Berry Aviation, Inc. 

1807 Airport Drive • San Marcos, TX • 78666 • (512) 353-2379

April 17, 2012 

U.S. Department of Transportation, Docket Operations 

West Building Ground Floor, Room W12–140 

1200 New Jersey Avenue, SE. 

Washington, DC 20590 

Submitted via the Docket Management System 

Dear Sir or Madam: 

Berry Aviation, Inc (BAI) holds air carrier certificate HKGA701E and operates under 14 CFR 135. This 

Petition for Exemption ("Petition") is submitted in accordance with 14 CFR 11 and seeks permanent 

relief from certain portions of 14 CFR 135. Contact information is as follows: 

Berry Aviation, Inc. 

1807 Airport Drive 

San Marcos, TX 78666 

The point of contact for this Petition is: 

Stanley Finch, Director of Operations 

Phone: 512-353-2379 

Email: stan@berryaviation.com 

BAI's air carrier certificate is administered by the San Antonio Flight Standards District Office. 

Relief Sought 

BAI respectfully requests relief from 135.181(a)(2) for passenger-carrying operations in VFR over-the-top 

or in IFR conditions in the following aircraft: 

1. Dornier Do328-100 series (hereinafter referred to as "Do328") 

2. Bombardier DHC-8-100/200 series (hereinafter referred to as "DHC-8") 

BAI requests relief for flight operations conducted both inside and outside the United States.
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April 17, 2012 

Reason for Request 

The Do328 and DHC-8 are certificated in accordance with 14 CFR 25 and have maximum certificated 

takeoff weights well in excess of 12,500 lbs. Both aircraft types are turbine powered and are thus 

considered "large turbine powered transport category" aircraft. Large turbine powered transport 

category aircraft operated in accordance with 14 CFR 135 are subject to two separate and distinct en 

route performance requirements: 

1. 135.181(a)(2) - applies to all aircraft carrying passengers in VFR over-the-top or in IFR conditions 

2. 135.381 - applies to all flights in large turbine powered transport category aircraft 

135.181(a)(2) states: 

"(a) Except as provided in paragraphs (b) and (c) of this section, no person may— 

(2) Operate a multiengine aircraft carrying passengers over-the-top or in IFR conditions at a weight 

that will not allow it to climb, with the critical engine inoperative, at least 50 feet a minute when 

operating at the MEAs of the route to be flown or 5,000 feet MSL, whichever is higher." 

135.381 states, in part: 

"(a) No person operating a turbine engine powered large transport category airplane may take off that 

airplane at a weight, allowing for normal consumption of fuel and oil, that is greater than that which

(under the approved, one engine inoperative, en route net flight path data in the Airplane Flight 

Manual for that airplane) will allow compliance with paragraph (a) (1) or (2) of this section, based on 

the ambient temperatures expected en route. 

(1) There is a positive slope at an altitude of at least 1,000 feet above all terrain and obstructions 

within five statute miles on each side of the intended track, and, in addition, if that airplane was 

certificated after August 29, 1958 (SR422B), there is a positive slope at 1,500 feet above the 

airport where the airplane is assumed to land after an engine fails. 

(2) The net flight path allows the airplane to continue flight from the cruising altitude to an airport 

where a landing can be made under §135.387 clearing all terrain and obstructions within five 

statute miles of the intended track by at least 2,000 feet vertically and with a positive slope at 

1,000 feet above the airport where the airplane lands after an engine fails, or, if that airplane 

was certificated after September 30, 1958 (SR422A, 422B), with a positive slope at 1,500 feet 

above the airport where the airplane lands after an engine fails." 

Aircraft operated under 14 CFR 135 are subject to numerous performance requirements that include 

takeoff, landing, and the en route performance limits enumerated above. When the route of flight must 

traverse an area that includes high terrain, en route performance is often the most limiting factor and 

can lead to significant reductions in maximum permissible takeoff weight. 

The en route performance requirements of 135.181(a)(2) and 135.381(a)(1) are very similar in that both

rules require the aircraft to maintain a safe altitude on one engine. However, 135.381 permits the 

operator to choose between 135.381(a)(1) and 135.381(a)(2), the latter of which is commonly known as 

"drift down". Using a "drift down" based en route performance limit, instead of 135.181(a)(2) or 
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April 17, 2012 

135.381(a)(1), permits the aircraft to takeoff at substantially higher gross weight, permitting greater 

payloads. Because of the complexities of computing drift down performance in accordance with 

135.381(a)(2), the FAA requires air carriers to obtain approval of procedures in the form of Operations 

Specification paragraph B029 prior to employing "drift down" single engine en route performance. 

Pursuant to this end, BAI has obtained approval of its "drift down" procedures used to comply with 

135.381(a)(2) via Operations Specification B029. 

BAI seeks relief from 135.181(a)(2) in order to carry greater payloads over certain routes, particularly 

routes over high terrain, by meeting en route performance requirements via either 135.381(a)(1) or 

135.381(a)(2). 

Benefit to Public 

The impetus for this Petition is the flight operations conducted by BAI in Afghanistan on behalf of the 

United States Department of Defense. BAI currently has one 30-passenger Do328 based at Kabul 

International Airport (OAKB) supporting CENTCOM counter narcotics and three 21-passenger DHC-8s 

based at Bagram Air Base (OAIX) on contract to USTRANSCOM. The minimum en route altitudes in 

Afghanistan and the surrounding countries are very high, sometimes exceeding 20,000 feet MSL, due to 

the Hindu Cush mountain range. Grant of this Petition will benefit the public by permitting the safe 

transport of more personnel and baggage on a single flight. The benefit increases greatly as summer 

approaches due to the negative impact of the higher ambient temperatures on single engine en route 

performance. 

Impact on Safety 

Grant of this exemption will not adversely impact the safety of BAI's flight operations. The operating rule 

that affords the highest level of safety among U.S. operating rules is 14 CFR 121. The en route 

performance requirements of 135.381 are identical to those of 121.191. BAI thus proposes to exempt 

from a requirement that has no counterpart in 14 CFR 121 and comply fully with an en route 

performance rule identical to 14 CFR 121.191. As noted earlier, BAI has already obtained approval for its 

method of compliance with 135.381(a)(2) "drift down" procedures via Operations Specification B029. 

Request to Not Publish 

BAI requests a waiver of the 120 day filing requirement and requests that this Petition not be published 

in the Federal Register since grant will not set precedence. Examination of the FAA's AES indicates the 

grant of several similar petitions, most of which are somewhat dated and were to air carriers operating 

turboprops that performed scheduled passenger service prior to moving such operations from 135 to 

121. In addition, Order 8900 Volume 4, Chapter 3, Section 1, Paragraph 4-500E, states "Part 135 

operators may apply for a grant of exemption to use driftdown or fuel dumping as an alternate means of

compliance with §135.181 or §135.183 in accordance with part 11..." which further indicates that the 

FAA anticipates petitions for exemption similar to this Petition. 

Request to Operate Under Exemption Outside United States 

BAI strongly prefers that grant of this Petition not be limited to operations conducted in the United 

States since the impetus for the petition was the operations conducted by BAI in Afghanistan. BAI also
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April 17, 2012 

requests that consideration of grant of this Petition not be limited solely to operations conducted in

Afghanistan. The methodology that BAI developed for compliance with drift down en route performance 

and approved via Operations Specification B029 may be applied to any route within BAI's approved area 

of operations. 

ICAO Annex 6, Part 1, Attachment C, Paragraph 4.1.2 permits "drift down" as a method of compliance 

with en route performance limitations, and the United States does not have a difference filed with ICAO 

concerning en route performance limitations. Approval to operate under this exemption outside the 

United States will not require filing a difference with ICAO. 

Summary for Publication in Federal Register 

Berry Aviation, Inc (BAI) requests relief from 14 CFR 135.181(a)(2) for passenger-carrying operations in 

VFR over-the-top or in IFR conditions in the following aircraft: 

1. Dornier Do328-100 series 

2. Bombardier DHC-8-100/200 series 

Grant of this petition for exemption will benefit the public by permitting the safe transport of more 

personnel and baggage on a single flight. An equivalent level of safety will be provided by compliance

with the en route performance limitations in either 135.381(a)(1) or 135.381(a)(2), which are identical 

to 121.191(a)(1) and 121.191(a)(2), on all flights in the aircraft listed above. BAI has already obtained 

FAA approval for its method of compliance with 135.381(a)(2) "drift down" procedures via Operations 

Specification B029. BAI requests relief for flight operations conducted both inside and outside the 

United States. 

Thanks you for consideration of this Petition. I look forward to hearing from you. 

Regards, 

Stanley Finch 

Director of Operations