# Federal Aviation

Administration 

# Memorandum

Date: APR 

### 29 ·2014

~o Il'S~DU. Director, Flight Standards Service (AFS-l)

F 

### 1/(~ ~ ark ."BurY, SSISt t Chief Counsel forInternational Law, Legislation and Regulations (AG~ 0)
Sara Mikolop, Attorney (AGC-220) Legal Interpretation

- Qualification Requirements forPilot Assigned as Second in Command on aPart 121 Operation Requiring Three orMore Pilots and Qualification Requirements for Pilot Who Relieves the Assigned Second in Command En Route To:
From:

Prepared by: Subject:

Background This legal interpretation isprovided inresponse to arequest to the Flight Standards Service

-Air Transportation Division (AFS-200) from the Flight Standards Service

- Eastern Region (AEA200) for guidance regarding the requirements of 14C.F.R. § 121.432(a) and 14C.F.R. § 121.543(b)(3)(ii) that, inpart, constituted arequest for alegal interpretation.' The request noted that certain operators rely onthe requirements in 

### § 121.543 instead ofthe requirements in § l21.432(a) for the qualification ofsecond in command pilots (SIC).

AEA-200 also sought arequest for guidance fortransitioning into compliance with § l2l.432(a), part 121 operators that train and qualify pilots under subparts N and 

### 0ofpart 121. The issue regarding atransition into compliance is apolicy matter and as such is not addressed inthis legal interpretation.
The Office ofthe Chief Counsel sought public comment onthis legal interpretation because, while the existing legal interpretations with respect to the requirements in § l21.432(a) are clear,

1 The Office ofthe Chief Counsel received arelated request for alegal interpretation from Southern Air Inc. regarding the applicability of 14C.F.R. §§ 121.432(a) and 121.543(b)(3)(ii) to pilots serving as SIC during the en route cruise portion ofthe flight only. Southern Air Inc. asked the following two questions:

(1) Is atakeoff and landing from the left seat during operating experience, required for apilot who relieves the assigned SIC en route during the cruise portion ofthe flight? (2) Is PIC proficiency training and evaluation required for pilots who relieve the assigned SIC by serving as SIC en route during the cruise portion ofthe flight? Because this proposed legal interpretation addressed issues raised by both Southern Air Inc. and the Flight Standards Service, a copy ofthis memorandum will be provided to Southern Air Inc.New York FSDO-15 indicated that these interpretations may not be consistently applied.

Further, we sought comment onwhether the interpretations are still appropriate. 

### See 78 Fed. Reg. 67983 (Nov. 13,2013).

We received 15 comments onthe proposed legal interpretation. None ofthe comments addressed the issue ofconsistency inthe application ofthe § 121.432(a) requirements. Two commenters proposed amending the existing legal interpretation regarding the requirements of § 121.432(a), and one commenter asked that the agency address the applicability of § 121.432(a) to operators using an approved Advanced Qualification Program (AQP) forpilot training.

The legal interpretation is adopted asproposed intheNovember 13,2013 notice with minimal clarifying information. This legal interpretation addresses the legal requirements of §§ 121.432(a) and 121.543(b)(3)(ii); explains that § 121.543(b)(3)(ii) may not be used as a substitute forthe requirements of § 121.432(a); and clarifies the implications of § 121.432 for operators that use AQP forpilot training and qualification.

Analysis of 14 C.F.R. § 121.432(a) Part 121 requires aminimum oftwo pilots for every operation and states, "[T]he certificate holder shall designate one pilot aspilot in command andthe other second incommand." 

### See 14 C.F.R. § 121.385(c). However, certain part 121 operations require more than two pilots due to the operating rules that address pilot flight duty and rest. 

### See 14C.F.R. part 117 and part 121, subparts R and S. By assigning one ormore additional pilots to along range flight, acertificate holder can ensure that the assigned pilot in command (PIC) and assigned SIC may each have an opportunity to rest during the flight ifneeded orifrequired to comply with the flight duty and rest requirements ofparts 117 and 121.

Inthose instances inwhich apart 121 operation requires three ormore pilots, § 121.432(a) establishes additional qualification standards forthe assigned SIC. Specifically, § 121.432(a) states, "Except in the case ofoperating experience under § 121.434, apilot who serves as second in command of an operation that requires three ormore pilots must be fully qualified to act as pilot in command ofthat operation." This provision has appeared inpart 121 since 1970. 

### See 35 Fed. Reg. 84 (Jan. 3, 1970); 41 Fed. Reg. 47227,47229 (Oct. 28, 1976) (redesignating § 121.432(c) as § 121.432(a) without any change).

In 1978, based on the plain meaning ofthe regulatory text, the FAA issued alegal interpretation of § 121.432(a). This interpretation stated that § 121.432(a) requires apilot who serves as SIC of
an operation that requires three ormore pilots to meet all PIC qualification requirements except for PIC operating experience. 

### See Legal Interpretation 1978-27 (also referred to as "the Faberman interpretation"). Legal Interpretation 1978-27 has represented the agency's definitive interpretation of § 121.432(a) for over 35 years. Ultimately, the agency determined that while § 121.432(a) places abroad set ofqualification requirements on SICs in crews ofthree or more, italso provides abroad exception from PIC operating experience.

Two commenters stated that Legal Interpretation 1978-27 incorrectly interpreted § 121.432(a) as providing an exception from PIC operating experience. According to commenters, the agency

2added the exception language ("Except inthe case ofoperating experience under § 121.434,

... ")

in order to allow the SIC inacrew ofthree ormore to complete PIC operating experience while serving as the SIC in acrew ofthree ormore. Commenters assert that this approach is consistent with the operating experience requirements for PIC candidates in § 121.434 which allows aPIC candidate to serve as arequired SIC while completing PIC operating experience. According to commenters, by carving outthe PIC operating experience from SIC qualification requirements, the SIC will not be fully qualified as aPIC asrequired by § 121.432(a) and that the agency's existing interpretation ofthe exception language conflicts with the intent ofthe provision. Although the agency maintains that the plain language ofthe regulatory text is clear, in light of comments received onthe recent proposed legal interpretation suggesting that the history ofthe § 121.432(a) warrants achange to Legal Interpretation 1978-27, weprovide athorough examination ofthe history of § 121.432(a). In 1965, several part 121 regulations addressed the requirements for SICs in crews ofthree or more. 

### See 14C.F.R. §§ 121.419, 121.441, 121.449 (1965 ed.). Specifically, part 121 required SICs in crews ofthree ormore to complete qualification and recurrent training and evaluation (proficiency checks) with the same content and frequency as PIC training and proficiency checks. 

### See 14C.F.R. §§ 121.419, 121.441, 121.449 (1965 ed.). At this time, part 121 did not contain arequirement for SICs in crews of three ormore to complete PIC operating experience. Subsequently, in a 1969 NPRM, "Training Programs, Airplane Simulators and Crewmember and dispatcher Qualifications; Flight Maneuvers" the agency proposed to amend part 121 and in doing so, explained that itintended to remove the repetitious stating ofrequirements forthe SIC of acrew ofthree ormore pilots. 

### See 34 Fed. Reg. 6112,6113 (Apr. 4, 1969) (proposing § 121.432(c), the predecessor to § 121.432(a)). Notwithstanding the NPRM preamble discussion, the agency included the following broad regulatory text as areplacement forthe existing qualification and recurrent training and evaluation requirements forthe SIC in acrew of three ormore: "A pilot who serves as second in command ofan operation that requires three or more pilots must be fully qualified to act aspilot in command ofthat operation." Following the 1969 NPRM, in 1970, the agency issued afinal rule in which itadded the exception pertaining to PIC operating experience without explanation. 

### See 35 Fed. Reg. 84, 87 (Jan. 3, 1970) (including final rule language identical to existing § 121.432(a)). The breadth of the SIC qualification requirement was discussed inthe agency's response to acomment suggesting that the PIC certification requirement (the requirement for an ATP certificate) should be substituted for the proposed SIC qualification requirements. 

### See id. Inthis context, the agency indicated that the qualification requirements forthe assigned SIC in acrew ofthree or more were not limited to oneparticular aspect ofPIC qualification as compared to the PIC certification requirement in § 121.437 and that the provision was intended to cover broader PIC qualification requirements. 

### See id. However, atno point inthe discussion of § 121.432 did the agency address the addition ofthe exception language. Although we have provided this review ofregulatory history forpurposes ofresponding to comments on the proposed legal interpretation, we caution that areview ofthe regulatory history is only appropriate when the plain meaning ofthe regulatory text is ambiguous. After further analysis of § 121.432(a), wehave determined that Legal Interpretation 1978-27 remains avalid

3interpretation ofthe regulation based onthe unambiguous regulatory text in § 121.432(a)

excepting PIC operating experience from the qualification requirements for an assigned SIC in a crew ofthree or more pilots.

Even ifthe regulatory text of § 121.432(a) could be considered ambiguous, thus leading one to rely on regulatory history forpurposes ofinterpretation, there is insufficient language inthe regulatory text and regulatory history to support the interpretation sought bycommenters. While the regulatory history indicates arequirement for broad qualification requirements, it does not foreclose an exception from these requirements. Further, an exception from these broad requirements does not, as commenters suggest, create acontradiction but rather ameans by which to provide some limits within abroad regulatory construct. We would have to weave together too many lapses inthe regulatory history andregulatory text itselfto arrive atthe interpretation offered by commenters. Accordingly, the § 121.432(a) interpretation recommended by commenters would require achange to the regulatory text of § 121.432(a).

Analysis of 14C.F.R. § 121.543(b)(3)(ii) The assigned SIC is arequired flightcrew member and as such may only leave his orher duty station forpurposes ofrest during the enroute cruise portion ofthe flight, ifrelief is provided by
apilot who meets the requirements identified in § 121.543(b)(3)(ii) to act as SIC ofthe aircraft during the en route cruise portion ofthe flight? 

### See 42 Fed. Reg. 37417, 37420 (July 21, 1977). Once arelief pilot assumes the responsibilities ofthe assigned SIC, the reliefpilot becomes a "required" flightcrew member within the meaning of § 121.543 and must remain atthat duty station until relief isprovided in accordance with § 121.543(b)(3)(ii).

To relieve the assigned SIC during the enroute portion ofaflight (the only time the assigned SIC may leave their duty station), apilot must meet the part 121 SIC qualification requirements, except forthe recency ofexperience requirement in § 121.439 (three takeoffs and landings within 90 days). 

### See § 121.543(b)(3)(ii). In contrast with § 121.432(a), which adds PIC qualification requirements to serve asthe assigned SIC in acrew ofthree ormore pilots, the relief pilot requirements in § 121.543(b)(3)(ii) do not identify any additional qualification requirements for service as SIC enroute. Accordingly, the pilot relieving the assigned SIC during the en route portion ofthe flight need not meet the additional SIC qualification requirements identified § 121.432(a).

2 Section 121.543(b )(3)(ii) allows arequired flightcrew member to leave the assigned duty station ifthe crewmember istaking arest and relief isprovided, "In the case ofthe assigned second in command, by apilot qualified to act as second in command ofthat aircraft during enroute operations. However, the relief pilot need not meet the recent experience requirements of § 121.439(b)." The agency notes that the requirements for PIC relief are independent from the requirements for SIC relief. Requirements for PIC relief for purposes ofrest during the en route cruise portion ofthe flight can be found in a separate paragraph, § 121.543(b)(3)(i). An assigned PIC may only be relieved by apilot who holds an airline transport pilot (ATP) certificate and appropriate type rating. See 14 C.F.R. § 121.543(b)(3)(i). Further, the PIC relief pilot may be either a fully qualified PIC oran SIC qualified to act
as PIC en route. See id. An SIC qualified to act as PIC en route means an SIC who has completed all PIC qualification requirements except for the following: 6-month recurrent training required by § 121.433( c)(1)(iii); the operating experience required by § 121.434; the takeoffs and landings required by § 121.439; the line check required by § 121.440; and the 6-month proficiency check or simulator training required by § 121.441(a)(1). See id.

4With this legal interpretation, we clarify that 

### § 121.543(b)(3)(ii) may not beused as a substitute

for the qualification requirements in §121.432(a). The assigned SIC in apart 121 operation that requires three ormore pilots must satisfy the PIC qualification requirements inaccordance with 

### § 121.432(a). However, the 

### § 121.432(a) requirements do not apply to apilot who relieves the assigned SIC for aperiod oftime enroute. Finally, we note that the exception to the recency requirement in § 121.543(b)(3)(ii) applies only to apilot who relieves the assigned SIC during the en route cruise portion ofthe flight.

Applicability ofAnalysis to Pilots Training Under Advanced Qualification Programs (AQP) Finally, one commenter asked that the agency address the applicability of § 121.432(a) to operators using an approved AQP forpilot training. Air carriers that conduct operations under part 121 may train and qualify crewmembers and aircraft dispatchers in accordance with the provisions ofcurrent subparts N, 

### 0, and P. Also, as established in subpart Yofpart 121, the agency allows part 121 operators to use alternative methods to train and qualify pilots in accordance with an approved AQP. To obtain approval ofanAQP, an air carrier must develop a Qualification Standards Document that specifies which requirements ofparts 61,63,65, 121, or 135, as applicable, will be replaced by the AQP curriculum. 

### See 14C.F.R. § 121.909. Each requirement contained inpart 61,63,65, 121, or 135 that isnot specifically addressed in an approved AQP curriculum continues to apply to the certificate holder. Accordingly, the SIC qualification requirements of 

### § 121.432(a) apply to all assigned SICs in part 121 operations that satisfy the applicability criteria in § 121.432(a) (i.e., part 121 operations that require acrew ofthree ormore pilots). This means that ifan operator uses an AQP for pilot training, the SIC must be fully qualified to serve as PIC (except forPIC operating experience) in accordance with the operator's AQP PIC qualification requirements.

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