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 

 

Cargo Airlines LTD. Regulatory Docket No. FAA-2015-3898

 

for an exemption from § 61.77(a)

of Title 14, Code of 

Federal Regulations 

 

DENIAL 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 Avenue NW., 

12th 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 exemption from § 61.77 of Title 14, Code of 

Federal Regulations (14 CFR). Upon further clarification in telephone and electronic mail 

exchanges, the 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) Demonstration and acceptance flights of 

the same airplane at VCV; and (c) Ferry 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 acceptance 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 of
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U.S. registry that is leased to a person who is not a citizen of the United States and for 

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.-registered 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 TLV.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 other 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-747 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-747-400F. The petitioner also 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-747-400F. The petitioner believes that the issuance of an exemption 

authorizing its flight crews to operate the B-747-400F airplane 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. 
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FAA explained that “Israel Aircraft Industries’ position for requesting special purpose 

pilot authorizations 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 notes 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 which they have been certificated by the Civil Aviation 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 number 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 following 

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 could 

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 aircraft of U.S. registry must 

hold a valid pilot certificate or special purpose pilot authorization issued under part 61. 

(If 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 a 
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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-issued 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 recognizes 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 complying 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-manufactured 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 coutry 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 flights 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 at 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 part 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 certificated part 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 part 129 air carrier, and faces unique 

security concerns in the country of Israel as it conducts 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 of an exemption 

rather than through the general rulemaking process.
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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. §§ 106(f), 40113

and 44701, delegated to me by the Administrator, the petition of Cargo Airlines, Ltd., for an 

exemption 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