Exemption No. 10131

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

Humanitarian Air Logistics, Inc. Regulatory Docket No. FAA-2010-0164

for an exemption from § 21.27(a) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated February 8, 2010, Mr. Paul Asm us, President, Humanitarian Air Logistics, Inc., (HAL), P.O. Box 61088, Palo Alto, CA 94396, petitioned the Federal Aviation Administration (FAA) on behalf of HAL for an exemption from § 21.27(a) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow The Boeing Company’s (Boeing) military model C-17 aircraft to be exempt from the eligibility requirements of § 21.27(a), specifically, the need for the aircraft to be "accepted for operational use, and declared surplus by, an Armed Force of the United States.” The HAL petition is for use of the C-17 for humanitarian and commercial purposes.

The petitioner requests relief from the following regulation:

Section 21.27(a) prescribes the following requirements for issuance of type certificates (TCs) for surplus aircraft of the Armed Forces: (a) Except as provided in paragraph (b) of this section an applicant is entitled to a type certificate for an aircraft in the normal, utility, acrobatic, commuter, or transport category that was designed and constructed in the United States, accepted for operational use, declared surplus by an Armed Force of the United States, and is shown to comply with the applicable certifi cation requirements in paragraph (f) of this

section.

AIR-10-171-E2

The petitioner supports its request with the following information:

HAL requests the Boeing military C-17 aircraft [U.S. Air Force (USAF) C-17 Globemaster III] be made eligible for FAA transport category type certification even though the specific aircraft proposed to be type certificated has not been declared surplus, by an Armed Force of the United States as required by § 21.27(a).

HAL claims a need for additional airlift capacity because of the lack of oversize cargo aircraft in the United States and the need to contract with foreign air carriers operating heavy-lift aircraft that are similar in capabilities to the C-17. HAL also cites the denied exemption to Boeing (regulatory docket no. FAA-2006-25210, Exemption No. 9759) and argues that HAL’s petition provides the public interest support lacking in the Boeing petition. A summary of the Boeing petition was published in the Federal Register on July 18, 2006 (71 FR 40776). HAL states its petition for exemption is in the public interest and should be granted because it will:

1. Not adversely affect flight safety.

2. Facilitate the most cost effective and efficient use of the C-17 for humanitarian and

commercial service.

3. Address any national security concerns over the use of foreign aircraft for “oversize” charter flights by the Department of Defense as expressed by the General Accounting Office and shared with Congress.

4. Contribute to the enhancement of the Civil Reserve Air Fleet (CRAF) program.

5. Fulfill the “Sense of Congress” (found in Public Law 110-417 Section 1037) whereby the Secretary of Transportation was encouraged to consider providing such an exemption under 21.27(a);

6. Reduce the dependence on USAF pilots for humanitarian flights and help to mitigate any shortage of said pilots.

7. Take advantage of the advanced technology in the C-17 to increase the level of flight safety found in the U.S. airspace over that of the older less advanced airframes found with foreign operators utilizing U.S. airspace.

HAL states that the USAF C-17 was designed and built to USAF airworthiness standards and began its operational service with the USAF in 1993. The aircraft uses modern Primary Flight Display equipment that enhances flight safety. In typical commercial applications, the C-17 would have outsize-cargo delivery capabilities that are not available in any other airplane type certificated by the FAA.

HAL declares the C-17 would:

1. Replace U.S. military aircraft currently engaged in humanitarian relief operations to victims of disaster, and its use will help fulfill U.S. foreign policy objectives.

2. Facilitate production of oil and gas pipelines and refineries, reducing losses from political instability and other geopolitical problems.

3. Aid national security by its use in transporting spent nuclear fuel and for fighting

forest fires as a tanker aircraft.3

4. Continue to support military operations as part of a CRAF aircraft program should there be a need for the C-17 to support military operations.

5. Support CRAF initiatives because an equivalent aircraft does not exist in the civilian

fleet.

HAL provides examples of the uses for the C-17 where currently the only commercial alternative is to use the Russian Antonov AN-124 cargo aircraft. According to the docket information provided, DOT-OST-2010-0016, the use of the AN-124 was to transport Bell UH-1N and Bell AH-1W rotorcraft, because this cargo was too large for any other commercial aircraft. The C-17 would have been able to provide this service.

HAL includes in its petition two separate letters, one from the Office of the Assistant Secretary of Defense, and another from the Commander of the U.S. Pacific Command, supporting the need to find a more efficient way to deliver humanitarian aid.

The FAA's analysis is as follows:

The FAA has determined that good cause exists for waiving the requirement for Federal Register publication of HAL’s petition because the FAA published a summary of the Boeing petition and requested comments on issues that are similar to those raised in the HAL petition. The FAA received numerous comments in response to that petition. Those comments supported Boeing’s petition.

The Basis for Our Decision: By letter dated February 8, 2010, you petitioned the FAA on behalf of HAL for an exemption from 14 CFR § 21.27 (a). The exemption would allow HAL to apply for a type certificate for a Boeing military C-17 by exempting that aircraft from the eligibility requirements of § 21.27 (a), specifically the need for the aircraft to be "accepted for operational use, and declared surplus by, an Armed Force of the United States.”

The FAA denied an exemption to Boeing, the manufacturer of the C-17, in circumstances similar to those presented in your petition. In Denial of Exemption No. 9759 (copy enclosed),

the FAA found that:

The petition also asserts that granting the exemption would benefit the public by providing a safe alternative, in lieu of the foreign-registered and certified AN-124, for transport of heavy and outsize cargo for commercial and government customers while facilitating operations into short field and austere airports. Although Boeing has asserted that there is a compelling need to provide outsized cargo civil service to smaller airports, it has not provided any information to substantiate that civil use of the BC-17 to fulfill this need is in the public interest. Without a compelling reason, the FAA does not find that circumventing the normal certification process through an exemption to § 21.27(a) is justified.4

The petition asserts that U.S. jobs will be created by the entry of the BC-17 into civil service. As most petitions of exemption could cite economic benefit to some degree, the FAA does not consider statements of positive economic impact, on the local or national scale, to be a persuasive argument in the justification that the petition is in the public interest.

The alternative argument made by Boeing that an abbreviated certification process would be in the public interest is not sufficiently compelling to justify an exemption.

The FAA reviewed HAL’s request to make a military C-17 eligible for type certification under § 21.27(a) and we find the information in the petition insufficient to support a grant of exemption. While the petitioner provides letters from the Assistant Secretary of Defense and the Commander of U.S. Pacific Command citing potential capacity and flexibility HAL’s proposed fleet of aircraft could provide, the le tters did not make a compelling case of public interest. The two letters only provide general support for the availability of additional resources, but do not state a definite need for the availability of that particular aircraft.

The movement of out-size cargo is possibly a be neficial business venture as indicated by the petitioner’s supporting documentation. And providing additional airlift capacity is not without merit; however, the FAA finds the petiti oner has not shown how a grant of exemption to § 21.27 (a) would be in the public interest as defined in 14 CFR 11.81 (d).

The petitioner has also not demonstrated how t ype certification of the C-17 would provide an equivalent level of safety to the certifica tion requirements of 14 CFR § 21.21 or would not adversely affect safety if the FAA allowed a different certification standard under § 21.27 (a). The FAA is unaware of a C-17 being delivered and accepted for operational use by the U.S. Armed Forces. The FAA is also unaware of any C-17 being declared surplus by the Armed Forces and made available to the public. The petitioner, Boeing, and the U.S. Armed Forces has not provided any service history documentation to demonstrate that the C-17 has an acceptable level of safety for civilian type certification. The FAA cannot conclude that the use of § 21.27 type certification would provide an acceptable level of safety in civilian use for the

C-17.

Having reviewed your reasons for requesting an exemption, I find that— they don’t differ materially from those presented by the petitioner in the Boeing denial of exemption;

 the reasons stated by the FAA for denying the Boeing exemption also apply to the situation you present; and

 a grant of exemption wouldn’t be in the public interest.5

The FAA’s Decision: Under the authority contained in 49 U.S.C. §§ 40113 and 44701, which the FAA Administrator has delegated to me, I hereby deny the petition of Humanitarian Air Logistics, Inc. for an exemption from 14 CFR § 21.27(a).

Issued in Washington, DC, on September 10, 2010.

/s/

K.C. Yanamura Acting Director, Aircraft Certification Service

Enclosure