Exem ption No. 10128

UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

KURT W. MULLER Regulatory Docket No. FAA–2010–0239

for an exemption from § 91.319(a) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letters posted to the docket on March 04, 2010 and March 22, 2010, Mr. Kurt W. Muller, 23101 Sweetbay Lane, California, Maryland 20619, petitioned the Federal Aviation Administration (FAA) for an exemption from § 91.319(a)(2) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would permit Mr. Muller to operate his Rowell Pitts Special S–1, which holds an experimental airworthiness certificate, for dispersing human or pet ashes for hire.

The petitioner requires relief from the following regulation:

Section 91.319(a) prescribes, in pertinent part, that no person may operate an experimental category civil aircraft for other than the purpose for which the certificate was issued, or for carrying persons or property for compensation or hire.

The petitioner supports his request with the following information:

The petitioner states that he seeks relief from § 91.319(a)(2) to establish a part-time business. The desired business would use his Rowell Pitts Special S–1, registration No. N3DR, to disperse the ash remains of persons and/or pets from the air in accordance with all applicable Federal and State guidelines.

The petition states this exemption would serve the public interest for two reasons. First, there are few aerial ash dispersal services and none provide the service in an aerobatic aircraft. Therefore, the petitioner believes he could provide a unique service to the public. Second, the petitioner states he will provide aerial dispersal of ash remains free of charge to U.S. military personnel killed in action and at a discount

AFS–10–185–E2

to military veterans. The petitioner states he is an active-duty naval officer and combat
veteran. He notes that he would like to serve fellow veterans and their families in a special and unique way.

The petitioner states that granting this exemption would not adversely affect the level of safety provided by § 91.319(a)(2) in that, by operating single-seat aircraft, he would be unable to carry passengers, and by operating a small aircraft with no provisions for baggage, he could not carry a substantial amount of property. The petitioner notes the aircraft is not suited for any other commercial purpose. The petitioner also notes an exemption would not necessitate any change to the normal flight envelope or profile for aircraft N3DR, or pose any other conceivable safety risk. The petitioner specifies he is not requesting to extend the privileges of an exemption outside the United States.

The FAA has determined that good cause exists for not publishing a summary of the petition in the Federal Register because the requested exemption would not set a precedent.

The FAA’s analysis is as follows:

The FAA has considered fully the petitioner’s supporting information and has determined that the circumstances Mr. Muller presents do not justify a grant of exemption. The FAA finds the petitioner has not shown that a grant of exemption would be in the public interest or that a level of safety equivalent to that provided by the regulations would be maintained.

Previously, the FAA has consistently denied exemptions in circumstances similar to those presented by the petitioner. In these previous denials of exemption, the FAA stated it found that permitting the operation of experimental aircraft carrying property for compensation or hire was not in the public interest because the proposed operation
could be conducted in an aircraft with standard airworthiness certification. In this circumstance, the petitioner provides no material to support the need to conduct this type of operation in his experimental aircraft (Rowell Pitts Special S–1, registration No. N3DR.) The FAA finds there are many other types of aircraft available to conduct the proposed services that have the proper type certification and would not require an exemption. In addition, the FAA issued an experimental certificate to the petitioner for the following purpose under § 21.191(g), Operating amateur-built aircraft, which is defined as operating an aircraft the major portion of which has been fabricated and assembled by persons who undertook the construction project solely for their own education or recreation. The petitioner has not shown how his situation is unique as compared to other operators of experimental aircraft who are complying with the limitations of their certificates.

The FAA recognizes that the petitioner’s proposed operation would provide a service to veterans and their families, but this does not set precedent for granting an exemption.3

The FAA has determined the proposed service of dispersing ashes from the air would not benefit the public interest.

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exem ption would not be in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, the petition of Mr. Kurt W. Muller for an exemption from 14 CFR § 91.319(a) is hereby denied.

Issued in Washington, DC, on August 31, 2010.

/s/ Raymond Towles Acting Director, Flight Standards
Service