Exemption No. 10696



### UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of



### JOSEPH A. JENNINGS Regulatory Docket No.

AFS-11-348-E FAA-2011-0626 for an exemption from § 21.197(a)(1) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated June 6, 2011, Mr. Jose ph A. Jennings, 15211 Coronado St., W estminster, California 92683, petitioned th e Federal Aviation Administra tion (FAA) for an exemption from § 21.197(a)(1) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Mr. Jennings to issue special flight permits (SFP) to

conduct customer demonstration f lights on used aircraft and retu rn to the original departure point.

The petitioner requests relief from the following regulation:

Section 21.197(a)(1) prescribes that a special f light permit may be issued for an aircraft that may not currently meet applicable airw orthiness requirements but is capable of safe flight, for the following purposes: Flying the aircraft to a base where repairs, alterations, or maintenance are to be performed, or to a point of storage.

The petitioner supports its request with the following information:

The petitioner states an exemption would be beneficial to exercise his authority as a Designated Airworthiness Representative (DAR) (Certificate N o. DART100251WP). Mr. Jennings requested this exemption be in effect for at least three years and include operations outside the United States.2

The petitioner states the purpose of this re quest is to conduct cu stomer demonstration flights on used aircraft and return to the original departure point.

The petitioner uses a customer demonstra tion flight to explain his need for an exemption. He states that during a customer demonstrati on flight, an exemption would allow him to issue a SFP allowing this flight to take-off and land at the same airport.

He further states he has issued SFPs for tr ansport category airplanes released out of heavy maintenance. He contends these ai rplanes meet all airw orthiness requirements except they are required to fly on a SFP since th ey are not operated in accordance with 14 CFR parts 121 or 135. He states the SFP acts as a deviation to part 125.

The petitioner states this type of flight happens several times a day in the transport category industry. With no provisions in the regulations to conduct customer demonstration flights on used airplanes, the flight takes place under the authority of 14 CFR § 21.197(a)(1) or (a)(2). The petitione r states the flight crew returns to the origination point without bei ng questioned. The petitioner st ates that several requests have been made to modify the rule to acco mmodate this type of flight and no changes were ever granted.

The petitioner states that operators and l ease companies are seeking cheaper repair facilities to conduct heavy main tenance outside the United States. As a result, they are applying for SFP’s during the transition phase of selling or re-positioning an airplane with another operator in a different country.

The petitioner states safety would not be affected since the issuance of the SFP to a

maintenance base would be under the same guidelines of the SFP that allows the airplane to return to the original departure point.

The petitioner states an exemption, if gr anted, would serve the public since a more efficient method of conducting customer dem onstration flights on used aircraft would be available to industry. The petitioner states there are no provisions in the regulations

to conduct customer demonstratio ns flights on used airplanes.

A summary of the pe tition was published in the Federal Register on August 9, 2011 (76 FR 48940). Four comments were receive d. One comment was against granting the petition and two were in favor of granting th e petition, and another comment was from the petitioner.

One commenter stated a representative of the FAA should not have DAR privileges that are not available to an FAA inspector . The commenter believes safety would be compromised if the aircraft does not meet type design in some manner and recommends that a designee of the FAA is not able to issue a SFP for functional check flights.3

Two commenter’s agree with granting an ex emption stating ther e is nothing unsafe about flying an aircraft when released from a maintenance visit and is in compliance with its type design and in a condition for safe operation.

The FAA’s analysis is as follows:

This request will only provide a cost benefit to Mr. Jennings and the brokers that employ Mr. Jennings. It would allow Mr. Jenni ngs to market a process no one else can provide and the brokers to operate aircraft for sales purposes w ithout the expense of having to meet the operational safety requi rements of 14 CFR. An exemption would not be in the public interest as it would allo w the operations of aircraft that do not meet safety or operational requirem ents with passengers on board.

The purpose of 14 CFR § 21.197(a)(1) is to pr ovide for the safe operations of an

aircraft that does not meet the airworthiness standards, but is determined to be in a safe

condition to be moved to a location where th e maintenance can be performed to return it to an airworthy condition. One of the assurances of providing safety of the public during these operations is that only essent ial crew members are allowed on board the aircraft for these flights.

When an aircraft is removed from an in spection program the aircraft no longer meets the requirements of 14 CFR parts 21, 43, and 91 and therefore the airworthiness certificate is void or no longer valid. This renders the aircraft un-airworthy and the carriage of passengers is not authorized. Without an inspection program there is no basis for determining the aircraft is airwort hy or to allow for the carriage of passengers.

The petitioner wishes to use a SFP to enable a customer demonstrati on flight. There is no need for a special flight permit for custom er demonstration. An aircraft that is properly maintained and operated in acco rdance with the regulations may carry passengers, enabling customer demonstration. The petitioner also states that the SFP acts as a deviation to 14 CFR part 125. That statement is not correct, a deviation may only be granted under § 125.3.

The petitioner also mentions the use of a SFP to allow an operational check after maintenance or alteration as required by 14 CFR § 91.407. A special flight permit is not required for flights after maintenance is performed. Af ter an aircraft is properly returned to service by an authorized person, flights to verify that the flight characteristics have not been substantially affected and to make operational checks of the maintenance performed are allowed by § 91.407(b).

Finally, neither the FAA nor its designees have the authority to issue any flight authorization to operate outside U.S. airspace. This is a ma tter of international law and sovereignty rights of other countries. The F AA authority over airspace ends at the U.S.

boarder or 12 miles from the U.S. coastline.4

The FAA’s Decision:

In consideration of th e 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, delegated to m e by the Administrator, the petition for Mr. Joseph A. Jennings for an exemption from 14 CFR § 21.197(a)(1) is hereby denied.

Issued in Washington, DC, on February 08, 2013.

/s/

Michael J. Zenkovich Acting Deputy Director, Flight Standards

Service

.