AFS

- 15

- 220

- E Exemption No. 11202

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

COMMEMORATIVE Reg ulatory Docket No. FAA

- 2014

- 09 9 3

AIR FORCE

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

PARTIAL GRANT OF EXEMPTION

By letter received November 25 , 2014, Mr. Robert Stenevik, Vice President of Safety, Operations and Maintenance , Commemorative Air Force (CAF)

, 109 San Medina Lane, Joshua, TX 76058 petitioned the Federal Aviation Administration (FAA) on behalf of CAF for an exemption from § 91.319(c) of Title 14, Code of Federal Regulations ( 14 CFR). The proposed exemption, if granted, would permit various P

- 38s to operate over densely popu lated areas.

To obtain the desired relief, t he petitioner requires exemption from the following regulation:

Section 91.319(c) prescribes, in pertinent part, that unless otherwise authorized by the Administrator in special operating limitations, no perso n may operate an aircraft that has an experimental certificate over a densely populated area or in a congested airway. The Administrator may issue special operating limitations for particular aircraft to permit takeoffs and landings to be conducted over a densely populated area or in a congested airway, in accordance with terms and conditions specified in the authorization in the interest of safety in air commerce.

Section 91.9(a) prescribes. in pertinent part, that no person may operate a civil aircraft

w ithout complying with the operating limitations specified in the approved Airplane or Rotorcraft Flight Manual, markings, and placards, or as otherwise prescribed by the certificating authority of the country of registry.2

The petitioner supports its requ est with the following information:

The petitioner contends that the described flights in the flyover of the National Mall and other similar events celebrating the 70th Anniversary of Victory in Europe (VE) Day are in the public interest

. The P

- 38 is the make and model of aircraft for which the petitioner has requested relief

. Included

, as part of its petition

, was a letter from nine congressional representatives to Administrator Huerta. This letter states that they “believe it is critical to

use this anni versary as a time to remember and educate our nation's citizens about the sacrifices of so many Americans to protect our way of life and the extraordinary efforts undertaken to preserve freedom here and abroad. It is our belief that a flyover by World

War II (WWII) aircraft over the National Mall in Washington on May 8, and other similar flyovers around the country in 2015, will be in the public interest as a way to commemorate our national achievements and sacrifice during WW II.”

In addition to this peti tion for exemption, the CAF submitted two similar petitions for other experimental aircraft: o ne for four

- engine WWII era bomber airplanes (Docket No.

FAA

- 2014

- 0482) and one for single

- engine WWII aircraft (Docket No. FAA

- 2014

- 09 92 ). The CAF’s exemption re quest is to operate in the VE D ay event the experimental

aircraft detailed in these three petitions

, in add i tion to WWII aircraft that hold limited or

restricted airworthiness certificates

.

The petitioner submitted a defined r oute of f light and the follow ing information, which it

states would pr ovide an equivalent level of safety for the requested operations:

1. The period of overflight and time to egress is extremely limited:

The petitioner states that t hanks to the cooperation of the interagency working group and participation of the General Aviation Operations Branch in the Flight Standards ( AFS

- 830 ) in selecting this route, the total distance of densely populated area overflight is only three miles and the period of overflight for each airplane is only 60

- 90 seconds. This very limited overflight is an overwhelming mitigation of potential risk associated with mechanical problems. It is extremely rare for any mechanical malfunction to progress to significant failure in a minute and a half. Moreover, at the most distant point during the flyover (approximately Independence Avenue and 3rd St.) the egress to the outbound river route is only

one mile, or about 20

- 30 seconds.

2. Similar aircraft operate with limited certificates:

The petitioner believes that t he P

- 38s are of comparable make, construction, and materials as the WW II era fighters certificated in the limited category. The window for requesting the limited certification was relatively brief in relation to when the thrust to preserve them gained momentu m and more importantly, the significance of the restrictions on experimental aircraft w ere not anticipated in the

era immediately after the war. The petitioner states that these aircraft were certificated in the experimental category because the owners did not make3

appropriate applications, not because the aircraft were less safe and less reliable

than those aircraft that were certificated in the limited category.

3. The petitioner states that p articipating p ilots have specific FAA authorizations to

operate t hese aircraft:

The pilots must receive specific training , and a re examined in the specific model and receive a type rating or authorization to operate these aircraft.

According to the petitioner

, t hese additional FAA requirements insure the pilots

oper ating these aircraft are fully trained and q ualified.

4. The petitioner states that t he p ilots will be formation qualified in accordance with ( IAW ) n ational s tandards: The pilots will be qualified and holders of current Formation and Safety Team ( FAST ) crede ntials

- the FAA recognized formation

credential for operations in “ waivered ” airspace.

5. The petitioner states that t he aircraft are maintained and inspected IAW FAA required programs and that the aircraft are maintained by FAA

- credentialed

mechanics.

6. Th e petitioner believes that t he Washington Flight Standards District Office ( FSDO ) will be performing ramp inspections of these aircraft within two days of them participating in the flyover to verify airworthiness and compliance with Federal requirements.

A summary of the petition was published in the Federal Register on February 11 , 2015

, ( 80 FR 7674 ). No comments were received.

The FAA’s analysis is as follows:

Historically, the FAA has denied broad petitions for exemption from § 91.319(c) on the

basis that a grant of exemption would not be in the public interest. However, the FAA finds the event described in this petition to be a unique

, one time occurrence. On May 8, 2015, the celebrat ion of the 70th A nniversary of VE Day denotes a day of significance in

the demonstrated strength of American democracy and the spirit and sacrifice of the American people both at home and abroad

. As such, it is being commemorated in a unique way. Several m embers of Congress, in in a letter to FAA Administrator Hu e rta,

sta ted they believe it is critical to use this anniversary as a time to remember and educate our nation's citizens about the sacrifices of so many Americans to protect our way of life and the extraordinary efforts undertaken to preserve freedom here and abroa d. It is their belief that a flyover by WW II aircraft over the National Mall in Washington , D.C. on May 8

, will be in the public interest. The FAA finds that the public interest is served by

the educational and historic value of this single signature event in commemorating this significant milestone in history.4

Additionally, given the nature of this public interest, this Grant of Exemption is limited to aircraft designed and manufactured to a U.S. government specification for operation during WW II, and to those aircraft originally designed, manufactured

, and accepted for use by the military services of the U.S.

The FAA finds merit with the petitioner’s request including similar aircraft of the same vintage and equipment that have been certified in the l imited category (issued in

accordance with the Civil Air Regulations, Part 9 Rule ( CAR 9 ) )

.

The FAA notes that not all former military aircraft require experimental airworthiness

certificates or have the same level of risk. The fact that an aircraft has an experimental

exhibition or limited airworthiness certificate does not mean that the risk level is equivalent for each aircraft holding these types of certificates

. The FAA evaluates each petition on its own merit to ensure that an appropriate level of s afety is maintained relative to the proposed operation(s)

.

The proposed VE Day flyover of Washington, DC , is in remembrance and recognition of a significant historical event, and as such, the proposed route of flight over the National Mall and adjacent to the National World War II M emorial cannot be recreated elsewhere

. This exemption to allow this flyover require s a n extensive level of coordination and oversight

, well above that normally required for a flyover or other aviation event or air show

. Specifica lly

, issues related to specif ied a irports, routes, minimum safe altitudes, holding restrictions, verifiable aircraft performance data, and specified pilot training,

must be pre

- coordinate d in order to prevent conflicts at later points in the planning for

t his event. In addition, the aircraft must be maintained and inspected in accordance with any FAA type certificate if issued for the model of air craft, and as required by the Operating Limitations associated with each aircraft’s airworthiness certificate

. T herefore, meetings with key stakeholders have been accomplished or planned in order to minimize the potential or future problems, properly address safety issues, and establish a specific

mandated r oute s tructure

.

F ormative meeting s were held between the FAA and event organizers on Nov ember 4 and 13, 2014

, to ensure that the requirements of all the various regulatory agencies and

FAA offices were coordinated

. These meetings addressed i ssues such as (1) if regulatory agencies would permit this event, (2) th e appropriate level of oversight, (3) the FAA FSDO level of involvement, oversight of crew members, and aircraft (4) FAA attendance

at the crew briefing ; (5 ) l aw e nforcement o fficer (LEO ) requirements for verification and inspection of crew and aircraft

, ( 6) the addition of additional a ircraft types ; and ( 7 ) air traffic control ( ATC ) coordination, for the specific route of flight, minimum altitude, time of day, and the need for a route proving flight.

The attendees at the meetings included :

 FAA A ir Tra ffic Organization (A TO ) , Potomac TRACON, and DCA Tower;  FAA Security;  National Capitol Security;5

 FAA Flight Standards H eadquarters (AFS

- 800);  FAA FSDO (Washington and Baltimore);  Commemorative Air Force (petitioner)

A progress meeting was held o n December 10, 2014 and included discussions centered on TSA and security waivers progress. Additional coordination meetings will follow on a monthly basis

.

The major component in establishing an equ al level of safety for these proposed flights is

t he rou te of flight. Limiting exposure of overflights of experimental aircraft to the

persons on the surface is critical because these aircraft do not meet the same airworthiness standards as standard category aircraft. Consequently, this exemption will only be valid until May 31 , 2015

, for a one

- time flyover using the specified and agreed

upon route. The FAA has determined that a one

- time overflight c an be accomplished with an equal level of safety, includ ing a short overflight of densely populated areas subject to
the following considerations :

• Designated and approved route of flight to include verifiable performance based

minimum safe altitudes over the Potomac and Anacostia rivers, and the area surrounding the National Mall.

• T he approved route of flight will specify minimum altitudes and minimize time

over or near densely populated areas to less than two minutes, with further risk mitigations during this period as outlined below.

• Incorporation of and compliance with the pilot, crew, and aircraft requirements

, experimental airplane airworthiness standards

, and those additional conditions

and limitations imposed as a condition of this exemption.

• Incorporation of and compliance with the risk mitigating strategies

, and

conditions and limitations described in th is document.

• Accepted emergency routes and procedures to allow aircraft to egress to sparsely populated area s.

.

The petitioner requested relief to allow specific single

- engine experimental aircraft to

operate aircraft over the National Mall in Washingt on on May 8, and in other similar flyovers around the country in 2015

. Since the FAA determined that each event must be analyzed on its own merit, this exemption applies only to the VE Day flyover event

. Consequently, this is a partial grant of exemption.

T he findings, determinations, and risk mitigating strategies discussed and presented in

this partial grant of exemption are only applicable to this specific CAF petition and are

based on the petitioners supporting statements , including but not limited to the geography of the area, the specific aircraft model , series, specific verifiable performance metrics, the6

nature of the intended flight, and the scope and detail of the safety review that was conducted to support this event

.

The FAA’s Decision:

In con sideration of the foregoing, I find that a partial g rant of exemption would be in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113, and 44701, delegated to me by the Administrator, the Commemorative Air Forc e is granted an exemption from 14 CFR § § 91.319(c) and 91.9(a) to the extent necessary to conduct the proposed flyover subject to the following conditions and limitations below.

Conditions and Limitations:

1. This e xemption applies only to P

- 38 a ircraft an d pilots that meet and comply with

the all conditions and limitations expressed here in this Partial Grant of Exemption

.

2. This exemption is valid only for P

- 38 a ircraft that were originally designed

, manufactured for, and accepted for use

, by the military services of the United

States

.

3. The aircraft must be maintained and inspected in accordance with any FAA type

certificate

, if issued for the model of aircraft

, and as required by the o perating

l imitations associated with each aircraft’s airworthiness certi ficate.

4. At least 30 days in advance of the proposed event, the CAF must provide the Washington FSDO and AFS

- 800 with the following information for review and

concurrence:

a. A list of the experimental aircraft , including aircraft registration number, partici pating in the event.

b. A map or other acceptable depiction(s) of the proposed route.

c. A list of participating pilots

, including certificate type and number

.

5. All aircraft receiving relief under this exemption must remain over sparsely populated or open water areas during ingress and egress to the portion of the approved route that includes densely populated areas

.

6. All operations under this exemption require r oute of f light and m inimum a ltitude acceptance from the General Aviation and Commercial Division of the Flight Standard Services ( AFS

- 8 0 0 ) , Air Traffic Control and the Washington FSDO. The minimum altitude for the proposed operations must be the greater of:

a. 1000 feet above the highest obstacle within 2000 feet (minimum horizontal separation may be waiv ed at the discretion of the jurisdictional

FSDO ; minimum height above obstacles may not be waived), or ; b. The minimum altitude from which the aircraft can fly clear of densely populated area s to a sparsely populated area for an emergency landing in7

the even t of a powerplant failure

, including a 90

- degree change of heading. For each participating aircraft receiving relief, the petitioner must

calculate aircraft engine failure performance using U

. S

. military flight

manual or certified flight test data. The pet itioner must provide t his data to

the Washington FSDO and/or AFS

- 800 up on request.

7. Weather minima required: Participating aircraft must observe at least a 2

, 000

- foot ceiling and 5 statute miles flight visibility at all points on the route. If at any

time the weather deteriorates below this level, flight over the densely populated area of the route is prohibited until weather conditions allow.

8. Day operations only.

9. No person other than those listed as and qualified as p ilot

- in

- command or s econd

in

- command (SIC) (for those aircraft that require an SIC) , as listed in the organizer ’ s security wavier and submitted to the FSDO

, may occupy any pilot

station

, or manipulate the flight controls at any time during the event

.

10. All participating pilots must hold at le ast a valid FAA Commercial Pilot

Certificate

, in addition to any specific aircraft authorizations and ratings required.

11. All participating pilots must hold , at a minimum, a valid FAA second

- class

medical certificate

.

12. Within the 90 days preceding the even t, a ll pilots must have completed at least three takeoffs and landings in a P

- 38 , to a full stop wi thin the preceding 90 day

.

13. All participating pilots must be qualified in accordance with any terms and conditions imposed by the organizer and a ny Certific ate (s) of Waiver issued in conjunction with this event.

14. All participating pilots must be listed on and adhere to any standard and special provisions of any 7711

- 1 Certificate of Waiver that may be issued in conjunction

with this event.

15. All participatin g pilots ’ train ing

, qualifications , and currency , as required by regulation or this exemption, must be verified b y th e organizer prior to the event

.

16. Except in an emergency

, aerobatic operations are prohibited.

17. Formation flight is limited to a maximum of eight aircraft. All formation pilots

must hold a current formation flight authority

.

18. Formation flight under this exemption is limited to only those aircraft where it is verified in advance that all participating pilots in the formation have completed8

for mation training, are current in accordance with industry standards , and hold an approved formation card.

19. All participating pilot records (electronic copies are acceptable) must b e maintained by the organizer , retained for at least 10 days following the e vent, and made available to the Washington FSDO for inspection upon request

.

20. For a ll participating aircraft , the petitioner must present t he m aintenance records for all preventative and scheduled maintenance performed in the last two (2) years from the d ate of the scheduled flyover to the organizer

. These records must be retained for at least 10 days following the event and made available to the Washington FSDO upon request

. These records must include :

a. Maintenance program type and signoffs to validate th e airworthiness of the

aircraft for the last two ( 2 ) years. b. Listing of Airworthiness directives with compliance method and dates.

c. Aircraft o perating limitations maintenance program requirements.

d. Records of all major repairs and alterations performed on and still utilized by

the aircraft.

e. Listing of all owner produced parts with records of installations.

f. Qualifications and list of mechanics performing maintenance on the aircraft showing compliance with Title 14 CFR p art 65.

21. Bomb bay doors must remain closed over densely populated areas

.

22. Except in an emergency, fuel transfer and tank selection during the densely populated area overflight portion of the route is prohibited.

23. Any aircraft that experiences an abnormal condition or indication along the planned r oute of flight must immediately notify ATC and instead proceed along a route avoiding densely populated areas until landing.

24. This exemption is valid only for the one

- time VE Day event. This exemption terminates immediately following the event , notwithstan ding any rescheduling of

the event due to weather

.

This exemption issued in Washington, D.C., on March 10, 2015, terminates on May 31

, 201 5

.

//s// John Barbagallo Acting Deputy Director, Flight Standards Service