Alternative Means of Compliance for the Pilot-In-Command Night Takeoff and Landing Recent Flight Experience Requirements

SUMMARY: This final rule establishes an alternative means of compliance

for the pilot-in-command (PIC) night takeoff and landing recent flight

experience requirements. A pilot who operates more than one type of

airplane, certificated for more than one pilot flight crewmember, can

meet the PIC night takeoff and landing recent flight experience

requirements in one of the types of airplanes he/she operates. The

pilot would then be considered qualified to perform night flights in

the other types of airplanes he/she operates as PIC. In addition, this

new alternative means of compliance establishes certain qualifications,

aeronautical experience, and additional training. This action is needed

to accommodate pilots employed by corporate operators and airplane

manufacturers who operate diverse fleets of airplanes that are type

certificated for more than one pilot flight crewmember. These operators

and manufacturers require their pilots to meet a high level of

aeronautical experience and training for qualification as a PIC. This

final rule is intended to provide an additional means of compliance

with the recent night flight experience requirements while maintaining

an equivalent level of safety.

EFFECTIVE DATE: This final rule is effective on April 30, 1999.

FOR FURTHER INFORMATION CONTACT: John Lynch, Certification Branch, AFS-

840, General Aviation and Commercial Division, Flight Standards

Service, Federal Aviation Administration, 800 Independence Avenue SW.,

Washington, DC 20591.

SUPPLEMENTARY INFORMATION:

Availability of Final Rules

An electronic copy of this document may be downloaded, using a

modem and suitable communications software, from the FAA regulations

section of the FedWorld electronic bulletin board service (telephone:

(703) 321-3339), the Government Printing Office's (GPO) electronic

bulletin board service (telephone (202) 512-1661), or, if applicable,

the FAA's Aviation Rulemaking Advisory Committee bulletin board service

(telephone: (800) 322-2722 or (202) 267-5948).

Internet users may reach the FAA's web page at http://www.faa.gov/

avr/arm/nprm/nprm.htm or the GPO's web page at http://

www.access.gpo.gov/nara for access to recently published rulemaking

documents.

Any person may obtain a copy of this document by submitting a

request to the Federal Aviation Administration, Office of Rulemaking,

ARM-1, 800 Independence Avenue, SW, Washington, DC 20591, or by calling

(202) 267-9680. Communications must identify the amendment number or

docket number of this final rule.

Persons interested in being placed on the mailing list for future

rulemaking documents should request from the above office a copy of

Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution

System, which describes the application procedure.

Small Entity Inquiries

The Small Business Regulatory Enforcement Fairness Act of 1996

(SBREFA) requires the FAA to report inquiries from small entities

concerning information on, and advice about, compliance with statutes

and regulations within the FAA's jurisdiction, including interpretation

and application of the law to specific sets of facts supplied by a

small entity.

If your organization is a small entity and you have a question,

contact your local FAA official. If you do not know how to contact your

local FAA official, you may contact Charlene Brown, Program Analyst

Staff, Office of Rulemaking, ARM-27, Federal Aviation Administration,

800 Independence Avenue, S.W, Washington, PC 20591, telephone (888)

551-1594. Internet users can find additional information on SBREFA in

the ``Quick Jump'' section of the FAA's web page at http://www.Faa.gov

and may send electronic inquiries to the following internet address: 9-

[email protected]

Background

Statement of the Problem

The FAA has received numerous comments from corporate operators and

airplane manufacturers on the requirements for PIC night takeoff and

landing recent flight experience. Many of the comments disagreed with

the requirement that aircraft of the same category, class, and type (if

a rating is required), be used to perform mandatory night takeoffs and

landings. They argue that the requirement to perform required takeoffs

and landings in an aircraft of the same type (if a type rating is

required) for all types of aircraft in the same category and class is

not cost effective and provides an unnecessary burden on their pilots.

The commenters requested that an alternative means of compliance for

this requirement be granted for their pilots, taking into consideration

the aircraft their pilots operate, their pilots' high level of

aeronautical experience,and the additional training required of their

pilots.

History

On April 4, 1997, the FAA amended 14 CFR part 61 (62 FR 16220),

which became effective on August 4, 1997. In this amendment, 61.57(b)

(14 CFR 61.57(b)) was revised to require that PIC night takeoffs and

landing recent flight experience requirements be performed in not only

the same category and class of aircraft but also the same type (if a

type rating is required). Since the issuance of this amendment, the FAA

has received many comments from corporate operators, airplane

manufacturers, and the National Business Aircraft Association, Inc.

Many of these commenters argue that they were not given adequate notice

to the above amendment. While adequate notice and comment period was

provided, the amendment was part of a large rulemaking project and

easily could have been overlooked by the commenters.

The commenters state that requiring PIC night takeoff and landing

recent flight experience to be in the same type of airplane (if a type

rating is required), beyond the same category and class, is a

burdensome requirement for their pilots. They argue that their pilots

are very experienced and maintain type ratings for several models of

airplanes within the same category and class. Furthermore, differences

between types of turbojet aircraft are minimal, and the requirement

that their pilots meet PIC night recent flight experience requirements

in each type is an economic burden. They argue that to do touch and

goes in turbojet aircraft is very costly, and as such, that maintaining

night takeoff and landing currency is one type, category and class of

aircraft should be sufficient for all types of turbojet aircraft.

Additionally, they argue that during the summer months, when there are

fewer hours of darkness, it is very difficult for their pilots to meet

the night takeoff and

[[Page 23527]]

landing requirement in all the different types, but same category and

class of aircraft they operate. finally, the commenters argue that the

current requirement to perform night takeoffs and landings in all the

types of turbojet aircraft they operate has the potential of increasing

air traffic congestion and noise pollution.

As a result, these corporate operators and airplane manufacturers

has asked the FAA to provide an alternative means of compliance to the

PIC night takeoff and landing recent flight experience requirements for

their pilots. They believe that their pilots should be allowed to meet

the PIC night takeoff and landing recent flight experience requirements

for all types of aircraft in the same category and class, once they

have met this requirement in one type of aircraft in the same category

and class.

On February 3, 1999, the FAA issued a grant of exemption to

Gulfstream Aerospace Corporation (Gulfstream) from the PIC night

takeoff and landing recent flight experience requirements based on the

arguments described above. This grant of exemption gave Gulfstream

pilots an alternative means of compliance to the night currency

requirements, based on an earlier grant of exemption to the Boeing

Commercial Airplane Group. After issuing this grant of exemption, the

FAA received similar requests from other corporate operators and

airplane manufacturers, which were denied. upon further review, the FAA

has determined that this issue needs to be resolved through rulemaking

and not through additional grants of exemption.

Accordingly, the FAA has determined that the alternative means of

compliance for the PIC night takeoff and landing recent flight

experience requirements granted to Gulfstream's PICs, also applies to

other PICs who operate various types of airplanes requiring more than

one pilot flight crewmember by the airplane's type certificate.

Alternative Means of Compliance

The final rule revises Sec. 61.57 by adding a new paragraph (e)(3),

which establishes an alternative means of compliance to the PIC night

takeoff and landing recent flight experience requirements. this final

rule neither lesson nor adds requirements to the present PIC night

takeoff and landing currency requirement of Sec. 61.57(b), but merely

provides another alternative means for remaining current in night

takeoffs and landings.

For years the FAA has permitted pilots who are employed by a

certificate holder under 14 CFR parts 121, 125 or 135 an alternative

means of compliance for the night takeoff and landing recent flight

experience requirements of Sec. 61.57(b). As previously mentioned, the

FAA has issued grants of exemption that permit pilots employed by some

corporate operators or as test pilots for some airplane manufacturers,

an alternative means of compliance from the night takeoff and landing

currency requirements of Sec. 61.57(b).

In this final rule, a PIC who operates more than one type of an

airplane, that is type certificated for more than one pilot flight

crewmember, may meet the PIC night takeoff and landing recent flight

experience requirements under the current requirements of Sec. 61.57(b)

or under this alternative. This alternative states that a pilot, who

operates more than one type of airplane that is type certificated for

more than one pilot flight crewmember, meets the PIC night takeoff and

landing recent flight experience requirements for all of the different

types of airplanes provided the pilot--

(i) Holds at least a valid commercial pilot certificate with the

appropriate type rating for each airplane that the pilot seeks to

operate under this alternative;

(ii) Has logged at least 1500 hours total time as a pilot;

(iii) Has accomplished at least 15 hours of flight time in the type

of airplane that the pilot seeks to operate under this alternative

within the preceding 90 days prior to the operation of that airplane;

and

(iv) Has accomplished--

(A) At least three takeoffs and three landings to a full stop,

during the period beginning 1 hour after sunset and ending 1 hour

before sunrise as the sole manipulator of the flight controls in at

least one of the types of airplanes that the pilot seeks to operate

under this alternative, within the preceding 90 days prior to the

operation of any of the types of airplanes that the pilot seeks to

operate under this alternative; or

(B) Completion of an approved training program under part 142 of

this chapter within the preceding 12 calendar months prior to the month

of the flight, which requires the performance of at least 6 takeoffs

and 6 landings to a full stop as the sole manipulator of the controls

in a flight simulator that is representative of at least one of the

types of airplanes that the pilot seeks to operate under this

alternative, and the flight simulator's visual system was adjusted to

represent the period beginning 1 hour after sunset and ending 1 hour

before sunrise.

The FAA anticipates that this final rule will apply primarily to

pilots employed by corporate operators and airplane manufacturers of

turbine powered and large airplanes that require more than one pilot

crewmember by the airplane's type certification requirements. For

example, business jets such as some CE-500 series jets, Learjets,

operators of DC-3's, Martin-404's, DC-6's, DC-7's, and various other

part 25 transport category airplanes.

Good Cause for Immediate Adoption

Sections 553(b)(3)(B) and 553(d)(3) of the Administrative

Procedures Act (APA)(5 U.S.C. Sections 553(b)(3)(B) and 553(d)(3))

authorize agencies to dispense with certain notice procedures for rules

when they find ``good cause'' to do so. Under section 553(b)(3)(B), the

requirements of notice and opportunity for comment do not apply when

the agency for good cause finds that those procedures are

``impracticable, unnecessary, or contrary to the public interest.''

Section 553(d)(3) allows an agency, upon finding good cause, to make a

rule effective immediately, thereby avoiding the 30-day delayed

effective date requirement in section 553.

The FAA finds that notice and public comment to this final rule are

impracticable, unnecessary, and contrary to the public interest. The

provisions in this final rule provide an alternative means of

compliance with the PIC night takeoff and landing recent flight

experience requirements. This alternative means of compliance is

applicable only to those PICs who fly two or more types of airplanes

that require more than one pilot flight crewmember by the airplane's

type certificate. However, these PICs still have the option to either

meet the existing PIC night takeoff and landing recent flight

experience requirements of Sec. 61.57(b) or they can choose to comply

with this alternative PIC night takeoff and landing provision. The FAA

has determined that the addition of this alternative means of

compliance will not have an adverse effect on PIC night takeoffs and

landing proficiency. Furthermore, the requirements for the alternative

means of compliance for PIC night takeoff and landing recency will not

have an adverse effect on safety since they are equivalent in content

and substance to the existing PIC night takeoff and landing recent

flight experience requirements listed in Sec. 61.57(b). The FAA has

determined that notice and public comment are unnecessary since this

rule is in the public interest and has no safety implications.

In addition, the FAA has determined that compliance with this

alternative means of PIC night takeoff and landing

[[Page 23528]]

recent flight experience requirements is needed immediately, so as to

relieve a burdensome and costly requirement for corporate operators,

airplane manufacturers, and the pilots they employ. As discussed

earlier, the FAA has granted exemptions previously, providing an

alternative means of compliance for PIC night takeoff and landing

recent flight experience requirements. These petitions for exemption

were published in the Federal Register, and received no comments.

Therefore, the FAA has determined notice and comment on this amendment

to be unnecessary.

Paperwork Reduction Act Approval

Information collection requirements in the amendments to Sec. 61.57

previously have been approved by the Office of Management and Budget

(OMB) under the provisions of the Paperwork Reduction Act of 1995 (44

U.S.C. 3507(d)), and have been assigned OMB Control Number 2120-0021.

Compatibility With ICAO Standards

In keeping with U.S. obligations under the Convention on

International Civil Aviation, it is FAA policy to comply with

International Civil Aviation Organization (ICAO) Standards and

Recommended Practices to the maximum extent practicable. The FAA

determined that there are no ICAO Standards and Recommended Practices

that correspond to these proposed regulations.

Economic Summary

Four principal requirements pertain to the economic impacts of

changes to the Federal Regulations. First, Executive Order 12866

directs Federal agencies to promulgate new regulations or modify

existing regulations after consideration of the expected benefits to

society and the expected costs. The order also requires Federal

agencies to assess whether a final rule is considered a ``significant

regulatory action.'' Second, the Regulatory Flexibility Act of 1980

requires agencies to analyze the economic impact of regulatory changes

on small entities. Third, the Office of Management and Budget directs

agencies to assess the effect of regulatory changes on international

trade. Finally, Public Law 194-4, Department of Transportation

Appropriations Act (November 15, 1995), requires Federal agencies to

assess the impact of any Federal mandates on State, Local, Tribal

governments, and the private sector.

In conducting these analyses, the FAA has determined that this rule

will be cost beneficial, and is not ``significant'' as defined under

section 3(f) of Executive Order 12866 and Department of Transportation

(DOT) policies and procedures (44 FR 11034, February 26, 1979). In

addition, under the Regulatory Flexibility Determination, the FAA

certifies that this proposal will not have a significant impact on a

substantial number of small entities. Furthermore, this proposal will

not impose restraints on international trade. Finally, the FAA has

determined that the proposal will not impose a Federal mandate on

State, Local, or Tribal governments, or the private sector of $100

million per year. These analyses are summarized below.

Executive Order 12866 and DOT's Policies and Procedures

Under Executive Order 12866, each Federal agency shall assess both

the costs and the benefits of final regulations while recognizing that

some costs and benefits are difficult to quantify. A final rule is

promulgated only upon a reasoned determination that the benefits of the

final rule justify costs.

The FAA's analysis of this final rule indicates that this amendment

to part 61 will generally have a beneficial impact to corporate

operators and airplane manufacturers that operate several different

types of airplanes that are type certificated for more than one pilot

flight crewmember and the pilots they employ. This final rule provides

an alternative means of compliance for PICs to maintain night takeoff

and landing currency. This alternative means for PICs to maintain their

night take off and landing currency in all of the types of airplanes

they operate will be permitted, provided the pilot meets the following:

(i) Holds at least a valid commercial pilot certificate with the

appropriate type rating for each airplane that the pilot seeks to

operate under this alternative;

(ii) Has logged at least 1,500 hours total time as a pilot;

(iii) Has accomplished at least 15 hours of flight time in the type

of airplane that the pilot seeks to operate under this alternative

within the preceding 90 days prior to the operation of that airplane;

and

(iv) Has accomplished at least--

(A) three takeoffs and three landings to a full stop, during the

period beginning 1 hour after sunset and ending 1 hour before sunrise

as the sole manipulator of the flight controls in at least one of the

types of airplanes that the pilot seeks to operate under this

alternative, within the preceding 90 days prior to the operation of any

of the types of airplanes that the pilot seeks to operate under this

alternative; or

(B) completion of an approved training program under part 142 of

this chapter within the preceding 12 calendar months prior to the month

of the flight, which requires the performance or at least six takeoffs

and six landings to a full stop as the sole manipulator of the controls

in a flight simulator that is representative of at least one of the

types of airplanes that the pilot seeks to operate under this

alternative, and its visual system is adjusted to represent the period

beginning 1 hour after sunset and ending 1 hour before sunrise.

One of the major benefits to permitting this alternative means of

compliance is that it will permit operators with multiple airplanes,

that are type certificated for more than one pilot flight crewmember,

to save on the costs of requiring their pilots to remain current in the

pilot-in-command night takeoff and landing recent flight experience

requirements in all of the operator's different types of airplanes.

This benefit will provide cost savings on personnel, fuel, and

maintenance on items such as wheel brakes, thrust reversers, and tires.

Additional benefits of this final rule include the following: the

reduction in pilot and controller workload, which should reduce the

chances for procedural errors; the reduction in training accidents and

incidents; the reduction in noise for the surrounding communities; and

reduction in air pollution; and the reduction in air traffic congestion

and training costs. Finally, the FAA has determined that this

alternative means of compliance will not diminish safety in any manner.

Pilots who are eligible to take advantage of this alternative means of

compliance must meet higher commercial experience requirements and

other additional currency requirements.

The FAA has determined that there are no costs associated with

complying with these alternative requirements since PICs will have the

option to meet either the existing night takeoff and landing

requirements in Sec. 61.57(b) or they may comply with this alternative.

The FAA has concluded that this final rule is cost beneficial.

Final Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (the Act) establishes ``as

principle of regulatory issuance that agencies shall endeavor,

consistent with the objective of the rule and of applicable statutes,

to fit regulatory and information requirements to the scale of the

[[Page 23529]]

business, organizations, and governmental jurisdictions subject to

regulation.'' To achieve that and to explain the rationale for their

actions, the Act covers a wide range of small entities, including small

businesses, not-for-profit organizations and small governmental

jurisdictions.

Agencies must perform a review to determine whether a final rule

will have a significant economic impact on a substantial number of

small entities. If the determination is that it will, the agency must

prepare a Regulatory Flexibility Analysis (RFA) as described in the

Act. If an agency determines, however, that a final rule is not

expected to have a significant economic impact on a substantial number

of small entities, section 605(b) of the 1980 Act provides that the

head of the agency may so certify and an RFA is not required. The

certification must include a statement providing the factual basis for

this determination, and the reasoning should be clear.

The FAA conducted the required review of this final rule and

determined that it will not have a significant economic impact on a

substantial number of small entities. Accordingly, pursuant to the

Regulatory Flexibility Act, 5 U.S.C. 605(b), the FAA certifies that

this rule will not have a significant economic impact on a substantial

number of small entities because the final rule imposes no additional

cost on small entities. Small entities and their PICs will also benefit

from this final rule, because they also have the choice to either

comply with the existing PIC night takeoff and landing currency of

paragraph (b) of Sec. 61.57 or they can choose to operate under this

new alternative means of compliance for meeting the night takeoffs and

landings currency.

International Trade Impact Statement

The FAA has determined that the final rule will neither affect the

sale of aviation products and services in the United States or the sale

of U.S. products and services in foreign countries.

Federalism Implications

The regulation herein will not have a substantial direct effect on

the States, on the relationship between the national Government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule will not have sufficient

federalism implications to warrant the preparation of a federalism

assessment.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (the Act),

enacted as Public Law 104-4 on March 22, 1995, requires each Federal

agency, to the extent permitted by law, to prepare a written assessment

of the effects of any Federal mandate in an agency final rule that may

result in the expenditure by State, local, and tribal governments, in

the aggregate, or by the private sector, of $100 million or more

(adjusted annually for inflation) in any one year.

Section 204(a) of the Reform Act, 2 U.S.C. 1534(a), requires the

Federal agency to develop an effective process to permit timely input

by elected officers (or their designees) of State, local and tribal

governments on a proposed ``significant intergovernmental mandate.'' A

``significant intergovernmental mandate'' under the Act is any

provision in a Federal agency regulation that will impose an

enforceable duty upon State, local, and tribal governments, in the

aggregate, of $100 million (adjusted annually for inflation) in any one

year.

Section 203 of the Reform Act, 2 U.S.C. 1533, which supplements

section 204(a), provides that before establishing any regulatory

requirements that might significantly or uniquely affect small

governments, the agency shall have developed a plan that, among other

things, provides for notice to potentially affected small governments,

if any, and for a meaningful and timely opportunity to provide input in

the development of regulatory proposals.

This rule does not contain a Federal intergovernmental or private

sector mandate that exceeds $100 million a year, therefore the

requirements of the Reform Act do not apply.

Environmental Analysis

FAA Order 1050.1D defines FAA actions that may be categorically

excluded from preparation of a National Environmental Policy Act (NEPA)

environmental assessment or environmental impact statement. In

accordance with FAA Order 1050.1D, appendix 4, paragraph 4(j),

regulations, standards and exemptions (excluding those, which if

implemented may cause a significant impact on the human environment)

qualify for a categorical exclusion. The FAA proposes that this rule

qualifies for a categorical exclusion because no significant impacts to

the environment are expected to result from its finalization or

implementation.

Energy Impact

The energy impact of the proposed rule has been assessed in

accordance with the Energy Policy and Conservation Act (EPCA) and

Public Law 94-163, as amended (42 U.S.C. 6362). It has been determined

that it is not a major regulatory action under the provisions of the

EPCA.

List of Subjects in 14 CFR Part 61

Aircraft, Airmen, Recreation and recreation areas, reporting and

recordkeeping requirements.

The Amendment

In consideration of the foregoing, the Federal Aviation

Administration amends part 61 of Chapter I of Title 14, Code of Federal

Regulations as follows:

PART 61--CERTIFICATION: PILOTS AND FLIGHT INSTRUCTORS

1. The authority citation of part 61 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-

44711, 45102-45103, 45301-45303.

2. Section 61.57 is amended by adding a new paragraph (e)(3) to

read as follows:

Sec. 61.57 Recent flight experience: Pilot in command.

* * * * *

(e) * * *

(3) Paragraph (b) of this section does not apply to a pilot in

command who operates more than one type of an airplane that is type

certificated for more than one pilot flight crewmember, provided the

pilot--

(i) Holds at least a valid commercial pilot certificate with the

appropriate type rating for each airplane that the pilot seeks to

operate under this alternative;

(ii) Has logged at least 1500 hours total time as a pilot;

(iii) Has accomplished at least 15 hours of flight time in the type

of airplane that the pilot seeks to operate under this alternative

within the preceding 90 days prior to the operation of that airplane;

and

(iv) Has accomplished--

(A) At least three takeoffs and three landings to a full stop,

during the period beginning 1 hour after sunset and ending 1 hour

before sunrise as the sole manipulator of the flight controls in at

least one of the types of airplanes that the pilot seeks to operate

under this alternative, within the preceding 90 days prior to the

operation of any of the types of airplanes that the pilot seeks to

operate under this alternative; or

(B) Completion of an approved training program under part 142 of

this chapter within the preceding 12 calendar months prior to the month

of

[[Page 23530]]

the flight, which requires the performance of at least 6 takeoffs and 6

landings to a full stop as the sole manipulator of the controls in a

flight simulator that is representative of at least one of the types of

airplanes that the pilot seeks to operate under this alternative, and

the flight simulator's visual system was adjusted to represent the

period beginning 1 hour after sunset and ending 1 hour before sunrise.

Issued in Washington, DC, on April 22, 1999.

Jane F. Garvey,

Administrator.

[FR Doc. 99-10850 Filed 4-29-99; 8:45 am]

BILLING CODE 4910-13-M