AFS-08-361-E Exemption No. 10111

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

ENDLESS MOUNTAIN PILOTS, Regulatory Docket No. FAA-2008-0760 EAA CHAPTER 1458, INC.,

for an exemption from §§ 91.146 and 91.147 and part 136 of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letters dated July 25, 2008 and August 26, 2008, Mr. Heath Goldstein, Endless Mountain Pilots, EAA Chapter 1458, Inc. (EMP), 83 Abington Gardens Drive, South Abington Township, Pennsylvania 18411-9364, petitioned the Federal Aviation Administration (FAA) on behalf of EMP for an exemption from §§ 91.146 and 91.147, and part 136, subpart A, of Title 14, Code of Fe deral Regulations (14 CFR). The proposed exemption, if granted, would permit, for a 1-year period: (1) an aircraft owner who is not piloting his/her own aircraft or the airport owner of Seamans Field Airport in Factoryville, Pennsylvania (9N3), who rents aircraft in the normal course of business to share with the pilot in command (PIC) the fuel, oil, and operating cost of such flight if such aircraft owner chooses; (2) an aircraft owner who is not piloting his/her own aircraft or the airport owner of 9N3 to allow the use of his/her aircraft at no expense to the PIC, if such aircraft owner so wishes; (3) an airport owner of 9N3 to offer fu el at a reasonable discount rate which would be no less than his actual cost of the fuel; (4) EMP to share the cost of fuel, oil, and aircraft operation with the aircraft owner and/or PIC; and (5) allow a pilot who does not have the required 500 hours of flight time to volunteer for such flights.

The petitioner requests relief from the following regulations:

Section 91.146 prescribes, in pertinent part, that reimbursement of the operator of the airplane or helicopter is limited to that portion of the passenger payment for the flight that does not exceed the pro rata cost of owning, operating, and maintaining the aircraft2

for that flight, which may include fuel, oil, airport expenditures, and rental fees; and that a private pilot acting as pilot in command has at least 500 hours of flight time.

Section 91.147 prescribes, in pertinent part, that each operator conducting passengercarrying flights for compensation or hire must comply with the safety provisions of part 136, subpart A, of this chapter, and a pply for and receive a Letter of Authorization from the Flight Standards District Office nearest to its principal place of business, unless all flights are conducted under § 91.146.

Part 136, subpart A, National Air Tour Safety Standards, applies to each person operating or intending to operate a commercial air tour in an airplane or helicopter and, when applicable, to all occupants of the airplane or helicopter engaged in a commercial

air tour.

The petitioner supports its request with the following information:

The petitioner states that since 1992 nearly 40,000 pilots have volunteered and provided flight experiences to more than 1.25 million children free of charge. The petitioner posits that the high cost of fuel and operating an aircraft, and the decline in general aviation, have affected participation in the organization’s rallies. As such, the petitioner asserts that the proposed exemption would alleviate some burden off of the volunteer pilots, increase participation at Young Eagle rallies, and be in the public

interest.

Furthermore, the petitioner believes that an equivalent level of safety would be maintained by conducting all Young Eagle operations in accordance with the rules and guidelines set by the Experimental Aircraft Association (EAA). The petitioner states that the volunteers: are private pilots who are members of EAA, have current medical certificates, and are current in their flight review. The petitioner acknowledges that EAA does not provide guidance on the number of minimum hours that pilots must have to conduct Young Eagle flights. The petitioner also recognizes that this is a safety concern and states that the rallies’ coordinator would ensure that an inexperienced pilot would not serve as PIC. This would be accomplished through the coordinator’s review of the volunteers’ pilot logbooks for logged hours as PIC, destinations traveled, and how often the volunteer served as PIC. The petitioner states that the Young Eagles coordinator has conducted over 800 hours of logged flight time and has also conducted Young Eagle flights.

In addition to the oversight provided by the coordinator, the petitioner states that these additional safety precautions would be taken:

1. All aircraft used during EMP Young Eagle rallies would be in airworthy condition;

2. Designated parking would be provided for all aircraft being used during the rallies;3

3. Only authorized personnel, i.e., PICs, designated escorts, and ground personnel would be permitted to access designated parking areas;

4. All PICs would obtain briefings before rallies;

5. PICs would be current to carry passengers in airworthy conditions and take no more passengers than the aircraft permits;

6. Before each flight, PICs would conduct pre- flight inspections of their aircraft;

7. A weight and balance calculation would be done by each PIC;

8. No hot loading, no unusual altitudes, no aerobatic maneuvers, and no flight formation would be permitted;

9. All passengers would be briefed before each flight;

10. All passengers would wear seatbelts and shoulder straps for the entire duration of the flight; and

11. PICs would make necessary position pattern calls on 9N3’s airport frequency and follow all right traffic patterns and altitude for 9N3 airport.

The petitioner also requests that the FAA review the program and events of the EAA’s Young Eagle rallies.

A summary of the petition was published in the Federal Register on December 4, 2008 (73 FR 73986). No comments were received.

The FAA’s analysis is as follows:

The FAA finds that the petition if granted would not provide an equivalent level of safety and is, therefore, not in the public interest. On February 13, 2007, the FAA published the National Air Tour Safety Standards final rule, which set forth operating limitations for charity flight events like those proposed by the petitioner. See 72 FR 6884.

The preamble of the air tour rule explains, in detail, the FAA’s determination that logging of flight time is a form of compensation. Also, writing off the cost of the aircraft is compensation; charging a fee to get into an event in order to get a “free” ride is compensation, etc. The preamble clearly illustrates charity, nonprofit, and community events. All of the flights by these charities involve compensation in one form or another, but in the interest of the public good and charity, the FAA developed the operating limitations in §§ 91.146 and 91.147 to allow these events to occur under the provisions of part 91 rather than the more restrictive commercial operating rules of part 135. Rather than make a case-by-case determination using exemptions, as was the case before the Air Tour Safety Standards rule was published, the FAA created two new sections in part 91: § 91.146, Passenger-carrying flights for the benefit of a charitable, nonpr ofit, or community event, and § 91.147, Passengercarrying flights for compensation or hire.

While the petitioner requested an exemption from §§ 91.146 and 91.147, § 91.146 appears to be the relevant provision for the petitioner’s events. Section 91.146(b)(7) limits the4

operator’s reimbursement to the “portion of the passenger payment for the flight that does not exceed the pro rata cost of owning, operating, and maintaining the aircraft for that flight, which may include fuel, oil, airport expenditures, and rental fees.” In establishing this provision, the FAA recognized that:

It is often hard to determine whether a pilot is working for “free” or is being compensated in some manner. In the interest of charity, the FAA has allowed certain forms of compensation or hire, such as the ability to log pilot time and the ability to accept payment for aircraft fuel and oil. Some pilots own or borrow the aircraft used and are [not] paid for their pilot time. Some pilots rent an aircraft and are reimbursed by the sponsor. Some pilots are reimbursed for aircraft rental but provide their time for free. Some pilots who own the aircraft they fly are able to “write-off” some ownership expenses. Some pilots are paid to fly. All of the flights by these museums and charities involve “compensation,” but in the interest of public good and charity, the FAA has allowed them to operate outside of part 135 requirements. In this final rule, operators of these kinds of flights will continue to be allowed to operate outside of part 135 requirements, even though the FAA considers the operations to be for compensation or hire.

72 FR 6884-01

The operations the petitioner proposes to conduct, as recognized in the final rule, are operations for compensation or hire. The FAA, in promulgating this rule, reviewed over 100 exemptions granting relief similar to what the petitioner now requests. The FAA promulgated this rule to establish a common standard that would allow these “experience” flights to continue without requiring the operators to obtain certification and operate under the provisions of part 135. The FAA has limited compensation for these experience flights to the passenger portion of the operating expenses associated with the flight. The petitioner has not demonstrated why it would be in the public interest to now allow complete reimbursement for these flights.

Furthermore, we note that § 91.146(b) also requi res that each private pilot conducting flights during one of these events must have at least 500 hours of flight time. Prior to this rule, all such private pilots were required to have at least 200 hours. The FAA received many public comments, including comments from EAA, about the increase from 200 to 500 hours during the rulemaking process. The petitioner states that he intends to use private pilots but not require any minimum flight time. This is not acceptable and would not provide an equivalent level of safety to the operating limitations set forth in § 91.146. Section 61.113 permits a private pilot to act as pilot in command of a charitable, nonprofit, or community event flight described in § 91.146 if the sponsor and the pilot comply with the requirements of § 91.146. If § 91.146 is not complied with, private pilots c onducting the event flights will be at risk of violation. The petitioner did not request exem ption from § 61.113 but also did not offer any equivalent level of safety that could cause us to grant such an exemption.5

Additionally, we note that § 91.146(b)(10) requires these flights to be operated in accordance with the safety provisions of part 136, subpart A, which includes passenger briefings. We note that the petition does not address these provisions or indicate intent to comply with these provisions. As such, the petitioner has not demonstrated that a grant of this exemption will not have an adverse impact on safety.

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exemption would not provide an equivalent level of safety and 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 Endless Mountain Pilots, EAA Chapter 1458, Inc., for an exemption from 14 CFR §§ 91.146 and 91.147 and part 136, subpart A, is hereby denied.

Issued in Washington, D.C., on Aug 02 2010.

/s/ Raymond Towles Acting Director, Flight Standards

Service