AFS-11-179-E March 8, 2012

Exemption No. 10471 Regulatory Docket No. FAA-2011-0131

Mr. Leonard Goldberg Dolphin Atlantic, Inc.

702 SW 34 th Street Fort Lauderdale, FL 33315

Dear Mr. Goldberg:

This letter is to inform you that we have denied your petition for exemption. It transmits our decision and explains its basis.

The Basis for Our Decision

By letter dated January 31, 2011, you petitioned the Federal Aviation Adm inistration (FAA) on behalf of Dolphin Atlantic, Inc. (Dolphin Atlantic) for an exemption from § 135.183 of Title 14, Code of Federal Regulations (14 CFR) to the extent necessary to delineate compliance with § 135.183 (41 nautical miles, or 15 minutes at cruise for the Cessna C-208B equipped with cargo pod) where Air Traffic C ontrol (ATC) in high-density environments places aircraft at fixes and altitudes from which single-engine aircraft cannot reach land in the event of engine failure.

The FAA has determined that good cause exists for not publishing a summary of the petition

in the Federal Register because this is not a precedent-setting petition, and any delay in acting on this petition would be detrimental to Dolphin Atlantic.

The FAA recently issued a denial of exemption in circumstances similar in all material respects to those presented in your petition. In Denial of Exemption No. 10451 (copy enclosed), the FAA found that, in accordance with § 91.3, the pilot in command is “directly responsible for, and is the final authority as to, the operation of that aircraft.” The Aeronautical Information Manual, paragraph 4-4-1 also notes this and states that it is the pilot’s responsibility to request a route that the aircraft is capable of flying in compliance with the applicable regulations. Lastly, an ATC clearance “is not authorization for a pilot to2

deviate from any rule, regulation, or minimum altitude nor to conduct unsafe operation of the aircraft.” Id. Simply put, the pilot in command must comply with ATC clearance or ask for an amended clearance to comply with all the applicable regulations. Positive radar control, coverage that the petitioner enjoys, is offered when complying with the ATC clearance at

other altitudes.

The FAA concurred with the petitioner’s assertion that 41 miles is outside of normal gliding distance to land when operating at 4,000 feet MSL. Although there is no formal definition of the takeoff and landing phase mentioned in §135.183(b), in this circumstance being in excess of 41 miles from land and at 4,000 feet is not in a position for landing. See Legal Interpretation to Mr. Brian Kilcullen, from Rebecca B. MacPherson, Assistant Chief Counsel for Regulations (Feb. 7, 2012) (enclosed). Th erefore, § 135.183(b) does not apply in this

case.

The FAA disagreed with the assertion that § 135.183 was written primarily for piston powered aircraft. In the preamble to the c odification of part 135 in 1978, the FAA states, “since 1969 when part 135 was last upgraded, there has been substantial increase in the number of certificate holders conducting operations in small airplanes carrying 10 or more passengers and in multiengine turbine-powered airplanes. For example, in the 12-month period ending June 30, 1977, the number of turbine-powered aircraft operated by commuter air carriers grew 61.7 percent from 225 to 364. (43 FR 46743, Oct 10, 1978). Therefore, the petitioner failed to offer an equivalent level of safety in their petition.

In another section of the preamble, the FAA further states “these amendments respond to the demand for commuter and air taxi operators to operate larger and more complex aircraft.” (43FR 46742, Oct 10, 1978). Clearly, the FAA was improving safety for the entire fleet of ondemand operators including those operating turbine powered aircraft.

The petitioner made an argument for the economic value of using the single-engine Cessna 208 aircraft, but failed to offer a valid position as to how granting their request would be in the public interest and benefit the public as a whole.

Having reviewed your reasons for requesting an exemption, I find that—

 they do not differ materially from those presented by the petitioner in the enclosed Denial of Exemption No. 10451;

 the reasons stated by the FAA for denying the enclosed Denial of Exemption No. 10451 also apply to the situation you present; and

 a grant of exemption would not be in the public interest.3

Our 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 Dolphin Atlantic, Inc. for an exemption from 14 CFR § 135.183.

Sincerely,

/s/

John W. McGraw Acting Director, Flight Standards

Service

Enclosure