Exemption No. 10416 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 20591 

 

In the matter of the petition of 

 

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

 

for an exemption from § 91.319(a) 

of Title 14, Code of 

Federal Regulations 

 

DENIAL OF EXEMPTION 

 By letter dated August 16, 2011, Mr. Jerry H. Trachtman, Counsel for Starfighters, Inc. 

(Starfighters), 1735 West Hibiscus Boulevard, Suite 300, Melbourne, Florida 32901, 

petitioned the Federal Aviation Administration (FAA) on behalf of Starfighters for an 

exemption from § 91.319(a) of Title 14, Code of Federal Regulations (14 CFR). The 

proposed exemption, if granted, would allow Starfighters to carry persons and property for 

compensation or hire in experimental aircraft. 

The petitioner requests relief from the following regulation:

Section 91.319(a) prescribes, in pertinent part, that no person may operate an experimental 

category civil aircraft for other than the purpose for which the certificate was issued, or for 

carrying persons or property for compensation or hire. 

The petitioner supports its request with the following information:

The petitioner is submitting this request as a means to clarify its proposed operations 

and obtain authorization, whether by Letter of Deviation Authority (LODA) or petition 

for exemption, or both. 

Starfighters states that it applied for, and in October 2009, the FAA issued, a LODA for 

Conducting Flight Training in Experimental Category Aircraft pursuant to § 91.319(h). 

The petitioner states that although the application for the LODA explained the 

operations to be conducted by Starfighters, none of which includes any pilot training, 

AFS-11-439-E 
2

the LODA was issued on FAA template authorizing the use of experimental category 

aircraft for initial pilot training. 

The petitioner states that in October 2009, the North Florida Flight Standards Office 

(FSDO) suspended the LODA “until an acceptable flight training program is submitted 

and approved.” Starfighters states that the letter further stated that the application was 

deficient due to missing information in eight named areas. The petitioner contends that 

the information claimed to be missing was indeed included on the LODA application to 

the extent applicable, given the fact that there is no pilot training involved. Due to the 

suspension of the LODA, Starfighters states it shut down its operations at great 

financial loss, and has attempted to obtain authority from the FAA to carry on its 

business. 

On October 1, 2010, Starfighters submitted a petition for exemption and that request 

was denied (Exemption No. 10214) on February 28, 2011. The petitioner believes that 

reasons for the denial are not based on fact. 

Starfighters states that the FAA denial contends that “for the operations contemplated, 

Starfighters must receive ‘prior approval’ from the FAA Office of Commercial Space.” 

The petitioner believes this to be untrue. The petitioner contends that it is not 

operating a launch or reentry facility, and is not carrying persons or property into 

space. 

Starfighters states the denial asserts that a grant of exemption would not be in the 

public interest and would not provide an equivalent level of safety. The petitioner 

believes that a grant of exemption would be in the public interest because the public as 

a whole would benefit from the advancement of commercial space activities by the 

private sector, as mandated by the President of the United States and the Administrator 

of National Aeronautics and Space Administration. The petitioner contends that it has 

documented in depth the extraordinary safety measures it employs, which measures it 

employs, which measures far exceed anything done by anyone else in the industry, and 

which have resulted in a perfect safety record. 

Starfighters also states that the denial of exemption asserts that “several of the 

proposed operations are not suitable for an aircraft in the experimental exhibition 

category and would be more appropriately conducted in accordance with an 

experimental research and development certification.” According to § 21.191(a), 

experimental research and development certification applies only to, “Testing new 

aircraft design concepts, new aircraft equipment, new aircraft installations, new aircraft 

operating techniques, or new uses for aircraft.” The petitioner states that it has not 

requested authorization for any such testing operations. Starfighters further states that 

while the proposed operations may not precisely fit into the experimental exhibition 

certification, they also do not fit any other certification category. 
3

The petitioner requests that the FAA not publish a summary in the Federal Register. A 

summary was previously published for Denial of Exemption No. 10214. The petitioner 

states that delaying action on this petition will cause financial burden already suffered 

by Starfighters. 

A summary of the original petition (October 1, 2010) was published in the 

Federal Register on December 2, 2010 (75 FR 76068), and no comments were received. 

Therefore, the FAA has determined that it is not necessary to publish Starfighters’ second 

request. 

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 interest and would not provide a level of safety 

equivalent to that provided by the current regulations.

The petition provides details concerning the Commercial Space Launch Act, U.S.C. Chapter 

509, and 14 CFR 460.51. 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. Starfighters also states that it conducts safe operations but does not 

provide any details on how Starfighters intends to provide the required equivalent level of 

safety. 

The safety record of the F-104 aircraft is abnormally poor. A number of government 

operators have lost significant portions of their F-104 aircraft fleets through accidents. 

Germany lost about 30% of F-104 aircraft in accidents over its operating career and Canada 

lost over 50% of its F-104s. The accident rate for the F-104 in the United States Air Force 

(USAF) service was the highest accident rate of any USAF Century Series fighter. Therefore, 

the FAA finds that the operation of these F-104 experimental aircraft raises significant safety 

issues that have not been addressed by the petitioner. 

In the alternative Starfighters also requests that the FAA issue a LODA under § 91.319(h). 

LODAs are issued at the local level and therefore Starfighters would need to make this 

request to the North Florida FSDO. However, since the petitioner contends that the term 

“flight training” should be defined in the broadest sense, a brief discussion is necessary. 

Starfighters asserts that “flight training” is not necessarily “pilot training” and the LODA 

should be issued for its training of “flying (as a passenger) in an F-104 including the typical 

launch profile that the space flight participants and crew would experience on sub-orbital 

commercial space flights so that they can experience and learn to tolerate the altitude and Gforce environment they will be subjected to.” This is not the meaning of “flight training” 

conveyed in the original Notice of Proposed Rulemaking (NPRM), Certification of Aircraft 

and Airmen for the Operation of Light-Sport Aircraft (67 FR 5368; February 5, 2002) when 

 

1

 Petitioner incorrectly cites Section 460.1. The section tht gives crew qualifications and training is Section 

460.5 
4

the FAA changed the regulation to permit flight training in experimental aircraft. The NPRM 

used the term “flight training” when discussing training for the purpose of receiving a pilot 

certificate or rating. The NPRM did not use the term “pilot training.” FAA policy permits 

the issuance of LODAs for pilot flight training only. Passengers do not fall within the scope 

of that definition or policy. 

The FAA has consistently denied exemptions in circumstances similar to those presented in 

Starfighters’ petition. In these previous denials of exemption, the FAA stated that it found 

that permitting scenic tours or aerial photography using experimental aircraft (Exemption No. 

8189), carrying company personnel (Exemption No. 5444), extending an exemption for flighttest-pilot training to non-flight-test students (Exemption No. 5778) or scattering ashes 

(Exemption No. 10128) for compensation or hire was not in the public interest. The 

petitioner’s request is essentially identical to the air tour or aerial photography operation 

denied in Exemption No. 8189. The passengers on Starfighter’s aircraft would be taking a 

ride for the experience of the ride itself, which cannot be construed as flight training as 

defined by the FAA. Additionally, the demonstrated accident record of the F-104 poses a 

safety risk to passengers beyond that contemplated by the regulation and the petitioner has not 

provided any details establishing an equivalent level of safety as required by § 11.81(e): “The 

reasons why granting the exemption would not adversely affect safety, or how the exemption 

would provide a level of safety at least equal to that provided by the rule from which you seek 

the exemption”. 

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. §§ 40113 

and 44701, delegated to me by the Administrator, the petition of Starfighters, Inc. for an 

exemption from 14 CFR § 91.319(a) is hereby denied. 

Issued in Washington, D.C., on December 22, 2011. . 

/s/ 

John S. Duncan 

Acting Director, Flight Standards 

 Service