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 term 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 Allegiant 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 inspectors 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, Training 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 rule4

 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, Training and Qualification Requirements; Final Rule, 61 FR 34927. 

5

 The FAA notes that the addition of supervision of operating experience 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 Crew 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