## Berry Aviation, Inc.

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

April 17, 2012

U.S. Department of Transportation, Docket Operation s 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 certifi cate 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 th e 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 a s "Do328")
2. Bombardier DHC-8-100/200 series (hereinafter referr ed to as "DHC-8")

BAI requests relief for flight operations conducted both inside and outside the United States.Department of Transportation Page 2

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 categor y" aircraft. Large turbine powered transport category aircraft operated in accordance with 14 CF R 135 are subject to two separate and distinct en route performance requirements:

1. 135.181(a)(2) - applies to all aircraft carrying pa ssengers in VFR over-the-top or in IFR conditions
2. 135.381 - applies to all flights in large turbine p owered transport category aircraft

135.181(a)(2) states: "(a) Except as provided in paragraphs (b) and (c) o f this section, no person may—

(2) Operate a multiengine aircraft carrying passen gers 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 l arge transport category airplane may take off that airplane at a weight, allowing for normal consumpti on of fuel and oil, that is greater than that which (under the approved, one engine inoperative, en rou te net flight path data in the Airplane Flight Manual for that airplane) will allow compliance wit h paragraph (a) (1) or (2) of this section, based o n 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 obstruction s within five statute miles on each side of the inten ded 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 con tinue flight from the cruising altitude to an airpo rt 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 2,0 00 feet vertically and with a positive slope at 1,000 feet above the airport where the airplane lan ds 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 n umerous performance requirements that include takeoff, landing, and the en route performance limi ts enumerated above. When the route of flight must traverse an area that includes high terrain, en rou te performance is often the most limiting factor an d can lead to significant reductions in maximum permi ssible 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 altit ude on one engine. However, 135.381 permits the operator to choose between 135.381(a)(1) and 135.38 1(a)(2), the latter of which is commonly known as "drift down". Using a "drift down" based en route p erformance limit, instead of 135.181(a)(2) orDepartment of Transportation Page 3

April 17, 2012

135.381(a)(1), permits the aircraft to takeoff at s ubstantially higher gross weight, permitting greate r payloads. Because of the complexities of computing drift down performance in accordance with 135.381(a)(2), the FAA requires air carriers to obt ain approval of procedures in the form of Operation s Specification paragraph B029 prior to employing "dr ift 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 car ry greater payloads over certain routes, particular ly routes over high terrain, by meeting en route perfo rmance requirements via either 135.381(a)(1) or 135.381(a)(2).



### Benefit to Public The impetus for this Petition is the flight operati ons conducted by BAI in Afghanistan on behalf of th e United States Department of Defense. BAI currently has one 30-passenger Do328 based at Kabul International Airport (OAKB) supporting CENTCOM cou nter narcotics and three 21-passenger DHC-8s based at Bagram Air Base (OAIX) on contract to USTR ANSCOM. 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 Petiti on 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 t he 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 t o those of 121.191. BAI thus proposes to exempt from a requirement that has no counterpart in 14 CF R 121 and comply fully with an en route performance rule identical to 14 CFR 121.191. As no ted 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 require ment and requests that this Petition not be publish ed in the Federal Register since grant will not set pr ecedence. Examination of the FAA's AES indicates th e grant of several similar petitions, most of which a re somewhat dated and were to air carriers operatin g turboprops that performed scheduled passenger servi ce prior to moving such operations from 135 to 121. In addition, Order 8900 Volume 4, Chapter 3, S ection 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 S tates BAI strongly prefers that grant of this Petition no t be limited to operations conducted in the United States since the impetus for the petition was the o perations conducted by BAI in Afghanistan. BAI alsoDepartment of Transportation Page 4

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requests that consideration of grant of this Petiti on 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 Unit ed States does not have a difference filed with ICA O concerning en route performance limitations. Approv al 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 C FR 135.181(a)(2) for passenger-carrying operations in VFR over-the-top or in IFR conditions in the follow ing aircraft:

1. Dornier Do328-100 series
2. Bombardier DHC-8-100/200 series

Grant of this petition for exemption will benefit t he public by permitting the safe transport of more personnel and baggage on a single flight. An equiva lent 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 identica l to 121.191(a)(1) and 121.191(a)(2), on all flights in the aircraft listed above. BAI has already obtai ned 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 lo ok forward to hearing from you.

Regards,

Stanley Finch Director of Operations