AFS

- 14

- 029

- E Exemption No. 10997

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

AERO

- FLITE, INC Regulatory Docket No. FAA

- 2013

- 0889

for an exemption from § § 60.7(a)(1) and 60.7(b)(1) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated October 10, 2013 , Mr. Michael W. Lynn, Safety Manager

, Aero

- Flite, Inc. (Aero

- Flite)

, 4530 Flightline Drive, Kingman, AZ 86401 petitioned the Federal Aviation Administration (FAA) on behalf of Aero

- Flite for an exemption from § § 60.7 (a)(1) and 60.7(b)(1) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Aero

- Flite to sponsor the Swiss Aviation Training S imulator 6022 to use

for crew trainin g , certi fi cation check rides

, and annual currency check rides

.

The petitioner requests relief from the following regulations:

Section 60.7(a)(1) prescribes, in pertinent part, that a person is eligible to apply to be a sponsor of an FSTD if t he person holds, or is an applicant for, a certificate under part 119, 141, or 142 of this chapter; or holds, or is an applicant for, an approved flight engineer course in accordance with part 63 of this chapter

.

Section 60.7(b)(1) prescribes, in pertinent part, that a person i s a sponsor if t he person is a certificate holder under part 119, 141, or 142 of this chapter or has an approved flight engineer course in accordance with part 63 of this chapter

.

The petitioner supports its request with the following information:

Aero

- Fl ite requests relief to obtain access to an Avro RJ

- 85 specific Level D simulator that is only available in Zurich, Switzerland and currently operated by Swiss Aviation Training . The petitioner states it would like to sponsor this simulator and have it rec ertified with the FAA, as2

it had been previously. The simulator would be used for crew training, certification check rides, and annual currency check rides per 14 CFR § 61.58.

Aero

- Flite describes itself as a FAA p art 137 o perator, engaged in wild land f ire suppression. It is upgrading its fleet of aircraft to include BAE Avro RJ

- 85 jets . H owever, there is no Avro RJ

- 85 Level D simulator located in the United States. In addition

, Aero

- Flite

is restricted from being a sponsor of a simulator under 14 CFR § § 60.7(a)(1) and 60.7(b)( l ).

Aero

- Flite asserts that the author of part 60 confirms that at the time part 60 was being developed, there were no part 137 operaters utilizing large or transport category turboject

aircraft and it was an oversight not to include p art 1 3 7 o perators when the rule was drafted.

Aero

- Flite contends that its top priority is a safe and effective operation and that g ranting

Aero

- Flite this exemption would enhance safety and enable it to provide a superior product to the U.S. go vernment and the tax paying public

.

Aero

- Flite asserts that it is aware of the duties and responsibilities that come with certifying and maintaining c ertification of this simulator and has a working relationship with the FAA and Swiss Aviation Training. Further, Aero

- Flite states that

it has expertise in aerial wildland firefighting , has an Safety Management System ( SMS )

and Quality Management System ( QMS )

, and is well suited to be a sponsor of the

simulator.

A summary of the petition was published i n the Federal Register on February 14, 2013 (79 FR 10601)

. The publication received one comment in support of the petition from Mr. Edward

Cook. Mr. Cook stated that t he provisions of the current rule §§60.7(a)(1) and (b)(1) were originally formulated to ensure that those persons or organizations sponsoring a flight simulation training device for FAA evaluation and qualification would have a practical knowledge of what such a device is and for what purposes it can and should be used. He also

stated that at the time of the rule development there were no p art 137 certificate holders who operated large, transport category airplanes, except for those airplane types that had been regularly used in passenger and/or cargo transportation service by other certific ated operators

. In addition, Mr. Cook commented that because of the newly developed p art 60 rule preventing

a p art 137 certificate holder from sponsoring an airplane flight simulation device, Aero

- Flite is not allowed to sponsor this specific simulation d evice. In Mr. Cook’s opinion, if p art 60 was being constructed today instead of several years ag o, with today’s p art 137 operators operating the kinds of airplanes they are currently operating, the l imiting section of the present p art 60

would includ e ope rators certificated under p art 137.

The FAA's analysis is as follows:

The FAA carefully considered all of the information presented by the petitioner and finds that granting the petition for exemption would not be in the public interest and would not pr ovide3

the level of safety at least equal to that provided by the rule from which exemption is requested.

Aero

- Flite states that the simulator was previously certified by the FAA but after U nited

S tates

- based airlines discontinued using the Avro RJ

- 85 ai rcraft in 2007

, there was no need to maintain the certification. The FAA notes that new regulations governing the qualification requirements for flight simulation training devices ( FSTDs ) have taken effect since the simulator’s previous certification. On October 30 , 2006 , the FAA published a final rule entitled “Flight Simulation Training Device Initial and Continuing Qualification and Use” (71 FR 63392) . The rule became effective May 30, 2008 . This rule established part 60 and, consolidated and update d FSTD requirements that existed in different parts of the FAA’s regulations and in advisory circulars. Part 60 strengthened FSTD qualification requirements with the intention of ensuring that users receive training in devices that closely match the perfo rmance and handling characteristics of the aircraft being simulated. The FAA finds that the device’s previous certification does not impact its ability to meet current, augmented requirements.

Additionally, the petitioner reports that the author of part 60 confirmed that at the time the regulation was drafted, part 137 was not included because there were no part 137 operators using large or transport category turbojet aircraft and that it was an oversight not to include part 137 operators as a pos sible FSTD sponsor. The FAA finds this information to be inaccurate. The FAA provided the opportunity for public comment when it published a Notice of Proposed Rulemaking for the rule establishing part 60. In the preamble to the final rule, the FAA addr essed comments suggesting that part 137 operators be considered

“certificate holders” under § 60.7 and, therefore, eligible for FSTD sponsorship. In response to these comments, the FAA stated

, “Only those persons required to have an FAA approved flight tr aining program are eligible to sponsor an FSTD ... There is no requirement, however, for a part 137 operator to have an FAA approved flight training program. Therefore, it is not appropriate for those operators to sponsor an FSTD” (71 FR 63407)

.

When the f inal rule was published, the FAA eliminated minimum FSTD usage requirements for sponsor qualification under the premise that the requirements for an FAA

- approved training program are suffi ciently robust to ensure safety (71 FR 63400)

. A s a part 137
operat or, Aero

- Flite does not have an FAA

- approved training program as required for FSTD sponsorship by part 60. Although the petitioner states that it maintains a SMS and Q MS , the

FAA finds that Aero

- Flite has not demonstrated how, in the absence of an FAA

- app roved training program, it would ensure a level of safety at least equal to that provided by the rule

. Therefore, the FAA finds that granting this exemption would set a precedent that would undermine the safety purpose behind inclusion of the FAA

- approved training requirement in

the rule.

Aero

- Flite states there is no Avro RJ

- 85 specific Level D simulator located in the United

States and that the one they want to use is located in Zurich, Switzerland

. Further, the peti ti oner states that it is exp anding its fleet of aircraft to include BAE Avro RJ

- 85 jets,4

modified to dispense fire retardant and that it needs access to a simulator to provide the appropriate level of training to its flight crews. Aero

- Flite state s it needs to act as the sponsor

bec ause it has additional training requirements beyond standard airline operations. It is the FAA’s determination that a reasonable option exists for Aero

- Flite under current regulations.

The FAA contends that Aero

- Flite could work with an already establish ed part 142 training center and have the simulator designated as a satellite simulator of the part 142 training center. This would preclude having to use the actual aircraft in training, an alternative with more cost

and risk.

In regard to publ ic interest, Aero

- Flite states that it contracts with Departments of the Interior and Agriculture and state governments and, therefore, asserts that the cost benefits of being able to sponsor and use the simulator would be passed on to its customers within the government and the taxpayer through more efficiency, effective, and safer flight crews. The FAA points out that sponsoring the simulator and bringing the device up to current requirements will require resources on the part of Aero

- Flite. The FAA cha rges an FSTD sponsor for costs (Fee for Service) associated with evaluating, certifying, and overseeing the device. Considering the available alternative of partnering with an existing 142 training center to certify the FSTD, the FAA concludes that the as sumed cost savings would not outweigh the safety purpose of limiting sponsor eligibility to those entities with an FAA

approved flight training program.

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exemption would n ot be 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, the petition of Aero

- Flite, Inc. for an exemption from 14 CFR §§ 60.7(a)(1) and (b)(1) is hereby de nied.

Issued in Washington, DC, on May 28, 2014.

.

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