AFS-16-0380-E CORRECTED COPY

The FAA is reissuing the May 10, 2016, grant of exemption of Exemption No. 16638. A correction was made to the expiration date from May 31, 2016 and changed to May 31, 2018. We made the correction in our records as of June 10, 2016.

Exemption No. 16638

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

FREIGHT RUNNERS EXPRESS, INC. Regulatory Docket No. FAA-2015-4436

for an exemption from § 135.128(a) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By a submission to the docket dated October 19, 2015, Mr. Patrick Hammer, Director of Operations, Freight Runners Express, Inc. (Freight Runners), 1901 East Layton Avenue, Milwaukee, Wisconsin, 53207, petitioned the Federal Aviation Administration (FAA) on behalf of Freight Runners for an exemption from § 135.128(a) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Freight Runners to permit its FAA-certificated flight attendants (F/As) to perform duties related to the safety ofthe airplane and its occupants by leaving their duty stations during movement on the surfacepushback and taxi.

The petitioner requests relief from the following regulation:

Section 135.128(a) prescribes, in pertinent part, each person on board an aircraft operated under this part shall occupy an approved seat or berth with a separate safety belt properly secured about him or her during movement on the surface, takeoff, and landing.

The petitioner supports its request with the following information:2

The petitioner states Freight Runners is requesting an exemption from § 135.128(a) during movement on the surface for FAA-certificated F/As in aircraft with more than 19 passenger seats when performing duties related to the safety of the airplane and its occupants. The petitioner states that its FAA Accepted or Approved Flight Attendant Manual and Flight Attendant Training Program shall have procedures in place for the F/A to notify the Flight Deck when the cabin has been prepared and is ready for takeoff; this will ensure that the flight crew will not attempt to takeoff without the flight attendant at her duty station with safety belt and shoulder harness fastened.

The petitioner asserts that part 135 does not contain an equivalent to §121.391(d), which states, in part: "... During taxi, F/As required by this section must remain at their duty stations with safety belts and shoulder harnesses fastened except to perform duties related to the safety of the airplane and its occupants." The petitioner contends that all FAA-certificated F/As have the same training requirements, and the same passenger safety measure of allowing the F/A to check the cabin prior to takeoff should be extended to part 135 operations.

The petitioner states that allowing a F/A to move about the cabin to perform safety related tasks enhances safety. This allows the F/A the ability to perform a final cabin walk through to ensure all occupants are seated with their seat belts securely fastened prior to takeoff. The petitioner asserts that, during extended taxi operations - sometimes ground delays up to an hour or more- the possibility exists and is highly likely, that at least one passenger will remove their seat belt, remove personal items from the seat in front of them, unstow the tray table, or recline their seats. The petitioner adds that under the current regulations, the F/A would not be able to leave his or her seat to ensure the cabin is prepared for takeoff.

Freight Runners contends that allowing the F/A to perform a final cabin pre-takeoff walk through and, in the event of an overhead bin opening prior to takeoff or after landing, be allowed to leave his or her seat to secure the item or attend to a passenger, enhances the public safety, and benefits the public.

A summary of the petition was published in the Federal Register on December 3, 2015 (80 FR 75701). No comments were received.

The FAA's analysis is as follows:

F/As are required on aircraft operated under part 135 that have a passenger seating configuration, excluding any pilot seat, of more than 19 in accordance with § 135.107. Flight attendants are trained to provide safety to passengers on board aircraft in accordance with an operator’s FAA-approved or -accepted training program. Specific training topics include: F/A duties and responsibilities, emergency training to include emergency assignments and procedures, and the handling of emergency situations; and passenger handling. Training of F/As include s knowledge and practical testing.3

Section 135.128(a) states that each person on board an aircraft operated under part 135 shall occupy an approved seat or berth with a separate safety belt properly secured about him or her during movement on the surface, takeoff, and landing. The regulation does not differ between the classifi cation of people to whom this regulation is directed—passengers or F/As. Therefore, it must be construed that, when the aircraft is under movement on the surface, or during takeoff or landing, all occupants, passengers and F/As, must remain in their seats with their seat belts properly secured about him or her. There is no specific la nguage that permits part 135 FAA-certificated F/As to leave their duty stations if performing duties related to the safety of the airplane and its occupants.

In contrast, 14 CFR § 121.391 specifically requires F/As during taxi to remain at their duty stations with safety belts and shoulder harnesses fastened except to perform duties related to the safety of the airplane and its occupants. In the “Operations Review Program” final rule (45 FR 41586; June 19, 1980), the FAA explains that the safety-related duties permitted by § 121.391(d) are essential to passenger safety and further states “[F]light attendants must brie f passengers to ensure their safe evacuation as well as perform other safety-related functions.”

In addition, §135.171 requires each flight crewmember occupying a station equipped with a shoulder harness to fasten the shoulder harness during takeoff and landing, except that the shoulder harness may be unfastened if the crewmember cannot perform the required duties with the shoulder harness fastened . [emphasis added] Although this regulation specifically addresses “flight crewmembers,” the use of the word “crewmember” in the exception clause implies that this applies to all part 135 crewmembers assigned to that flight, including F/As. The interpretation of such allows F/As to be out of their jumpseat shoulder harnesses to complete safety-related duties, which are those that ensure compliance with the regulations or in response to emergency situations.

In the “Commuter Operations and General Certification and Operations Requirements” Notice of Proposed Rule making (NPRM) (60 FR 16230; March 29, 1995), the FAA proposed that affected commuters comply with the requirements of § 121.391(d), which requires F/As to remain at their duty stations with safety belts and shoulder harnesses fastened except to perform duties related to the safety of the airplane and its occupants. On this issue, the FAA received no comments, and in the “Commuter Operations and General Certifi cation and Operations Requirements” final rule (60 FR 65874; December 20, 1995), the agency notes that part 135 has a similar provision in §135.128(a) to §121.391(d), except that §135.128(a) does not specify that F/As may be performing safety duties during movement on the surface, and the final rule is adopted as proposed.

Section 135.128(a) states “For seaplane a nd float equipped rotorcraft operations during movement on the surface, the person pushing off the seaplane or rotorcraft4

from the dock and the person mooring the seaplane or rotorcraft at the dock are excepted from the preceding seating and safety belt requirements.” This regulation contemplates a “crewmember” getting up for a particular “safety-related” reason, which supports the petitioner’s request to allow F/As movement for safety-related

reasons.

Regulations require the air carrier to ensure that each passenger has an approved safety belt properly fastened around him or her during movement on the surface, takeoff, and landing, and that passengers have their seatbelt fastened any time the seatbelt sign is illuminated. Specifically, part 135 requires all occupants of an aircraft to be seated with their safety belts fastened during movement on the surface. When establishing this rule, the FAA determined that any person not occupying an approved seat or berth with a separate safety belt properly secured about him or her during movement on the surface could cause injuries to both the person or other persons

aboard the aircraft.

Both part 121 and 135 operators are required to establish and maintain approved F/A training programs, which require similar tr aining and checking components, to include F/A duties and responsibilities; emergency training to include emergency assignments and procedures, and the handling of emergency situations; and passenger handling. Coordination and communication between the flight crew and the passenger cabin

includes standardized notification from the cabin crew to the flight crew when the cabin crew completes all pre-takeoff and pre-landing duties, which indicates that the cabin has been secured, and standardized pre-takeoff and pre-landing signals from the flight crew, which the flight crew uses to allow sufficient time for F/As to be seated.

The FAA believes that its action not only assigns, maintains, and enhances safety as the highest priorities in air commerce as directed by 49 U.S.C. 40101(d)(1) but also serves to regulate air commerce in a way that best promotes safety as required by 49 U.S.C. 40101(d)(2).

The FAA concurs with Freight Runners’ cont ention that allowing a F/A to perform a final pre-takeoff cabin walk through, and, in the event of an overhead bin opening prior to takeoff or after landing or following a request for emergency assistance from a passenger, be allowed to leave his or her seat to secure the item or attend to a passenger, enhances the public safety and benefits the public.

Additionally, the FAA has determined that it is in the public interest to allow Freight Runners F/As to perform safety-related duties during aircraft movement on the surface. To exclude these trained persons from performing safety-related functions would not be in the interest of safety of the airplane or passengers.

In conclusion, the FAA has determined that the exemption is in the interest of the traveling public, supportive of F/As in the performance of their safety-related duties,5

and would not reduce the current level of safety for the traveling public under the current regulations.

The FAA’s Decision

Under the authority provided by 49 U.S.C. §§ 106(f), 40113, and 44701, which the FAA Administrator has delegated to me, Freight Runners Express, Inc. (Freight Runners) is granted an exemption from § 135.128(a) of Title 14, Code of Federal Regulations (14 CFR) to the extent n ecessary to allow Freight Runners FAAcertificated F/As to perform duties related to the safety of the airplane and its occupants by leaving their duty stations during movement on the surface- pushback and taxi, subject to the following conditions and limitations.

Safety-related duties are those that ensure compliance with the regulations or respond to emergency situations. The safety-related duties allowed under this exemption include performing safety-related briefings, attending to distressed passengers, and responding to other emergency situations. This exemption does not authorize any Freight Runners F/As to perform any serv ice-related tasks or duties, including food and beverage service, during movement on the surface.

Conditions and Limitations

1. All Freight Runners F/As must keep their safety belts and shoulder harnesses fastened unless the F/A is performing duties related to the safety of the airplane and its occupants. These duties may include:

a. Conducting safety briefings;

b. Compliance checks of seat belt fastening;

c. Conducting special passenger briefings;

d. Ensuring passenger compliance with stowage of the food and beverage tray;

e. Ensuring passenger compliance with the “Fasten Seatbelt” and “No Smoking” placards/lights;

f. Ensuring passenger placement of seat backs in an upright position;

g. Checking for the proper stowage of carry-on baggage;

h. Attending distressed passengers; or,

i. Responding to emergency situations.

2. Freight Runners’ FAA-accepted F/A manuals mu st have procedures in place for F/As to notify the flight crew when the cabin has been prepared and is ready for takeoff, which will ensure that the flight crew will not attempt to takeoff if F/As are not occupying their assigned duty stations with safety belts and shoulder harnesses

fastened.6

This exemption terminates on May 31, 2018, unless sooner superseded or rescinded.

Issued in Washington, DC, on May 10, 2016.

/s/
John Barbagallo Deputy Director, Flight Standards Service