Exemption No. 10416

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

In the matter ofthe petition of

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

for an exemption from §91.319(a) ofTitle 14, Code ofFederal Regulqtions/

PETITION FORRECONSIDERATION OF DENIAL OF EXEMPTION

AND

RENEWED REQUEST FORLETTER OF DEVIATIONAUTHORI'IY
Background On December 22, 2011, the FAA, through Mr. JohnS. Duncan, Acting Director, Flight Standards Service, issued a DENIAL OF EXEMPTION denying theAugust 16, 2011 petition ofStarfighters, Inc. for relieffrom 14 CFR 91.319(a), which prohibits carrying persons orpropertyfor compensation orhire in an aircraft thathas an experimental certificate. The petition requested either a letter ofdeviation authority (LODA), an exemption, orboth.

PETITION FOR RECONSIDERATION OF DENIAL OF EXEMPTION

As set forth in detail herein,

• the FAA has made importantfactual errors andfindings ofmaterial fact that are erroneous;
• the FAA has not correctly interpretedthe applicable law, rules, regulations, andprecedent;

• andthe FAA has failed to make necessary legal conclusions that are without governing precedent.

In addition, Starfighters, Inc. presents below additional facts not presentedin the petition for exemption. The additional facts are necessary to showthat the assertions by the FAA containedin the Denial ofExemption with regardto military operations ofthe F-104 approximately 

### so years ago, which assertions are being usedto assess the safety of the petitioner's proposed operations, are false, irrelevant andthe argument is withoutmerit. These facts were notpresented inthe initial petitionbecause the petitioner believed that evaluation ofthe safety ofits operations would and shouldbe basedupon the facts setforth in its petition, including Exhibit D and Exhibit E detailing the extraordinary safety measures ithas implemented, as well as the recognition received by petitionerfrom NASA for its safety record, and petitioner could not foresee that instead the FAA would make a safety decision basedupon the anecdotal early militaryhistory of the F-104, in military operations which have no relationship whatsoever to the type of flying proposedbypetitioner Starfighters, Inc.

The Denial ofExemption is basedupon the FAA's determination that a grant of exemption would notbe in the public interest and wo1,1ld notprovide a level ofsafety equivalentto that providedbythe current regulations.

Asjustification for its conclusion that a grant ofexemption would notbe inthe 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 offact that is clearly erroneous. The documentation submitted in support ofthe requestfor an exemption and/or a LODA sets forth in detail the commercial space flight launch services and commercial space flight support services to be performedby Starfighters, Inc., including details ofthe (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 cannotbe provided until customer contracts are signed, and contracts cannotbe 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 declarationby Congress thatprivate commercial space flight activities are an important element ofthe transportation system ofthe 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 ofStarfighters, Inc., which include both commercial space flight launch services ("activities involved in the preparation ofa launch vehicle, payload, crew (including crewtraining), or space flight participantfor launch"Y and support services

are not in the public interest, is to ignore the mandate ofCongress and the President of the United States. In light ofthe foregoing, the only appropriate legal conclusion, for which there is no precedent, is that the commercial space flight launch and support activities proposedby Starfighters, Inc. are most certainly in the public interest.

1Title 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, SubtitleV, Ch 509, §50902(6), 14 CFR §460.5(b), 14CFR §460.5(c)(3)(ii)

2, Asjustification for its concfusion that a grant ofexemption would not provide a level ofsafety equivalentto thatprovidedbythe current regulations, the FAA asserts that, "Starfighters also states that it conducts safe operations, but does notprovide any details on how Starfighters intends to provide the required equivalent level ofsafety." This is a misstatement offact and is clearly erroneous. In its Petition for Exemption, Exhibit D, Starfighters, Inc. describes, in two (single spaced) pages ofdetail, all ofthe 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 ofsafety. Petitioner's operational record since 1996, including over 1,000 sorties at over 120 locations across North America in support ofUnited States Department ofDefense, and Federal government contract work, including flying science and other payloads for NASA since 2009, which are all flights conducted inthe same manner as persons and property will be flown under the requested exemption, establishes beyond any doubt that Starfighters, Inc. has already demonstratedthat it has providedthe required level ofsafety. To state otherwise is to erroneously ignoreJhe facts, 

### i.e. petitioner's actual operational history.

The FAA's interpretation ofapplicable law as to the required level ofsafety is incorrect, andthe FAA has failed to make necessary legal conclusions that are without governing precedent, with regard to the requirementfor an "equivalent level ofsafety". The requirement for "an equivalent level ofsafety" is unclear and ambiguous. Equivalent to the level ofsafetyprovidedby which regulations? Alevel ofsafety at least equal to that providedbythe 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 equivalentto 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, orviolation 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. Ifthe requirement for an "equivalent level ofsafety" means equivalent to Part 121 or Part 135 passenger operations, thenthe safety record ofStarfighters, Inc. mustbe comparedto the safety record ofPart 121 and Part 135 operators. The safety record ofStarfighters, Inc. in the 16 years ithas been operating its F-104's is superior to the Part 121 and Part 135 operators inthe same time period. No Part 121 or Part 135 carrier employs the e)(traordinary safety measures implementedby 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 inthe Denial ofExemption that, "The safety record ofthe F-104 aircraft is abnormally poor." In support ofthis statement, the FAA provides anecdotal statistics ofF-104 military operations by Germany, Canada andthe United States. "Therefore, the FAA finds that the operation ofthese F-104 experimental aircraft raises significant safety issues thathave notbeen addressedbythe petitioner." This is an
erroneous finding offact, with a resulting erroneous conclusion. If

### so year old military

3statistics are relevant (which they are not), then one must consider that the SpanishAir Force flew F-104's and never had an accident, and Italy was so happywith its F-104's that they flew them until 2004. To compare statistics from military operations 

### so years ago, to the operations proposedby 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 inthe F-104, which often was the first very high performancejetfighter they ever flew. As high performarlcejet experience was gained, the F-104 military accident statistics were in fact among the best. Military operation ofthe F-104 bears no resemblance whatsoever to the petitioner's proposed operations. All ofpetitioner's flights are day flights, VFR conditions only. The profiles flown are well established, and the same each time for each type offlight. 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-andthen transition over theAtlantic Ocean to Starfighters, Inc.'s own ATCAA (Air Traffic Control Assigned Airspace) located within warning areaW-497A. All flights are with the coordination and approval ofMiami 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 ofhigh performance militaryjet expenence.

The FAA asserts that the petitioner's proposed carrying ofpersons (prospective space flight participants and crew) andproperty (such as rocket components, tracking
sensors, future space-bound equipment, micro-gravity and other experiments and spacecraft hardware for third parties) ontraining flights and micro-gravityflights is "similar" to the use ofexperimental aircraft in scenic tours, aerial photography, carrying company personnel, scattering ashes, and extending flight-test-pilot training to nonflight-test students, all ofwhich 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 companypersonnel, scattering ashes and extending test pilot training to non-test pilots is factually incorrect and an erroneous finding ofmaterial fact. Unlike the proposedflights ofpetitioner, none ofthese activities are commercial space flight activities conductedbyprivate enterprise, which are an important element ofthe transportation system ofthe 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 ofpetitioner, none ofthese types offlights require the performance capability which is providedbyonly one aircraft, the F-104.

4Conclusion Petitioner, Starfighters, Inc., has established that under applicable law, rules, regulations and precedent it is entitledto an exemption allowing itto 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 setforth in its petition.

RENEWED REQUEST FOR LEITER OF DEVIATIONAUTHORITY

The FAA asserts in its Denial ofExemption that,

"Inthe alternative Starfighters also requests that the FAA issue a LODA under §91.319(h). LODAs are issued atthe local level and therefore Starfighters would need to make this requestto 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 atthe local level, none of which describe the training proposedby Starfighters, Inc., andfurther 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 ifthe requested LODA is "such thatthe FAA should consider it even though it is outside ofthe areas listed in subparagraph 3-293.B.2, the request mustbe referred to AFS-8oo(Emphasis Added)." As the FAA is well aware, and as setforth 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 suspendedbythe North Florida FSDO. AFS-8oo has the authorityto approve the "other specific training" proposedby Starfighters, Inc. andto issue a LODA. Contraryto the FAA's own Order and precedent, AFS-8oo has never considered the merits ofStarfighter, 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 ofExemption that, "FAA policy permits the issuance ofLODAs for pilot training only."

5In making sucha 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 ofconducting flight training when the aircraft intended tobe used will
notbe operated for a purpose for which its certificate was issued, ORwhen the aircraft will be usedto carrypersons orpropertyfor compensation or hire(EmphasisAdded). Clearly, pursuantto FAA Order 8900.1, a LODA maybe issued
to carry persons or property for compensation or hire in an aircraft with an experimental airworthiness certificate when pilot training is notbeing given, andthis is precisely what Starfighters, Inc. has requested.

As further supportfor its assertion in the Denial ofExemption that the meaning of "flight training" for the purpose ofissuing a LODA means only pilot flight training, the FAA relies upon a Notice ofProposed Rule Making (NPRM), 

### Certification of AircraftandAirmenfor the Operation of Light-SportAircraft (67 FR 5368; February 5, 2002), which, according to the FAA, "changed the regulation to permitflight training in experimental aircraft." Ifin fact 91.319 has been changed to permit pilot training in experimental aircraft as assertedbythe FAA, then a LODA is not necessary for pilot training in experimental aircraft, and 91.319(h), which provides for issuing ofa LODAto conduct "flight training," can only mean non-pilot flight training, including the nonpilot flight training proposedby**p~titioner.** While the FAA's interpretation ofthe NPRM supports the position ofpetitioner, in all candor the NPRM does not deal with issues related to anythingbutlight-sport aircraft, including pilot training in such aircraft. It proposedthe addition ofa new category ofspecial 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 ofFAA Order 8900.1, orto the requirements of91.319, and to petitioner's proposed operation ofF-104 aircraft, is an incorrect interpretation ofapplicable law, rules, regulations and precedent.

Conclusion Petitioner, Starfighters, Inc., has establishedthat under applicable law, rules, regulations and precedent it is entitledto a Letter ofDeviation Authority allowing itto 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 orhire in its experimental airworthiness certificated F-104 aircraft, for the purposes and in the

manner set forth in its request.

6Submittedthis 201h day ofFebruary, 2012, by email toAnne 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