AFS

- 14

- 405

- E Exemption No. 13183

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

GREAT LAKES AVIATION, L TD. Regulatory Docket No. FAA

- 201 4

- 0 5 58

for an exemption f rom § 1 35

. 223 of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter posted to the docket on August 4

, 2014 , Mr. Joseph Linnebur , Director of Operations, Great Lakes A viation , Ltd. , 1022 Airport Parkway, Cheyenne

, Wyomin g 82001 petitioned the Federal Aviation Administration (FAA) o n behalf of Great Lakes Aviation

, L td. ( G reat Lakes ) for an exemption from § 1 35

. 223 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow G reat Lakes to use the alternate weather requirements of § 121.619 in lieu of the requirements of §135.223 for all domestic operations conducted under part 135

.

The p etitioner requests relief from the following regulation :

Sect ion 135.223 , “ Instrument Flight Rules ( IF R ) : Alternate airport requirements,” prescribes, in pertinent part that :

(a) Except as provided in paragraph (b) of this section, no person may operate an aircraft in IFR conditions unless it carries enough fuel (considering weather reports or forecasts

or any combination of them) to

—

(1) Complete the flight to the first airport of intended landing;

(2) Fly from that airport to the alternate airport; and2

(3) Fly after that for 45 minutes at normal cruising speed or, for helicopters, fly after that

for 30 mi nutes at normal cruising speed.

(b) Paragraph (a)(2) of this section does not apply if part 97 of this chapter prescribes a standard instrument approach procedure for the first airport of intended landing and, for

at least one hour before and after the est imated time of arrival, the appropriate weather reports or forecasts, or any combination of them, indicate that

—

(1) The ceiling will be at least 1,500 feet above the lowest circling approach minimum descent altitude ( MDA ) ; or

(2) If a circling instrument approach is not authorized for the airport, the ceiling will be at least 1,500 feet above the lowest published minimum or 2,000 feet above the airport elevation, whichever is higher; and

(3) Visibility for that airport is forecast to be at least three mile s, or two miles more than the lowest applicable visibility minimums, whichever is the greater, for the instrument approach procedure to be used at the destination airport.

The p etitioner supports its request with the following information:

Great Lakes peti tions for relief in order to use the alternate weather requirements of § 121.619 instead of § 135.223 for all of its domestic operations. The petitioner states that it operates the Beech 1900 under both its part 121 and 135 operating certificates. Great La kes proposes to use one set of rules (§ 121.619) for determining whether an alternate airport is re quired for its entire operation.

Great Lakes contends that § 135.223 and § 121.619 provide similar requirements for determining if an alternate airport is re quired for a flight. The petitioner expresses its understanding that § 121.619 and § 135.223 assume there will be an adequate margin between the weather requirements in the rules and the minimums imposed for the instrument approach procedure available at t he airport. Based on this understanding, the petitioner asserts that using the alternate weather requirements of § 121.619 for all of its operations would always provide for an adequate weather margin between the alternate weather requirement and

instrumen t approach minimums.

Great Lakes assumes that § 135.223 is more restrictive than § 121.619 because of the limited requirements for dispatchers in part 135 operations. Specifically, the petitioner contends that the increased weather margin of § 135.223 w ould increase safety for a pilot

- in

- command (PIC) who does not have the benefit of continuous weather updates from a dispatch center

should un

- forecasted weather prevent arrival at the airport. Great Lakes emphasizes that the exemption would be contingent on all flights, including those conducted under part 135, being dispatched in accordance with part 121, S ubpart U. The petitioner states that its flights are under constant surveillance by a dispatcher and capable of continuous communication with the comp any’s dispatch center in Cheyenne, Wyoming.3

The petitioner argues that a grant of exemption would maintain an equivalent level of safety because all flights would be dispatched by a Great Lakes dispatcher. Great Lakes contends that, with a dispatcher conti nuously monitoring each flight, any weather changes that could reduce adequate weather margins can be communicated to PIC to facilitate changes to the flight plan before reaching the airport. The petitioner states that these procedures are already

included in its standard operating procedures and have been in use since Great Lakes became a part 121 operator. In addition, Great Lakes states that all flights are conducted by two qualified crew members, which it feels adds to safety when weather becomes a fact or.

Great Lakes asserts that, should this exemption be granted, it “would effectively continue to operate at the same levels as any equivalent part 121 carrier.” The petitioner cites technological advances in weather forecasting, improved weather monitori ng equipment, advanced communication capabilities, and improvements in flight crew training requirements as factors contributing to its ability to maintain an equivalent level of safety.

G reat Lakes requests the ability to utilize § 121.619 for determ ining alternate weather requirements for its part 135 operations subject to the following proposed conditions and

limitations:

1. All part 135 flights are to be dispatched and under continuous surveillance by a Great Lakes dispatcher, trained in accordance wi th Great Lakes’ approved dispatcher

program.

2. All part 135 flights will be dispatched in accordance with part 121, Subpart U.

3. Each dispatcher will be provided a system to display the location of each flight and current/significant weather.

4. The dispatch s ystem will have a system to alert the dispatcher when there is a change to a weather forecast, METAR, or a special weather update.

5. Great Lakes will provide a means of communication to allow all flight crews and dispatchers continuous communication ability for weather changes, dispatch release changes, etc. throughout Great Lakes’ route structure.

6. This relief will be applicable only to airports within the 48 contiguous United States

and the District of Columbia.

Great Lakes contends that a grant of exempt ion would be in the public interest because it would “provide a level of safety in the event of un

- forecasted weather should cause ceilings and visibilities to drop and still allow enough margin to complete the flight.” In addition, the petition asserts th at a grant of exemption would be in the public interest because having both
part s 121 and 135 operations dispatched according to the same alternate weather requirements will create consistency and reduce possible errors in determining correct alternate wea ther

minimums.4

A summary of th e petition was published in the Federa l Register on October 17, 2 014

, ( 79 FR 62512 ). No comments were received.

The FAA ’s analysis is as follows :

The FAA has considered the petitioner’s request and supporting materials and finds that a grant of exemption would not be in the public int e rest or provide a level of safety equivalent to that provided by the current regulations.

T h e FAA finds that § 135.223 contain s more restrictive alternate air port requirements than § 121.619 . The petitioner assumes § 135.223 “is more restrictive in nature due to the limited requirements for dispatchers for carriers that operate under [part] 135.” The petitioner contends that publ ic safety would not be affected while utilizing § 121.619 alternate weather requirements for its part 135 operations because all flights would be dispatched and followed by a Great Lakes dispatcher in accordance with part 1 21

, S ubpart U.

The FAA agrees th at certificated aircraft dispatchers play an important role in confirming the work of the pilot and providing the flight crew with updates on weather and alternate airports.
However, t here are key differences between the requirements of part 135 and part 1 21, beyond the requirement to use certificated dispatchers, that must be considered in the FAA’s evaluation of whether the requested relief would maintain a level of safety at least equal to that provided by the rule . For example, § 121.436 requires both t he PIC as well as the second in command (SIC) to hold an airline transport pilot (ATP) certificate. In addition, to serve as PIC, the pilot must have completed 1,000 hours as a SIC in part 121 operations. In contrast, § 135.245 does not require the SIC to have an ATP certificate. Further, the operating experience requirements in § 135.244 are not equivalent to those required by § 121.436. In

sum, a part 121 domestic operation and a part 135 commuter operation must meet different

crewmember certificate and o perating experience requirements. Therefore, the FAA finds that the petitioner has failed to demonstrate how permitting it to conduct part 135 operations under the less restrictive alternate airport requirements of § 121.619 without compliance with other, more restrictive requirements of part 121 would provide a level of safety at least equal to that provided by the rule

.
In 1995, the FAA granted relief from § 135.223 to Trans States Airlines (Exemption

No. 6174). However, the FAA finds that the circu mstances in Exemption No. 6174 are distinct from those presented by Great Lakes. The grant to Trans States was temporary in nature. In granting exemption to Trans States, the FAA noted that efforts were underway to bring part 135 commuters under the provi sions of part 121 domestic rules and that the grant of exemption would support the petitioner’s transition to a part 121 air carrier. The Commuter Operations and General Certification and Operations Requirements final fule, published in 1995 (60 FR 65832), required all scheduled airline passenger operations with aircraft having 10 seats or more to be operated under the same safety rules that apply to larger (part 121) aircraft. As a result of this rule, some air carriers previously designated as part 135 co mmuters transitioned the entirety of their operations to part 121. Whereas, others adjusted operations (e.g. by removing seats, by providing on

- demand rather than scheduled service) to continue5

operating under part 135 and avoid complying with the more res trictive requirements of
part 121. The FAA notes that Great Lakes operates with a “split” certificate, with some of its operations under part 135 and some of its operations under part 121. The FAA notes that, unlike the situation with Trans States, Great L akes is not in the process of transitioning its
part 135 operations to compliance with the entirety of part 121.

The part 121 regulatory scheme provides a network of safety features. In the Commuter Operations and General Certification and Operations Requi rements final rule, the FAA stated, “It is critically important to impose the bulk of the part 121 regulatory scheme on affected

commuters [those required to transition to part 121] because the absence of any significant portion of that regulatory scheme m ay lessen the effectiveness of the rest of the safety features in the part 121 regulatory scheme.” (60 FR 65836) The FAA finds this principle applicable in

this case. Part s 121 and 135 each include a unique set of requirements that, when taken together, es tablish the minimum requirements that must be met to ensure safe operations under each part. The FAA finds that a llowing the petitioner to selectively comply with portions of various rules would not provide a level of safety at least equal to that provided by

the rule . Further, the FAA finds that a grant of exemption in these circumstances would set a poor precedent that a part 135 operator can selectively comply with less restrictive portions of part 121 without adopting the network of safety standards as a whole.

T h e FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption would not provide an equivalent level of safety

. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113

, and 44701, delegated to me by the Administrator, the Great Lakes A viation

, Ltd. petition for an exemption from 14 CFR 121.467(b)(13) is denied.

Issued in Washington, DC, on October 8, 2015

.

/s/

John S. Duncan Director, Flight S tandards Service