the reduction of required flight
        attendant crew during deplaning at intermediate stops. The
        procedures must include at least the following:

        i.  An explicit requirement that the airplane engines must be
            shut down and at least one floor-level exit must remain open
            for the deplaning of passengers.

        ii. An explicit requirement as follows: If more than one flight
            attendant is on board the airplane during deplaning at an
            intermediate stop, the flight attendants shall be spaced
            throughout the passenger cabin to provide the most effective
            assistance to passengers in case of an emergency requiring
            an evacuation. If only one flight attendant is on board
            during deplaning at an intermediate stop, that flight
            attendant shall be located in the forward passenger cabin.

        iii. Functions to be performed by the remaining flight
             attendants in an emergency or situation requiring emergency
             evacuation.

This exemption terminates on July 31, 2009, unless sooner superseded or
rescinded.

Issued in Washington, DC, on July 5, 2007.

Sincerely,

/s/

John M. Allen

Acting Director, Flight Standards

Service