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 Regulatory Docket No. FAA-2014-0993

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 populated areas.

To obtain the desired relief, the 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 person 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 

without 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. 
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The petitioner supports its request 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 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 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 WWII.”

In addition to this petition for exemption, the CAF submitted two similar petitions for 

other experimental aircraft: one for four-engine WWII era bomber airplanes (Docket No.

FAA-2014-0482) and one for single-engine WWII aircraft (Docket No. FAA-2014-

0992). The CAF’s exemption request is to operate in the VE Day event the experimental 

aircraft detailed in these three petitions, in addition to WWII aircraft that hold limited or 

restricted airworthiness certificates.

The petitioner submitted a defined route of flight and the following information, which it 

states would provide 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 thanks 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 the 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 momentum and more importantly, the 

significance of the restrictions on experimental aircraft were 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 make 
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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 participating pilots have specific FAA authorizations to 

operate these aircraft: 

The pilots must receive specific training, and are examined in the specific model 

and receive a type rating or authorization to operate these aircraft.

According to the petitioner, these additional FAA requirements insure the pilots 

operating these aircraft are fully trained and qualified.

4. The petitioner states that the pilots will be formation qualified in accordance with 

(IAW) national standards: The pilots will be qualified and holders of current

Formation and Safety Team (FAST) credentials - the FAA recognized formation 

credential for operations in “waivered” airspace.

5. The petitioner states that the aircraft are maintained and inspected IAW FAA 

required programs and that the aircraft are maintained by FAA- credentialed 

mechanics.

6. The petitioner believes that the 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 celebration of the 70th Anniversary 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 members of Congress, in in a letter to FAA Administrator Huerta, 

stated 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 abroad. It is their 

belief that a flyover by WWII 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.
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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 limited 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 safety 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 Memorial cannot be recreated elsewhere.

This exemption to allow this flyover requires an extensive level of coordination and 

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

airshow. Specifically, issues related to specified airports, routes, minimum safe altitudes, 

holding restrictions, verifiable aircraft performance data, and specified pilot training, 

must be pre-coordinated in order to prevent conflicts at later points in the planning for 

this event. In addition, 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 

Operating Limitations associated with each aircraft’s airworthiness certificate. Therefore, 

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 route structure.

Formative meetings were held between the FAA and event organizers on November 4 

and 13, 2014, to ensure that the requirements of all the various regulatory agencies and 

FAA offices were coordinated. These meetings addressed issues such as (1) if regulatory 

agencies would permit this event, (2) the 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) law enforcement officer (LEO) requirements for verification and 

inspection of crew and aircraft, (6) the addition of additional aircraft 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 Air Traffic Organization (ATO), Potomac TRACON, and DCA Tower;

 FAA Security;

 National Capitol Security;
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 FAA Flight Standards Headquarters (AFS-800);

 FAA FSDO (Washington and Baltimore);

 Commemorative Air Force (petitioner)

A progress meeting was held on 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 equal level of safety for these proposed flights is 

the route 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 can be accomplished with 

an equal level of safety, including 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.

• The 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 this document. 

• Accepted emergency routes and procedures to allow aircraft to egress to sparsely 

populated areas. .

The petitioner requested relief to allow specific single-engine experimental aircraft to 

operate aircraft over the National Mall in Washington 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.

The 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, the 
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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 consideration of the foregoing, I find that a partial grant 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 Force 

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 exemption applies only to P-38 aircraft and pilots that meet and comply with 

the all conditions and limitations expressed herein this Partial Grant of 

Exemption.

2. This exemption is valid only for P-38 aircraft 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 operating 

limitations associated with each aircraft’s airworthiness certificate.

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,

participating 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 route of flight and minimum altitude 

acceptance from the General Aviation and Commercial Division of the Flight 

Standard Services (AFS-800), 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 waived 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 areas to a sparsely populated area for an emergency landing in 
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the event 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 petitioner must provide this data to 

the Washington FSDO and/or AFS-800 upon 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 pilot-in-command or secondin-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 least 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 event, all pilots must have completed at least 

three takeoffs and landings in a P-38, to a full stop within the preceding 90 day. 

13. All participating pilots must be qualified in accordance with any terms and 

conditions imposed by the organizer and any Certificate(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 participating pilots’ training, qualifications, and currency, as required by 

regulation or this exemption, must be verified by the 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 completed 
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formation training, are current in accordance with industry standards, and hold an 

approved formation card.

19. All participating pilot records (electronic copies are acceptable) must be 

maintained by the organizer, retained for at least 10 days following the event, and 

made available to the Washington FSDO for inspection upon request.

20. For all participating aircraft, the petitioner must present the maintenance records 

for all preventative and scheduled maintenance performed in the last two (2) years 

from the date 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 the airworthiness of the 

aircraft for the last two (2) years.

b. Listing of Airworthiness directives with compliance method and dates.

c. Aircraft operating 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 part 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 route 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, notwithstanding any rescheduling of 

the event due to weather.

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

2015.

//s//

John Barbagallo

Acting Deputy Director, Flight Standards Service