ACE-13-514-E

Exemption No. 10786

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

WIPAIRE, Inc. Regulatory Docket No. FAA-2013-0156

 

for an exemption from § 23.3(a) and 

§ 135.113 of Title 14, Code of 

Federal Regulations 

 

DENIAL OF PETITION FOR RECONSIDERATION

 By letter dated August 9, 2013, Mr. Richard S. Adler, Certification Engineer, Wipaire, Inc. 

(Wipaire),1700 Henry Ave. – Fleming Field, South St. Paul, MN 55075 petitioned the 

Federal Aviation Administration (FAA) on behalf of Wipaire for an exemption from § 23.3(a) 

and § 135.113 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, 

if granted, would allow Wipaire to maintain normal category type certificated operation of 

Wipaire modified Cessna Caravans and Cessna Grand Caravans with ten or more (up to 

thirteen) seats excluding pilot seats.

The petitioner requests relief from the following regulations:

Section 23.3(a) Airplane Categories, prescribes, in pertinent part, that the normal category is 

limited to airplanes that have a seating configuration, excluding pilot seats, of nine or less, a 

maximum certificated takeoff weight of 12,500 pounds or less, and intended for non-acrobatic 

operation.

Section 135.113 Passenger occupancy of pilot seat, prescribes, in pertinent part,

no certificate holder may operate an aircraft type certificated after October 15, 1971, that has a 

passenger seating configuration, excluding any pilot seat, of more than eight seats if any 

person other than the pilot in command, a second in command, a company check airman, or 

an authorized representative of the Administrator, the National Transportation Safety Board, 

or the United States Postal Service occupies a pilot seat.
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The petitioner supports its request for reconsideration with the following information:

The petitioner states Section 11.101 allows a petitioner to petition the FAA to reconsider a 

petition for exemption denial within 60 days after the FAA has issued the denial. In its 

request, the petitioner asserts: 

(a) Wipaire, Inc., omitted a significant fact from its original petition;

(b) The FAA failed to correctly interpret the regulation by applying a non-existent 

threshold for what constitutes an acceptable level of public interest.

The FAA’s analysis is as follows:

Section 11.101 provides the following guidance and conditions under which we will accept a 

petition for reconsideration:

1. That you have a significant additional fact and why you did not present it in your 

original petition;

2. That we made an important factual error in our denial of your original petition; or

3. That we did not correctly interpret a law, regulation, or precedent.

The FAA has a longstanding policy requiring the increased level of safety that is associated 

with two pilots and two or more engines for commercial flights in airplanes capable of 

carrying more than nine passengers. This rule preceded type certification of the Cessna 

Caravan. Title 49 U.S.C. § 44701 charges the FAA with the responsibility to promote safe 

flight of civil aircraft in air commerce by prescribing minimum standards required in the 

interest of safety. In prescribing these standards, the FAA must make classifications to 

maintain an appropriate level of safety for operations with varying levels of complexity and 

varying degrees of risk to the public. The FAA established the nine-passenger limit for 

normal category airplanes. This limit was the result of a considered decision to provide a 

higher level of safety for airplanes carrying more than nine passengers in air taxi or 

commercial service.

FAA’s assessment of the petitioner’s additional information

Additional facts and why Wipaire did not present them in its original petition

The petitioner claims the FAA used new terminology unfamiliar to the petitioner when it used 

“risk exposure” [in describing the number of passengers at risk] instead of “level of safety” 

[established for the number of passengers carried for that type of operation]. Risk exposure is 

the quantified potential for loss that might occur as a result of an activity, in this case an 

operation, and is closely linked to level of safety established for airplane operations in 

consideration of the number of passengers permitted to be carried aboard the airplane. For 

example, the level of safety established for a two-place, single-engine small airplane is 

considerably different from that of a 400-passenger, multi-engine transport airplane, and is 

directly linked to the risk exposure of 400 lives as opposed to two lives. Since the 
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terminology risk exposure is widely accepted in the industry, the FAA disagrees this is an 

unfamiliar concept.

In its request for reconsideration, the petitioner states there are no additional safety 

requirements that can be met for a single engine, turboprop airplane in the normal category 

that would allow for operations with more than nine passenger seats. The FAA agrees with 

this assertion, which is why current rules do not allow for more than nine passenger seats in a 

single-engine, turboprop airplane in the normal category. The petitioner is unable to provide 

for a level of safety equivalent to that provided by § 23.3(a), which is the basis for denying the 

petition.

Wipaire further asserts that the FAA felt sufficiently comfortable with the risk exposure to 

allow continued operation of the DHC-3 Otter with more than nine passenger seats. In 

keeping with the regulatory philosophy of Executive Order 12866, Federal agencies must, 

among other considerations, base its decisions on the best reasonably obtainable scientific,

technical, economic, and other information concerning the need for, and consequences of, the 

intended regulation. The FAA “grandfathered” the DHC-3 Otter after determining the 

limitation imposed in implementing § 23.3(a) would place an undue economic burden on 

operators of that airplane. 

Public Interest 

Wipaire claims the FAA did not correctly interpret the law, regulation, or precedent regarding 

public interest. Its claim is based on FAA’s determination that we were not persuaded by the 

comments in response to publication of a summary of Wipaire’s petition in the Federal 

Register. The FAA takes into consideration comments received; we also consider whether the 

petitioner has provided reasons why granting the exemption would benefit the public as a 

whole. Support from a few parties that may benefit financially from a grant of exemption or 

personally would like to have the option of carrying more than nine passengers does not 

constitute public interest. The comments received were vague and did not address public 

interest as a whole. In evaluating the original petition, the FAA considered how the public, as 

a whole, would benefit by Wipaire being provided relief from an existing safety regulation. 

We were unable to determine how the public would benefit by allowing Wipaire to operate its 

airplane with more than nine passengers. Further, we were unable to ascertain why Wipaire 

should be treated differently than other operators that must comply with the passenger seating 

requirements of § 23.3(a).

Wipaire claims the FAA arbitrarily chose the nine-passenger limitation 40 years ago. The 

FAA does not agree. The FAA followed the requirements of the Administrative Procedure 

Act in promulgating the rulemaking action. We published for notice and comment a proposal 

to upgrade the level of airworthiness of small airplanes intended for operations under part 135. 

In response to comments received and after further consideration, the FAA determined it 

necessary to limit the future applicability of part 23 to small normal, utility, and acrobatic 

airplanes with a seating configuration, excluding pilot seats, of nine or less. The FAA 
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considered it inappropriate to add additional airworthiness requirements to part 23, based on a 

trend toward an increase in the number and types of airplanes designed to carry relatively 

large numbers of passengers. The FAA determined that continued applicability of part 23 to 

small airplanes designed to carry 10 or more passengers was no longer in the interest of safety, 

and future generations of these small airplanes should adhere to the level of safety afforded by 

the requirements of part 25, irrespective of whether operations were conducted under part 135 

or part 91. Amendment 23-10 limited the number of seats, excluding pilot seats, to nine or 

less, became effective on March 13, 1971, and is applicable to normal, utility, and acrobatic 

category airplanes for which an application for a type certificate is received by the FAA after 

that date.

Since the initial rule change, the same section has been reviewed and amended two additional 

times (amendments 23-50 and 23-62) without change to the nine passenger-seating 

requirement, indicating industry and public continued to accept the requirement. 

Wipaire claims that use of 20-year old denials of exemption as a basis for its denial is 

outdated. The FAA has consistently denied petitions for relief from § 23.3(a). Wipaire has 

provided no new information that supports a change in policy or would provide for a level of 

safety equal to that provided by the rule.

Lastly, Wipaire states that other countries have approved operation of small aircraft with more 

than 9 passenger seats. The FAA considers petitions for exemption from its regulations when 

the petitioner can show that the relief sought is in the interest of public safety in the United 

States. While we seek to harmonize our regulations with those of other Civil Aviation 

Authorities whenever practical, there are times when public interest in the United States 

differs from that of other countries.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption would not be in the 

public interest and that the case presented on reconsideration does not warrant a change to the 

original conclusions. This request for reconsideration for an exemption from 

14 CFR § 23.3(a) and § 135.113 is denied. Therefore, pursuant to the authority contained in 

49 U.S.C. §§ 106(f), 40113 and 44701, reconsideration of the petition of Wipaire, Inc., for and 

exemption from 14 CFR § 23.3(a) and § 135.113 is hereby denied.

Issued in Washington, DC on May 27, 2014

//s//

Michael P. Huerta

Administrator