AFS-10-400-E Exemption No. 10225

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

THE BOEING COMPANY Regulatory Docket No. FAA-2010-0931

for an exemption from § 91.105 of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letters dated September 15, 2010 and supplemental information dated December 17, 2010, Mr. John T. Pryde, Director of Regulatory Affairs, The Boeing Company (Boeing), P.O. Box 3707, Seattle, Washington 98124, petitioned the Federal Aviation Administration (FAA) for an exemption from § 91.105 of Title 14, Code of Federal Regulations (14 CFR). The proposed exempti on, if granted, would allow Boeing to conduct operations in Boeing B-787 and B-747-8 aircraft to the extent necessary to also allow foreign pilots to manipulate the controls of the aircraft while in flight within the United States for the purpose of training and familiarization. Although the petitioner requested relief from §§ 91.9 and 91.531, the FAA finds that relief from § 91.105 is more appropriate.

The petitioner requires relief from the following regulations:

Section 91.105 prescribes, in pertinent part, that each required flight crewmember shall be at the crewmember station and keep the safety belt fastened while at the

crewmember station.

The petitioner supports its request with the following information:

Boeing is a major manufacturer of commercial transport airplanes. The newest models, B787 and B-747-8, require two crewmembers. While airmen holding an appropriate FAA certificate can properly occupy the second-in-command (SIC) seat to perform training and familiarization flights in U.S. airspace per § 61.55(g), individuals lacking FAA certificates may not. Section 61.3(a)(1) and 49 U.S.C. § 44711(a)(2) precludes Boeing from allowing the2

foreign pilots of purchasing customers to serve as a required flight crewmember on their training and familiarization flights on the aircraft in U.S. airspace. This regulatory constraint affects Boeing’s ability to market its products, especially abroad. The petitioner contends that regulatory relief from § 91.105 will be in the public interest because many of the pilots who will receive the enhanced training under the exemption will go on to train other pilots for their respective airlines, which will result in a larger number of better trained pilots who will likely operate international flights in U.S. airspace.

Boeing believes that a grant of exemption will not adversely affect the level of safety. All flights will be conducted in day visual flight rules (VFR) conditions under the supervision of a Boeing appointed pilot in command (PIC) who is current and qualified on the appropriate aircraft type. The Boeing instructor pilots will be FAA-certificated airline transport pilot

license holders to include the current B-787 to B-747-8 letter of authorization, as appropriate. Additionally, upon final certification of the B-787 and B-747-8 aircraft, the Boeing instructor pilots will maintain current type certification on the applicable aircraft. Boeing will require that the non-FAA-certificated pilots possess and provide, prior to the actual flight, a transport pilot’s license and associated medical certificate issued by the appropriate regulatory authority of each pilot’s country and documentation of recent training completion in the appropriate training course for the airplane to be flown. In addition, Boeing will comply with all applicable Transportation Security Administration (TSA) processing requirements prior to the commencement of any flight training.

A summary of the original petition was published in the Federal Register on October 1, 2010 (75 FR 60859). No comments were received.

The FAA’s analysis is as follows:

The FAA has considered fully the petitioner’s request and supporting material and finds that a grant of exemption would be in the public interest.

Section 91.105(a) states that during takeoff and landing, and while en route, each required

flight crewmember shall be at the crewmember station unless the absence is necessary to perform duties in connection with the operation of the aircraft or in connection with physiological needs; and keep the safety belt fastened while at the crewmember station.

The foreign pilots of purchasing customers referenced in the petition do not hold the appropriate U.S. pilot certificate, and these pilots will not be obtaining a U.S. pilot certificate.

However, the petitioner states that the foreign pilots hold a transport pilot’s license and associated medical certificate issued by the appr opriate regulatory authority of each pilot’s country, and the pilots will have documentation showing satisfactory completion of the appropriate training course for the airplane to be flown, to include ground and simulator training. The purpose of the training is to qualify these highly experienced foreign pilots as the initial cadre of pilots for their airline. These pilots will not be obtaining a U.S. pilot certificate based on this training.3

In order to maintain an equivalent level of safety, the FAA will grant the petitioner’s request to allow the non-U.S.-certificated pilots to manipulate the controls of the B-787 or B-747-8 aircraft within the United States provided that they are accompanied by an appropriately certificated and rated Boeing instructor PIC who will occupy one of the pilot seats at all times. Additionally, Boeing will provide a designated SIC, who is a fully qualified instructor pilot as part of the flightcrew for all trai ning flights and who will occupy a flight deckjumpseat rather than the required crewmember station. This will allow a non-FAAcertificated foreign pilot to occupy a pilot seat and manipulate the flight controls for the purpose of receiving flight training and for beco ming familiar with the aircraft as required by § 61.57, Recent flight experience: Pilot in command, which states, in part, that “...no person may act as a pilot in command...unless that person has made at least three takeoffs and three landings within the preceding 90 days.”

Granting this exemption would not be inconsistent with the legislative intent behind 49 U.S.C. § 44711(a)(2). The statutory language in § 44711(a)(2) was originally enacted in order to prevent foreign airmen from enjoyi ng the protection of U.S. aviation law while engaged in interstate commerce. See S. Rept. No. 2, 69 th Senate, Air Commerce Act of 1926, 12 A.B.A. J. 371 (1926). This exemption simply permits foreign pilots to receive flight training on the B-787 or B-747-8 aircraft, and its conditions and limitations are set in a manner that does not permit foreign pilots to use this exemption to engage in interstate

commerce.

The lead airlines for these U.S.-assembled aircraft are foreign airlines rather than U.S.- certificated airlines. This is the first occurrence of these circumstances, which characterizes the petitioner’s request as unique. Boeing will maintain an equivalent level of safety during the training flights by operating the training flights in accordance with its operations manual and current best practices.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption is in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, The Boeing Company is granted an exemption from§ 91.105 to permit the designated SIC to occupy a flight deck jumpseat while a non-FAAcertificated foreign pilot occupies a pilot seat and manipulates the flight controls in the B-787 or B-747-8 aircraft while in flight within the United States for the purpose of training and familiarization, subject to the following conditions and limitations.4

Conditions and Limitations

1. The flight must be for training and takeoff and landing currency purposes only.

2. The flight will be conducted under VFR only.

3. The flying will be conducted in the airport traffic pattern and will begin and end at the same airport and will cover the time necessary for the foreign pilot to obtain three take offs and three landings.

4. The only training and familiarization flight must be conducted with two qualified Boeing instructor pilots on board the aircraft with one of the qualified Boeing instructor pilots occupying a pilot seat and one of the qualified Boeing instructor pilots occupying a flight deck jumpseat at all times.

5. The Boeing instructor pilot designated as SIC will:

a. Occupy a flight deck jumpseat and keep the seatbelt and shoulder harness fastened at all times;

b. Continually observe the actions of the non-FAA-certificated foreign pilot undergoing training;

c. Be prepared to take action, as necessary, in response to the foreign pilot’s manipulation of the controls to maintain the safety of flight; and

d. Be expected to continue to perform the duties of the SIC while away from his or her station but seated at the jumpseat.

6. The training can occur only during daylight hours, as defined in § 61.57, which is

1 hour before sunrise to 1 hour after sunset.

7. The foreign pilots of purchasing customers must possess and provide, prior to the actual flight:

a. A transport pilot’s license (certificate) and associated medical certificate issued by the appropriate regulatory authority of each pilot’s country; and

b. Documentation showing satisfactory completion in the appropriate training course for the airplane to be flown, to include ground and flight simulator training.5

8. The foreign pilots of purchasing customers will be vetted through the TSA-related portions of § 61.75, and the petitioner is required to comply with all aspects of § 61.75 that are important to safety and security.

This exemption terminates on March 31, 2013, unless sooner superseded or rescinded.

Issued in Washington, D.C., on March 10, 2011.

/s/ Raymond Towles Acting Director, Flight Standards

Service .