AFS-09-095-E

Exemption No. 9834

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

In the matter of the petition of

AVERY OTTENBREIT Regulatory Docket No. FAA-2008-1346

for an exemption from § 121.311(b)

of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter posted December 19, 2008, Mr. Randal l Joseph Ottenbreit, parent of Ms. Avery Ottenbreit, 33 Martin Street, Regina, SK, Canada S4 S 3W4, petitioned the Federal Aviation Administration (FAA) on behalf of Ms. Ottenbreit fo r an exemption from § 121.311(b) of Title 14, Code of Federal Regulations (14 CFR). Th e proposed exemption, if granted, would allow Ms. Ottenbreit to exceed the specified weight limit for an FAA-approved child restraint system during use of that child restraint system ab oard an aircraft.

The petitioner requests relief from the following r egulation:

Section 121.311(b) prescribes, in pertinent part, t hat each child aboard an aircraft operated under part 121 must occupy an approved sea t with a separate safety belt

secured about him or her, and must not exceed the s pecified weight limit for the restraint system

.

The petitioner supports its request with the follow ing information:

The petitioner states that Ms. Ottenbreit’s physica l condition is as follows: Ms. Ottenbreit has cerebral palsy. She is 15 years old and is 4 feet 11 inches and weighs 73 pounds. She is designated as a spastic quadriplegic. She does not have control of her trunk and requires strapping to hold her in an upright position. More over, she does not walk and is unable to sit without proper supports. She uses a power wheelcha ir for mobility that is equipped with lateral supports and a chest harness.2

The petitioner further states that as a result of h er physical condition, she needs the support and security provided by an FAA-approved child rest raint; however, because of her weight, she is incapable of compliance with the regulation.

The petitioner also states that he understands that the regulation is written to create a high level of safety for each individual passenger by en suring that they are securely restrained in their seats during all phases of flight. The regul ation ensures that an individual does not cause harm to other passengers on the airplane by being t hrown into them during turbulent or emergency conditions.

The petitioner proposes that Ms. Ottenbreit be allo wed to occupy an FAA-approved child restraint, specifically the CAReS child restraint s ystem which is manufactured by AmSafe Corporation, even though she slightly exceeds the m anufacturer’s weight limits. The petitioner states that this ensures a high level of safety for Ms. Ottenbreit and a high level of safety for the other passengers and crew on the air plane. In fact, in Ms. Ottenbreit’s case, safety is greatly enhanced by the extra support and security that the FAA-approved child restraint system will provide for her during the en tire flight.

Additionally, the petitioner states that enhancing safety for Ms. Ottenbreit is in the public interest. Furthermore, the public interest is also served by the fact that the use of this FAAapproved child restraint system allows her to use c ommercial air transportation. Without the support and security of the FAA-approved child rest raint system, she would be unable to fly commercially.

The petitioner also states that, with certain limit ations established by the FAA in a grant to this petition, there can be an equivalent level of safety to that provided by the affected regulation. The CAReS restraint has been certified by the manufacturer for use by children 22-44 pounds. However, the components of the CAReS restraint are the same as those used

in restraints for adults on aircraft and would main tain their integrity if used by someone who weighed several hundred pounds.

The petitioner states that the limit of 44 pounds w as established because, with the additional weight of the child attached to the seatback, the s eatback would move forward more quickly in an accident scenario and this might cause a high er head injury criteria (HIC) load for the person seated in the seat behind the passenger usin g the CAReS restraint (because the seatback moving forward more quickly would mean tha t it would not be there to attenuate the energy from the impact of the person seated behind the person using the CAReS restraint).

In addition, the petitioner states that in order to achieve an equivalent level of safety as that provided by the affected regulation, the petitioner proposes that the FAA establish a limitation in a grant to this petition that Ms. Ottenbreit onl y sits in a passenger seat with no passenger

seated behind her. Therefore, no unsafe condition would exist for a passenger seated behind Ms. Ottenbreit while she is using the CAReS restrai nt.3

The petitioner also requests that the processing of this petition not be delayed for publication and comment in the Federal Register . The petitioner believes that if the FAA takes th e time to put the petition in the Federal Register , Ms. Ottenbreit may not be able to travel with her family during a trip planned for early 2009.

The FAA has determined that good cause exists for waiving the requirement for Federal Register publication because the exemption, if granted, wou ld not set a precedent, and any delay in acting on this petition would be detriment al to Ms. Avery Ottenbreit.

The FAA's analysis is as follows:

The FAA has fully considered the petitioner's suppo rting information and finds that a grant of exemption is in the public interest and would provi de a level of safety equivalent to that provided under the regulation.

The FAA finds that numerous people with physical ch allenges, such as those people described in Grants of Exemption No. 7831 and 8264, have prev iously completed flights using restraint systems that addressed unique physical needs regard ing safety, support, and security in the same manner of operations as described in this peti tion. The FAA further finds that this petition, if granted, would not set any new precede nts regarding the use of restraint systems by persons with disabilities.

At all times during previous operations conducted u nder similar exemptions, a caregiver accompanied the individual. Similarly, Ms. Ottenbr eit will, at all times, be accompanied by one of her parents. Therefore, the FAA finds that because Ms. Ottenbreit will be accompanied by one of her parents, at all times, she will have adequate assistance should an aircraft evacuation become necessary.

Additionally, the FAA agrees with the petitioner th at with certain limitations established by the FAA in a grant to this petition, there can be a n equivalent level of safety to that provided by the affected regulation. The CAReS restraint ha s been certified by the manufacturer for use by children 22 to 44 pounds. However, the comp onents of the CAReS restraint are the

same as those used in restraints for adults on airc raft and would maintain their integrity if used by someone who weighed several hundred pounds.

The limit of 44 pounds was established because, wit h the additional weight of the child

attached to the seatback, the seatback would move f orward more quickly in an accident. This might cause a higher HIC load for the person seated in the seat behind the passenger using the CAReS restraint (because the seatback moving forwar d more quickly would mean that it would not be there to attenuate the energy from the impact of the person seated behind the person using the CAReS restraint).

Therefore, the FAA finds that an equivalent level o f safety as that provided by the affected regulation can be established with a limitation in this grant of exemption that Ms. Ottenbreit4

only sits in a passenger seat with no passenger sea ted behind her. With this limitation, no unsafe condition would exist for a passenger seated behind Ms. Ottenbreit while she is using

the CAReS restraint.

Furthermore, the FAA considers the petitioner's sit uation unique because Ms. Ottenbreit has cerebral palsy. She is 15 years old and is 4 feet 11 inches and weighs 73 pounds. She is designated as a spastic quadriplegic. She does not have control of her trunk and requires strapping to hold her in an upright position. She does not walk and is unable to sit without proper supports. She uses a power wheelchair for m obility that is equipped with lateral supports and a chest harness. As a result of her p hysical challenges, Ms. Ottenbreit is physically incapable of literal compliance with the affected section.

The FAA also finds that enhancing safety for Ms. Ot tenbreit is in the public interest. The public interest is also served by the fact that the use of this FAA-approved child restraint system allows Ms. Ottenbreit to use commercial air transportation. Without the support and security of the FAA-approved child restraint system , she would be unable to fly commercially. Therefore, the FAA finds that for the reasons prese nted by the petitioner, the proposed exemption would be in the public interest.

The technical analysis and limitations in this gran t have been coordinated with:

Team Coordinator, Biodynamics Research Team Protection and Survival Laboratory, AAM-630 Civil Aerospace Medical Institute (CAMI)

Federal Aviation Administration

P.O. Box 25082 Oklahoma City, OK 73125 (405) 954-7529

The FAA notes that the pertinent regulatory require ment within 14 CFR § 121.311(b) is § 121.311(b)(2)(iii)(B). This states, in part, “Th e child must be properly secured in the restraint system and must not exceed the specific w eight limit for the restraint system.” The FAA recognizes that compliance with this specific r equirement is the responsibility of the

certificate holder, not the individual. However, i n this unique situation, the FAA believes that the public interest is not served by requiring Ms. Ottenbreit to ask air carriers to petition the FAA on her behalf every time she and her family wis h to travel on a commercial air carrier.

The FAA also finds it is appropriate to issue an ex emption to this regulatory requirement to the individual, which includes a grant of exemption to any air carrier or commercial operator operating under part 121 while Ms. Ottenbreit is ab oard their aircraft, to allow her to exceed the specified weight limit for an FAA-approved chil d restraint system during use of that child restraint system aboard an aircraft.5

The FAA’s Decision

In consideration of the foregoing, I find that a gr ant of exemption is in the public interest. Therefore, pursuant to the authority contained in 4 9 U.S.C. §§ 40113 and 44701 delegated to me by the Administrator, Ms. Avery Ottenbreit is gr anted an exemption from 14 CFR § 121.311(b)(2)(iii)(B). In addition, any air carr ier or commercial operator operating under part 121 while Ms. Ottenbreit is aboard its aircraf t is granted an exemption from 14 CFR § 121.311(b)(2)(iii)(B) to the extent necessary to allow Ms. Ottenbreit to exceed the specified weight limit for an FAA-approved child restraint sy stem during use of that child restraint system aboard an aircraft.

All operations under this exemption must be conduct ed with at least one of Ms. Ottenbreit’s parents or a caregiver accompanying her. Ms. Otten breit may only occupy a passenger seat with no passenger seated behind her. In addition, Ms. Ottenbreit's parent or caregiver must carry a copy of this exemption and advise the air c arrier about the contents of the exemption at least 48 hours before the date of each flight.

This exemption terminates on March 31, 2011, unless sooner superseded or rescinded.

Issued in Washington, D.C., on March 12, 2009.

/s/ Chester D. Dalbey Acting Director, Flight Standards

Service