AFS

- 14

- 175

- E Exemption No. 11021

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION
WASHINGTON, DC 20591

In the matter of the petition of

T

ATONDUK O UTFITTERS , L TD

., Regulatory Docket No. FAA

- 2014

- 0 10 7

d/

b/a EVERTS A IR CARGO

for an exemption from § 121.436
of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated February 10, 2014 and received February 21 , 2014

, Mr. Zachary M. Adams

, Director of Operations for Tato nduk Outfitters, Ltd., d oing business as (d / b /a) Everts Air Cargo

, 5525 Airport Industrial Road , Fairbanks, AK 99709

, petitioned the Federal Aviation Administration (FAA) on behalf of Tatonduk Outfitters, Ltd., d / b /a Everts Air Cargo for an exemption from § 121.436 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Everts Air Cargo second

- in

- command (SIC) pilots to operate without an aircraft type rating required by § 121.436 (b)

. The FAA is also construing

the petition for exemption as a request to be eligible to use its approved 14 CFR part 121 SIC training program for the issuance of a SIC pilot type rating under § 61.55(e).

T he petitioner s request relief from the following regulation s :

Section 121.436 (b) p rescribes that n o certificate holder may use nor may any pilot act as SIC unless the pilot holds an airline transport pilot (ATP) certificate and an appropriate aircraft type rating for the aircraft being flown. It also states that a SIC type rating obtain ed under
§ 61.55 does not satisfy the requirements of this section. Paragraph (d) prescribes, in pertinent part, that c ompliance is required by August 1, 2013. However, for those pi lots who are employed as SIC in part 121 operations on July 31, 2013, comp liance with the type rating requirement in paragraph (b ) is not required until January 1, 2016.

Section 61.55(e) states that a person may receive a SIC pilot type rating for the type of aircraft after satisfactorily c ompleting an approved SIC training pr ogram, proficiency check, or2

competency check under subpart K of part 91, part 125, or part 135, as appropriate, in the respective aircraft type provided the training was completed within the 12 calendar months before the month of application for the SIC p ilot type rating.

The petitioner support s its request with the following information:

The petitioner is the holder of air carrier certificate FXGA030A and states it is an experienced operator of the DC

- 6 and C

- 46 airplanes . T he on

- airplane flight traini ng it conducts for these

aircraft types has provided a history of safe operations. The new requirements conta ined
under § 121.4 3 6 require Everts Air Cargo to train its new SICs to the certification standards previously reserved for the pilot in command (PI C)

. T he petitioner states in its request for an exemption that “ training and testing of airmen new to this airplane to meet the requirements

of the [PIC] type rating, when they will first serve as [SIC] until they are sufficiently experienced to receive tr aining and testing for the [PIC] type rating, will compromise safety. ”

T

he petitioner also believes that a lower performance standard will be accepted industry

- wide

in order to certificate the required number of pilots whose experience and skill levels are not

consistent with those traditionally associated with a PIC and aircraft type rating

.

Everts Air Cargo state s it has demonstrated after nearly two decades that the standard to

which the SIC was previously trained has resulted in a safe operation . The o perator adds it has had no events which may be attributed to insufficient flight training and qualification of its pilots

.

The petitioner offers that the Pilot Certification and Qualification Requirements for Air
Carrier Operations final rule (78 FR 4232 4) disregarded the industry segment for which flight simulator training is not available. In doing so, in order to meet the requirements of
§ 121.436

, safety will be compromised in training and the expense of training less experienced airmen to the level r equired for a n aircraft type rating will be unsustainable for

these carriers.

The petitioner seeks relief for the qualification of its SICs in its cargo only operations , which

occur entirely within the State of Alaska . Specifically

, Everts Air Cargo sugge sts the following to meet the enhanced level of safety intended by § 121.436 :

1. All SICs shall be trained in accordance with the Everts Air Cargo approved Flight Operations Training Manual.

2. All required training will be conducted by qualified instructors u sing the DC

- 6 or C

- 46

aircraft as appropri ate to the qualification sought (Appendix E to Part 121)

.

3. All required qualification modules will be conducted by qualified check airmen using the

DC

- 6 or C

- 46 airplane as appropri ate to the qualification sought (A ppendix F to Part 121).

4. A ll SICs will hold a n SIC pilot type rating issued in accordance with § 61.55( e ) instead of holding an aircraft type rating required by § 121.436(b)

.3

5. All operations will only be conducted within the State of Alaska.

The petitioner indicates this exemption is in the public interest .W ithout it, Everts Air Cargo would not be able to sustain operations in the DC

- 6 and C

- 46, which uniquely serve Alaska . It

would “ deprive numerous outlying communities and villages access to affordable

tr ansportation of essential commodities including subsistence and medical supplies. ”

A summary of the petition was published in the Federal Register on May 2, 2014

. The FAA

received seventeen comment s from Cannon Resources, LLC ; Chalkyitsik Village Council ; Copper River Seafoods ; David Doudna ; Delta Powersports ; Discovery Drilling ; Gwitchyaa Zhee Corporation ; Joe Freitag ; Lakloey, Inc. ; Nyac Mining Company ; Olgoonik Co r poration ; Pacific Alaska Freightways ; Sampson Steel Company ; Summit Consulting Services, Inc. ; Taiga Mining Company , Inc

. ; Taiga Ventures ; and Venette/Arctic Village Housing Organization

. All commenters are customers of Everts Air Cargo and provided a form letter

that was supportive of granting the exemption. A few of the commenters added a fe w personalized statements to the form letter indicating their primary concern was the increased

cost to their business.

The commenters state that the requirement for SICs to hold an aircraft type rating will not result in an increased level of safety. A l ower standard of safety will develop as an aftereffect, because the “more critical and technically demanding captain’s maneuvers” will now be required of the SIC. The commenters further state that there are no simulators for the DC

- 6

and C

- 46; therefore

, a ll training must be conducted in the airplane. Historically, training in aircraft rather than simulators has proven dangerous, particularly in training lesser experienced pilots in emergency and abnormal procedures and maneuvers. This element

represents an increased risk.

The commenters describe that “when this rule was promulgated by Congress, there was an assumption made that all airline training was accomplished in a simulator. ” The y estimate the cost of training a pilot in a flight simulator to be appr oximately $14,000. The commenter s

assert that the cost of training the same pilot for the type rating course in the airplane is nearly ten times that, and represents a cost that Everts Air Cargo will have to pass along to its

customer s

.

The commenters are concerned that th e increased cost to train Everts Air Cargo pilots will

drive the operator to either withdraw from several markets, leaving non

- certificated and/or fewer safe operators

, or increase the cost to them , making arctic operations impractical

. T he

commenters argue that Everts Air Cargo has proven to be the safest supply chain for business, industry

, and residential needs in the outlying areas of Alaska

, and training the pilots to the previous standard would represent continued service at the high est standard of safety.

The FAA’ s analysis is as follows:4

The FAA has considered fully the petitioner ’ s supporting information and the comment s to the petition posted to the docket. The FAA finds that the relief requested is not in the public

interest and would adversely affect safety

.

In August 2010, t he FAA was directed by Public Law 111

- 216 , § 216, to ensure flightcrew members in part 121 operations have the proper qualifications and experience . The public law was particularly focused on raising th e minimum qualifications of part 121 SIC ; s pecifically,

it requires all pilots in part 121 to have an ATP certificate. It also require d the Administrator to determine an appropriate amount of multiengine experience to serve in part 121 operations.

To add ress the multiengine experience requirement of the statute, the FAA proposed in its notice of proposed rulemaking (NPRM) to require a minimum of 50 hours of flight time in the airplane class sought as well as requiring all SICs in part 121 operations to ho ld an aircraft type rating for the airplane to be flown in revenue service

. In addition to addressing the statute, both the time in class and the aircraft type rating requirement were recommendations

of the First Officer Qualification Aviation Rulemaking C ommittee

, which provided its recommendations to the FAA in September 2010

. This rulemaking committee was focused on addressing the gap in knowledge and skill between a pilot that holds a commercial pilot certificate and a pilot that will serve in part 121 operations.

The FAA received more than 100 comments regarding the requirement for a SIC to hold an aircraft type rating for the airplane to be flown

, a majority of which were favorable. One key reason for the support was, by requiring SICs who fly domesti cally in the U.S. to hold an aircraft typ e rating for the airplane flown, the United States will be harmonized with the International Civil Aviation Organization standard. In considering the comments received, the FAA determined that retaining the proposed aircraft type rating would enhance safety. The final rule preamble states:

The historic division of responsibilities between the PIC and SIC have changed. In today’s air carrier environment, both the PIC and SIC share the role of pilot flying and pilot m onitoring. Therefore, the FAA has determined that requiring an SIC to train to the same level of aircraft handling proficiency as the PIC by obtaining an aircraft type rating is appropriate. The FAA assumes most pilots will obtain an aircraft type rating a t the air carrier as part of initial tra ining. The practical test for a SIC to obtain an aircraft type rating will include the same tasks and maneuvers as those required for a PIC receiving a type rating. Because this practical test would be

administered b y an FAA inspector or designee, the test would serve as an additional level of oversight of the SICs aircraft handling skills and abilities. ” (78 FR 42354)

The petitioner offers concerns regarding the differences between simulator an d aircraft training

. The FAA finds many benefits in utilizing simulation for training and promotes the ir

use . However, the prescribed maneuvers in part 121, appendix H, were designed to be accomplished in an airplane or a simulator. A s the petiti oner noted, not every aircraft

, typically due to vi ntage, has a co rresponding simulator. T he FAA has determined that aircraft5

training with a qualified instructor and check airman cadre can be both effective and sa fely

conducted.

The petitioner also notes that there are additional man euvers required to be trained and

checked beyond wha t was previously required for a SIC in order to issue an aircraft type rating. The FAA acknowledged this difference in the NPRM and the final rule estimating it to be an additional two hours of training. The additional items for checking would require minimal additional time and could be accomplished during the planned checking event that would occur following the training. Because the event would result in a new certificate or aircraft type rating, t he ev ent must be conducted by a FAA inspector or designee. The FAA determined raising the standard for the SIC will not only meet the requirements of the statute,

but the additional training and checking will result in a higher degree of safety.

The FAA’s Dec ision:

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 i n 49 U.S.C. §§ 106(f), 40113

, and
44701, delegated to me by the Administrator, the petition of T atonduk Outfitters, Ltd., d / b /a Everts Air Cargo for an exempt ion from 14 CFR 121.436 (b) and 61. 55(e) is hereby denied.

Issued in Washington, DC, on July 2, 2014.

/S/ John Barbagallo Acting Deputy Director, Flight Standards Service