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 Simulator 6022 to use 

for crew training, certification 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 the 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 is a sponsor if the 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-Flite 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 recertified with the FAA, as 
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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 part 137 operator, engaged in wild land fire

suppression. It is upgrading its fleet of aircraft to include BAE Avro RJ-85 jets. However, 

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 part 137 operators when the rule was drafted. 

Aero-Flite contends that its top priority is a safe and effective operation and that granting

Aero-Flite this exemption would enhance safety and enable it to provide a superior

product to the U.S. government and the tax paying public. 

Aero-Flite asserts that it is aware of the duties and responsibilities that come with 

certifying and maintaining certification 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 in 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 the 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 part 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 certificated operators. 

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

a part 137 certificate holder from sponsoring an airplane flight simulation device, Aero-Flite is

not allowed to sponsor this specific simulation device. In Mr. Cook’s opinion, if part 60 was 

being constructed today instead of several years ago, with today’s part 137 operators operating 

the kinds of airplanes they are currently operating, the limiting section of the present part 60 

would include operators certificated under part 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 provide 
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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 United 

States-based airlines discontinued using the Avro RJ-85 aircraft 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 updated 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 

performance 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 possible 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 addressed 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 training 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 final 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 sufficiently robust to ensure safety (71 FR 63400). As a part 137 

operator, 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 QMS, the 

FAA finds that Aero-Flite has not demonstrated how, in the absence of an FAA-approved 

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 

petitioner states that it is expanding its fleet of aircraft to include BAE Avro RJ-85 jets, 
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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 states it needs to act as the sponsor 

because 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 established 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 public 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 charges 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 assumed cost savings would not 

outweigh the safety purpose of limiting sponsor eligibility to those entities with an FAAapproved flight training program. 

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. §§ 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 denied.

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

/s/

John Barbagallo

Acting Deputy Director, Flight Standards Service