AFS

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- E Exemption No. 13041

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

FREIGHT RUNNERS EXPRESS Regulatory Docket N o. FAA

- 2014

- 10 29

for an exemption from § 135.1 17 of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated December 11, 2014, Mr. Patrick Hammer, Director of Operations, Freight Runners Express, Inc. (Freight Runners), 1901 East Layton Avenue, Milwaukee, Wisconsin,

53207

, petitioned the Federal Aviation Administration (FAA) on behalf of Freight Runners for an exemption from § 13 5.1 1 7 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Freight Runners to operate under § 121.571 in lieu of § 135.117 when conducting passenger

- carrying operations under part 135 in aircraft

with more tha n 19 seats installed.

The petitioner requests relief from the following regulation:

Section 135.1 1 7 prescribes, in pertinent part , that each pilot in command of an aircraft carrying passenger shall ensure that all passengers receive an oral briefing on to pics of safety including when, where, and under what conditions smoking is prohibited; the use of safety belts, the placement of seat backs in an upright position before takeoff and landing; l ocation and means for opening the passenger entry door and emerg ency exits;

the l ocation of survival equipment , and i f the flight involves extended overwater operation, ditching procedures and the use of required flotation equipment; i f the flight involves operations above 12,000 feet mean sea level (MSL) , the normal a nd emergency use of oxygen; and l ocation and operation of fire extinguishers.

The pilot in command or a crewmember is permitted to give this oral briefing, and for aircraft certificated to carry 19 passengers or less, the oral briefing shall be given by t he2

pilot in command, a crewmember, or other qualified person who is designated by the certificate holder and approved by the FAA

.

In addition, § 135.117 also requires that the pilot in command ensure s that each person who may need the assistance of anothe r person to move expeditiously to an exit if an emergency occurs and that person's attendant, if any, has received a briefing as to the procedures to be followed if an evacuation occurs

.

Additionally, § 135.117 requires that the oral briefing to be supple mented by printed

cards which must be carried in the aircraft in locations convenient for the use of each

passenger. The cards must b e appropriate for the aircraft on which they are to be used;

c ontain a diagram of, and method of operating, the emergency exits; c ontain other instructions necessary for the use of emergency equipment on board the aircraft; and for scheduled Commuter passenger

- carrying flights, include the sentence, “Final assembly of this aircraft was completed in [INSERT NAME OF COUNTRY].”

Lastly, § 135.117 permits the briefing described above to be delivered by means of an approved recording playback device that is audible to each passenger under normal

noise levels.

The petitioner supports its request with the following information:

Frei ght Runners Express is requesting an exemption to comply with § 121.571 in lieu of § 135.117 when conducting passenger

- carrying operations in aircraft with more than

19 passenger seats installed.

The petitioner states t he b riefing of passengers before fli ght ( § 135.117) is tailored to aircraft

that do not have an FAA

- Certificated flight attendant onboard

, while b riefing passengers before takeoff ( § 121.571) is for part 121 operations which include a flight attendant crewmember. Aircraft operated under part 135 with more than 19 passenger seats installed require a flight attendant crewmember ( § 135.107). The petitioner asserts requirements of § 121. 571 are more applicable than those in § 135.117.

The petitioner asserts t he requirements of § 135.117 include unnecessary information when a flight attendant is used and detract from the briefing by adding unnecessary information such

as : the location of survival equipment, location and operation of a fire extinguisher, location

and means for opening the passenge r entry door. The petitioner states that, when performing the briefing required by § 135.117

, the additional information requires the briefing to be longer and may lose the attention of the passenger.

Additionally, the petitioner contends § 135.117 requi res that the pilot in command briefs each person who many need the assistance of another person to move expeditiously to an exit if an emergency occurs, while § 121. 571 requires that a required crewmember assigned to the flight3

performs the briefing. The petitioner contends that it is more appropriate for the flight attendant to brief the passenger rather than the pilot in command.

The petitioner states t he requirements for the supplemental printed cards under § 121. 571 require that the card contains info rmation pertinent only to the type and mode l of airplane used for that flight, while § 135.117 requires they be appropriate for the aircraft on which they

are used. The p etitioner states that § 121. 571 is more restrictive and safer.

The petitioner points out that § 121. 571 requires that the procedure for the briefing be

included in the certificate holders manual, while § 135.117 has no such requirement. The petitioner states t his enhances safety by having a written procedure.

The petitioner request s FAA approval to exercise the privileges of this exemption inside and

outside of the United States due to the fact that their [sic] should not be different passenger briefing requirements inside and outside the United States.

Finally, the petition er contends t hat t he proposed exemption enhances passenger safety by complying with part 121 passenger briefing requirements.

A summary of the petition was published in the Federal Register on January 20 , 2015 ( 80 FR

2773 ). No comments were received.

The FAA's analysis is as follows:

The FAA finds that a grant of exemption would not provide a level of safety equivalent to the

rule.

In the first assertion, the petitioner states t he b riefing of passengers before flight ( § 135.117) is

tailored to aircraft that do not have an FAA

- c ertificated flight attendant onboard

, while

b riefing passengers before takeoff ( § 121.571) is for part 121 operations which include a flight

attendant crewmember. Section 135.107 states “[ A ] ircraft operated under part 135 with more

than 19 passenger seats installed require a flight attendant

. ”

The petitioner further states that the requirements of § 121. 571 are more applicable [to operations that require a flight attendant] than those in § 135.117. The FAA disagrees in part

with the a ssertion that § 135.1 1 7 is tailored to aircraft without a flight attendant onboard , as many part 135 operations do operate with an FAA

- certificated flight attendant assigned as a

crewmember , and part 135 regulations are written to address both types of ope rations

. Section

135.117 includes information that is pertinent to all passengers for the safety of flight

, regardless of whether there is a flight attendant assigned to that flight or not

. Section 121.571

states that , for operations that do not use a fl ight attendant, passenger briefings must also

include information about t he placement of seat backs being in an upright position before takeoff and landing ; the l ocation of survival equipment ; the normal and emergency use of

oxygen for o perations above 12, 000 MSL, and the location and operation of installed fire4

extinguisher s

. Each of these part 121 briefing items in included in the briefing requirements of § 135.1 1 7 , regardless of whether a flight attendant i s assigned to the flight or not.

T he petitione r asserts t he requirements of § 135.117 include unnecessary information when a flight attendant is used , which detract s from the briefing by adding unnecessary information

, such as the location of survival equipment, location and operation of a fire exting uisher,

location and means for opening the passenger entry door. The p etitioner further asserts that

the additional information required in the briefing required by § 135.117 r equires the briefing

to be longer and may lose the attention of the passenger. The FAA disagrees with the petioner’s assertion that “t he requirements of § 135.117 include unnecessary information”

because the information includes safety aspects specifically designed to assist passengers in the event of any type of emergency. Many pa rt 135 operations that require a flight attendant typically have only one flight attendant crewmember, and should that flight attendant become incapacitated, passengers need to know safety information that pertains to that aircraft

. Knowing the location o f survival equipment, fire extinguishers and the passenger entry

door (s) and how to operate those pieces of emergency equipment could increase passenger survivability in the event of an emergency

.

In Appendix 3

. p art 135 Operations , of Advisory Circular 121

- 24C, Passenger Safety Information Briefing And Briefing Cards, dated July 23, 2003, the FAA discusses the oral briefing and passenger information cards used in operations conducted under part 135. “ The pretakeoff oral briefing should be given so that each passenger can clearly hear it. Crewmembers giving these briefings should speak slowly and distinctly. The pretakeoff oral briefing may be given by audiotape or videotape means. This method of passenger briefing should be considered

when the aircraf t is equipped with the necessary videotape and sound equipment. The advantage of an audiotape or videotape presentation is the assurance that a complete briefing is given, that the diction is good, and that an overall high quality briefing is maintained. Tape presentations also lend themselves very well to a multilingual presentation. In addition, a videotape presentation can include “signing” for the deaf and other visual presentations, which may be more meaningful to passengers. ” The AC further iterat es that it is up to each operator to deliver the safety briefing required by § 135.117 thoroughly and with a high quality , so that all passengers are made aware of the provided safety instructions . The FAA supports an operator’s use of

creative and effect ive methods that use state

- of

- the

- art technology to convey safety information to passengers.

Additionally, the petitioner contends § 135.117 requires that the pilot in command briefs each person who many need the assistance of another person to move exped itiously to an exit if an emergency occurs, while § 121. 571 requires that a required crewmember assigned to the flight performs the briefing. Petitioner states that i t is more appropriate for the flight attendant to brief the passenger rather than the pilo t in command , an assertion with which the FAA agrees

. The regulation ( § 135.117) requires the pilot in command to ensure that each person who may need assistance to move to an exit if an emergency occurs and that person’s attendant, if any,

has received a briefing. The regulation does not require this “special passenger” briefing to be conducted by the pilot in command. The regulation allows for the briefing to occur by a5

crewmember, who may then communicate to the pilot in command that the briefing has

occurred.

The petitioner also states t he requirements for the supplemental printed cards under § 121. 571 require that the card contains information pertinent only to the type and mode l of airplane used for that flight, while § 135.117 requires they be ap propriate for the aircraft on which they

are used. The p etitioner states that § 121. 571 is more restrictive and safer. Oral briefings must be supplemented with briefing cards, which must be appropriate for the type and model of aircraft on which they are to be used and consistent with the airline’s procedures. The

information on the cards should be consistent with the information contained in the air

carrier's manuals.

When aircraft equipment is substantially different even with the same model of aircr aft, the air carrier should provide information specific to that aircraft. Merely labeling the depiction of the differences with the type and model of aircraft is not sufficient. Section 135.117 requires the safety information card to be “appropriate for the aircraft on which they are to be used,”

and the card must also contain diagrams of and method of operating, the emergency exits as well as other instructions necessary for the use of emergency equipment on board the aircraft. If Freight Runners wish es to use a generic printed card, it may, but only if the card is deemed “appropriate” by the FAA and approved by the operator’s Certificate Management Office

P rinciple O perati o n s I nspector (POI) assigned to that air carrier . Freight Runners may

enhance s afety for its operation by using cards that contain information pertinent only to the type and model of the airplane used for that flight, as required by § 121.571.

The petitioner points out that § 121. 571 requires that the procedure for the briefing be

included in the certificate holder ’ s manual, while § 135.117 has no such requirement. The petitioner states t his enhances safety by having a written procedure. Section 135.21 requires

each certificate holder to “ prepare and keep current a manual setting forth the certificate holder's procedures and policies acceptable to the Administrator. This manual must be used by the certificate holder's flight, ground, and maintenance personnel in conducting its operations. ” Section 135.23 lists the contents requir ed for the manuals specified in § 135.21, including the p rocedures for ensuring compliance with emergency procedures and to be followed by the pilot in command in the briefing under § 135.117 . C urrently, Freight Runners has a separate flight attendant man ual that contains standard operating and emergency procedures for its flight attendants. It is expected that the procedure for the briefing required by § 135.117 is included in this flight attendant manual and that any changes to this manual are accepted by the POI

.

The petitioner request s FAA approval to exercise the privileges of this exemption inside and

outside of the United States due to the fact that their [sic] should not be different passenger briefing requirements inside and outside the United States. Section 135.117 does not differentiate between briefing requirements for flights that operate within the United States or those that operate outside the U nited States

.6

T he petition er contends that t he proposed exemption enhances passenger safet y by complying with part 121 passenger briefing requirements. R egulations set forth by the FAA do so to enhance passenger safety and are tiered according to the level of risk inherent in the CFR part

under which the operation is conducted

. While addition al efforts to enhance safety are laudable, the FAA deems that the requirements of § 135.117 are sufficient for operations conducted under part 135.

Finally, i n addition to the requirements of § 121. 571, which the petioner wishes to adopt

instead of the r equirements of § 135.117, §§ 121.333 and 121.577 are also required components for part 121 passenger safety briefings. In its petition, Freight Runner s does not address how it will comply with these requirements. On a similar note, t he FAA does not permi t the selective picking and choosing with which regulations

, p art 121 or p art 135

, an operator elects to comply

.

The FAA’s Decision

In consideration of the foregoing, I find that a denial of exemption is warranted because granting an exemption would not provide a level of safety equivalent to the rule . 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 Freight Runners Express, Inc.

, for an exemption from

14 CFR § 135.1 1 7 is hereby denied

.

Issued in Washington, D.C., on September 21, 2105

. .

/s/ John Barbagallo Deputy Director, Flight Standards Service