AFS

- 14

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- E Exemption No. 13993

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

RAYMOND A. SALMON Regulatory Docket No. FAA

- 201 4

- 0658

for an exemption fr om § 121.436(a)(3) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By submissions to the public docket dated September 2 , 2014 and October 21

, 2014, Mr. Raymond A. Salmon

, 3319 F 5/8 Road, Clifton, Colorado 81520

, petitioned the Fed eral Aviation Administration (FAA) for an exemption from § 121.436(a)(3) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Mr. Salmon

to use experience gained as a pilot in command (PIC) under 14 CFR part 12 1 prior to July 31, 2013, to count toward the experience requirements of § 121.436(a)(3), even though he was not serving as a pilot in command in part 121 operations on July 31, 2013.

The p etitioner requests relief from the following regulation :

Section 121.436 (a)(3) states , in pertinent part, that n o certificate holder may use nor may any pilot act as pilot in command of an aircraft unless the pilot has 1,000 hours as second in

command in part 121 operations, pilot in command in operations under §91.1053 (a)(2)(i), pilot in command in operations under §135.243(a)(1), or any combination thereof. The section

adds that pilots who we re employed as a pilot in command in part 121 operations on July 31, 2013, are not required to comply with this requirement.2

Th e p etitioner supports its request with the following information:

Mr. Raymond A. Salmon seeks exemption from § 121.436(a)(3) to allow his time serving as PIC in part 121 operations prior to July 31, 2013, to count toward the 1,000 hours of air

carrier exp erience required by the regulation to serve as a PIC in part 121 today

. Mr. Salmon states that he is not able to take advantage of the exception built into the rule for those PICs in part 121 operations that were employed as a PIC on July 31, 2013 , because he was n o t employed as a part 121 PIC on that date

.

Mr. Salmon states that he has approximately 1,200 hours as PIC in part 121 passenger carrying operations

. This time was accrued prior to July 31, 2013. Mr. Salmon explains that, while he has approximat ely 130 hours of experience as second in command ( SIC ) in part 121 passenger carrying operations, he has no creditable time in operations under part 91

, subpart K, or part 135.

Mr. Salmon contends that his experience meets the intent of the regulation, which he believes is to ensure that PICs have a certain level of experience before serving in that capacity. The petitioner contends that p art 121 PIC experience should count toward the 1,000 hours of experience required by § 121.436 because a pilot wit h previous PIC experience in part 121 operations has been successful through the most rigorous training and checking program

among all the allowable experience types.

Mr. Salmon suggests that recency of experience may be considered important when

conside ring which pilo ts are qualified to serve as PIC in p art 121 operations, which could

have contributed to the FAA’s decision to restrict the exception to only those pilots serving as PIC on July 31, 2013. However, he notes that the FAA did not place time lim itations on other types of experience creditable towards satisfying the requirements of § 121.436. T he petitioner adds that some may argue it is necessary for a p art 121 PIC to have served as a n SIC before serving as PIC. However, h e highlights that a pilo t who has only served as a p art 135

PIC or part 91 , subpart K

, PIC and has accumulated 1,000 hours in that capacity

, is qualified

under § 121.436 to serve as a p art 121 PIC without serving any time as SIC.

Mr. Salmon also states that in the preamble to th e Pilot Certification and Qualification Requirements for Air Carrier Operations final rule (78 FR 42324), the FAA repeatedly stated that it was looking for flight time that was essentially similar to part 121 flight time; specifically operations that requi red an airline transport pilot (ATP) certificate in a multicrew environment in turbine powered aircraft. Mr. Salmon states that PIC time accrued in part 121 operations meets all of these requirements.

Mr. Salmon also notes that table 4 of the final rule ( 78 FR 42331) states “all time in 121 operations” is eligible to credit towards the 1,000 hour requirement. However, he notes that as the wording in the final rule is written and interpreteted, prior 121 PIC time is not creditable unless the PIC was serving as such on July 31, 2013. Mr. Salmon believes that the wording in3

§ 121.436(a)(3) unintentionally created a restriction on prior PIC time that was not intended based on discussion in the preamble.

Mr. Salmon believes that a grant of exemption would incre ase the overall level of safety

because it would make pilots with the most extensive training and demanding experience

available to serve as PIC in p art 121 operations. The petitioner asserts that this increased level of safety would benefit the public . Ad ditionally, Mr. Salmon contends that a grant of exemption is in the public interest because it would increase the number of highly trained and experienced pilots qualified to serve as PIC in p art 121 operations at a time when airlines are struggling to fin d pilots with the requisite experience.

A summary of th e petition was published in the Federa l Register on September 30

, 2014, ( 79 FR 58847 ). The FAA received n o comments.

The FAA ’s ana lysis is as follows :

The FAA has full y consider ed the petitioner’s supporting information and determined that a grant of exemption from § 121.436(a)(3) would provide a level of safety equivalent to the regulation and is in the public interest

.

T he Airli ne Safety and Federal Aviation Administration Extension Act of 2010 ( Pub. L. 111

- 216, “the Act”)

, directed the FAA to conduct rulemaking to improve the qualifications and training for pilots serving in air carrier operations. In support of the Act, the

FAA published the Pilot Certification and Qualification Requirements for Air Carrier Operations F inal R ule on July 15, 2013 (78 FR 42324 )

. The rule created new certification and qualification requirements for pilots in air carrier operations, including the pr ovision that

p ilots serving as PIC in part 121 operations must have, in addition to an ATP certificate and an aircraft type rating , at least 1, 000 hours of air carrier experience

.

The air carrier experience required to serve as PIC in part 121 is specifi ed in § 121.436(a)(3)

as a combination of time serving as PIC in o perations conducted under § 91. 1053(a)(2)(i) or § 135.243(a)(1)

, or as an SIC in part 121 operations. However, this requirement does not apply to those pilots employed as a PIC in part 121 o perations on July 31, 2013

. On March 7, 2014, the FAA issued a legal interpretation, which clarified that experience as a PIC in part 121 operations gained prior to July 31, 2013

, can not be used to satisfy the § 121.436(a)(3) air carrier experience require ment for pilots not serving as PIC on that date. 1

Additionally, the introductory paragraph in § 121.436(a) prohibits a pilot from serving as PIC

in an aircraft in part 121 operations and also prohibits a certificate holder from using a pilot as PIC in pa rt 121 operations unless the pilot meets all of the requirements in paragraphs (a)(l) through (a)(3). Accordingly, both pilots and certificate holders are responsible for compliance with § 121.436(a).

1 FAA Legal Inter pretation

, Zachary Kelley, 20144

In the preamble to the final rule, t he FAA provided th e following rationale for the types of experience that may qualify a pilot to serve as PIC :

The FAA has determined that the ability to fly at the ATP certificate level and have demonstrated this proficiency during evaluation is an important regulatory dif ferentiation. The FAA first proposed that certain operations under part 135 should require an ATP certificate in 1977. In that NPRM, the FAA stated the requirement to hold an ATP certificate to act as PIC in some part 135 operations was ‘‘[. . . ] based in part on operational complexity and the number of persons carried, would provide a level of safety more comparable to that provided by p art 121.’’ For these same reasons the FAA has determined that flight time acquired as a PIC in operations under § 91.105 3(a)(2)(i),and § 135.243(a)(1) and flight time acquired as an SIC in part 121 operations should count towards the 1,000 hour air carrier experience requirement. Operations under § 91.1053(a)(2)(i) or § 135.243(a) (1) require an ATP certificate, are multicre w operations, and generally use turbine aircraft and therefore are the most applicable to part 121 operations. (78 FR 42356)

A PIC in part 121 air carrier operations is expected to possess leadership and command abilities, including aeronautical decision making and the sound judgment necessary to exercise operational control of the flight. The intent of the 1,000

- hour air carrier experience requirement in § 121.436(a)(3) is to prevent two pilots in part 121 operations with little or no air carrier experien ce from being paired together as a flightcrew in line operations. In addition, the intent of this rule is to ensure that pilots obtain at least one full year of relevant air carrier operational experience before assuming the authority and responsibility of a PIC in operations conducted in part 121 operations (78 FR 42355).

The FAA finds that allowing a pilot’s experience gained as PIC in part 121 operations prior to July 31, 2013

, to count toward the 1,000 hours of air carrier experience required by § 121 .436(a)(3) is consistent with the intent of the rule. In issuing the final rule, the FAA identified the types of experience that qualify a pilot to serve as PIC in part 121 operations based, in part, on the applicability of the experience to part 121 opera tions. A previous PIC in part 121 operations has exercised the privileges of an ATP certificate in a position where that certificate is required by rule in the U nited States , the operation was in a turbine aircraft and in a multicrew environment. That pilo t has also previously demonstrated proficiency operating at this level through an FAA

- approved training and qualification program. Therefore, t he FAA finds that allowing a pilot’s time as PIC in part 121 operations to count toward the air carrier experienc e required by § 121.436(a)(3) would not adversely impact safety and supports the FAA’s goal of ensuring that a pilot possess es suffic ient e xperience to assume the authority and responsibility of PIC in part 121 operations.

In addition, the FAA emphasizes that all PICs at part 121 certificate holders complete the air carrier’s approved training and qualification program prior to serving as PIC. This training and qualification ensures every PIC is proficient in the air carrier’s operations including, but5

no t limited to, standard operating procedures , enviro n ments, kinds of operations, operational

authorizations and the operation of its aircraft.

The petitioner contends that a grant of exemption would increase the overall level of safety

because it would ma ke pilots with the most extensive training and demanding experience

available to serv e as PIC in part 121 operations, which is in the public interest. The FAA agrees that it is in the public interest to ensure that candidates with the best experience are

a vailable to serve as PIC in part 121 operations.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption would provide a level of safety equal to that provided by the rule and is in the public interest

. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113

, and 44701

, delegated to me by the Administrator, Raymond A. Salmon is granted an exemption from § 121.436(a)(3) , subject to

the conditions and limitations listed below. A part 1 19 certificate holde r employing the petitioner as a PIC in part 121 operations is also granted an exemption from § 121.436(a)(3) to the extent necessary to allow Mr. Salmon to serve as a PIC in its operation , subject to the

conditions and limitations listed below

.

Conditions and Limitations

1. Prior to commencing training to serve as a PIC in part 121 operations, Mr. Raymond A.

Salmon must provide the part 119 certificate holder with appropriate documentation to
support his previous employment at a part 1 19 certificate holder a nd flight time as a PIC in part 121 operations prior to July 31, 2013.

2. Mr. Salmon must provide a copy of this grant of exemption to any part 1 19 certificate holder employing him as a PIC in part 121 operations.

3. In accordance with § 121.683, the part 119 ce rtificate holder employing the petitioner as a PIC in part 121 operations must include a copy of this grant of exemption in Mr. Salmon’s

crewmember record.

This exemption terminates on December 31 , 2020, unless sooner superseded, amended, or

rescinded.

I ssued in Washington, DC, on December 1 5 , 2015

.

/s/ John Barbagallo Deputy Director, Fl ight Standards Ser vice