AFS

- 15

- 3963

- E Exemption No. 16104

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

Ca rgo Airlines LTD. R egulatory Docket No. FAA

- 2015

- 3 898

for an exemption from § 61.77(a) of Title 14, Code of Federal Regulations

DENIA L OF EXEMPTION

By letter dated September 4, 2015, Mr. Jonathan T. Linde and Ms. Evelyn D. Sahr

, attorneys at law , Eckert Seamans Cherin & Mellott, LLC, 1717 Pennsylvania Ave nue NW

. , 12 th Floor, Washington, D.C., 20006, petitioned the Federal Aviation Administration (FAA)

on behalf of Cargo Airlines Ltd. (C.A.L.)

, 1 Hayarden St

. , Airport City

, P

. O

. Box 271

, Ben Gurion Airport

, Tel Aviv, Israel

, 70100

, for an e xemption from § 61.77 of Title 14, Code of Federal Regulations (14 CFR). Upon further clarifi cation in telephone and electronic mail exchanges, t he proposed exemption, if granted, would permit Cargo Airlines, Ltd. to obtain special purpose pilot authorizations for its pilot employees for the purpose of performing: ( a ) Ferry flight of one (1) U.S.

- registered Boeing (B)

- 747

- 400

- BCF airplane from Marana, Arizona (MZJ), to Victorville, California (VCV); ( b ) D emonstration and acceptance flights of the same airplane at VCV; and ( c ) F erry flight of the same airplane to Cargo Airlines, Ben Gurion Airport (TLV), Tel Aviv, Israel . During these ferry, demonstration and acceptance flights, no persons or property would be carried for hire . Only essential flight crew personnel

would be carried aboard the airplane during these ferry, demonstration and acceptanc e flights.

The petitioner requests relief from the following regulation:

Section 61.77(a) prescribes , in pertinent part, that the holder of a foreign pilot license issued by a contracting State to the Convention on International Civil Aviation who

meets the requirements of § 61.77 may be issued a special purpose pilot authorization by the Administrator for the purpose of performing pilot duties on a civil aircraft of2

U.S. registry that is leased to a person who is not a citizen of the United States and fo r carrying persons or property for compensation or hire on that aircraft.

The petitioner supports its request with the following information:

The petitioner states that foreign pilots employed by C .A.L

. will be performing:

(1) Ferry flight of one U.S.

- registe red B

- 747

- 400

- BCF airplane from MZJ to Southern California Logistics Airport , VCV;

(2) Demonstration and acceptance flights of the U.S.

- registered B

- 747

- 400

- BCF airplane at VCV; and

(3) Ferry flight of the U.S.

- registered B

- 747

- 400

- BCF airplane to TL V. 1

The petitioner states that the FAA has historically issued exemptions from § 61.77 to the extent the requested exemption was in the public interest, the operations conducted pursuant to the exemption would not adversely impact safety, and certain othe r special considerations existed (e.g., security concerns or a lack of U.S.

- certificated pilots available or qualified to fly the aircraft being operated).

The petitioner states that the foreign pilots employed by C.A.L. are among the most experienced and qualified B

- 747 freighter pilots in the world. The petitioner states that there are few commercial pilots qualified to operate the relatively uncommon B

- 747 freighter and that even fewer pilots possess the level of experience C.A.L. pilots have in

the B

- 7 47 freighter.

The petitioner states that the average total flight time of a C.A.L. captain is 15,000 flight hours in all types of aircraft, approximately 7,000 flight hours in B

- 747

- 200 aircraft, and 900 flight hours in the B

- 747

- 400 F. The petitioner als o states that C.A.L. first officers average 7,000 hours total time, 3,000 hours in a B

- 747

- 200 aircraft and

900 hours in the B

- 747

- 400 F. The petitioner believes that the issuance of an exemption authorizing its flight crews to operate the B

- 747

- 400F airpl ane will ensure the highest level of safety possible.

The petitioner contends that

, given Israel’s unique and continuing security concerns, the most effective way to fully guarantee security of its demonstration, acceptance, and ferry flights is for C.A.L. to operate the aircraft with its own flight crew. The petitioner also contends that the FAA has previously concluded that such security concerns constitute a valid justification for the issuance of an exemption from § 61.77 of its regulations.

In support of its security concerns, the petitioner highlights the 2004 exemption approval granted to Israel Aerospace Industries, Ltd. (IAI) for § 61.77 in which the

1 Subsequent to the September 4, 2015 petition, the petitioner’s request was clarified through various communications with the FAA. These communications are summarized in a record of conversation posted to the

docket.3

FAA explained that “Israel Aircraft Industries’ position for requesting special purpose pilot autho rizations for its pilots to perform ferry/delivery flights and test/acceptance flights on U.S.

- registered aircraft...is justified considering the unique security concerns faced by the country of Israel.”

The petitioner states that as an Israeli carrier, C.A. L. believes that the security considerations central to the FAA’s decision to exempt IAI from § 61.77 in 2004 (and that have led FAA to renew IAI’s exemption through 2015) justify issuance of an exemption to C.A.L. in the instant case.

The petitioner not es that the exemption it seeks from § 61.77 is far narrower than the authorization that the FAA has repeatedly issued to IAI . The petitioner further notes that, while IAI’s exemption permits its pilots to operate any type of U.S.

- registered

aircraft for w hich they have been certificated by the Civil Avia t ion Authority of Israel ( CAAI ) , and IAI’s exemption has been in effect for approximately eleven years, C.A.L. is requesting an exemption from § 61.77 that would authorize its pilots to operate a

limited nu mber of flights in connection with its acquisition of one 747 freighter aircraft.

Finally, the petitioner contends that the requested exemption is in the public interest and special considerations warrant the relief sought. The petitioner offers the follo wing conclusions: (1) This petition seeks relief nearly identical to that granted by FAA to IAI

in 2004 and which the FAA renewed through 2015; (2) Grant of this petition would have zero impact on aviation safety; (3) Publication in the Federal Register c ould impact the security of C.A.L. ’s proposed demonstration, acceptance and ferry flights; (4) Delay in acting on this petition would compromise C.A.L.’s ability to schedule flight crew for the demonstration, acceptance, and ferry flights addressed herein; and (5) The public interest would be served best by prompt action to this petition.

A summary of the petition was published in the Federal Register on December 3, 2015 ( 80 FR 75701 ) . No comments were received.

The FAA's analysis is as follows:

The FAA fully considered all of the petitioner’s supportive information and determined that the circumstances presented by the petitioner 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 equal to that provided by the regulation would be

maintained.

Section 61.3 (a)(1) requires that a person who acts as pilot in command or in any other capacity as a required pilot flight crewmember of a civil aircra ft of U.S. registry must

hold a valid pilot certificate or special purpose pilot authorization issued under part 61. (I f the aircraft is operated within a foreign country, a current pilot certificate issued by the country in which the aircraft is operated is sufficient. ) As previously noted, under § 61.77(a) a special purpose pilot authorization is issued only to the holder of a foreign pilot license issued by a contracting State to the Convention on International Civil Aviation to perform pilot duties on a civil aircraft of U.S. registry that is leased to a4

person who is not a citizen of the United States for carrying persons or property for compensation or hire on that aircraft.

The petitioner seeks relief from § 61.77(a) to permit pilots who hold CAAI

- is sued pilot licenses to ferry a nonrevenue, U.S.

- registered airplane within the U.S. and ultimately

to Israel

. The FAA finds that the petitioner is seeking to circumvent the FAA pilot certification process for convenience and economic relief. The FAA reco gnizes that it would be advantageous for C.A.L. to use Israeli pilots with special purpose pilot

authorizations to ferry the airplane, but it was never the intent of the FAA in adopting § 61.77(a) to issue special purpose pilot authorizations in lieu of co mplying with the FAA pilot certification process.

The FAA does not question the flight experience of the C.A.L. B

- 747 pilots

, nor does it question their availability to conduct the flights indicated in the petition. However, the

B

- 747

- 400

- BCF is a U.S

- man ufactured transport aircraft converted to a freighter aircraft and requires a B

- 747

- 4 pilot type rating. This type rating has been issued to pilots for over 25 years. The FAA has not seen any evidence that would indicate there are not adequate numbers of qualified pilots who hold U.S. pilot certificates with appropriate type ratings to ferry the subject aircraft.

The petitioner believes the FAA’s decision to exempt IAI from § 61.77 in 2004 , which was predicated on the unique security concerns in the coutr y of Israel, justifies issuance of an exemption to C.A.L . However, the FAA believes that IAI’s exemption is

different from the request presented by C.A.L. IAI requested an exemption from § 61.77 to perform ferry/delivery flights and test/acceptance flight s of U.S. registered aircraft from its facilities throughout the world. Unlike IAI, CAL requested an exemption from § 61.77 to ferry one U.S. registered aircraft from Marana, Arizona to Victorville, California; to perform a demonstration and test flight a t Southern California Logistics Airport in Victorville, California; and to ferry the U.S. registered aircraft from Victorville, California to Tel Aviv, Israel. The FAA finds that the ferry, demonstration, and test flights that CAL is seeking an exemption for do not present the

same unique security concerns as those faced by IAI. CAL is a 14 CFR p art 129 certificated air carrier and conducts scheduled and unscheduled air transport flights into and out of the United States on a regular basis. As a certific ated p art 129 air carrier,

CAL is well versed on the security concerns and requirements of operating at major airports and maintenance facilities within Israel, the U.S. and Europe. In contrast, IAI is an aircraft manufacturer, is not a certificated p art 129 air carrier, and faces unique security concerns in the country of Israel as it conduct s unscheduled flights from its facilities within Israel, the U.S., and at a number of locations throughout the world.

Finally, the FAA finds that the petitioner has not offered any specific reason or evidence that a grant of exemption is in the public interest.

The FAA finds the petitioner has failed to show how C.A.L. ’ s situation is unique from the general class of regulated entities so as to justify relief by way o f an exemption rather than through the general rulemaking process.5

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption would not be in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 10 6(f), 40113 and 44701, delegated to me by the Administrator, the petition of Cargo Airlines, Ltd. , for an

e xemption from 14 CFR § 61.77(a) is hereby denied.

Issued in Washington, DC, on April 4, 2016.

.

/s/

John S. Duncan Director, Flight Standards Service