AFS-11-021-E Exemption No. 10214

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

RLB AVIATION, INC. D.B.A STARFIGHTERS, INC. Regulatory Docket No. FAA-2010-1086

for an exemption from § 91.319(a) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated October 1, 2010, Mr. Rick Svetkoff, President/Chief Pilot, RLB Aviation, Inc. d.b.a. Starfighters, Inc. (Starfighter s), 1608 North Jasmine Avenue, Tarpon Springs, Florida 34689 petitioned the Federal Aviation Admi nistration (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 St arfighters 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 states it is requesting an exemption in order to develop his business and continue the advancement of the commercial space industry within the United States (U.S.).

Starfighters states that it has successfully carried payloads and persons aboard the2

F-104 as a “public use aircraft.” This was done in conjunction with the U.S. Air Force (USAF) and the National Aeronautics and Space Administration (NASA). The petitioner contends that these flights help advance technology development for both NASA (camera, optics and sensors, one of which is aboard the International Space Station) and the FAA (commercial space airspace proving “Pathfinder”) projects. The petitioner states that it has been approached by Embry-Riddle Aeronautical University, Florida State University, Boeing, Lockheed Martin, and Northrop Grumman to conduct similar flights.

The petitioner states the F-104 is such a capable and highly requested test platform that Starfighters will be expanding its fleet from four to nine aircraft. The petitioner further states that Edwards Air Force Base Flight Center, the USAF Research laboratory, and Navy Test Pilot schools have all inquired into using Starfighters for various projects. Starfighters would like the same opportunities be available to education institutions and commercial industry partners to keep America at the forefront of aerospace technology

now and in the future.

The petitioner states that as the Space Shuttle program draws to a close, John F. Kennedy Space Center (KSC) will lose critical personnel. Starfighters states that a grant of exemption can ensure that these personnel remain at work. In addition, it will increase the petitioner’s workforce in a climate where almost 13,000 people face unemployment.

Starfighters states that safety is paramount to its organization and the personnel based at the NASA Shuttle Landing Facility on KSC. The petitioner contends that all operations at this federal government installation are subject to oversight not only by the FAA but are inclusive of NASA and USAF. Starfighters states that its full time personnel attend all NASA aviation safety workshops, training, and planned exercises at KSC. Starfighters believes that by holdi ng itself to a higher standard, its location and working airspace mitigates a vast majority of risk to the uninformed.

The petitioner states it has operated without incident since 1996 across North America in support of commercial industry, U.S. Department of Defense and federal government contract work.

The petitioner believes, for the reasons outlined above, that a grant of exemption would not adversely affect safety. Starfighters states that if granted an exemption, these safety mechanisms would remain in place and continue to be overseen by both NASA and the

USAF.

A summary of the petition was published in the Federal Register on December 7, 2010 (75 FR 76068). No comments were received.3

The FAA's analysis is as follows:

The FAA has considered the petitioner’s 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 FAA finds that Starfighters has failed to provide adequate details of their proposed operation. In addition, § 11.81(d)(e) requires that the petitioner provide the FAA with “[t]he reasons why granting your request would be in the public interest; that is, how it would benefit the public as a whole” and “[t]he r easons why granting the exemption would not adversely affect safety, or how the exemption woul d provide a level of safety at least equal to that provided by the rule from which you seek the exemption.” The petition does not adequately address why granting the request woul d be in the public interest since Starfighters wishes to advance the commercial space industry within the United States and the petitioners specifically states that the purpose of the exemption is “to enable me to develop my business...” Operations in support of the commercial space industry require that the operator receive prior approval from the FAA Office of Commercial Space. There is no indication that the Office of Commercial Space has granted any type of approval. In addition, several of the proposed operations are not suitable for an airc raft in the experimental exhibition category and would be more appropriately be conducted in accordance with an experimental research and development certification.

The petitioner goes on to state that Starfighters conducts safe operations but does not provide any details on how Starfighters intends to provide the required equal level of safety. In order for the FAA to consider the petitioner’s proposed exemption, Starfighter’s would need to provide much more specific type(s) of operation and any safety mitigations that they would offer. The additional information would allow the FAA to determine if the petitioner’s mitigations were adequate or if the FAA would need to add conditions and limitations to ensure an equivalent level of safety.

In its petition, Starfighters refers to Exemp tion No. 6540K, as amended, as using aircraft similar to Starfighters’. Exemption No. 6540K, as amended, and other similar exemptions are issued specifically for Living History Flight Experiences (LHFE). These exemptions permit very limited carriage of passengers for compensation only for the purpose of supporting the continued operation of these historic aircraft and are only issued to organizations that are Internal Revenue Service (IRS) tax exempt in accordance with 26 U.S.C. § 501(c)(3). The IRS regulations require that the organization must not be organized or operated for the benefit of private interests, and no part of a § 501(c)(3) organization's net earnings may inure to the benefit of any private shareholder or individua l. Since Starfighters’ operations do not qualify under these guidelines, they are not eligible for a LHFE exemption.

The FAA finds that the operation of these experime ntal aircraft raises significant safety issues that have not been addressed by Starfighters’ petition.4

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 RLB Aviation, Inc. d.b.a. Starfighters, Inc., for an exemption fr om 14 CFR § 91.319(a) is hereby denied.

Issued in Washington, D.C., on February 18, 2011.

/s/

John w. McGraw Acting Director, Flight Standards

Service .