AFS

- 13

- 402

- E Exemption No. 10351 A

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

SHUTTLE AMERICA

CORPORATION

R egulatory Docket No. FAA

- 201 1

- 0 896

for exemption fro m § 121.434( c ) of

Title 14 of the Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated June 3, 201 3

, Mr. Patrick Rizzi and Ms. Sheryl Israel of Hogan Lovells US

LLP

, 555 13th Street NW

, Washington, DC 20004 , c ounsel for Shuttle America Corp oration (Shuttle), petitioned the Federal Aviation Administration (FAA) on behalf of Shuttle for an extension of FAA Exemption No. 10351. If granted, t he ex tension would allow Shuttle to continue to receive credit for operating experience and required FAA observation s conducted under the provisions of another air carrier’s approved qualification program.

The petitioner requests relief from the following regulations:

S ection 121.434(c) prescribes , in pertinent part, that each pilot of a Group II (i.e., tur bojet powered) airplane must complete 25 hours of operating experience during which he or she performs the duties of the crewmember position to which assigned by the operating carrier under the supervision of a qualified check pilot. This operating experie nce must include at least four operating cycles, with the qualifying pilot serving as pilot flying for at least two cycles.

Section 121.434(c)(1)(ii) further prescrib es , in pertinent part, that, if a qualifying pilot in command is complet ing initial or up grade training, he or she must be observed by an FAA inspector while perform ing duties prescribed by the operating carrier during at least one flight leg which includes a takeoff and landing.2

The petitioner supports its request with the following informat ion:

Shuttle requests an extension of Exemption No. 10351 allow ing it and its pilots to receive

credit for operating experience acquired or accomplished on EMB

- 170 aircraft as pilots under another air carrier certificate, and additionally , for pilots in co mmand, that they should receive

credit for the FAA observation requirements set forth in § 121.434(c)(1)(ii).

Shuttle cite s as precedent for its request Exemption No. 7539 ( last issued to Atlantic Coast

Airlines on June 29, 2001, which expired on May 31, 2003); Exemption No. 8 586 ( issued to Shuttle America Corporation on July 15, 2005, which expired on July 31, 2007); and Exemption No. 8687 ( issued to Republic Airline, Inc. on February 8, 2006, which expired on February 28, 2008). Shuttle asserts that the circumstances of these petitioners were “very

similar” to Shuttle’s, and the relief granted in these exemptions was “virtually identical” to that which Shuttle now requests.

Shuttle further state s that an extension should be granted because requiring Shut tle to comply with the requirements of § 121.434(c) “ impose s a significant burden on Shuttle, on the FAA, and on the traveling public. ” The significant burden on the air carrier is presumably created by the need to qualify

, maintain and schedule adequate n umbers of check pilots

. Shuttle also

claims that “ FAA has limited resources

... and Shuttle believes that it would be difficult and

time

- consuming for FAA to be able to schedule and conduct observation flights quickly .”

Shuttle further states that pilots qual ified under another carrier’s qualification program that are now transferred to Shuttle’s operation will have had experience using “ virtually ” the same procedures as are in place at Shuttle and would operat e within a “ similar ” route structure and operating environment

.

The FAA’ s analysis is as follows:

Shuttle proposes that it should be permitted to take credit for operating experience and FAA line observations of pilots in command when those activities took place under the training and qualification prog ram approved for Republic Airlines, which it refers to as a “sister carrier.”

The rela tionship between Shuttle and this “sister carrier” is not specified in the petition, as Shuttle does not define the term “sister carrier,” nor describe specifically the d ifferences between the carriers’ aircraft, operating procedures or route structures (though it does acknowledge that differences exist through use of such phrases as “virtually the same ” procedures.) However, t he petitioner request s continued relief from § 121.434 requirements in order to allow it to use pilots qualified by one air carrier under another air carrier certificate

without conducting either the operating experience or the FAA observation s of pilots in

command

.

Shuttle does not specify the burde ns it, the FAA or the traveling public would endure as a result of it having to comply with the aforementioned requirements . In any case, Shuttle holds current exemption authority from § 121.434(c)(1)(ii) (Exemption No. 8819C) that “ allows

Shuttle to subst itute a qualified and authorized check airman or aircrew program designee for3

an FAA inspector to observe a qualifying pilot in command (PIC) who is completing initial or upgrade training specified in § 121.424 during at least one flight leg that includes a takeoff and a landing. ”

The FAA understands the petitioner would prefer not to repeat operating experience and FAA

observation s conducted by another air carrier. However, as the FAA has recently made clear in Notice 8900.197 (copy attached), “R egulation s do not permit a certificate holder to take credit for training and evaluations conducted in accordance with another certificate holder’s approved training program. ” It also points out “ the practice of one air carrier simply accepting

the crewmember train ing provided by another air carrier as meeting its specific crewmember training requirements discounts potential risks and is contrary to the intent as well as the technical provisions of air carrier operating rules

. ” While the petitioner has assert ed that the

differences are minimal, p art 1 21 nevertheless requires each individual air carrier to have an approved training program tailored specifically for its operation and the make, model and

variant of aircraft flown

. Training required by air carriers is pu rposefully different

, and the

FAA believes that the requirement s of 25 hours of operating experience plus an FAA observation for pilots in command are prudent and effective way s to ensure that pilots are fully prepared to carry out their assigned responsib ilities.

Shuttle cites Exemption Nos. 7539, 8586 and 8687 as precedent for the requested extension. The FAA notes all of these exemptions have expired and neither of the exemptions ha ve been renewed. Moreover, the FAA finds that the conditions in E xemptio n No. 7539 differed materially from those now presented by Shuttle

. I t involved the permanent transfer of assets from a certificate that was intended for termination to one in which flight operations would be continued. Once that transfer was complete, th e transferring carrier’s certificate was

terminated.

Exemption Nos. 8586, 8687, and 10351 were all issued either to Shuttle or Republic Airlines. The purpose of each exemption was to meet limited or short term requirements of the

carriers.. In addition, t hese exemptions were not intended to provide the carriers the ability to shift pilots back and forth at will . W hile Exemption No. 10351 was issued for good and

sufficient reason to meet Shuttle’s short term need, that relief was never intended to be

operat ive indefinitely.

One option for an air carrier that requests credit for training or evaluation performed by a different carrier is for the requesting carrier to develop a specialized training program that meets regulatory requirements. The operating rul es in part 121 pr ovide for the development by an air carrier of multiple versions of a particular qualification program. For example, a

carrier ma y request approval of one pilot in command qualification curriculum for individuals who have never flown a par ticular aircraft and another for individuals who have been qualified within the past 12 months as pilot in command or second in command of the same make, model and variant aircraft for a different air carrier.

“ Reduced footprint” training programs should outline specific and detailed entry prerequisites that are acceptable to the principal operations inspector. They can be submitted as part of a4

transition plan or as part of a regular training program pursuant to the provisions of §§ 121 .405(d), 121.406, 121.409, and/or 121. 415 (a)(1) to allow the carrier to meet specific crewmember training and checking requirements.

However

, reductions in operating experience required by § 121.434(a) and waiver of the observation of pilots in command required by § 121.43 4(c)(1)(ii) are specifically not permitted except as authorized in § 121.434(f). The FAA believes the construction of § 121.434 demonstrates the importance of operating experience and observation s o f pilot in command performance. Finally, the National Tran sportation Safety Board (NTSB) has recognized the performance of carrier specific operating experience to be critical in a number of aviation safety recommendations, including recommendation s A

- 88

- 138; A

- 94

- 004; A

- 94

- 107; A

- 94

- 197; A

- 95

- 116; A

- 95

- 117; A

- 95

- 118; and A

- 10

- 057.

In this petition, the petitioner has failed to show how its proposal would provide an level of safety at least equal to that provided by the rule or is in the public interest.

The FAA’s Decision:

In consideration of the foregoing, I find that a n extension of the relief granted in Exemption

No. 10351 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 Shuttle A merica Corporation for extension of E xemption No. 10351 is hereby denied.

Issued in Washington, D.C., on September 27, 2013.

/s/

Michael J. Zenkovich Deputy Director, Fligh t Standards Service