Exemption No. 10254 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 20591 

 

In the matter of the petition of 

 

CONTINENTAL AIRLINES Regulatory Docket No. FAA-2011-0166 

 

for an exemption from 

§ 121.163(a), (b), and (c) 

of Title 14, Code of 

Federal Regulations 

 

DENIAL OF EXEMPTION 

 By letter dated February 16, 2011, Captain Don Gunther, Staff VP Safety, Continental 

Airlines (Continental), P.O. Box 4607 HQSSY, Houston, Texas 77210-4607, petitioned the 

Federal Aviation Administration (FAA) on behalf of Continental for an exemption from 

§ 121.163(a), (b), and (c) of Title 14, Code of Federal Regulations (14 CFR). The proposed 

exemption, if granted, would allow Continental to combine its operating certificate with 

United Air Lines’ (United) operating certificate without completing aircraft proving tests as 

prescribed by § 121.163. 

The petitioner requests relief from the following regulation: 

Section 121.163 Aircraft proving tests.

(a) Initial airplane proving tests. No person may operate an airplane not before proven for use 

in a kind of operation under this part or part 135 of this chapter unless an airplane of that type 

has had, in addition to the airplane certification tests, at least 100 hours of proving tests 

acceptable to the Administrator, including a representative number of flights into en route 

airports. The requirement for at least 100 hours of proving tests may be reduced by the 

Administrator if the Administrator determines that a satisfactory level of proficiency has been 

demonstrated to justify the reduction. At least 10 hours of proving flights must be flown at 

night; these tests are irreducible. 

AFS-11-187-E 
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(b) Proving tests for kinds of operations. Unless otherwise authorized by the Administrator, 

for each type of airplane, a certificate holder must conduct at least 50 hours of proving tests 

acceptable to the Administrator for each kind of operation it intends to conduct, including a 

representative number of flights into en route airports. 

(c) Proving tests for materially altered airplanes. Unless otherwise authorized by the 

Administrator, for each type of airplane that is materially altered in design, a certificate holder 

must conduct at least 50 hours of proving tests acceptable to the Administrator for each kind 

of operation it intends to conduct with that airplane, including a representative number of 

flights into en route airports. 

 The petitioner supports its request with the following information:

The petitioner states that the Department of Transportation (DOT) has approved the 

purchase of Continental by United, and the sale has been completed. United and 

Continental have provided a transition plan which was accepted by the FAA and for 

which Operations Specification A502 has been issued. 

The petitioner requests exemption approval to ensure a smooth transition to a single 

operating certificate (SOC). The petitioner notes that while the current plan is for the 

final operating certificate to be the current Continental air carrier certificate, the 

discussion provided in the petitioner’s request is applicable regardless of which 

certificate were to be the merged carrier’s certificate. 

The petitioner contends that precedents exist for the America West and US Airways, 

TWA and American Airlines, as well as the Northwest and Delta Air Lines mergers. 

The petitioner stated the extent of relief sought is a one-time exemption approval from 

proving test requirements for all aircraft types which are not presently included on the 

final air carrier certificate. The petitioner provided a list of the affected aircraft types 

and approximate year of entry into service in a table attached to the petition. 

The petitioner states that both carriers have extensive operating experience with these 

aircraft and that all city pairs which might be considered for proving runs are currently 

being operated in revenue service. The carrier’s flight deck and cabin crews will 

operate these aircraft types in accordance with the FAA-approved procedures in place 

at SOC issuance. Additionally, no crewmember movement between legacy carriers 

will occur until post-SOC and merging of all training programs has been completed for 

the affected crewmembers. 

The petitioner argues that expediting the transition to an SOC provides a reduced 

period of time maintaining two “parallel” certificates, including part 119 positions and 

separate individual carrier accountability and oversight by the FAA. Additionally, 

movement to an SOC allows a single operational control system to be in place. The 

petitioner contends this is essential to ensure the highest level of safety as the carrier 

moves forward to complete the remaining merger-related items. The petitioner also 

contends that the SOC provides increased operational flexibility with respect to the use 
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of aircraft and serviced markets. This enables the adjustment of service to better ensure 

appropriate service levels to the public in all cities served. 

The petitioner states that failure to obtain this exemption would result in extensive 

disruption to the carrier’s operations as aircraft and crews are pulled from current line 

operations to support proving run activities, thereby imposing a potential negative 

impact on the traveling public. Additionally, disruption to ramp operations may occur 

as additional proving flights must be accommodated as though they were revenue 

flights. The petitioner contends this may result in disruption to revenue flights, with a 

negative impact on the traveling public. Finally, the petitioner argues that significant 

additional workload for the FAA would be required to supervise and conduct such 

proving tests. 

The petitioner states that based upon each legacy carrier’s extensive experience in 

operating these aircraft types and the high level of crew expertise, such an exercise 

would not have any increase in the level of safety of the merged carrier’s operation. 

 The FAA has determined that good cause exists for waiving the requirement for Federal 

Register publication because any delay in acting on this petition would be detrimental to 

Continental. 

The FAA’s analysis is as follows: 

To grant an exemption, the FAA must find that such an exemption from the specific 

section would not adversely affect safety and be in the public interest. The petitioner’s 

unique interest is not the same as public interest. Additionally, the petitioner should 

give particular attention to the reasons why granting the request will be in the public 

interest and how actions by the petitioner will provide an equivalent level of safety. 

The FAA has considered the petitioner’s request for relief from § 121.163(a), (b), and 

(c) and finds that the petitioner has not shown how an equivalent level of safety would 

be provided if proving runs were not conducted. 

The FAA is unable to verify the petitioner’s statement regarding grants of exemption to 

the other carriers stated above in those merger situations and can find no evidence that 

any similar exemptions were granted to these carriers in past mergers. 

The petitioner asserts that both carriers (Continental and United) have extensive 

operating experience on the city pair routes that would be considered for the proving 

flights and are already being operated in revenue service. The FAA believes that the 

fact that two separate carriers have operated similar equipment on similar or identical 

routes is not material. 

The petitioner asserts that cockpit and cabin crews will operate the aircraft in 

accordance with currently approved FAA procedures in place at the time of SOC 
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issuance. The FAA believes this to be an obvious assertion, as crews are required to 

operate with currently approved policies and procedures. 

The petitioner states that no crewmember movement between carriers will occur until 

after the SOC is issued, all training programs have been completed, and training 

provided to all affected crewmembers. The petitioner, however, has not included any 

description or detailed plan for how these training programs and revised procedures 

will be implemented in its petition. 

The petitioner states that implementation of a single operational control system would 

ensure the highest level of safety. The FAA does not see the relationship between 

establishment of a single operational control system and reduction in proving flight 

requirements. Proving flights are designed to test, among other things, the single 

operational control system. To exempt the petitioner from proving flights without 

validating the single operational control system would allow the single operational 

control system to go untested prior to revenue flights. 

The petitioner asserts that failure to obtain this exemption would have a negative 

impact on the traveling public. Aircraft and crews would be unavailable for revenue 

operations because these assets were being utilized in proving runs. The unavailability 

of aircraft and crews could negatively impact the flight schedule and, therefore, the 

traveling public. The FAA contends that this situation amounts to a company staffing 

and scheduling issue. The fact that the petitioner does not have the needed number of 

aircraft, crews, or ramp space to perform the proving flights is not a valid argument for 

issuance of an exemption. 

Finally, the FAA agrees that this merger is being performed under Operations 

Specification A502. Section one of the Operations Specification states, “Inherent in 

the implementation of the United-Continental Bridging Manual and Transition Plan is 

the air carriers’ responsibility to ensure regulatory compliance and provide the public 

with the highest possible level of safety in air transportation.” Reducing the proving 

flights without any approved plan does not provide the public with the highest possible 

level of safety in air transportation and is, therefore, not in the public interest. 
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The FAA’s Decision: 

 In consideration of the foregoing, I find that a grant of exemption would not be in the 

public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 

and 44701, delegated to me by the Administrator, the petition of Continental Airlines for an 

exemption from 14 CFR § 121.163(a), (b), and (c) is hereby denied. 

Issued in Washington, D.C., on May 2, 2011. 

/s/ . 

John W. McGraw 

Acting Director, Flight Standards 

 Service