AFS-13-103-E

Exemption No. 10803

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

EVERGREEN INTERNATIONAL

AIRLINES, INC. Regulatory Docket No. FAA-2012-1240

 

for an exemption from § 121.652(a) 

and (c) of Title 14, Code of 

Federal Regulations 

DENIAL OF EXEMPTION

 By letter dated November 16, 2012, Mr. William J. Zehner, Director of Operations, 

Evergreen International Airlines, Inc. (Evergreen), 3850 Three Mile Lane, McMinnville, OR 

97128 petitioned the Federal Aviation Administration (FAA) on behalf of Evergreen for an 

exemption from § 121.652(a) and (c) of Title 14, Code of Federal Regulations (14 CFR). The 

proposed exemption, if granted, would allow a new Evergreen pilot in command (PIC) that is 

subject to higher landing minimum requirements to operate to the normal, lower Category I 

minimums under the conditions stipulated.

The petitioner requests relief from the following regulations:

Section 121.652(a) prescribes that if the PIC of an airplane has not served 100 hours as 

PIC in operations under this part in the type of airplane the PIC is operating, the minimum 

descent altitude (MDA) or decision altitude/decision height (DA/DH) and visibility landing 

minimums in the certificate holder's operations specification for regular, provisional, or 

refueling airports are increased by 100 feet and one-half mile (or the runway visual range 

(RVR) equivalent). 

Section 121.652(c) prescribes that Category II minimums and the sliding scale when 

authorized in the certificate holder's operations specifications do not apply until the PIC

subject to paragraph (a) of this section meets the requirements of that paragraph in the type of 

airplane he is operating.
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The petitioner supports its request with the following information:

The petitioner states that at the time of initial issuance, (Exemption 5549), Evergreen 

was an Air Transport Association (ATA), now Airlines for America (A4A) member 

and received exemption extensions via A4A petitions. At this time, as a “similarly 

situated part 121 certificate holder,” Evergreen respectfully petitions for an Exemption 

from 121.652(a) and (c) on our own behalf.

Evergreen proposed to include the conditions of this exemption in various manuals and 

to brief crew members in training on the requirements of the conditions of the 

exemption. Evergreen also stated that during simulator training the company trains 

potential PIC’s new to the type airplane being operated in instrument approach 

procedures to a DH of 100 feet. Evergreen provided excerpts from a B747-400 training 

manual which addressed this training.

The FAA's analysis is as follows:

The FAA finds that Evergreen operates B747-200 and B747-400 series airplanes as a cargo 

only operator under a part 121 supplemental certificate. Evergreen International had been 

granted Exemption 5549, with amendments, through a group exemption first granted to the 

A4A on November 6, 1992. In its petition, Evergreen states that as an A4A member it was

granted this exemption on initial issuance and has received subsequent extensions through the 

A4A submission process. Evergreen as a “similarly situated part 121 certificate holder” now 

petitions on its own behalf.

In order to ascertain whether Evergreen’s petition meets equivalent safety standards for 

granting an exemption to §121.652(a) and (c), the FAA reviewed Evergreen’s current 

operations specifications (OpSpecs) and other operational authorizations, such as, Evergreen’s 

training program, aircraft airworthiness and qualification relevant to this petition with the 

Evergreen’s Certificate Management Team. Of primary relevance to our consideration is that 

Evergreen has not been issued OpSpecs C059, which authorizes Category II operations. 

Therefore, in evaluating Evergreen’s petition for exemption and supporting material, the FAA 

focused on Condition No. 2 Category I, specific, in Exemption 5549 (as amended), which 

states: 

2. Category I, specific. A PIC with fewer than 100 hours as PIC in the airplane being 

operated may be authorized to use the lowest applicable Category I instrument approach 

minimums for a particular runway and instrument approach procedure if each of the following 

conditions is met:

a. The PIC and other required flightcrew members are trained and qualified for 

Category II or Category III, or are trained to an equivalent level with respect to

the airborne system use, ground facility use, associated procedures, and any 

other relevant topics.
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b. The aircraft and associated airborne systems are eligible for Category I or II for 

that operator when the certificate holder’s approved training program 

incorporates the use of an approach coupler or a head-up display (HUD) system

that provides flight guidance information to decision height.

c. The approach coupler or HUD system is used for the approach to DH or until 

initiation of a missed approach.

d. The flightcrew must use appropriate instrument approach procedures for 

Category II or III, or equivalent instrument approach procedures acceptable to 

the Administrator.

e. Category I instrument approach procedures or landings will not be initiated 

when the weather conditions are below 4,000 RVR (3/4 mile visibility) and the 

cross-wind component exceeds 15 knots combined with a braking action report 

of less than “good.”

In the initial grant of exemption 5549, and in subsequent extensions, the FAA established the 

safety rationale for the conditions listed in a grant of exemption from §121.652(a) and (c). 

Specifically, “.... [t]he FAA found that to ensure equivalent or greater safety than that 

intended by §121.652, only certain HUD and autoland systems, used with appropriate 

instrument flight and crew procedures and at appropriate airports and runways, should qualify 

for the credit. Use of these systems must be considered as a comprehensive package, 

considering factors such as the category of landing minimums desired, characteristics of the 

airborne system, appropriate operating limits and procedures, appropriate crew experience 

pairing, and suitable ground facilities. The credit allowed must also be fully consistent with 

the training the crew members received, and any initial operating experience completed as 

well as include use of appropriate training devices or simulators approved for the pertinent 

low visibility scenarios that are applicable.” This rationale provides continuing support for 

Condition Nos. 1 and 2 in Exemption 5549, as amended, requiring the air carrier to be 

approved for Category II or III operations. 

Condition Nos. 2.a and 2.b describe the training program and flight crewmember training 

required for new PIC authorization to operate under the exemption. Evergreen trains in Level 

C and D simulators, which provide sufficient fidelity and the capability to adequately perform 

approaches to either a landing or missed approach under ceiling and visibility conditions 

relevant to this exemption. In an amplification of its initial submission, Evergreen stated it

would train new PICs to conduct instrument landing system coupled approaches to a DH of 

100 feet followed by either a missed approach or landing. Evergreen also submitted a section 

from what is identified as “B-747-400 Transition Training” showing a lesson profile for a 

flight simulator period identified as: “SIM PERIOD 10 – LOFT.” (Line Oriented Flight 

Training). This profile indicates an approach to Los Angeles (KLAX) “CAT 2 ILS 25L (set 

DH 10 100’ above touchdown zone elevation), Missed Approach.” A second “Cat 2 ILS 25L” 

is performed to a “Full Stop landing.” The second segment of “LOFT – 10” provides a note 
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stating that: “If the second pilot is also a new captain conduct two Cat 2 approaches, one to a 

missed approach and another to a full stop.” The FAA assumes that Evergreen bases its

petition for exemption on this training as establishing an equivalent level to the exemption 

requirement for Category II training. The FAA does not agree.

Evergreen does not present the comprehensive program necessary to meet the level of safety 

at least equal to that provided by the rule. While training in approved Level C and D 

simulators to a decision height of 100 feet might seem to meet an equivalent level to Category 

II operations, which normally has a DH of 100 feet, the criteria is based on far more than 

meeting a decision height equivalent. Without a complete presentation of enhanced crew 

procedures and coordination, system failure awareness, weather conditions, airport criteria and 

other pertinent areas, training to a DH of 100 feet using Category I procedures is viewed as 

simply enhanced Category I training. Training to a DH of 100 feet using Category I 

procedures has been common within the industry for many years. In and of itself, this training 

does not constitute an equivalent level to Category II and therefore does not meet the 

requirements for an exemption to §121.652(a) and (c).

Evergreen did not provide the FAA with crew approach and monitoring procedures, crew 

coordination procedures when conducting low visibility approaches, or any other procedural 

presentation applicable to an equivalent to a Category II approach. 

A review of manuals forwarded by the Evergreen Principal Operations Inspector indicated a 

diffuse and confusing presentation of a Category II program. There were at least two places in 

manuals that identified an outline that very briefly addressed some Category II items 

applicable to training while at the same time, and in other places, are statements saying that 

Evergreen does not have a Category II program and is not presently authorized for Category II. 

Category II requires inclusion of Category II approaches during initial and recurrent checks. 

The material presented to the FAA by Evergreen provides for training to a DH of 100 feet 

during a LOFT scenario. A LOFT is not a check event therefore Evergreen does not establish 

a level equivalent to Category II.

The heart of an exemption enabling a new PIC to fly to Category I or II published minimums,

as stated in Condition No. 2.b, Category I, specific is crew training and qualification in the 

next highest level of approach operations. Evergreen is not presently authorized for Category

II operations, therefore, it must demonstrate an entire program that presents a level of safety at 

least equal to that provided by the rule; this Evergreen did not accomplish.

Further, the Evergreen petition requested exemption 5549 without identifying a specific 

airplane type and series; therefore it must be assumed the petition was meant to apply to both 

the Boeing B747-200 series airplane and the B747-400 series airplane. The two series of B747 

airplanes operated by Evergreen require separate type ratings with accompanying cockpit 

environment and crew procedures that would differ in areas significant to this petition. An 

exemption of this nature, specific to new PICs conducting low visibility approaches, requires 
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airplane-specific procedures. While the FAA views the B747-400 submission inadequate as 

previously mentioned, the complete absence of any B747-200 information renders an approval 

impossible.

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, delegated to me by the Administrator, the petition of Evergreen International 

Airlines, Inc. for an exemption from 14 CFR § 121.652 (a) and (c) is hereby denied. 

Issued in Washington, DC, on June 17, 2013

.

/s/

John S. Duncan

Deputy Director, Flight Standards

Service