Exemption No. 9911A 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 20591 

In the matter of the petition of 

AMERISTAR AIR CARGO, INC. Regulatory Docket No. FAA–2009–0250

for an exemption from § 121.434(h)(3) 

of Title 14, Code of Federal 

Regulations 

DENIAL OF PETITION FOR RECONSIDERATION 

By letter dated September 4, 2009, Mr. Pat Hulsey, Director of Operations, 

Ameristar Air Cargo, Inc. (Ameristar), P.O Box 700548, Dallas, Texas 75370–0548, 

petitioned the Federal Aviation Administration (FAA) on behalf of Ameristar for 

reconsideration of Denial of Exemption No. 9911, issued August 4, 2009. The proposed 

exemption from § 121.434(h)(3) of Title 14, Code of Federal Regulations (14 CFR), if 

granted, would permit Ameristar to allow a pilot who has not completed the requirements of 

§ 121.434(g) and serves as a pilot on another aircraft to serve as a pilot in the aircraft for 

which the pilot has newly qualified without completing refresher training. 

The petitioner requests relief from the following regulations:

Section 121.434(h)(3) prescribes, in pertinent part, that if before completing the 

required 100 hours of line operating flight time [in § 121.434(g)], a pilot serves as a 

pilot in another aircraft type operated by the certificate holder, the pilot may not serve 

as a pilot in the aircraft for which the pilot has newly qualified unless the pilot 

satisfactorily completes refresher training as provided in the certificate holder’s 

approved training program and that training is conducted by an appropriately qualified 

instructor or check pilot. 

AFS–09–384–E 
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The petitioner supports its request with the following information:

In support of the petition for reconsideration, the petitioner presented several arguments, some 

of which do not meet the standard for reconsideration under 14 CFR § 11.101 and will not be 

addressed in this response. The FAA considers the following arguments raised by the 

petitioner as the basis for its request for reconsideration: 

The FAA incorrectly interpreted the intent of § 121.434(h)(3). The petitioner asserts that the 

FAA failed to consider the language from Amendment No. 121–248, Pilot Operating and 

Experience Requirements; Final Rule (60 FR 20858; April 27, 1995), concerning the 

complexity of aircraft involved and the rationale for requiring refresher training for pilots 

transitioning between different aircraft types before completing 100 hours of line operating 

flight time. The petitioner states that in the 1995 amendment, the FAA understood the 

differences between aircraft types and that programs should be tailored to the “complexities 

between the aircraft types” to include refresher training. Furthermore, the preamble to the 

amendment provides that “ the amount of refresher training depends on the extent of the lapse 

and what skills and knowledge have been lost during the lapse...This qualification training 

should focus on, among other things, procedural knowledge regarding the operation of the 

aircraft (e.g. programming the aircraft’s flight management system) and other critical skills 

such as engine inoperative approaches and missed approaches.” 

The petitioner asserts that by failing to recognize this intent, the FAA erred in determining 

that the aircraft the petitioner operates are not similar or related. Ameristar operates a 

Boeing 737–200 (B 737–200) and a McDonnell Douglas 9–15F (DC 9–15F) aircraft. The 

petitioner states that these aircraft have the Pratt & Whitney JT8D engine. The petitioner 

maintains that the starting sequence, limitations, spool up time, engine instruments, 

generators, and accessories, such as fuel heaters, engine anti-ice, and oil coolers, are identical. 

In addition, the navigation systems in the aircraft are identical: very high frequency (VHF) 

omnidirectional range (VOR)-to-VOR navigation using nonelectronic flight information 

systems (EFIS or glass cockpit). The petitioner also states that the flight control systems of 

both aircraft have conventional hydraulic systems backed up by cables. The petitioner asserts 

that these facts were not considered in the denial of the exemption. 

In addition, the petitioner asserts that the FAA failed to recognize the small lapse in time 

between completing a proficiency check and the requirement for refresher training as 

presented in this petition. For example, if a pilot who completed a proficiency check on 

February 28 serves as a pilot on another aircraft type on one flight leg on March 1, the lapse 

of proficiency on the new aircraft by flying another aircraft type would not be measurable. In 

this scenario, the petitioner maintains that refresher training is redundant and not necessary to 

maintain newly qualified pilot skills. According to the petitioner, these minor lapses were not 

considered during the rulemaking process for § 121.434(h)(3) and should warrant 

consideration for exemption. 
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The petitioner further asserts that the FAA also erroneously applied provisions in §§ 121.434-

121.439. The petitioner recognizes that it must comply with all other applicable crew 

qualification rules of part 121, including these provisions. Specifically, the petitioner states 

Ameristar’s proposed exemption relief would apply only to pilots who meet all other currency 

requirements of its flight crew member training program and all other requirements of 

part 121 for pilot qualifications for seat position on the type aircraft. The petitioner notes the 

proposed exemption would provide an alternative only to the requirement for refresher 

training and the alternative would provide an equivalent level of safety. Therefore, the 

petitioner concludes that because Ameristar complies with all the issues beyond the 100-hour 

consolidation limitation, there are no “additional issues that would require constant oversight, 

diminish safety, and increase surveillance requirements,” contrary to the FAA’s analysis. 

A summary of the original petition for exemption was published in the 

Federal Register on May 26, 2009 (74 FR 24897), and no comments were received. 

Therefore, the FAA has determined that it is not necessary to publish Ameristar’s petition 

for reconsideration. 

The FAA’s analysis is as follows: 

Under § 11.101, a petition for reconsideration must demonstrate that: 

 A significant additional fact exists and the reasons the petitioner did not 

include it in the original petition for exemption; 

 The FAA made an important factual error in denying the original petition for 

exemption; or 

 The FAA did not correctly interpret a law, regulation, or precedent. 

The FAA has carefully reviewed the information provided in the original petition for 

exemption and the petition for reconsideration and determined that the petitioner has not 

provided any basis for granting the reconsideration request. 

As the basis for this request for reconsideration, the petitioner asserts that the FAA incorrectly 

interpreted and applied the law and, in doing so, made important factual errors in the denial of 

the petition for reconsideration. The petitioner has not submitted any significant additional 

facts that were not included in its original petition for exemption. 

The FAA will first address the petitioner’s assertion that the FAA incorrectly interpreted the 

intent of § 121.434(h)(3) and, in doing so, failed to recognize the insignificant lapse in time 

between the proficiency check and line operating flight time and the similarities of the aircraft 

it operates. The FAA has considered these arguments and determined that reconsideration is 

not warranted. 

In the denial of the petitioner’s exemption request, the FAA specifically recognized that the 

intent of the requirements of §§ 121.434-121.439, and specifically § 121.434(h)(3), is to 
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ensure that the certificate holder’s newly qualified pilots consolidate their skills and 

knowledge in the new aircraft, transfer simulator training to that aircraft, qualify for line 

operations, and maintain currency in line operations in that specific aircraft type. In adopting 

the 100-hour consolidation requirement in the final rule, the FAA considered comments 

recommending reducing the requirement to 75 hours or allowing a reduction in consolidation 

hours based on the number of takeoffs and landings performed during a certain timeframe. 

These alternatives were explicitly rejected and the FAA maintained that the consolidation 

hours “may not be reduced.” The FAA stated that “it is important for a pilot who has 

qualified in an airplane to have an opportunity to consolidate the newly developed piloting 

skills and procedural knowledge through substantial line operating experience in the airplane 

within a reasonably short time after completing training and satisfactorily demonstrating 

proficiency.” 60 FR 20858, 20861 (Apr. 27, 1991). This fact remains unchanged today, and 

the FAA’s interpretation of the intent of the consolidation requirement, and corresponding 

refresher training, in the denial of the petitioner’s exemption was correct. 

Further, in regard to the petitioner’s assertion that the FAA failed to consider the short lapse 

in time between the proficiency checks and line operating experience both in its request for 

exemption and in the development of the final rule, this is not the case. In response to the 

proposed rule, Alaska Airlines stated that “refresher training” in § 121.434(h)(3) would 

address “students who are current with no appreciable lapses in exposure to the equipment 

type they would be trained on.” 60 FR 20862. Alaska Airlines asserted that this was contrary 

to the intent of traditional “requalification programs” which were designed to “provide 

students with training to reacquaint them with an aircraft type from which they have been 

absent for a specific period of time, such as extended military leaves.” Id. In response, the 

FAA stated that “the amount of refresher training would depend on the extent of the lapse and 

what skills and knowledge have been lost during the lapse.” Id. Recognizing that this might 

vary between certificate holder based on the types of operations they conduct and their fleets, 

the FAA did not prescribe curriculum requirements for the refresher training. Rather, the 

FAA stated that each certificate holders was responsible for developing training objectives for 

refresher training for each make and model airplane used in part 121 operations and that the 

“refresher training should ensure that pilots have retained, or are allowed to regain, the level 

of proficiency needed to serve in part 121 operations.” Given the discretion afforded to the 

certificate holder to develop the amount and type of refresher training required based on the 

duration of the lapse, the FAA does not believe it is appropriate to grant an exemption from 

this requirement. Rather, the petitioner should review its training program, determine if its 

refresher training program meets the stated objective provided in the final rule, and develop 

any modifications based on the lapse of time between events and the similarities of the aircraft 

it operates. 

Next, in regard to the petitioner’s assertion that the FAA failed to acknowledge the 

similarities of the aircraft it operates, the FAA specifically acknowledged the similarities the 

petitioner notes in its request for reconsideration in the denial of the exemption and rejected 

them. The FAA stated that these aircraft are “not of the same type, nor common type, nor 

related type as determined by the FAA.” Subsequent to the request for reconsideration of the 

Denial of Exemption, the Flight Standardization Board Report issued Revision #12, dated 
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December 11, 2009, for the Boeing 737, all series. In Section 4, page 3, “Master Differences 

Requirements” (MDRs), the Board outlines comprehensive and detailed requirements for 

training on the various series of Boeing 737s. The last Board report on the DC-9 series 

aircraft was Revision 36, dated November 20, 2003. The differences training required within 

the series of DC-9 aircraft are also comprehensive and extensive. Based on the review and 

comparison of these reports the FAA has determined that these aircraft are not so similar or 

related to warrant an exemption from the refresher training requirements of § 121.434(h)(3). 

The petitioner is requesting relief from a regulation that never considered that an operator 

would blur the training required between two different aircraft types and manufacturers. The 

training specified in the MDRs has never considered the training that would be required 

between two different aircraft manufacturers and two different aircraft types. The petitioner 

has failed to provide additional information regarding any commonality between the two 

aircraft MDRs that would allow the FAA to grant such an exemption. 

The petitioner further asserts that the FAA also erroneously applied provisions in §§121.434-

121.439 in its denial. The petitioner recognizes that it must comply with all other applicable 

crew qualification rules of part 121, including these provisions. The FAA recognizes that the 

petitioner was not seeking exemption from all of these requirements. These provisions were 

cited to provide context for the purpose of an air carrier’s training program in the aggregate 

and further support of the consolidation and refresher training requirements of § 21.434(h)(3). 

Given the analysis set forth above, the FAA has determined that reconsideration is not 

warranted based on this assertion. 

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. §§ 40113 

and 44701, Ameristar Air Cargo, Inc.’s petition for reconsideration of Denial of Exemption 

No. 9911 from 14 CFR § 121.434(h)(3) is hereby denied. 

/s/ 

J. Randolph Babbitt 

Administrator 

Issued in Washington, D.C., on September 30, 2011.