AFS

- 12

- 325

- E Exemption No. 11609

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

BERRY AV IATION, INC. Regulatory Docket No. FAA

- 2012

- 0444

for an exemption from § 135.181(a)(2) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated April 17, 2012

, Mr . Stanley Finch, Director of Operations, Berry Aviation,

Inc. ( BAI )

, 1807 Airport Drive , San Marcos, TX 78666

, petitioned the Federal Aviation Administration (FAA) on behalf of Berry Aviation for an exemption from § 135.18 1 (a)(2) of

Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would

allow BAI t o operate its Dornier Do328

- 100 series (Do328) and its Bombardier DHC

- 8

- 100/200 series (DHC

- 8) of aircraft for passenger carrying under visual flight rules ( VFR )

over

- the

- top or under instrument flight rules ( IFR ) conditions at a weight that will not allow it

to climb with the critical engine inoperative, at least 50 feet a minute, when operated at the

m inimum e nroute a ltitudes (MEAs) of the rou te to be flown or 5,000 feet mean sea level ( MSL ) , whichever is higher

.

The petitioner requests relief from the following regulation:

Section 135.181 (a)(2), prescribes

, in pertinent part, that no person may operate a multiengine aircraft carrying passeng ers over

- the

- top or in IFR conditions at a weight

that will not allow it to climb

, with the critical engine inoperative, at least 50 feet a minute when operating at the MEAs of the route to be flown or 5,000 feet MSL, whichever is higher.

The petitioner supports its request with the following information:2

BAI states t he Do328 and DHC

- 8 are certificated in accordance with 14 CFR part 25 and have maximum certificated takeoff weights well in excess of 12,500 pounds. Both aircraft types are turbine powered a nd are thus considered “ large turbine powered transport category ” aircraft. Large turbine powered transport category aircraft operated in accordance with 14 CFR p art 135 are subject to two separate and distinct en route performance requirements:

A. Section 13 5.181 (a) applies to all aircraft operated over

- the

- top or in IFR conditions

. It

states , in part, (a) Except as provided in paragraphs (b) and (c) of this section, no

person may

-

(1) Operate a single

- engine aircraft carrying passengers over

- the

- top; or

( 2) Operate a multiengine ai rcraft carrying passengers over

- the

- top or in IFR conditions at a weight that will not allow it to climb, with the critical engine inoperative, at least 50 feet a minute when operating at the MEAs of the route to be flown or 5, 000 feet MSL, whichever is higher.

B. Section 135.381 (a) , titled L arge transport category airplanes: Turbine engine powered:

En route limitations: One engine inoperative

, states that n o person operating a turbine engine powered large transport category airplane may take off that airplane at a weight, allowing for normal consumption of fuel and oil, that is greater than that which (under the approved, one engine inoperative, en route net flight path data in the Airplane Flight Manual for that airplane) wi ll allow compliance with paragraph (a) (1) or (2) of this section, based on the ambient temperatures expected en route.

(1) There is a positive slope at an altitude of at least 1,000 feet above all terrain and

obstructions within five statute miles on eac h side of the intended track, and, in addition, if that airplane was certificated after August 29, 1958 (SR422B), there is a positive slope at 1,500 feet above the airport where the airplane is assumed to land after an engine fails.

(2) The net flight pat h allows the airplane to continue flight from the cruising altitude to an airport where a landing can be made under §135.387 clearing all terrain and obstructions within five statute miles of the intended track by at least 2,000 feet vertically and with a positive slope at 1,000 feet above the airport where the airplane lands after an engine fails, or, if that airplane was certificated after September 30, 1958 (SR422A, 422B), with a positive slope at 1,500 feet above the airport where the airplane lands aft er an engine fails

.

Aircraft operated under 14 CFR p art 135 are subject to numerous performance requirements that include takeoff, landing, and the en route performance limits described above. When the route of flight must traverse an area that includes h igh terrain, en route performance is often the most limiting factor and can lead to significant reductions in maximum permissible takeoff weight.3

The petitioner also stated t he enroute performance requirements of § § 135.181(a)( 2 ) and 135.381(a)( 2 ) are ver y similar in that both rules require the aircraft to maintain a safe altitude with one engine inoperative

. Section 135.181(a)( 2 ) requires all multi

- engine airplanes to be capable of climbing higher than either the MEA over which the aircraft will be flown or 5,000

MSL

, while § 135.381 permits the operator to choose between § 135.381(a)(1) and § 135.381(a)(2), the latter of which is commonly known as “ drif t down

. ” Using an en route performance limit based upon § 135.381(a)(2)

, qualified driftdown procedures

, instead of §§ 135.181(a)(2) or 135.381(a)(1) permits the aircraft to takeoff at a substantially higher gross weight, thus permitting a greater payload. Because of the complexities of computing driftdown performance in accordance with § 135.381(a)(2), th e FAA requires air carriers to obtain approval of their procedures in the form of Operations Specification (O p Spec) B029 prior to employing driftdown performance procedures . Pursuant to this end, BAI has obtained approval of its driftdown procedures used t o comply with § 135.381(a)(2) via OpSpec B029.

BAI therefore seeks relief from § 135.181(a)(2) in order to carry greater payloads over certain routes, particularly routes over high terrain, by meeting en route performance requirements established by § 135 .381(a)(2).

Benefit to Public

The impetus for this p etition is the flight operations conducted by BAI in Afghanistan on

behalf of the United States Department of Defense. BAI currently has one 30

- passenger Do328 based at Kabul International Airport (OAKB) supporting the United States Central

Command ( CENTCOM ) counter narcotics and three 21

- passenger DHC

- 8s based at Bagram Air Base (OAIX) on contract to the United States Transportation Command ( USTRANSCOM ). The minimum en route altitudes in Afghanistan and the surrounding countries are very high, sometimes exceeding 20,000 feet MSL in the Hindu Cush mountain

r egion . Grant of this p etition will benefit the public by permitting the safe transport of more personnel and baggage on a single flight , thus reducing the number of flights required . The benefit increases greatly during times of higher temperatures due to the negative impact of the resulting higher density altitudes on single engine en route performance.

Impact on Safety

Grant of this exemption will not adversely impact the safety of BAI's flight operations. The operating rule that affords the highest level of safety among U.S. operating rules is p art 121.

The en route performance requirements of § 135.381 are identical to those of § 121.191. BAI

thus proposes to be exempt from a requirement that has no counterpart in p art 121 and to comply fully with an en route performance rule identical to § 121.191. As noted earlier, BAI has already obtained approval for its method of compliance with § 135.381(a)(2 ) driftdown procedures via OpSpec B029

.4

Request to Not Publish

BAI requests a waiver of the 120 day filing requirement and requests that this p etition not be published in the Federal Register since a grant will not set precedence. Examination of the

FAA 's Automated Exemption System ( AES ) indicates the grant of several similar petitions,

most of which are out dated and were originally granted to air carriers operating turboprops that performed scheduled passenger service prior to moving such operations fro m part 135 to
part 121. In addition, FAA Order 8900 .1 Volume 4, Chapter 3, Section 1, Paragraph 4

- 500E,

states “ p art 135 operators may apply for a grant of exemption to use driftdown or fuel dumping as an alternate means of compliance with § § 135.181 or 1 35.183 in accordance with part 11

, which further indicates that the FAA anticipates petitions for exemption.

Request to Operate Under Exemption Outside United States

Though the impetus for the petition was the operations conducted by BAI in Afghanistan

, BAI strongly prefers that grant of this p etition includes operations conducted in side and outside the

United States

. Further, BAI requests that consideration of grant of this p etition not be limited solely to operations conducted in Afghanistan. The meth odology that BAI developed for compliance with driftdown performance and approved via OpSpec B029 may be applied to any route within BAI's approved area of operations.

International Civil Aviation Organization ( ICAO ) Annex 6, Part 1, Attachment C, Examp le 1, and specifically p aragraph 4.1.2 permits driftdown as a method of compliance with en route performance limitations, and the United States does not have a difference filed with ICAO concerning en route performance limitations

. Approval to operate und er this exemption

outside the United States will not require filing a difference with ICAO.

The FAA has determined that good cause exists for waiving the requirement for Federal Register publication because the exemption, if granted, would not set a prece dent and any delay in acting on this petition would be detrimental to BAI

.

The FAA's analysis is as follows:

Section 135.181(a)(2) sets limitations on passenger carrying, over

- the

- top flights for the purpose of ensuring that these flights maintain a safe altitude with one engine operative. As part of its research and analysis, t he FAA considered the following : the routes and area s over which the petitioner currently operates, the performance capabilities of its aircraft, the accuracy of the driftdown data and the procedures BAI will follow for planning flights and in reacting to an unscheduled shutdown of one engine while flying over routes and intended

areas of operation

, and the efficacy of the operator’s driftdown procedures and training

program

. Given the routes to be flown combined with the driftdown procedures, the FAA

finds that BAI aircraft , when operated in accordance with procedures and approved data reviewed by the FAA during the approval process for OpSpec B029, should be able to

maintain obsta cle clearance in the event of an unscheduled engine shutdown

. Furthermore, the FAA finds that grant ing this petition allowing BAI to use driftdown procedures with the larger aircraft will permit higher payloads without compromising safety, thus reduc ing t he5

number of flights and exposure to the h o stile terrain

. Based on these findings, the FAA has determined that a grant of exemption is in the public interest and will provide a level of safety at least equivalent to the rule from which the exemption is so ught.

The petitioner states that the impetus for this petition is the flight operations conducted by BAI in Afghanistan on behalf of the United States Department of Defense and that the minimum en route altitudes in Afghanistan and the surrounding countri es are very high, sometimes exceeding 20,000 feet MSL in the Hindu Cush mountain region. The FAA finds that the terrain within the area where these flight operations are proposed is sufficiently mountainous to preclude alternative routes.

The petitioner ’s driftdown procedures have been approved by the FAA through the issuance of OpSpec B029. T he FAA finds that t he one engine inoperative performance capabilities of

the Do328 and the DHC

- 8 aircraft are sufficiently robust to successfully execute the driftd own procedures from any point in the en route portion of the flight

, given that : (1) the flight is

conducted in accordance with approved pre

- takeoff calculations of driftdown profiles and

minimum cruise altitudes and that and (2) actual environmental param eters (wind and temperature) encountered at the proposed cruise altitude support the pre

- takeoff calculat ions predicting sufficient driftdown performance for the aircraft weight and altitude.

T he FAA notes that p erformance calculations are well documented and along with performance data, are taken from FAA and manufacturer approved aircraft flight manuals for

both the D0328 and the DHC

- 8 . The FAA has already approved BAI driftdown calculations and procedures based upon these aircraft flight manuals via OpS pec B029

. BAI flight crew and operational control personnel use approved data and proc e dures to calculate and verify

driftdown profile s , minimum cruise altitudes, and route planning to suitable diversionary airports

. When the aircraft performance calcula tions predict adequate driftdown profile performance and the aircraft is flown in accordance with the se performance calculations, preflight planned diversion routes, and driftdown procedures, the safety of flight is not compromised in the event of an unsch eduled engine shutdown during the enroute phase of the flight.

The FAA highlights that s uitable diversion airports must be available in sufficient number and in appropriate locations to support safe driftdown profiles and routes from any point along the intended primary route, to facilitate safe approach and safe landing after suffering an unscheduled engine shutdown and implementation of driftdown procedures.

The FAA finds that the FAA

- approved BAI pilot training program covers contingency flight plann ing and verification methods and standardized communication to the flight crew of the following information: maximum weights , minimum flight altitudes, mandatory crossing altitudes, appropriate diversionary airports for all route segments, and driftdown p rocedures /
parameters

. T he o perational c ontrol personnel and flight crew s must receive training and checking regarding the methods, procedures, and software applications to be used

.6

In summation, the capability of the aircraft, the availablility of manu facturer

- approved and published performance data and performance calculation methods, and BAI driftdown policies and procedures, combined with the provision of appropriate training of flight crew and operational control personnel, facilitate application of driftdown techniques. These techniques enhance the overall safety of each flight while enabling higher payloads, which in turn reduces the number of flights required. This improvement in efficiency and reduction in risk are both in the public interest.

Th e FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption is in the public interest and will not adversely affect safety . Therefore, pursuant to the authority contained

in 49 U.S.C

. §§ 106(f), 40113 and 44701, delegated to me b y the Administrator, Berry Aviation, Inc. is granted a n exemption from § 135.181(a)(2) to the extent necessary to allow Berry Aviation, Inc. to operate its Do328 and DHC

- 8 aircraft for passenger carrying under

VFR over

- the

- top or under IFR at an altitude t hat will allow driftdown over a pre

- planned descent profile to a safe landing using the routes that have been determin ed by using the manufacturer’s approved performance data and meteorological reports and forecasts obtained prior to flight

. This exempti on is subject to the following conditions and limitations:

Conditions and Limitations

1. This exemption is applicable only to the Do328

- 100 series (Do328) and Bombardier

DHC

- 8

- 100/200 series (DHC

- 8) aircraft as approved on Operations Specification paragraph D085 for the air carrier.

2. When operating outside of the United States, this exemption does not relieve the certificate holder or the flightcrew from compliance with any contrary nation state or

ICAO regulations.

3. Before approving the drift down procedure s , the C ertificate H olding D istrict O ffice (CHDO) will review the operator’s procedures for analyzing the weather reports and forecasts, the route, route segment, or area concerned

, and the methods for calculating aircraft performance given current conditi ons

. D riftdown parameters must be made

available to the p ilot in c ommand (PIC) to calculate route segments and diversion plans

. Special emphasis should be applied to

—

a. Minimum obstruction clearance altitudes and minimum IFR air carrier terrain

clearance altitudes ;

b. Routes from any p oint on any route segment to suitable one engine inoperative diversion airports ;

c. Current and forecast weather including temperatures and winds aloft and icing

conditions for e n route

, destination , and alternate / diversion ai rports ;7

d. Nav igation aids availability and reception altitudes ;

e. Air Traffic Control (ATC) availability, frequencies, loss of two way communication and diversion procedure coordination ;

f. Available approaches ;

g. Aircraft performance vs. missed approach / obstac le departure procedure requirements for one engine inoperative at diversion airport;

h. Runway lengths

, widths, and orientations ; and

i. Airport fire fighting

, rescue resources
, and medical facilities.

4. The certificate holder must make the following informa tion available to the flightcrew prior to take

- off

—

a. Approved winds and temperatures aloft forecasts along the route of flight and

within the vicinity of any diversion route;

b. At least one suitable diversionary airport within the calculated drift down profi le for each route segment. ( For the purposes of this exemption, suitable is defined as having sufficient runway length, width, condition, and orientation with respect to wind, available required emergency services, a weather forecast from an approved

sourc e indicating the airport will remain above IFR alternate weather minimums,

and if the airport is forecast to be less than VFR, missed approach obstacle clearance planes shallow enough to accommodate a missed approach executed by

the diver t in g aircraft with the critical engine inoperative .);

c. The prevailing and forecast weather conditions, particularly weather data necessary for the assessment of the effect of icing conditions on aircraft driftdown performance and the ceilings and visibility at all potential suitable diversionary airports ;

d. The kinds

, location s, and service volume s of available surface navigation aids ;

e. If GPS capability is required for safe driftdown diversion enroute and terminal navigation, Receiver A utonomous I ntegrity M onitoring ( RAIM ) ava ilability for global positioning satellite ( GPS ) navigation from any point along the primary

route to all suitable diversionary airports is verified prior to departure ;

f. Significant t errain features , such as mountains and obstructions within the vicinity

of the planned primary route and diversion routes ;

g. Air traffic control considerations , such as communication processes, decisions,

coordination

, and IFR procedures ;

h. Availability of a departure alternate airport in case of engine failure during or after

take off , and prior to entering the enroute phase of the flight ;8

i. In addition to requirements contained in § § 135.89 and 135.157, the aircraft must be equipped with sufficient emergency oxygen re sources to continuously supply the pilots and passengers when flyin g on the primary and diversionary route
segments , until descending to an appropriate altitude ; and

j. Any other operational factors that may affect the successful completion of a driftdown diversion following loss of power from one engine

.

5. Berry Aviation sha ll maintain and utilize only OpSpec B029 approved procedures to ensure that, in the event of failure of the critical engine, the performance capabilities of

its applicable aircraft (Do328 & DHC

- 8) will permit driftdown from the cruising altitude to a fligh t altitude not below a safe predetermined altitude on the pre

- planned safe escape route of flight

. BAI will have determined , immediately prior to each flight, a driftdown profile and safe escape routes along all route segments of each flight that will ens ure safe terrain clearance margin s and safe landing of the aircraft at

a suitable airfield

. These procedures must be approved by the CHDO

.

6. Prior to filing a flight plan on the route segments, the PIC shall determine the lowest

cruise altitude to ensure compliance with Condition No. 4 above. The rate of descent and cruise speed used in accordance with the approved driftdown procedure for the

Do328 and DHC

- 8 aircraft operating over approved routes with the critical engine inoperative will be determined by the pilot using current and forecast weather and approved performance data by complying with the operator ’ s accepted procedures for engine failure while en route. W hen operations are to be conducted in actual or forecast icing conditions

, the d rift d own ca lculations must include the performance degradation associated with “Anti

- ice ON

. ”

7. If the weather conditions at the departure airport or at required diversionary airports

are currently or forecast to be below landing minimums, the aircraft is not author ized to depart until a safe return landing can be assured and the weather conditions at either the departure airport

, a suitable takeoff alternate airport within 1 hour flight time

, or at any required diversionary airports along the route are at or above l anding minimums.

8. The BAI operations manual system must be revised to include approved driftdown procedures

, and its approved training program must be amended to contain provisions for driftdown operations. The flight crew members and o perational c ontrol personnel

must be trained in accordance with these policies and procedures prior to exercising

the privileges of this exemption. Additionally, the approved training program and company operations manual shall specifically emphasize that driftdown performa nce is

based on compliance with the operator ’ s accepted procedures for en route engine

failure.9

This exemption terminates on J une 3 0

, 2017, unless sooner superseded or rescinded.

Issued in Washington, DC, on May 13, 2015.

/s/

John Barbagallo Deputy Director , Flight Standards Service

.