**Exemption No. 9681**

**UNITED STATES OF AMERICA**

**DEPARTMENT OF TRANSPORTATION**

##  FEDERAL AVIATION ADMINISTRATION

**WASHINGTON, DC 20591**

In the matter of the petition of

**GUSTL SPRENG ENTERPRISES, Regulatory Docket No.**

**INC., FAA-2003-15941**

for an exemption from § 21.191(d) of

Title 14, Code of Federal Regulations

###### DENIAL OF EXEMPTION

By letter dated August 1, 2003, Mr. Gustl Spreng, President, Gustl
Spreng Enterprises (hereafter "GSE"), 2890 Malibu Court, Daytona Beach,
Florida 32128, petitioned the Federal Aviation Administration (FAA) on
behalf of GSE for an exemption from § 21.191(d) of Title 14, Code of
Federal Regulations (14 CFR). Although the petitioner did not request
it, relief would also be required from § 91.319(a)(2). The proposed
exemption, if granted, would allow GSE to operate Aero Vodochody L--29
Delfin, Aero Vodochody L--39 Albatros, and Mikoyan‑Gurevich MiG‑15UTI
aircraft (which hold experimental airworthiness certificates) for the
purpose of carrying passengers for compensation or hire.

**The regulations pertinent to this request for exemption are set forth
below:**

Section 21.191(d) prescribes that experimental certificates are issued
for exhibiting the aircraft\'s flight capabilities, performance, or
unusual characteristics at air shows, motion picture, television, and
similar productions, and the maintenance of exhibition flight
proficiency, including (for persons exhibiting aircraft) flying to and
from such air shows and productions.

Section 91.319(a)(2) prescribes that, for aircraft having experimental
certificates, the aircraft's operating limitations are that no person
may operate an aircraft that has an experimental certificate for the
purpose of carrying persons or property for compensation or hire.

**The petitioner supports its request with the following information:**

> The aircraft intended for the exempted operations have been personally
> selected and imported from Europe by the petitioner. The aircraft are
> inspected and maintained using FAA-approved maintenance programs and
> FAA-certificated mechanics and inspectors. The petitioner will only
> use maintenance personnel who are specially trained on maintenance
> procedures for the exempted aircraft.
>
> The exempted aircraft are owned and operated by GSE and will be used
> for rides which are advertised at airshows and in magazines. The
> public will benefit from having the opportunity to experience unusual,
> historic, cold war aircraft. The aircraft will be used to support
> military and civilian airshows. Funds generated by offering rides in
> the exempted aircraft will be used to cover the cost of operating the
> aircraft.
>
> The petitioner also requests relief from FAA Order 8130.2E, paragraph
> 142 (12). On October 22, 2003, the FAA notified GSE that requests for
> relief from Order 8131.2E are inappropriate. The FAA does not grant
> exemptions from FAA orders because orders are internal policies and
> procedures that are not regulatory.

## Notice and Public Procedure

A summary of the petition was published in the [Federal
Register]{.underline} on March 12, 2004\
(69 FR 11929). No comments were received.

**The FAA\'s analysis is as follows:**

> The FAA has fully considered the petitioner's supporting information
> and determined that the circumstances presented by the petitioner do
> not justify a grant of exemption. The FAA finds that the petitioner
> has not shown how a grant of exemption would be in the public
> interest. The petitioner has not shown how the proposed operations
> could be conducted with a level of safety equivalent to that provided
> by the applicable regulations
>
> The exemption would apply to foreign-manufactured, surplus military
> turbojet aircraft. The aircraft have a special airworthiness
> certificate in the experimental category, issued for the purpose of
> exhibiting the aircraft's flight capabilities, performance, or unusual
> characteristics at airshows, motion picture, television, and similar
> productions, and the maintenance of exhibition flight proficiency,
> including flying to and from the events (14 CFR § 21.191(d)). Aircraft
> issued a special airworthiness certificate in the experimental
> category for exhibition purposes are categorized in one of four groups
> in accordance with guidance in FAA Order 8130.2.

**Airworthiness Certification of Aircraft and Related Products**

  ----------------------------------- -----------------------------------
  **Group**                           **Aircraft Type**

  I                                   Performance Competition

  II                                  Turbine-Powered

  III                                 Piston-Powered (Warbirds, Vintage,
                                      Replica, and Unique Aircraft)

  IV                                  Other
  ----------------------------------- -----------------------------------

> The FAA finds that the L-29 and L-39 are available in the current
> international market. The market availability of these aircraft
> undermines any argument that there is a public interest in providing a
> historical flight experience. Operators of U.S.-manufactured, military
> airplanes certificated in an airworthiness category for which no
> common certification standards exist who have received exemptions to
> carry passengers for compensation or hire were required to address
> equivalent level of safety issues through:

1.  The imposition of operational and maintenance requirements; and

2.  The requirement to provide adequate documentation of the aircraft's
    previous service and maintenance history.

> Operators of foreign-manufactured, military surplus aircraft may not
> be able to meet such requirements to provide an equivalent level of
> safety to that provided by the applicable regulations. In addition,
> the FAA finds the carriage of paying passengers in aircraft for which
> the FAA has no historical knowledge may adversely affect safety.
> Requests for approval to operate non-U.S.-manufactured turbine-powered
> military surplus aircraft carrying passengers for compensation or hire
> create significant challenges in terms of both certification and
> operational oversight. These challenges, which are exacerbated by
> FAA's lack of historical data and knowledge, include, but are not
> limited to:

1.  Maintaining a requisite level of knowledge within the FAA to perform
    airmen certification and operational oversight duties;

2.  Maintaining a high level of safety and standardization in the
    absence of initial and recurrent inspector training in vintage,
    surplus, and experimental exhibition aircraft;

3.  The oversight of a designee system that not only differs from that
    normally employed by the FAA but also places an excessive burden on
    industry;

4.  The oversight of aircraft that in some instances lack a complete,
    documented maintenance history. This is particularly true in the
    case of foreign surplus aircraft; and

5.  The oversight of aging aircraft for which the FAA lacks expertise
    regarding continued airworthiness issues (again, particularly in
    foreign surplus aircraft). In many cases, the original manufacturer
    no longer exists or no longer supports the aircraft.

> For these reasons, aircraft issued experimental airworthiness
> certificates do not meet the FAA certification standards normally
> required for compensation or hire operations. Aircraft holding
> experimental airworthiness certificates create a problem for the field
> inspectors who must evaluate the safe operation and maintenance of
> these aircraft. Few inspectors have experience in any
> nontype-certificated aircraft. With little or no manufacturer support,
> and in many cases foreign language documentation, it is difficult for
> the FAA to determine the appropriate operational limits, operational
> standards, and maintenance requirements for these aircraft. Because of
> the specialized nature of these aircraft, the FAA may not have the
> technical expertise to determine the needs of these very specialized
> aircraft. These factors detract from the level of safety necessary for
> carrying passengers for compensation or hire.
>
> The FAA finds that the regulatory plan adopted in 14 CFR establishes
> appropriate safety standards for aircraft operators, crewmembers, and
> passengers. The FAA grants relief from aviation safety regulations
> only if we find that the proposed operations can be performed in a
> manner equivalent to the level of safety provided by the regulations.
> Those requesting an exemption from a particular standard or set of
> standards must demonstrate the following in accordance with 14 CFR
> part 11:

1.  The flight cannot be performed in full compliance with FAA
    regulations;

2.  There is an overriding public interest in conducting passenger
    flights on the aircraft; and

3.  The measures that should be taken to establish an appropriate level
    of safety for the flight.

> The operations proposed in the petition from GSE do not meet these
> standards.

**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, formerly 313(a) and
601(c) of the Federal Aviation Act of 1958, as amended, delegated to me
by the Administrator, the petition of Gustl Spreng Enterprises, Inc.,
for an exemption from 14 CFR § 21.191(d) is hereby denied.

Issued in Washington, DC, on April 24, 2008.

###