AFS-10-168-E

Exemption No. 10095

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

BROKEN WING, LLC Regulatory Docket No. FAA-2010-0168

for an exemption from §§ 91.3, 91.7, and 91.105 of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated February 16, 2010, Mr. Leland C. Shanle, President, Broken Wing, Ltd. (Broken Wing), 33 South Laclede Station Road, St. L ouis, MO 63119, petitioned the Federal Aviation Administration (FAA) on behalf of Broken W ing for an exemption from §§ 91.3, 91.7, and 91.105 of Title 14, Code of Federal Regul ations (14 CFR). The proposed exemption, if granted, would allow for flight opera tions involving a Boeing 727 in support of the National Geographic (USA), Channel 4 (UK), and German ProSieben scientific demonstration and filming operation for television broadcast. The purpose of this project is to replicate a survivable aircraft landing mishap for the purposes of aerial filming and television exhibition by controlling a large passenger aircraf t into a precise, controlled impact with the ground at a designated and prepared spot.

The petitioner requests relief from the following r egulations:

Section 91.3 prescribes, in pertinent part, that:

(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircra ft.

(b) In an in-flight emergency requiring immediate a ction, the pilot in command may deviate from any rule of this part to the exten t required to meet that

emergency.2

(c) Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon the request of the Administrato r, send a written report of

that deviation to the Administrator.

Section 91.7 prescribes, in pertinent part, that:

(a) No person may operate a civil aircraft unless i t is in an airworthy condition.

(b) The pilot in command of a civil aircraft is res ponsible for determining whether that aircraft is in condition for safe flig ht. The pilot in command shall discontinue the flight when unairworthy mecha nical, electrical, or

structural conditions occur.

Section 91.105 prescribes, in pertinent part, that:

(a) During takeoff and landing, and while en route, each required flight

crewmember shall—

(1) Be at the crewmember station unless the absence is necessary to perform duties in connection with the operation of the aircraft or in connection with physiological needs; and

(2) Keep the safety belt fastened while at the crew member station.

(b) Each required flight crewmember of a U.S.-regi stered civil aircraft shall, during takeoff and landing, keep his or her shoulde r harness fastened while at his or her assigned duty station. This paragraph does not apply if—

(1) The seat at the crewmember's station is not equ ipped with a shoulder harness; or

(2) The crewmember would be unable to perform requi red duties with the

shoulder harness fastened.

The petitioner supports its request with the follow ing information:

Broken Wing is a motion picture and television prod uction services provider specializing in aviation support. Broken Wing has applied for an e xperimental certificate for research and development purposes. The petitioner states that t he goal of the project is to replicate a survivable aircraft landing mishap providing a plat form to realistically exercise scientific safety experiments such as improving passenger rest raint systems and measuring impact forces. The petitioner states that this method is similar to proven techniques of automotive crash-testing and military live-fire survivability testing.

The petitioner states that the event will be photog raphed by onboard systems, airborne, and ground-based systems. The event will be broadcaste d worldwide by the National Geographic (USA), Channel 4 (UK), and German ProSieben Televis ion. The petitioner states that FedEx has offered the use of its B-727 simulator for proj ect training, profile development, and3

rehearsals. Broken Wing will exercise overall proj ect control and will apply standard test and evaluation project methodology, including the estab lishment of a configuration control board and flight test safety reviews.

The petitioner states it has designed the program i n such a way as to ensure that the operation

of the aircraft could not be characterized as eithe r careless or dangerous.

Broken Wing states that a grant of exemption would be in the public interest. This

demonstration would be a serious scientific event. Fatigue life and ultimate load testing of full scale aerospace vehicles in realistic, measura ble scenarios have proven invaluable to improving transportation safety. As a direct resul t of this event, realistic dynamic crash testing of aircraft will be available for the first time at reasonable cost. The petitioner states that through this kind of controlled, scientific te sting, public knowledge of and trust in the airworthiness of aircraft will be improved.

Broken Wing believes that a grant of exemption woul d provide an equivalent level of safety. The assembled test team is qualified and proven at the highest levels attainable in government or commercial aviation circles for this type of act ivity. The team has applied rigorous methodology and risk management techniques learned from years of flight test experience. When executed as designed, this project poses no ha zard to public safety.

The petitioner states the aircraft will be flown wi thin 5 minutes of the remote impact site. The flight crew will then exit the aircraft by parachut e through the aft cabin door. The aircraft would then continue to the impact point under the c ontrol of a GPS-guided autopilot control monitored by two chase aircraft within visual range . The subject aircraft will be mounted with a remote control system that would be secured in existing seat tracks. This remote control system would be thoroughly tested and be pr ovided power through the aircraft essential bus with a stand alone backup battery.

Broken Wing states that interested scientific organ izations and well-known and respected sponsoring organizations have signed on and are sup portive of this project. The petitioner

also asserts that the crash data would be valuable to the FAA.

A summary of the petition was published in the Federal Register on April 23, 2010 (75 FR 21389). No comments were received.4

The FAA's analysis is as follows:

The FAA has considered the petitioners’ request and supporting materials and finds that a grant of exemption would not be in the public inter est and would not provide a level of safety equivalent to that provided by the current regulati ons.

As with all Contracting States to the Convention on International Civil Aviation (the Chicago Convention), the United States Government is obliga ted to comply with its international obligations under the Chicago Convention and its An nexes developed by the International Civil Aviation Organization (ICAO). Therefore, it is FAA’s policy to comply with ICAO standards to the maximum extent practicable. All o f the Title 14 CFR provisions from which the petitioner seeks relief implement fundamental I CAO standards: § 91.3(a) - Responsibility and authority of the pilot in command, § 91.7 - Civ il Aircraft Airworthiness, and § 91.105 - Flightcrew members at stations. These provisions e nsure the safety of aircraft and persons on board during operations in international air naviga tion. Because of the FAA’s overriding interest in complying with our international safety oversight obligations, the petitioner has not demonstrated that granting the petition would be in the public interest.

Because the FAA has determined that an exemption is not in the public interest, it is not addressing whether the proposed operation could be conducted in a manner that provides an equivalent level of safety as the applicable regula tions.

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 author ity contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, th e petition of Broken Wing, LLC for an exemption from 14 CFR §§ 91.3, 91.7, and 91.105 is hereby denied.

Issued in Washington, DC, on Jul 15, 2010.

/s/

John M. Allen Director, Flight Standards Service .