AFS-15-382-E Exemption No. 11245

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

NEPTUNE AVIATION SERVICES Regulatory Docket No. FAA-2015-0073

for an exemption from § 91.313(a) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated January 13, 2015, Loren A. Crea, Director of Flight Operations, Chief Supervisor, Neptune Aviation Services, Inc. (Neptune), Missoula, Montana petitioned the Federal Aviation Administration (FAA) for an exemption from § 91.313(a) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Neptune to conduct operations needed to satisfy crewmember training, type rating requirements, and proficiency requirements found in part 61 in the P2V series restricted category civil aircraft.

The petitioner requests relief from the following regulations:

Section 91.313(a) prescribes, in pertinent part, that no person may operate a restricted category civil aircraft for other than the special purpose for which it is certificated or in an operation other than one necessary to accomplish the work activity directly associated with that special purpose.

Although not specifically requested, the FAA believes that relief from § 91.313(c) will be necessary in order for the petitioner to conduct operations described in its request. Therefore, the FAA is construing the petition as a request for relief from § 91.313(c). This section prescribes, in pertinent part, that no person may operate a restricted category civil aircraft2

carrying persons or property for compensation or hire. Further, for the purposes of this section, a special purpose operation involving the carriage of persons or material necessary to accomplish that operation, and operation[s] for the purpose of providing flight crewmember training in a special purpose operation, are not considered to be the carriage of persons or property for compensation or hire.

The petitioner supports its request with the following information:

The petitioner requests an exemption from § 91.313(a), to conduct aircrew proficiency training, practical tests, or other flights necessary for a pilot to obtain a type rating designation or a pilot-in-command (PIC) proficiency check, instructor training, and initial and/or recurrent observations for a pilot proficiency examiner (PPE) or designated pilot examiner (DPE) in the Lockheed L-P2V.

Neptune operates seven L-P2Vs and it has previ ously conducted operations pertaining to type rating designations and pilot-in command proficiency check(s) using the FAA Airline Transport Pilot Practical Test Standards (ATP PT S). Neptune notes that it wishes to continue that practice and that relief is requested for all of its L-P2V aircraft. The petitioner states there are no civilian standard transport category L-P2V aircraft in which to conduct the required training. The L-P2V requires two pilots, one of which must hold a type rating designation on his or her pilot certificate.

Neptune states that it operates its aircraft under 14 CFR parts 91 and 137. The petitioner notes that although § 61.58(b) states that this section does not apply to operations conducted under part 137, they still require relief from other certification and operational requirements. Neptune describes § 91.313(a) as prohibiting it from conducting initial and regular recurrent training to provide for a higher level of safety in the L-P2V.

Neptune states that as a contractor for the U.S. Forest Service (USFS), providing Large Air Tankers (LAT) for wildfire suppression, it ope rates a fleet of BAe-146-200A and L-P2V LAT aircraft. Neptune has been, and continues to be, the largest provider of LAT aircraft to the USFS. The petitioner describes the importance of each LAT, as well as the role its crews serve in responding to a new fire before other resources become available. Neptune expresses its mission as high priority as it includes protecting lives, homes, other property, utilities, archeological sites, and high critical state/national resources.

The FAA has determined that good cause exists for not publishing a summary of the petition in the Federal Register because this is not a precedent-setting petition, and any delay in acting on this petition would be detrimental to Neptune.

The FAA’s analysis is as follows:

The FAA has fully considered the petitioner’s request and supporting information and determined that the relief requested meets an equivalent level of safety and is in the public

interest.3

The FAA contacted Neptune via email on February 27, 2015, to acquire additional information concerning the aircraft for which relief was requested (specifically, aircraft registration numbers and applicable type certificates). Neptune responded with the requested information on February 28, 2015, and a record of conversation was placed in the docket. Based on the information provided by Neptune in their email, the FAA recognizes that Neptune seeks to operate aircraft covered unde r two Type Certificate Data Sheets (TCDSs).

Sheet No. A17EA is issued to the USDA Forest Service and pertains to the P2V-5F aircraft. Sheet No. 15SW is issued to Neptune and pertai ns to the Lockheed P2V-7 aircraft. The FAA will refer to these aircraft as the P2V series for the purposes of this analysis.

As noted, § 91.313(a) states that “no person may ope rate a restricted category civil aircraft for any purpose other than the special purpose for which it is certificated” or “in an operation other than one necessary to accomplish the work activity directly associated with that special purpose.” Special purpose operations for restricted category aircraft are outlined in § 21.25(b).

The FAA notes that airworthiness standards for restricted category aircraft do not meet the same level of safety that is required for aircraft certificated in the standard or transport category. The operating limitations set forth in § 91.313 are designed to compensate for this and to provide the necessary level of safety for special purpose operations.

The FAA has recently determined that practical tests for the addition of a type rating designation to a pilot certificate, training in pr eparation for such practical tests, or other flights necessary for the conduct of such practical tests, would be contrary to the limitations described in § 91.313(a). While § 91.313(b) allows for flight training, the scope of the training described by this provision is narrow and does not extend to all training or certification. Rather, the training flights described by § 91.313(b) are limited to those conducted by persons “in a special purpose operation for which the aircraft is certificated.” Based on this language, the FAA finds that training received by those who do not hold the requisite pilot certification (e.g., the necessary type rating) would be outside the scope of § 91.313(b). The FAA recognizes that the recent dete rmination creates a regulatory barrier for operators needing to conduct flights to meet the type rating requirements of § 61.31 when standard category aircraft of the same type rating designation either do not exist or are not reasonably available to the operator.

The FAA notes that its determination that rest ricted category aircraft cannot be used for practical test for type ratings does not apply to proficiency flights or checks accomplished by those pilots that already hold the requisite type rating and whose duties are to perform an operation described in § 91.313(a). These flights, such as flights needed to satisfy the PIC proficiency checks required by § 61.58 (and associated PPE observations), are considered necessary to accomplish the work activity directly associated with the aircraft’s special purpose and would not require regulatory exemption.

The FAA believes that the fire suppression operations conducted by Neptune are a benefit to the public. The FAA’s support for these operations is evidenced by the regulatory provisions,4

and associated guidance, that allow aircraft to be issued TCDSs and airworthiness certificates for the express purpose of forest and wildlife conservation. Since Neptune cannot conduct these operations without appropriately trained and certificated pilots, the FAA finds Neptune’s request for exemption would also be in the public interest. Further, the FAA also believes that safety is enhanced by enabling the conduct of a practical test to add a type rating, as well as the training preparation for the pr actical test, in the aircraft or aircraft type that will be operated by the pilot during the special purpose operation.

The FAA finds that an equivalent level of safe ty, as provided by the operational restrictions in § 91.313, would be met by the conditions/limitations placed in this exemption. The FAA has issued grants of exemption in circumstances similar in all material aspects to those presented in your petition. In Grant of Exemption No. 11180 (copy enclosed), the FAA found that an exemption was appropriate to allow Billings Flying Service to conduct practical tests, proficiency training, and associated flights in re stricted category aircraft. The FAA is issuing Neptune similar conditions and limitations as were issued in Exemption No. 11180, with modifications necessary to reflect operations in the P2V series and to clarify our original

intent.

The FAA is removing condition/limitation No. 4 as found in Exemption No. 11180, which requires all routes and locations used during operations conducted under the exemption to be accepted by the FAA. The FAA finds that requiring an operator to provide this information would not increase safety. The FAA notes th at § 91.313(e) provides restrictions on the locations where a restricted category aircraft may be operated, and that all persons conducting operations under this exemption are required to adhere to those limitations. The FAA does not believe that additional limitations concerning the location of the operation, in excess of what are found in § 91.313(e), are necessary for this exemption. The FAA has renumbered the remaining conditions and limitations accordingly.

The FAA has amended condition/limitation No. 6 as found in Exemption No. 11180 (which is listed as condition/limitation No. 5 in this exemption). The FAA has modified this requirement to clarify our original intent regarding operations conducted under this exemption that allow for a person to obtain a type rating designation in the listed restricted category aircraft. Condition/limitation No. 5 ensures Neptune will make the determination that the aircraft being operated are capable of performing the applicable maneuvers and procedures required by the type rating Practical Test St andards (for airplanes, FAA-S-8081-5F, as amended).

In addition, the FAA has removed condition/limitation No. 7 as found in Exemption No. 11180. This requirement, which addressed performance criteria, is not appropriate for an aircraft in the airplane category. In addition, the FAA has removed condition/limitation Nos. 8 and 9 as found in exemption No. 11180. These conditions and limitations described the required maintenance to be performed on the aircraft as noted in the TCDS. The FAA finds these types of conditions and limitations redundant as these requirements need to be met for all civil operations conducted with these aircraft. The FAA expects that all operations5

conducted under this exemption will be in accordance with the aircraft’s TCDS and FAAissued operating limitations.

The FAA finds that an exemption from § 91.313(c) is required for Neptune to conduct the operations described in the petition. Recent legal interpretation by the FAA recognizes an instructor who is being paid to provide flight tr aining in an aircraft is operating the aircraft for compensation or hire regardless of whether he or she is acting as pilot in command. The same principle applies to PPEs, DPEs, or instruct ors providing practical tests. The FAA does not seek to restrict Neptune from providing comp ensation to its employees or others conducting training or practical tests functions in the aircraft covered under this exemption. Notwithstanding the relief from § 91.313(c), the FAA does not intend to allow Neptune to carry persons or material in excess of what is necessary to accomplish the training operation.

The FAA believes that, for those pilots who are not employed by the operator, the use of restricted category aircraft for flight traini ng and practical tests should be allowed only under narrow circumstances. Therefore, the FAA will not allow the training of pilots who are not employed by Neptune to be conducted under this exemption. Neptune can only conduct flights under this exemption if the person receiving training will be conducting special purpose operations on behalf of Neptune; or, in the case of a PPE, DPE or instructor, will be conducting proficiency training or practical test s for Neptune’s pilots. The FAA expects that the relief found in this exemption will be used to meet the certification needs of pilots that are employed by Neptune for the purpose of forest and wildlife conservation. The FAA’s intent to limit this exemption to operations in support of pilots employed by Neptune is captured in the conditions and limitations of this exemption.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption is in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113 and 44701 delegated to me by the Administrator, Neptune Aviation Service, Inc. (Neptune) is granted an exemption from 14 CFR § 91.313(a) and (c) to the extent necessary to allow Neptune to conduct operations in restricted category civil P2V series aircraft, subject to the conditions

and limitations listed below.

Conditions and Limitations

1. The privileges of this exemption are limited to the following aircraft:

a. P2V-5F: N96278, N9855F, N807NA, N410NA, and N1386C

b. P2V-7: N443NA and N445NA

2. Neptune must be in full operational control of any aircraft operated using the privileges of this exemption.

3. The relief from § 91.313(c) is only granted to the extent necessary to allow for the operations described in Condition/Limitation No. 4.6

4. Neptune may only use the aircraft for the special purposes identified on the restricted category airworthiness certificate for the aircraft in Condition/Limitation No. 1 and the following operations:

a. Practical tests necessary to issue type ratings required by § 61.31(a) to pilots employed by Neptune;

b. Flight training for pilots employed by Neptune seeking to take a practical test for a type rating designation necessary to operate an aircraft covered under this exemption; and,

c. Observation flights performed for the purpose of designating or observing a Designated Pilot Examiner (DPE).

5. An aircraft configuration analysis includi ng, but not limited to, flight deck, flight manual, operating limitations, required placards, and procedures must be completed and provided to the Flight Standards Di strict Office (FSDO) with geographic responsibility for the airport or area where the aircraft is based. This analysis must reflect the capability of the aircraft to perform all required procedures and maneuvers necessary to meet the applicable requirements of the aircraft type rating Practical Test

Standards.

6. A copy of this exemption must be provided to the FSDO in the geographic region where the aircraft is based, must be provided to any representative of the Administrator upon request, and must be carried aboard the aircraft at all times.

7. Failure to meet any of the conditions of this exemption immediately cancels the authority authorized by this exemption.

8. This exemption is not valid for operating outside the United States.7

This exemption terminates on March 31, 2017, unless sooner superseded or rescinded.

Sincerely,

/s/

John S. Duncan Director, Flight Standards Service

Enclosure: Exemption No. 11180