AFS

- 13

- 481

- E Exemption No. 10779A

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

DESERT AEROSPACE, LLC Regulatory Docket No. FAA

- 2012

- 09 70

for an exemption from § 61.58 of Title 14, Code of Federal Regulations

DENIAL OF PETITION FOR RECONSIDERATION

By letter received July 22, 2013 , Mr. Robert Carlton, Desert Aerospace, LLC, (Desert Aerospace), 604 Newport Court SE. Albuquerque, NM 87123 petitioned the Federal Aviation Administration (FAA) for reconsideratio n of Denial o f Exemption No. 10779

, dated May 24,

2013

. In its Denial of Exemption No. 10779 , the FAA had found that relief from annual proficiency check r equirements for pilot(s) of Desert Aerospace turbojet

- powered Comp

- Let

TST

- 14 (TST

- 14) glider was not in the publ ic interest

.

The petitioner requests relief from the followi ng regulation :

Section 61.58 (a) pre scribes, in pertinent part, that to serve as pilot in command of an aircraft that is type certificated for more than one required pilot flight crewmember or is turbojet

powered, a person must

--
(1) Within the preceding 12 calendar months, complete a pilot

- in

- command proficiency check in an aircraft that is type certificated for more than one required pilot flight crewmember or is turbojet

- powered; and

(2) Within the pr eceding 24 calendar months, complete a pilot

- in

- command proficiency check in the particular type of aircraft in which that person will serve as pilot in command that is type certificated for more than one required pilot flight crewmember or is turbojet

- pow ered.

The petitioner supports its request for reconsideration with the following information:

The petitioner provided three general reasons as the bas e s to petition the F AA for

reconsideration of Denial of Exemption No. 10779.2

1) The petitioner claims ther e are significant new facts, which were not presented in the original petition for exemption

.

T he petitioner notes th at , since the denial of its petition, it has made modifications to the

TST

- 14’s systems

. Specifically, the petitioner has added a more c apable auxiliary fuel pump

which has eliminated the need to reduce throttle 20 seconds after initial climb due to the risk

of engine ‘flameout

. ’ 1 Petitioner contends that these modifications further simplify operation of the aircraft and may address certa in concerns noted in the FAA’s denial of exemption.

The petitioner also notes that it has created a cockpit procedures train er (C PT) that it uses for familiarizing pilots who do not have experience with any engine systems to the cockpit

controls. Petitio ner contends that the CPT would provide students training on the proper use of controls and best practices with regard to the aircraft and engine. T he petitioner notes that pilots will have additional training because the TST

- 14’s operating limitations re quire an experimental aircraf t authorization to act as pilot in command which petitioner currently conducts under a training syllabus approved by the FAA. Petitioner contends that this additional training would account for any perceived ‘differences’ of t his a ircraft to other motorgliders.

2) The petitioner state d the FAA made important factual errors in the d enial of exemption regarding the operational characteristics of the TST

- 14 and other turbojet powered

aircraft.

Specifically , petitioner argues that t he FAA failed to provide evidence of the TST

- 14’s operational characteristics common to turbojet

- powered aircraft or the differences of the

TST

- 14 and conventional motorgliders. Petitioner maintains that the FAA merely made an ambiguous reference to the petitioner’s website without providing specific references to the significant differences inherent to the turbo jet

- powered TST

- 14.

The petitioner claimed the FAA made a contradictory argument by referencing that the requirement for “pilots... [to] comply wi th § 61.58 is not dependent on the performance of a particular aircraft, or similarities to piston

- powered aircraft”; and then the FAA states that “pilots...must receive annual proficiency checks to ensure their continued understanding of the unique operatin g characteristics common to turbo

- jet powered aircraft.” The petitioner also challenged the FAA multiple times to state specifically what characteristics its turbojet

- powered aircraft shared with other turbojet

- powered aircraft that would justify an

annu al proficiency check.

The petitioner continued stating: “The operating speeds of the TST

- 14 closely mimic other motorgliders. Its best climb and approach speed of 65 knots is consistent with other

1 Flameout : A n instance of the flame in the combustion chamber of a jet engine being extinguished, with a resultant loss of power © 2014 The Oxford University Press, Oxforddictionaries.com

.3

motorgliders. Its Vne speed of 115 knots is similar to other gliders. Its flight controls are identical to those of other motorgliders. It has fixed gear, no flaps and no hydraulic systems.”

A reference to an FAA aircraft certification Advisory Circular; AC 23.1309

- 1E, 15 (g), is included by the petitioner as an example it feel s presented “relaxed standards for turbo

- jet aircraft which have performance more closely resembling conventional piston

- powered

aircraft.”

Notwithstanding the petitioner’s claims that the FAA failed to identify operating

characterist ics in the TST

- 14 that are similar to turbojet

- powered airplanes, the petitioner

noted that it holds a letter of deviation authority (LODA) to provide training under an

FAA

- approved training syllabus which would address any perceived “ differences ” that ex ist

between the TST

- 14 and other motorgliders.

3) The petitioner state d the FAA did not correctly interpret the intent of the rule.

Petitioner renews its argument from the original petition that the FAA incorrectly interpreted the rule which petitioner argues was not intended to apply to all turbojet aircraft only turbojet airplanes.

The petitioner stated

, “While the actual deliberative process will probably never be disclosed, the denial letter stated that it was always FAA’s intention to include glide rs in the rule. Based on the reasoning presented in the denial letter, the petitioner believed the FAA’s reasons for denial demonstrate an incorrect interpretation of the intent of the rule.”

The petitioner asserted the FAA presented a circular argument that “an exemption to a rule is not possible because of the rule.” The petitioner elaborated on this sentiment by explaining

that

, “while we [the petitioner] cannot dispute that the rule, as written, does not take non

turbine

- lik e performance into account , we [the petitioner] maintain that this lack of recognition of a special circumstance is the sole reason for this petition for exemption.”

The petitioner further stated:

FAA disagree s with our original statements regarding the use of the word ‘airplane’ vs. ‘aircraft’ (Note that our position on this was modified in January 2013

, via the FAA docket website)

. FAA admits that the word ’airplane’ was used in the “Summary Table” and “Description of Proposed Changes” sections of the NPRM, but

note s that the w ord ‘aircraft’ was used in the “Proposed Amendment” section and the final rule. FAA implied that the intent throughout the process was to include gliders. FAA further implie s that since no description of the change from ‘airplane’ to aircraft’

was writte n, one should understand that the use of the word ‘airplane’ was

unintentional. FAA further state s that “the exemption process is not an appropriate mechanism to petition for rule change

. ” We remind FAA that it has a legal burden to4

clearly state the sco pe of any new regulatory action. The use of the word ‘airplane’ (which specifically excludes gliders) in the portions of the NPRM that are likely to be read first (Description of Proposed Changes & Summary Table), even if the word

‘aircraft’ is used in th e official wording later, clearly constitutes a violation of that burden, and creates a situation whereby a reasonable person could draw the wrong conclusion as to the scope of the proposed rule. We disagree that the wording was

corrected in the final rul e. While the text of the final rule does use the word ‘aircraft’; the final rule summary table, as published in the Federal Register (Vol. 76, No. 169 / Wednesday, August 31, 2011 / Rules and Regulations, p54096) still uses the word ‘airplane.’ Despite F AA’s inference that gliders were intentionally included, we seriously doubt that anyone involved in this rulemaking ever considered the impact of this rule on turbine powered gliders, and we invite FAA to provide records of any deliberative process where t urbo

- jet powered gliders were considered. This being said, we agree that the wording discrepancy involves a rule change, and therefore should be taken up in a forum other than the exemption process.

In the denial of exemption No. 10779 the FAA stated tha t § 61.58(d)(5) provides a number of ways for a pilot in command to accomplish a proficiency check. The petitioner stated that most pilots who have flown, or will fly, this aircraft do not fly other turbo

- jet aircraft, and may not even hold an airplane ra ting. Therefore, the proficiency check will be conducted in this aircraft, in accordance with § 61.58(d)(5)(i), for the vast majority of pilots who will fly

the TST

- 14. The petitioner elaborated stating:

FAA’s implication that it should avoid the burden of § 61.58 by simply not utilizing the second seat is outrageous. FAA stated “§ 61.58(e) provides an exception ... by only requiring compliance when c arriage of persons is involved.” We also recognize that the requirement for yearly proficiency check only applies to pilots who intend to carry passengers. However, we do not recognize that this fact has any bearing on this petition. We did not incur the additional expense of a two seat aircraft with the intention of flying with one seat empty. To the exte nt allowed for experimental aircraft, the second seat is an asset we intend to utilize.

4) The petitioner stated that the FAA’s public interest analysis was incorrect

T he petitioner states the FAA’s analysis was incorrect, claiming :

While it is true that as of this writing, only three persons are checked out in the

TST

- 14, we disagree with FAA’s logic as it applies to safety as a benefit to the public. It is not relief from the additional burden on the three current pilots that benefits the public. It is the potential future users of this technology who will benefit.5

The FAA's analysis is as follows:

Overall, the petitioner’s statement s reflect the requirements of 14 CFR § 11.101 for reconsideration of its petition.

P etitioner’s claims regarding add itional significant facts.

The FAA agrees the petitioner has improved the fuel system of its TST

- 14 turbojet

- powered aircraft. However, by emphasizing this fact, the petitioner provides an example of a situation

‘flameout

, ’ that is common to other turboj et

- powered aircraft as well . This condition is not present in piston

- powered aircraft. While this new system may provide increased safety beyond the scenario presented in the original petition, it also reinforces that the petitioner’s

TST

- 14 turbojet

- pow ered motorglider possesses unique operating characteristics common to turbojet

- powered aircraft , and thus the aircraft fits within the rationale for imposing the requirement for a recurrent proficiency check. See Pilot in Command Proficiency Check and

Othe r Changes to the Pilot and Pilot School Certification Rules, 76 FR 54095, 54098 (Aug. 31, 2011).

With regard to the CPT offered by the petitioner, t he FAA sees this training as a tool to assist in the training of pilots un familiar with engine systems. A lthough the FAA supports the use of training aid s
, t he petitioner has failed to show how the CPT would ensure a pilot’s proficiency on a recurring or annual basis as required by 61.58

.

The petitioner correctly acknowledges the TST

- 14’s operating limitatio ns require a pilot to

possess a n experimental aircraft authorization to act as pilot in command. Th is limitation is contained in the operating limitations that are a part of the aircraft’s Special Airworthiness

Certificate. The “NOTE” described in FAA Or der 8130.2F, which was in effect when the certificate was issued, states in pertinent part that:

NOTE: This limitation applies to any turbojet/turbofan

- powered aircraft, any aircraft with a maximum takeoff weight exceeding 12,500 pounds, and any other ai rcraft when deemed necessary.

All turbojet

- powered aircraft with this limitation require that the pilot possess an experimental aircraft authorization to act as pilot in command. Therefore , all pilots required to possess

such an authorization are also re quired to comply with the 14 CFR § 61.58 annual proficiency check requirement.

The FAA disagrees with the petitioner’s belief that th e ratio of pilots to the one current FAA inspector is burdensome. At the time of Denial of E xemption 10779

, there were th ree airmen

who possessed TST

- 14 experimental aircraft authorizations; presently there are six airmen. FAA inspectors and experimental aircraft examiners (EAEs) currently provide similar6

services to a ratio of many more airm e n than exist in the case of the TST

- 14. As with any certification activity

, as the number of airman applicants increase and there is a need for additional qualified inspectors or EAEs, the FAA designates additional resources to provide

those services.

Petitioner’s claims of factual er ror regarding the operating characteristics of the TST

- 14

Contradictory Statements about Operating Characteristics

The FAA disagrees with the petitioner’s belief that the following statements are contradictory:

[T] he requirement for pilots...to comply wit h § 61.58 is not dependent on the performance of a particular aircraft, or similarities to piston

- powered aircraft; and

during the discussion of the final rule which states in part “ pilots...must receive annual proficiency checks to ensure their continued u nderstanding of the unique operating characteristics common to turbo

- jet powered aircraft ”

A turbojet

- powered aircraft may perform better or worse than its piston

- powered counterpart

, yet that aircraft will fundamentally have unique operating characterist ics common to turbojet

powered aircraft. One such characteristic emphasized by the petitioner provides an example that is common to turbojet

- powered aircraft

- ‘flameout’. This condition is not present in piston

- powered aircraft. Furthermore, the discus sion of unique operating characteristics common to turbojet

- powered aircraft mentioned in the Denial of Exemption No. 10779 comes directly from the preamble to the final rule Pilot in Command Proficiency Check and Other Changes to the Pilot and Pilot Schoo l Certification Rules, 76 FR 54095, 54098 (Aug. 31, 2011)

. That section discusses that the passenger carrying capability is what requires

c onfirmation of a pilot’s ability to operate safely in a turbojet

- powered aircraft

. An excerpt
from that section sta tes :

the FAA firmly believes that pilots conducting flight in turbojet

- powered experimental aircraft with more than one seat, who wish to carry a passenger, must receive annual proficiency checks to ensure their continued understanding of the unique opera ting characteristics common to turbojet

- powered aircraft. An experimental jet aircraft that by original design or through modification possesses more than a single seat, has the potential to carry one or more passengers. In such a case, the pilot will be directly responsible for those passengers. We believe these circumstances demand a higher level of confirmation of the pilot's ability to operate safely in a turbojet

- powered

aircraft.

P etitioner ’s reliance on AC 23.1309

- 1E, 15(g) , as an example of rel axed standards for turbojet powered aircraft is misplaced. That AC concerns applicants seeking issuance of a Type Certificate, an Amended Type Certificate, a Supplemental Type Certificate, or a Parts7

manufacturing Approval for the initial approval of the new type design or a change in the approved type design. The AC does not address proficiency checks, which is the subject of this petition. Specifically, the example referenced in paragraph 15(g) discusses conditions in

which an airplane having a Single Turbine Engine, that would normally be considered a

Class II airplane according to Figure 2, could be treated as a Class I airplane. Paragraphs 15(a), (b) and (c) and Figure 2 of AC 23.1309

- 1E explain that the class of airplane corresponds to assigned nu merical values concerning probability of system failures based upon similar, historic data of software and complex hardware installations. Additionally, t he

AC 23.1309

- 1E, 15(g) reference presented by the petitioner only appli es to “airplanes ”

certificat ed in the standard category. Regardless , a turbojet

- powered airplane which may be classified as Class I for certification purposes wou ld still require that the pilot in command meet the § 61.58 proficiency check requirement.

References to the Petitione r’s Website

The petitioner is correct that the FAA did not elaborate on the specific references to the petitioner’s w ebsite (www.desertaerospace.com) researched in Denial of E xemption

No. 10779. In that denial, the FAA stated that the “petitioner’s websi te discusses significant differences inherent to the turbojet

- powered TST

- 14.” In addition to the “superior performance” items listed by the petitioner, the FAA’s original statement also pertains to the

four

- day course that the petitioner offers to obtain a “Jet Glider Rating.” In particular, the petitioner’s website uses the term “similar” (and still does) in the following way:

Upon completion of an evaluation with a qualified airman, you will be issued a rating

for the TST

- 14 jet sailplane. This ratin g will appear on your pilot certificate (similar to a jet airplane type rating).

That original reference, in its entirety, stated the following:

Jet Glider Rating

- Our FAA

- approved training program features ground, systems and flight training to obtain a jet glider rating. It is also recognized by sailplane insurance

carriers. The four day course includes 8 hours of ground training and 8 hours of flight training. It covers all aspects of jet sailplane operation. Here's a sample of the training sylla bus:

Section 1

- Ground Training

General Overview

TST

- 14J Flight Manual

PBS TJ

- 100 Operations and Maintenance Manual Extension/Retract Mechanism (ERM) Fuel System Fueling/defueling8

Front Cockpit Checkout

Pre

- flight Checklists Engine Controls, Display, Gr ound Starting, Shutdown

Self

- launching Transitioning into unpowered flight (in

- flight shutdown & retract) Transitioning to Powered Flight (In

- flight extension and restarting) Landing with power

Post

- flight Checklists

Section 2

- Flight Training

Normal So aring Flight (Self

- launch, shutdown, retract, land no power) Flight with restart (Self launch, shutdown, retract, restart, land w/power) Pattern Practice (Multiple takeoffs, shutdown, retract, land no power) Advanced Training (Solo preparation

– Patterns, emergency procedures)

Upon completion of an evaluation with a qualified airman, you will be issued a rating

for the TST

- 14 jet sailplane. This rating will appear on your pilot certificate (similar to an a jet airplane type rating). This course also counts as a BFR.

Cost $2850

With regard to the petitioner’s LODA, the TST

- 14 wa s issued a special airworthiness certificate in the experimental exhibition category for the purpose of operating exhibition & air racing category aircraft. Pertinent parts of 14 CFR § 91.319 state :

No person may operate an aircraft that has an experimental certificate for other than the purpose for which the certificate was issued. The FAA may issue deviation authority providing relief from the provisions of paragraph (a) of thi s section for the purpose of conducting flight training. The FAA will issue this deviation authority as a letter of deviation authority.

The LODA provides the means by which the petitioner is permitted to offer its specialized

TST

- 14 training program. H owever, as the FAA stated previously, the nature of the relief sought by the petitioner is not from a training requirement; the petitioner seeks relief from a recurrent check of a pilot’s proficiency. The petitioner has not sufficiently described how use of the training program would provide an equivalent level of safety to assessing a pilot’s proficiency on a recurring or annual basis.

FAA ’s interpret ation of the rule and public interest determination

.

Regarding the petitioner’s belief that the FAA inc orrectly interpreted the intent of the rule o r presented a circular argument

, the FAA disagrees . The petitioner claims that t he FAA9

somehow implied in Denial of E xemption No. 10779 that “an exemption to a rule is not possible because of the rule.” An exe mption is what the petitioner requested; that process is evaluated by the criteria set forth in 14 CFR § 11. 81. The FAA based Denial of Exemption No. 10779 on that analysis. A petition to amend a rule is evaluated by different crit eria set

forth in 14 CF R § 11.71. Furthermore, the petitioner states

, “ we [the petitioner] agree that the wording discrepancy involves a rule change, and therefore should be taken up in a forum other than the exemption process .” The reference (which is two separate , sequential ly occurring paragraphs) in Denial of E xemption No. 10779 is repeated here in its entirety:

Regarding the petitioner’s statements that the use of the word “aircraft” in § 61.58 was inadvertent, the FAA disagrees. Although the “Summary Table” and “Descrip tion of Proposed Changes” sections in the Notice of Proposed Rulemaking (NPRM) referenced by the petitioner (Docket No. FAA

- 2008

- 0938; Notice No. 09

- 08) incorrectly used the word “airplane”, the “Proposed Amendment” section containing the draft regulatory text used “aircraft” with regard to proposed changes to § 61.58. The Final Rule issued after the NPRM also used “aircraft” in the same manner, consistent with the requirements of § 61.58 prior to issuance of the NPRM. Additionally, the Final Regulatory E valuation considered the impacts of the change on aircraft, not airplanes. Furthermore, the NPRM did not describe proposed impacts of changing the requirement from “aircraft” to “airplane” and the result is that the current

rule continues to use the term “aircraft” as it had in previous versions of § 61.58.

Regarding comments submitted in support of changing the rule to revise applicability to “airplanes” only, the FAA notes that the exemption process is not an appropriate mechanism by which to petition for a rule change.

The FAA affirms its original statement that the NPRM did not describe proposed impacts of changing the requirement from “aircraft” to “airplane” and the result is that the current rule continues to use the term “aircraft” as it had in p revious versions of 14 CFR § 61.58. The FAA agrees with the petitioner that the final rule summary table referenced by the petitioner does repeat that same incorrect reference to “airplane” in the same manner as the NPRM.

The FAA disagrees with petition er that the FAA impli ed that the “burden” of the

14 CFR § 61.58 proficiency check c ould be avoided by not utilizing the aircraft’s additional seat. The rule provides other applicable circumstances that would satisf y the 14 CFR § 61.58 proficiency check re quirement in pertinent parts of § 61.58(d)(5). As with other experimental aircraft, a proficiency check in the particular aircraft is not the only way in which to satisfy the requirement. Additionally, the rule allows for operation of the aircraft if no carriage of passengers is involved. These are factual statements, with no implication about avoiding a regulatory requirement. The utilization of the petitioner’s additional seat in the TST

- 14 is not limited if the pilot in command is in compliance with the 14 CFR § 61.58 pilot

- in

- command proficiency check requirement.10

The FAA stated in Denial of E xemption No. 10779 and again affirms that the petitioner has not sufficiently described how relief from a requirement to ensure a pilot’s profic iency would

pro vide an equivalent level of safety or benefit the public as a whole. The petitioner feels that this “regulatory burden” will discourage potential future users of this technology. The implication is that an annual 14 CFR § 61.58 pilot

- in

- command proficien cy check requirement could hinder the popularity or growth potential of this technology

. Th e FAA has

determined

, as in D enial of Exemption No. 7693 (World Balloon)

, that popularity itself is not a public benefit. The FAA notes that there are a significan t number of popular activities that do not benefit the public, but are, in fact, detrimental to the public. The benefit to the public interest must be set forth definitively and explicitly.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption is not in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, the petition of Desert Aerospace, LLC for reconsideration of Denial of Exempt ion No.10779 from

14 CFR § 61.58 to permit relief from annual proficiency check requirements for pilot(s) of

their tu rbojet

- powered TST

- 14 glider is hereby denied.

Issued in Washington, D.C. on May 1, 2015.

//s//

Michael P. Huerta

Administrator