AFS-14-048-E Exemption No. 11012

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

ALLEGIANT AIR, LLC Regulatory Docket No. FAA-2013-1006

for an exemption from § 121.413(a)(2) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated November 1, 2013, Mr. Steve Ostrander, Director, Pilot Training and Flight Standards, Allegiant Air, LLC, (Allegiant), 8360 South Durango Drive, Las Vegas, Nevada 89113 petitioned the Federal Aviation Administration (FAA) on behalf of Allegiant for an exemption from § 121.413(a)(2) 1 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Allegiant to substitute a check airman in place of an FAA inspector or aircrew program designee (APD) to perform the initial observation of a check airman conducting a check or supervising operating experience.

The petitioner requests relief from the following regulation:

Section §121.413(a)(2) prescribes, in pertinent part, that “no certificate holder may use a person nor may any person serve as a check airman unless within the preceding 24 calendar months that person satisfactorily conducts a check or supervises operating experience under the observation of an FAA inspector or an aircrew designated examiner 2 employed by the operator...”

1 The FAA notes §121.413(a)(2) was amended on November 12, 2013, after Allegiant submitted its petition for exemption, by replacing the terms proficiency check and competency check with checks and supervision of operating experience, to more accurately reflect check airman functions in part 121 operations. Qualification, Service, and Use of Crew Members; Final Rule, 78 FR 67800. This amendment does nullify Allegiant’s petition for exemption.

2 14 CFR 121.413(a)(2) uses the term aircrew designated examiner (ADE), while FAA guidance uses the te rm APD; the two

terms are synonymous.2

The petitioner supports its request with the following information:

The petitioner states a grant of exemption would provide a level of safety at least equivalent to that provided under the regulation and in some cases would increase the level of safety. The petitioner also states in some FAA initial check airman observations, the FAA inspector may not be familiar with specific areas of operation for the aircraft and route being piloted or procedures unique to Allegiant. When an A llegiant check airman who is qualified in the aircraft and the route to be flown during the observation is used, the petitioner the check airman being observed would be subject to a greater level of scrutiny and objectivity. Allegiant also states it would only use a check airman to fulfill the requirements of §121.413(a)(2) when a qualified FAA inspector is not available. It also states the FAA would still have the authority to observe any check airman at any time during operations requiring a

check airman.

Allegiant states a grant of exemption would be in the public interest because it would give the FAA greater flexibility and better use of its inspectors by allowing them to focus on higher priority system safety concerns. It also states that the grant of exemption would allow Allegiant to use a qualifying check airman immediately after he completed the required training for the position, significantly increasing the productivity of Allegiant crewmembers, and reducing the unnecessary loss of wages and lost time for pilots waiting for a check airman to be qualified by an FAA observation.

The petitioner notes that its Aircrew Designated Examiner (ADE) program for the MD-80 series aircraft has lapsed due to the retirement of the FAA Aircrew Program Manager (APM). Allegiant states requests to the Flight Standards Inspector Resource Program have been unsuccessful due to the limited number of inspect ors qualified in its fleet. Allegiant further states it has been unable to provide an adequate number of check airmen to perform initial, transition, and upgrade training; recurrent proficiency events; and associated surveillance.

Although the petitioner requested that action on its petition not be delayed for publication in the Federal Register, the FAA found that the petition, if granted, would set a precedent. A summary of this petition was published in the Federal Register on February 26, 2014 (79 FR 10869). No comments were received.

The FAA's analysis is as follows:

The FAA has fully considered Allegiant’s petition for exemption and finds a grant of exemption would not provide a level of safety at least equal to that of the regulations.

The FAA finds that in the final rule 3 that established §121.413(a)(2) to require the observation of check airmen, it contemplated circumstances similar to those proposed by Allegiant in its petition by addressing a comment from Petroleum Helicopters, Inc. (PHI). PHI commented that “other designated check airmen” should be allowed to conduct the observation of check airmen required by §121.413(a)(2). In the FAA’s

3 Check Airmen and Flight Instructors, Traini ng and Qualification Requirements; Final Rule, 61 FR 34927.3

response to the comment, it stated it did not agree check airmen should be able to conduct the observation. The FAA further stated it had, “determined that such authority should be exercised only by FAA inspectors or an FAA designated aircrew examiner [sic].” The FAA maintains this position and still believes, as stated in the final rule preamble, that the observation check requirement better ensures that check airmen maintain their qualifications and their abilities to perform all other duties appropriate for check airmen.

The petitioner asserts that because the FAA inspector conducting the observation may not be familiar with the specific areas of operation for the aircraft and the route being piloted or procedures unique to Allegiant, that a check airman being observed by a check airman employed by Allegiant would receive a greater level of scrutiny and objectivity. The FAA disagrees with this statement and believes that it is more appropriate for an FAA inspector or APD to conduct the observation because of the additional safeguards and assurance they provide. FAA inspectors are representatives of the Administrator, while APDs are designees of the Administrator as described in 14 CFR part 183. Check airmen are not issued such a designation by the FAA, and therefore do not have the same authority and responsibilities. APD designations expire after 12 months and are renewed annually by the FAA, whereas check airman approvals have no term of expiration.

The petitioner asserts that a grant of exemption would be in the public interest because it would give the FAA greater flexibility and better use of its inspectors by allowing them to focus on higher priority system safety concerns. The initial observation of a check airman candidate is a high priority for the FAA due to the nature of the responsibilities of a check airman: conducting checks and supervising operating experience. Check airmen are key personnel in an air carrier’s training program. By conducting checks and supervising operating experience, check airmen provide assurance that the air carrier’s pilots meet the standards prescribed by part 121. Therefore, the FAA believe a greater level of safety is achieved by aviation safety inspector (ASI)/ APD observation.

Additionally, the petitioner states the grant of exemption would be in the public interest because it would allow Allegiant to conduct the observation of the check airman immediately after the check airman completed the required training. The FAA

considered in the final rule 4 the possible burden of scheduling observations with an FAA inspector. In response to a comment from Kitty Hawk AirCargo, Inc., the FAA stated “the addition of aircrew designated examiners employed by the operator to conduct the observation check should relieve the operator of any unnecessary burden for tracking and scheduling.” 5 While, as the petitioner has stated, the ADE program for

4 Check Airmen and Flight Instructors, Traini ng and Qualification Requirements; Final Rule, 61 FR 34927.

5 The FAA notes that the addition of supervision of operating e xperience to the check airman functions that may be observed to meet the requirement of § 121.413(a)(2) is expected to provide additional opportunity for scheduling observation by an

ASI or APD. Qualification, Service, and Use of Cr ew Members; Final Rule, 78 FR 67800.4

the MD-80 series of aircraft had lapsed, it has since been reinstated. The FAA views this lapse as a temporary situation that does not provide a basis for an exemption without a demonstration of an equivalent level of safety.

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 Allegiant Air, LLC for an exemption from 14 CFR § 121.413(a)(2) is hereby denied.

Issued in Washington, DC, on June 20, 2014.

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