Exemption No. 10451

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

Davonair, Inc. Regulatory Docket No. FAA-2011-0130

for an exemption from § 135.183 of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated January 31, 2011, Mr. Christopher W alston, Davonair, Inc. (Davonair),

9725 NW 52 nd Street, Suite 503, Doral, FL 33178, petitioned the Federal Aviation Administration (FAA) on behalf of Davonair for an exemption from § 135.183 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would delineate compliance with § 135.183 (41 nautical miles, or 15 minutes at cruise for the Cessna C-208B equipped with cargo pod) where Air Traffic C ontrol (ATC) in high-density environments places aircraft at fixes and altitudes from which single-engine aircraft cannot reach land in the event of engine failure.

The petitioner requests relief from the following regulation:

Section 135.183 prescribes, in pertinent part, that no person may operate a land aircraft carrying passengers over water unless—

(a) it is operated at an altitude that allows it to reach land in the case of engine failure;

(b) it is necessary for takeoff or landing;

(c) it is a multiengine aircraft operated at a weight that will allow it to climb, with the critical engine inoperative, at least 50 feet a minute, at an altitude of 1,000 feet above the surface; or

AFS-11-177-E2

(d) it is a helicopter equipped with helicopter flotation devices.

The petitioner supports its request with the following information:

The petitioner states that the extent of relief sought is 41 nautical miles (15 minutes at cruise for the Cessna C-208B equipped with cargo pod) beyond power-off gliding

distance from land.

The petitioner states that ATC in high-density environments places aircraft at fixes and altitudes from which single-engine aircraft cannot reach land in the event of engine failure. The petitioner enclosed a copy of the Miami Air Route Traffic Control Center (ARTCC)/Terminal Radar Approach Contro l (TRACON) letter of agreement (LOA) dated December 10, 2009. The petitioner contends that this LOA makes clear the need

for such relief.

The petitioner states that by complying with the LOA listed above, the general flying public will enjoy a higher level of safety by having all aircraft, including single-engine air carriers, operate under positive radar control in highly congested environments, such as the Miami/Fort Lauderdale airspace.

The petitioner contends that the Cessna Grand Caravan is the most feasible and economical aircraft currently in production that meets the requirements of ‘9 or less’ passenger/cargo air carrier aircraft operations. Furthermore, the petitioner states that given the extensive shorelines, peninsulas, and islands served, outlying remote communities in need of general aviation support would greatly benefit from the broader use of such aircraft as the Cessna Caravan. The petitioner also contends that the Cessna Caravan can carry more passengers/cargo per operating dollar than any other production aircraft, providing a profit for the operator, as well as more economical service to the public, as well as more business and jobs.

The petitioner argues that § 135.183 was written primarily with piston-powered aircraft in mind. The petitioner states that today, with over 18 million flight hours logged onthe Pratt & Whitney powered Cessna Caravan, the standard of single-engine, turbinepowered aircraft safety has undoubtedly been raised beyond that envisioned when this regulation was implemented.

The petitioner states that the language of § 135.183(b) makes clear that the regulation allows for single-engine aircraft to ope rate beyond power-off gliding distance to land, as necessary for takeoff and landing. However, the petitioner contends that the ambiguous wording of this part leaves in que stion to what extent, or what distance. The petitioner is concerned that at present an operator may, in good faith, believe that they are in compliance with the rule when complying with ATC descent directives for approach and landing, but at the same time the Administrator can arbitrarily take the counter position there exists some unwritten distance limit for which the air carrier has exceeded. The petitioner argues that without some uniform defined limit, the language3

of § 135.183(b) essentially creates an interpretational nightmare that brings the use of the safer, turbine-powered Cessna Caravan into question.

The petitioner states that the arrival profiles contained in the Miami ARTCC/TRACON LOA are both over water, and outside U.S. airspace. The petitioner states that in addition to these arrivals, this problem frequently arises when single-engine aircraft operate in coastal, peninsular, and island areas with highly congested controlled environments (i.e. in and around the islands of the Caribbean where a large portion of the petitioner’s operations are conducted).

A summary of the petition was published in the Federal Register on July 7, 2011, (76 FR 39975). No comments were received.

The FAA’s analysis is as follows:

Based on discussions with the South Florida Flight Standards District Office (FSDO)about the petition, the FAA understands the following: in a typical flight, the singleengine Cessna 208 is used in part 135 operations between the Bahamas and Fort Lauderdale, Florida, often along the FAA published DEKAL TWO arrival route. Upon reaching the DEKAL waypoint, ATC instructs the aircraft to descend to 4000 feet for traffic separation.

In accordance with § 91.3, the pilot in command is “directly responsible for, and is the final authority as to, the operation of that aircraft.” The Aeronautical Information Manual, paragraph 4-4-1 also notes this and states that it is the pilot’s responsibility to request a route that the aircraft is capable of flying in compliance with the applicable regulations. Lastly, an ATC clearance “is not authorization for a pilot to deviate from any rule, regulation, or minimum altitude nor to conduct unsafe operation of the aircraft.” Id. Simply put, the pilot in command must comply with ATC clearance or ask for an amended clearance to comply with all the applicable regulations. Positive radar control, coverage that the petitioner enjoys, is offered when complying with the

ATC clearance at other altitudes.

The FAA concurs with the petitioner’s assertion that 41 miles is outside of normal gliding distance to land when operating at 4000 feet MSL. Although there is no formal definition of the takeoff and landing phase mentioned in §135.183(b), in this circumstance being in excess of 41 miles from land and at 4,000 feet is not in a position for landing. See Legal Interpretation to Mr. Brian Kilcullen, from Rebecca B. MacPherson, Assistant Chief Counsel for Regulations (Feb. 7, 2012) (enclosed). Therefore, § 135.183(b) does not apply in this case.

The FAA disagrees with the assertion that § 135.183 was written primarily for piston powered aircraft. In the preamble to the codification of part 135 in 1978, the FAA states, “since 1969 when part 135 was last upgraded, there has been substantial increase in the number of certificate holders conducting operations in small airplanes4

carrying 10 or more passengers and in multiengine turbine-powered airplanes. Forexample, in the 12-month period ending June 30, 1977, the number of turbinepowered aircraft operated by commuter air carriers grew 61.7 percent from 225 to 364. (43 FR 46743, Oct 10, 1978). Therefore, the petitioner fails to offer an equivalent level of safety in their petition.

In another section of the preamble, the FAA further states “these amendments respond to the demand for commuter and air taxi operators to operate larger and more complex aircraft.” (43 FR 46742, Oct 10, 1978) Cl early, the FAA was improving safety for the entire fleet of on-demand operators including those operating turbine powered

aircraft.

The petitioner makes an argument for the economic value of using the single-engine Cessna 208 aircraft, but fails to offer a valid position as to how granting their request would be in the public interest and benefit the public as a whole.

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 Davonair, Inc., for an exemption from 14 CFR § 135.183 is hereby denied.

Issued in Washington, D.C., on February 16, 2012.

/s/

John S. Duncan Acting Director, Flight Standards

Service .