Exemption No. 10416 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 20591 

In the matter of the petition of 

STARFIGHTERS, INC. Regulatory Docket No. FAA-2011-0937 

for an exemption from §91.319(a) 

of Title 14, Code of Federal Regulqtions/ 

PETITION FOR RECONSIDERATION OF DENIAL OF EXEMPTION 

AND 

RENEWED REQUEST FOR LETTER OF DEVIATION AUTHORI'IY 

Background 

On December 22, 2011, the FAA, through Mr. JohnS. Duncan, Acting Director, 

Flight Standards Service, issued a DENIAL OF EXEMPTION denying the August 16, 

2011 petition of Starfighters, Inc. for relief from 14 CFR 91.319(a), which prohibits 

carrying persons or property for compensation or hire in an aircraft that has an 

experimental certificate. The petition requested either a letter of deviation authority 

(LODA), an exemption, or both. 

PETITION FOR RECONSIDERATION OF DENIAL OF EXEMPTION 

As set forth in detail herein, 

• the FAA has made important factual errors and findings of material fact 

that are erroneous; 

• the FAA has not correctly interpreted the applicable law, rules, regulations, 

and precedent; 

• and the FAA has failed to make necessary legal conclusions that are 

without governing precedent. 

In addition, Starfighters, Inc. presents below additional facts not presented in the 

petition for exemption. The additional facts are necessary to show that the assertions by 

the FAA contained in the Denial of Exemption with regard to military operations of the 

F-104 approximately so years ago, which assertions are being used to assess the safety of 

the petitioner's proposed operations, are false, irrelevant and the argument is without 
merit. These facts were not presented in the initial petition because the petitioner 

believed that evaluation of the safety of its operations would and should be based upon 

the facts set forth in its petition, including Exhibit D and Exhibit E detailing the 

extraordinary safety measures it has implemented, as well as the recognition received by 

petitioner from NASA for its safety record, and petitioner could not foresee that instead 

the FAA would make a safety decision based upon the anecdotal early military history of 

the F-104, in military operations which have no relationship whatsoever to the type of 

flying proposed by petitioner Starfighters, Inc. 

The Denial of Exemption is based upon the FAA's determination that a grant of 

exemption would not be in the public interest and wo1,1ld not provide a level of safety 

equivalent to that provided by the current regulations. 

As justification for its conclusion that a grant of exemption would not be in the 

public interest, "The FAA finds that while the need to encourage private sector space 

operations is clear, there is little detail on how Starfighters' specific operations are in the 

public interest." This is a misstatement of fact that is clearly erroneous. The 

documentation submitted in support of the request for an exemption and/ or a LODA 

sets forth in detail the commercial space flight launch services and commercial space 

flight support services to be performed by Starfighters, Inc., including details of the 

(non-pilot) training to be provided to prospective space flight participants and crew and 

the anticipated payloads to be carried- such as rocket components, tracking sensors, 

future space-bound equipment, micro-gravity and other experiments and spacecraft 

hardware for third parties. The specific payloads to be carried cannot be provided until 

customer contracts are signed, and contracts cannot be signed until an exemption is 

issued. In its petition for exemption, Starfighters, Inc. has cited specific provisions 

within the Commercial Space Launch Act, Title 51 USC, as well as regulations 

promulgated thereunder, which reflect the declaration by Congress that private 

commercial space flight activities are an important element of the transportation system 

of the United States, and are consistent with the need to develop a strong space 

transportation infrastructure with significant private sector involvement- in other 

words, commercial space flight activities are in the public interest. 1 To assert that the 

proposed activities of Starfighters, Inc., which include both commercial space flight 

launch services ("activities involved in the preparation of a launch vehicle, payload, crew 

(including crew training), or space flight participant for launch"Y and support services 

are not in the public interest, is to ignore the mandate of Congress and the President of 

the United States. In light of the foregoing, the only appropriate legal conclusion, for 

which there is no precedent, is that the commercial space flight launch and support 

activities proposed by Starfighters, Inc. are most certainly in the public interest. 

1

Title 51, Subtitle V, Ch 509, §50901(a)(7), Title 51, Subtitle V, Ch 509, §50901(a)(8), Title 51, 

Subtitle V, Ch 509, §50901(a)(11) 

2

Title 51, Subtitle V, Ch 509, §50902(6), 14 CFR §460.5(b), 14CFR §460.5(c)(3)(ii) 

2 
, As justification for its concfusion that a grant of exemption would not provide a 

level of safety equivalent to that provided by the current regulations, the FAA asserts 

that, "Starfighters also states that it conducts safe operations, but does not provide any 

details on how Starfighters intends to provide the required equivalent level of safety." 

This is a misstatement of fact and is clearly erroneous. In its Petition for Exemption, 

Exhibit D, Starfighters, Inc. describes, in two (single spaced) pages of detail, all of the 

safety measures it employs, which to date have resulted in a safety record equivalent to 

not flying at all (no accidents, no incidents, no regulatory violations). This is how 

Starfighters, Inc. will provide the required equivalent level of safety. Petitioner's 

operational record since 1996, including over 1,000 sorties at over 120 locations across 

North America in support of United States Department of Defense, and Federal 

government contract work, including flying science and other payloads for NASA since 

2009, which are all flights conducted in the same manner as persons and property will 

be flown under the requested exemption, establishes beyond any doubt that Starfighters, 

Inc. has already demonstrated that it has provided the required level of safety. To state 

otherwise is to erroneously ignoreJhe facts, i.e. petitioner's actual operational history. 

The FAA's interpretation of applicable law as to the required level of safety is 

incorrect, and the FAA has failed to make necessary legal conclusions that are without 

governing precedent, with regard to the requirement for an "equivalent level of safety". 

The requirement for "an equivalent level of safety" is unclear and ambiguous. 

Equivalent to the level of safety provided by which regulations? A level of safety at least 

equal to that provided by the rule from which the exemption is sought? The rule from 

which exemption is sought prohibits all flight for compensation or hire in experimental 

aircraft such as petitioner's. Must safety measures be put in place that are equivalent to 

not flying at all? This would be unreasonable, arbitrary and capricious. However, in the 

16 years that Starfighters, Inc. has been operating its F -104 aircraft, there has never 

been an accident, incident, or violation ofF AA regulations. Petitioner's actual 

operational history demonstrates that it has achieved a safety record equivalent to not 

flying at all, as unrealistic a standard as that is. If the requirement for an "equivalent 

level of safety" means equivalent to Part 121 or Part 135 passenger operations, then the 

safety record of Starfighters, Inc. must be compared to the safety record of Part 121 and 

Part 135 operators. The safety record of Starfighters, Inc. in the 16 years it has been 

operating its F-104's is superior to the Part 121 and Part 135 operators in the same time 

period. No Part 121 or Part 135 carrier employs the e)(traordinary safety measures 

implemented by Starfighters, Inc., as set forth in its petition, Exhibit D, which assure a 

safe operation, and which have resulted in a perfect safety record as well as recognition 

from NASA, included in the petition as Exhibit E. 

The FAA states in the Denial of Exemption that, "The safety record of the F-104 

aircraft is abnormally poor." In support of this statement, the FAA provides anecdotal 

statistics ofF-104 military operations by Germany, Canada and the United States. 

"Therefore, the FAA finds that the operation of these F -104 experimental aircraft raises 

significant safety issues that have not been addressed by the petitioner." This is an 

erroneous finding of fact, with a resulting erroneous conclusion. If so year old military 

3 
statistics are relevant (which they are not), 

then one must consider that the Spanish Air 

Force flew F-104's and never had an accident, and Italy was so happy with its F-104's 

that they flew them until 2004. To compare statistics from military operations so years 

ago, to the operations proposed by Starfighters, Inc. is worse than comparing apples and 

oranges. The military flew in all weather conditions, day and night, in combat scenarios 

that stretched the airplane's performance envelope. The military pilots were 

inexperienced in the F -104, which often was the first very high performance jet fighter 

they ever flew. As high performarlce jet experience was gained, the F-104 military 

accident statistics were in fact among the best. Military operation of the F-104 bears no 

resemblance whatsoever to the petitioner's proposed operations. All of petitioner's 

flights are day flights, VFR conditions only. The profiles flown are well established, and 

the same each time for each type of flight. As set forth in the petition for exemption, the 

Starfighters, Inc. flights depart the Kennedy Space Center Shuttle Landing Facility 

(SLF), which is located within restricted airspace extending from the surface to 

"unlimited" -airspace which has no commercial or general aviation traffic-and then 

transition over the Atlantic Ocean to Starfighters, Inc.'s own ATCAA (Air Traffic Control 

Assigned Airspace) located within warning area W-497A. All flights are with the 

coordination and approval of Miami Center Military Airspace Chief, NASA Flight 

Operations and the United States Air Force Cape Canaveral Airspace Manager. 

Additionally, Starfighters, Inc. maintains its own flight operations personnel in the SLF 

Control Tower during all flights. Starfighters, Inc. pilots hold an F-104 type rating, are 

instrument rated, and each has well over 1,000 hours of high performance military jet 

expenence. 

The FAA asserts that the petitioner's proposed carrying of persons (prospective 

space flight participants and crew) and property (such as rocket components, tracking 

sensors, future space-bound equipment, micro-gravity and other experiments and 

spacecraft hardware for third parties) on training flights and micro-gravity flights is 

"similar" to the use of experimental aircraft in scenic tours, aerial photography, carrying 

company personnel, scattering ashes, and extending flight-test-pilot training to nonflight-test students, all of which have been denied exemptions as not in the public 

interest. Stating that the petitioner's proposed flights are "similar" to scenic tours, aerial 

photography, carrying company personnel, scattering ashes and extending test pilot 

training to non-test pilots is factually incorrect and an erroneous finding of material 

fact. Unlike the proposed flights of petitioner, none of these activities are commercial 

space flight activities conducted by private enterprise, which are an important element 

of the transportation system of the United States, and which are consistent with the 

need to develop· a strong space transportation infrastructure with significant private 

sector involvement, as set forth in the Commercial Space Launch Act. Unlike the 

proposed flights of petitioner, none of these types of flights require the performance 

capability which is provided by only one aircraft, the F-104. 

4 
Conclusion 

Petitioner, Starfighters, Inc., has established that under applicable law, rules, 

regulations and precedent it is entitled to an exemption allowing it to carry persons 

(prospective space flight participants and crew) and property (such as rocket 

components, tracking sensors, future space-bound equipment, micro-gravity and other 

experiments and spacecraft hardware) for compensation or hire in its experimental 

airworthiness certificated F -104 aircraft, for the purposes and in the manner set forth in 

its petition. 

RENEWED REQUEST FOR LEITER OF DEVIATION AUTHORITY 

The FAA asserts in its Denial of Exemption that, 

"In the alternative Starfighters also requests that the FAA issue a LODA under 

§91.319(h). LODAs are issued at the local level and therefore Starfighters would 

need to make this request to the North Florida FSDO." 

The FAA has failed to recognize and comply with its own precedent, as set forth in 

FAA Order 8900.1. FAA Order 8900.1, Volume 3, Ch 11, Section 1, paragraph 3-293.B.2 

lists the training areas for which the FSDO may issue a LODA at the local level, none of 

which describe the training proposed by Starfighters, Inc., and further provides that a 

LODA may be issued for "OTHER SPECIFIC TRAINING APPROVED BY THE 

GENERAL AVIATION AND COMMERCIAL DIVISION, AFS-8oo." FAA Order 8900.1, 

Volume 3, Ch 11, Section 1, paragraph 3-292.D.1 states that if the requested LODA is 

"such that the FAA should consider it even though it is outside of the areas listed in 

subparagraph 3-293.B.2, the request must be referred to AFS-8oo(Emphasis Added)." 

As the FAA is well aware, and as set forth in the August 16, 2011 initial petition, 

Starfighters, Inc.'s first request fot a LODA was made to the North Florida FSDOin 

October, 2010, the LODA was issued, and eight months later it was suspended by the 

North Florida FSDO. AFS-8oo has the authority to approve the "other specific training" 

proposed by Starfighters, Inc. and to issue a LODA. Contrary to the FAA's own Order 

and precedent, AFS-8oo has never considered the merits of Starfighter, Inc.'s request 

for a LODA. This is one reason why petitioner's August 16, 2011 "Renewed Request and 

Regulatory Basis For a LODA" was furnished directly to AFS-8oo. 

The FAA further asserts in its Denial of Exemption that, "FAA policy permits the 

issuance of LODAs for pilot training only." 

5 
In making such a statement, the FAA has again failed to recognize and comply 

with its own precedent, as set forth in FAA Order 8900.1. FAA Order 8900.1, Volume 3, 

Ch 11, Section 1, paragraph 3-291.C permits the FAA to issue a LODAto an applicant 

"for the purpose of conducting flight training when the aircraft intended to be used will 

not be operated for a purpose for which its certificate was issued, OR when the 

aircraft will be used to carry persons or property for compensation or 

hire(Emphasis Added). Clearly, pursuant to FAA Order 8900.1, a LODA may be issued 

to carry persons or property for compensation or hire in an aircraft with an 

experimental airworthiness certificate when pilot training is not being given, and this is 

precisely what Starfighters, Inc. has requested. 

As further support for its assertion in the Denial of Exemption that the meaning 

of "flight training" for the purpose of issuing a LODA means only pilot flight training, 

the FAA relies upon a Notice of Proposed Rule Making (NPRM), Certification of 

Aircraft andAirmenfor the Operation of Light-Sport Aircraft (67 FR 5368; February 5, 

2002), which, according to the FAA, "changed the regulation to permit flight training in 

experimental aircraft." If in fact 91.319 has been changed to permit pilot training in 

experimental aircraft as asserted by the FAA, then a LODA is not necessary for pilot 

training in experimental aircraft, and 91.319(h), which provides for issuing of a LODAto 

conduct "flight training," can only mean non-pilot flight training, including the nonpilot flight training proposed by p~titioner. While the FAA's interpretation of the NPRM 

supports the position of petitioner, in all candor the NPRM does not deal with issues 

related to anything but light-sport aircraft, including pilot training in such aircraft. It 

proposed the addition of a new category of special experimental airworthiness 

certificate: light-sport, and it provided for using light-sport certificated aircraft for sport 

and recreation, pilot training, and rental. To apply anything. in this NPRM to the 

interpretation of FAA Order 8900.1, or to the requirements of 91.319, and to petitioner's 

proposed operation of F-104 aircraft, is an incorrect interpretation of applicable law, 

rules, regulations and precedent. 

Conclusion 

Petitioner, Starfighters, Inc., has established that under applicable law, rules, 

regulations and precedent it is entitled to a Letter of Deviation Authority allowing it to 

carry persons (prospective space flight participants and crew) and property (such as 

rocket components, tracking sensors, future space-bound equipment, micro-gravity and 

other experiments and spacecraft hardware) for compensation or hire in its 

experimental airworthiness certificated F-104 aircraft, for the purposes and in the 

manner set forth in its request. 

6 
Submitted this 201

h day of February, 2012, by email to Anne Bechdolt, Esq. 

(Anne.Bechdolt@faa.gov), and overnight delivery (FedEx Tracking Number 

7980 7928 8749) to JohnS. Duncan, Federal Aviation Administration, 

Orville Wright Building (FOB1oA), FAA National Headquarters, 

Boo Independence Avenue, SW, Washington, D.C 20591. 

JERRX H. TRACHTMAN, P.A. 

7 

1735 W. Hibiscus Blvd., Suite 300 

Melbourne, Florida 32901 

Telephone (321) 723-8281 

Facsimile (321) 394-4033