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. Pa t Hulsey, Director of Operations, Ameristar Air Cargo, Inc. (Ameristar ), P.O Box 700548, Dallas, Texas 75370–0548, petitioned the Federal Aviation Administra tion (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 pilo t 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 w ithout completing refresher training.

The petitioner requests relief from the following regulations:

Section 121.434(h)(3) pres cribes, in pertinent part, th at if before completing the required 100 hours of line opera ting flight time [in § 121.434(g) ], a pilot serves as a pilot in another aircraft type operated by the certificate ho lder, the pilot may not serve as a pilot in the aircraft for which th e 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–E2

The petitioner supports its request with the following information:

In support of the petition for reconsideration, th e petitioner presented several arguments, some
of which do not meet the standard for recons ideration under 14 CFR § 11.101 and will not be addressed in this response. The FAA cons iders 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). Th e petitioner asserts that the FAA failed to consider the language fr om 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 rationa le for requiring refres her training for pilots transitioning between different aircraft t ypes before completing 100 hours of line operating flight time. The petitioner states that in the 1995 amendment, the FAA understood the
differences between aircraft t ypes and that programs should be tailored to the “complexities between the aircraft types” to include refresher training. Fu rthermore, the preamble to the amendment provides that “ the amount of refres her 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 fa iling 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 Dougl as 9–15F (DC 9–15F) aircraft. The petitioner states that these aircraft have th e 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 aircra ft are identical: very high frequency (VHF) omnidirectional range ( VOR)-to-VOR navigation using none lectronic 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 cab les. The petitioner asserts
that these facts were not considered in the denial of the exemption.

In addition, the petitioner assert s that the FAA failed to recogn ize 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 aircra ft 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 re fresher 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 proce ss for § 121.434(h)(3) and should warrant consideration for exemption.3

The petitioner further asserts that the FAA al so 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, in cluding these provisions. Spec ifically, the pe titioner states Ameristar’s proposed exemption relief would appl y only to pilots who meet all other currency requirements of its flight crew member trai ning 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 th e requirement for refresher training and the alternative would provide an eq uivalent level of safe ty. Therefore, the petitioner concludes that becau se Ameristar complies with al l the issues beyond the 100-hour consolidation limitation, there ar e no “additional issues that w ould require constant oversight, diminish safety, and increase surveillance requir ements,” 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 publis h Ameristar’s petition
for reconsideration.

The FAA’s analysis is as follows:

Under § 11.101, a petition for reconsid eration 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 erro r 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 informa tion provided in the original petition for exemption and the petition for reconsideration and determined that the petitioner has not provided any basis for granting th e reconsideration request.

As the basis for this request fo r reconsideration, the petitioner a sserts that the FAA incorrectly interpreted and applied the law and, in doing so, ma de important factual erro rs in the denial of the petition for reconsideration. The petiti oner has not submitted any significant additional
facts that were not included in its original peti tion for exemption.

The FAA will first address the petitioner’s assert ion 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 argum ents and determined that reconsideration is
not warranted.

In the denial of the petitione r’s exemption request, the FAA sp ecifically recognized that the intent of the requirements of §§ 121.434-121.439, and specifically § 121.434(h)(3), is to4

ensure that the certificate holder’s newly qualified pilots consolidate their skills and knowledge in the new aircraft, transfer simulato r training to that airc raft, qualify for line operations, and maintain currency in line operations in that specific aircra ft type. In adopting the 100-hour consolidation requirement in the final rule, the FAA considered comments recommending reducing the requirement to 75 ho urs or allowing a reduction in consolidation
hours based on the number of takeoffs and landin gs performed during a certain timeframe. These alternatives were explic itly rejected and the FAA main tained that the consolidation hours “may not be reduced.” The FAA stated that “it is importan t for a pilot who has qualified in an airplane to ha ve an opportunity to consolidate the newly developed piloting skills and procedural knowledge through substan tial line operati ng experience in the airplane within a reasonably short time after completi ng training and satisfact orily 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 lin e operating experience both in its request for exemption and in the development of the final ru le, 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 appr eciable lapses in exposure to the equipment type they would be trained on.” 60 FR 20862. Alas ka Airlines asserted th at this was contrary to the intent of traditional “requalification programs” which were designed to “provide students with training to reacquain t 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 trai ning would depend on the ex tent of the lapse and what skills and knowledge have been lost during the lapse.” Id. Recognizing that this might vary between certificate holder ba sed on the types of operations they conduct and their fleets, the FAA did not prescribe curriculum requireme nts for the refresher training. Rather, the
FAA stated that each certificate holders was re sponsible for developing training objectives for refresher training for each make and model airplane used in pa rt 121 operations and that the “refresher training should ensure that pilots ha ve retained, or are allo wed to regain, the level of proficiency needed to serve in part 121 opera tions.” Given the discretion afforded to the certificate holder to develop th e amount and type of refreshe r 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 fina l 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 assert ion 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 reconsiderati on in the denial of the exemption and rejected
them. The FAA stated that these aircraft ar e “not of the sam e type, nor common type, nor related type as determined by the FAA.” Subse quent to the request for reconsideration of the Denial of Exemption, the Flight Standardiz ation Board Report issued Revision #12, dated5

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 comprehe nsive 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 re fresher training require ments of § 121.434(h)(3).

The petitioner is requesting relief from a regula tion 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 cons idered the training that would be required
between two different aircraft manufacturers and two different aircraft types. The petitioner has failed to provide additional informati on regarding any commonality between the two
aircraft MDRs that would allow th e 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 petitione r recognizes that it must comp ly 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 re fresher training requirements of § 21.434(h)(3). Given the analysis set forth above, the FAA ha s determined that reconsideration is not
warranted based on this assertion.

The FAA’s Decision:

In consideration of the foregoing, I f ind 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 fo r 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.