AFS-14-302-E Exemption No. 11074

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

GULF AND CARIBBEAN Regulatory Docket No. FAA-2014-0361 CARGO, INC.

for an exemption from §121.436(a)(3) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated May 30, 2014, Mr. Richard J. Du rden, General Counsel, Gulf & Caribbean Cargo, Inc. (Gulf & Caribbean), 6860 South Serivce Drive, Waterford, Michigan 48327, petitioned the Federal Aviation Administration (FAA) on behalf of Gulf & Caribbean for an exemption from §121.436 of Title 14, Code of Federal Regulations (14 CFR). The petition for exemption, if granted, would allow Gulf & Caribbean pilots in command (PIC) to count flight time accrued as a PIC of a turbojet airplane in 14 CFR part 135 cargo operations toward the requirement of 1,000 hours of air carri er experience for part 121 PICs.

The petitioner requests relief from the following regulations:

While the petitioner requested relief from §121.43 6, the FAA construes this as a request for exemption from §121.436(a)(3) which prescribes, in pertinent part, that a PIC in part 121 operations has 1,000 hours as second in command (S IC) in operations under part 121, PIC in operations under § 91.1053(a)(2)(i) of this chapter, PIC in operations under §135.243(a)(1) of chapter I of 14 CFR, or any combination thereof.2

The petitioner supports its request with the following information:

The petitioner states that §121.436 requires that a PIC in part 121 cargo operations must have a certain level of experience, either as SIC in part 121 operations, PIC in “fractional” aircraft under part 91— the lowest level of safety unde r the Federal Aviation Regulations (FAR)—or as PIC in passenger carrying opera tions falling unde r §135.243(a)(1).

Because the training, operational requirements, an d FAA oversight for part 135 turbojet PICs are far more rigorous than for a fractiona l operator under § 91.1053, allowing credit for experience for the much lower level of safety of a part 91 PIC, but not for a part 135 turbojet PIC carrying freight, defies understanding and la cks any rational basis— whether safety of flight or level of rigor of th e total operational experience.

The petitioner notes that part 135 turbojet PICs undergo standa rd training prescribed by the FAA for part 135 turbojet operati ons. The training is applicable for carriage of passengers or freight, and no distinction is made in the traini ng or the oversight carri ed out by the local FAA office with regard to passenger or freight opera tions. The petitioner also notes that whether carrying passengers or freight, the crews fly through the same weather, in the same type airplanes, manage the same fatigue, and opera te in the same air traffic control system.

Gulf & Caribbean states that from an economic point of view, it has already experienced the difficulty in locating and hiring pilots that m eet the experience requirements mandated by the recent changes to the FAR, that was predicte d by so many commentators, when the changes were proposed. The petitioner states there is no incentive for pilots to seek a job flying for a part 135 turbojet cargo operati on because the PIC time cannot be counted toward part 121 experience requirements—creating a hardship in finding PICs. Gulf & Caribbean asserts that from the standpoint of an applicant for a PIC position in a freight-hauling turbojet, there is no reason to go through the intens ive training and the exacting F AA oversight for a flying job

where the hours she or he builds do not count.

Gulf & Caribbean states a grant of exemp tion would benefit the public, because it would increase the number of highly tr ained and experienced pilots who are qualified to fly as PIC in part 121 cargo operations for its company, thus allowing it to select fr om a deeper pool of pilots, and thereby increasing the level of safety for the public.

A summary of the petition was publishe d in the Federal Register on June 25, 2014 (79 FR 36122). No comments were received.

The FAA's analysis is as follows:

The FAA fully considered Gulf & Caribbean’s petition for exemption and its supporting information. However, in reviewing all releva nt information provided by the petitioner, the FAA finds that a grant of exemption from §121.4 36(a)(3) would not be in the public interest.

The FAA issued the Pilot Certification and Qualificati on Requirements for Air Carrier Operations final rule on July 15, 2013 (78 FR 42324), creating a new requirement for a PIC in part 121 operations to have 1,000 hours of e xperience in air carrier operations.3

14 CFR 121.436(a)(3) states the 1,000 hours of experience may be obtained by serving as a PIC in operations under §§ 91.1053(a)(2)(i), 135 .243(a)(1), or as an SIC in part 121 operations.

In the preamble to the final rule, the FAA addr essed comments on what type of flight time should count for the 1,000 hours of experience in air carrier operations. The FAA stated it determined that the ability to fly at the airlin e transport pilot (ATP) cer tificate level and have demonstrated this proficiency during evaluation is an important regula tory differentiation.

The FAA first proposed that certain operat ions under part 135 should require an ATP certificate in 1977. In that NPRM, the FAA stat ed the requirement to hold an ATP certificate to act as PIC in some part 135 operations wa s ‘‘... based in part on operational complexity and the number of persons carried, would provide a level of safety more comparable to that provided by part 121.’’ The FAA still mainta ins this position. Operations under § 91.1053(a)(2)(i) or § 135.243(a)(1) require an ATP certificate, are multicrew operations, generally use turbine aircraft, and therefore, are the most co mparable to part 121 operations. The FAA determined that, while other part 91 and part 135 operations may involve certain elements that are relatable to part 121 operati ons, the varied nature of operations does not make credit toward the 1,000 hour requirement a ppropriate. Because turbojet pilots in part 135 cargo operations are not required to hold an ATP certificate, the time accrued in such operations does not count toward th e requirements of § 121.436(a)(3).

The FAA notes that, contrary to the petitioner’s assertions, part 91, subpart K training and checking requirements are similar, and in ma ny cases, are identical to, the training and checking requirements of part 135. Training programs under part 91, subpart K are also required to be approved by the FAA.

The FAA also notes Gulf & Caribbean’s statemen t that the PIC time of turbojet pilots in part 135 operations cannot be counted toward pa rt 121 experience requirements. This is not entirely correct. Pilots may count all flight time accumulated in part 135 operations toward the aeronautical experience requirements for an ATP certificate. Pilots with ATP certificates may serve as a SIC in part 121 operations. Gulf & Caribbean has the option to hire these pilots as SICs, who could then accrue the n ecessary 1,000 hours of air carrier experience to

serve as a PIC.

A significant portion of Gulf & Caribbean’s sup porting information centers on its ability to attract and retain pilots for its operations. The FAA finds that this is essentially a private interest argument and personal monetary benefit is not public interest.4

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 aut hority contained in 49 U.S.C. §§ 106(f), 40113 and 44701 delegated to me by the Administrator, the petition of Gulf & Caribbean Air Cargo, Inc. for an exemption from 14 CF R 121.436 (a)(3) is hereby denied.

Issued in Washington, DC, on October 1, 2014. .

/s/

John S. Duncan Director, Flight Standards Service