AFS-10-249-E 

 

Exemption No. 10210 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 20591 

 

In the matter of the petition of 

 

Mr. Curtis Lee Brown Regulatory Docket No. FAA-2010-0454

 

for an exemption from § 91.146(b)(5) 

of Title 14, Code of 

Federal Regulations 

 

DENIAL OF EXEMPTION 

By letter posted to the docket on April 21, 2010, Mr. Curtis Lee Brown, 204 Starrwood, 

Hudson, Wisconsin 54016, petitioned the Federal Aviation Administration (FAA) for an 

exemption from § 91.146(b)(5) of Title 14, Code of Federal Regulations (14 CFR). The 

proposed exemption, if granted, would permit Mr. Brown to be the pilot in command on an 

Aero Vodochody L-39 airplane carrying a passenger during a proposed September 18, 2010 

flight at the National Champion Air Races at Stead Field, Hudson, Wisconsin, for the purpose 

of raising funds for Cancer Care Connection, a non-profit organization, through a raffle which 

would conduct a passenger-carrying flight for compensation or hire. 

The petitioner requests relief from the following regulation:

For passenger-carrying flights for the benefit of a charitable event, § 91.146(b)(5) 

prescribes, in pertinent part, that each airplane or helicopter used in such events must 

hold a standard airworthiness certificate, be airworthy, and be operated in compliance 

with the applicable requirements of subpart E of this part. 

The petitioner supports his request with the following information:

The petitioner states he would be the pilot in command on an Aero Vodochody L-39 

airplane carrying a passenger during a proposed September 18, 2010 flight at the 

National Champion Air Races at Stead Field, Hudson, Wisconsin. The passenger 

would win the ride privilege by purchasing a raffle ticket. The draw of the flight is that 
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it would be conducted in an L-39 airplane and the pilot would be an astronaut. The 

proceeds from all of the tickets would raise money in support of Cancer Care 

Connection. 

The petitioner explains that the L-39 airplane would be donated for the flight. The fuel 

and pilot time would also be donated. The L-39 would have a technical/safety 

inspection performed just prior to the flight by a certified airframe and powerplant 

mechanic. The petitioner states that his pilot experience includes 22 years as a United 

States Air Force fighter pilot and test pilot, test pilot school, 13 years with National 

Aeronautic and Space Administration (NASA) as a space shuttle astronaut, and time as 

a pilot with American Airlines. The petitioner further explains that he is now retired 

from both NASA and American Airlines, is current in and has been racing the L-39 for 

9 years, and holds an FAA-issued airline transport pilot certificate and a 1st class 

medical certificate. The petitioner believes that the airplane inspection and his pilot 

background would establish an equivalent level of safety. 

The petitioner states that the airplane does not have a standard airworthiness certificate. 

It is in the experimental exhibition category. The petitioner proposes to fly the airplane 

single pilot and allow a passenger in the other pilot seat. The flight would be nonstop 

and begin and end at Stead Field. The flight would be conducted under visual flight 

rules (VFR) and remain within a 25-mile radius of Stead Field. The flight would not be 

aerobatic or a formation flight. 

The FAA has determined that good cause exists for waiving the requirement for Federal 

Register publication because this exemption does not set a precedent. 

The FAA's analysis is as follows: 

The FAA recognizes the petitioner posted his request for an exemption for a specific 

flight proposed in September 2010. We apologize for not responding sooner. The 

FAA developed 14 CFR part 91, § 91.146(b)(5) during the National Air Tour Safety 

Standards rulemaking. Flights in accordance with this regulation are for 

compensation or hire. The proposed rule was published for comment October 22, 

2003 (FR Vol. 68, No. 204, page 60572). The final rule was published February 13, 

2007 (FR Vol. 72, No. 29, page 6884). In the preamble to the final rule, the FAA 

recognized that the operations the petitioner requests to perform are in fact operations 

for compensation or hire. Absent the provision in § 91.146 that allows these 

operations to be conducted for a charitable purpose, these operations would be subject 

to the certification requirements of part 119 and operating requirements of part 135. 

Because the provisions of § 91.146 allow the carriage of passengers, the FAA 

determined that additional safety requirements were necessary. One such condition is 

the restriction on the use of aircraft that have an experimental certificate. This 

restriction is also consistent with the provision in § 91.319(a)(2) which prescribes, in 

pertinent part, that no person may operate an experimental category civil aircraft for 

other than the purpose for which the certificate was issued or for carrying persons or 
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property for compensation or hire. The operating limitations of § 91.9 should also be 

considered. 

Historically, aircraft with an experimental airworthiness certificate have been used for flight 

only where no compensation is involved. Aircraft issued experimental airworthiness 

certificates are provided those certificates for a particular and special purpose. These aircraft 

are not manufactured or assembled to any known quality control system. Many of the 

original operators of these aircraft, including foreign countries, have declared these aircraft 

surplus because of excessive proficiency training requirements, the high cost of maintenance 

and operational training, and flightcrew attrition. 

The FAA has a policy on the use of historical aircraft with experimental certificates in 

operations for compensation or hire. See 72 FR 57196. Although the operation the petitioner 

proposes is not a “historical flight,” the analysis for this operation is the same. 

The Aero Vodochody L-39 Albatros, a large turbojet-powered airplane manufactured for a 

foreign military with two pilot seats and no passenger seat, has an FAA experimental 

certificate that does not allow the carriage of passengers for compensation or hire. 

Section 91.146 flights are for compensation or hire. Operation of the L-39, as proposed, 

would also be in violation of § 91.319(a)(2) that does not allow the carriage of passengers for 

compensation or hire. 

In accordance with the FAA policy enclosed, an aircraft that was not made by a U.S. 

manufacturer may be considered for an exemption if the operational and maintenance history 

is adequately documented. The petitioner has not provided the manufacturing standards by 

which the airplane was produced nor any record of maintenance showing airworthiness since 

manufacture. The FAA is not familiar with what a technical/safety inspection would entail. 

FAA policy requires that aircraft with crew egress systems will be considered, provided that 

flightcrew, ground personnel, and passengers have completed a training program approved by 

the FAA. All passenger seats and their installation must meet the military seat and 

installation standards or equivalent standards in existence at the time the aircraft was 

manufactured as outlined in 14 CFR § 21.27 if installed on experimental aircraft. The 

petitioner did not provided this information in his petition. 

Mr. Brown does not state his currency for pilot-in-command duties to include a biennial flight 

review and takeoff and landing currency required for passenger-carrying flights. The FAA 

has no reason to doubt his currency, but it is not shown in his petition. 

The aircraft must be under the operational control of the petitioner during the proposed flight. 

The petitioner does not provide the registration number of the L-39 in his petition so it is not 

known who the registered owner is or if that registered owner has given Mr. Brown 

operational control. 
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When the L-39 came into the United States, the FAA must have issued limitations to go with 

issuance of experimental category. The petitioner did not provide those limitations and the 

FAA cannot research the limitations without the registration number. 

Moreover, the petitioner has not provided precautions for spectators or other members of the 

non-participating public. The petitioner’s statement that the airplane inspection and pilot 

background would establish an equivalent level of safety is not shown in his petition. The 

petitioner provides no material to support the need to conduct this type of operation in the 

L-39 airplane when, in fact, there are numerous aircraft available that could raise funds for a 

non-profit organization without the need for this exemption. The FAA finds that the 

operation of this experimental airplane raises safety issues. As such, the FAA finds that a 

grant of this petition would not be in the public interest nor provide an equivalent level of 

safety. 

The FAA’s Decision: 

 In consideration of the foregoing, I find that a grant of exemption would not be in the 

public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 

and 44701, delegated to me by the Administrator, the petition of Mr. Curtis Lee Brown for an 

exemption from 14 CFR § 91.146(b)(5) is hereby denied. 

Issued in Washington, D.C., on February 11, 2011. 

/s/ 

Raymond Towles 

Acting Director, Flight Standards 

 Service 

Enclosure
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Project No.: AFS-10-249-E 

Project Officer: _______________ 

ARM-107: LBrunache: 7/15/2010: Doc# 30306 

ARM-1/100/107: AFS-250/200 

 Statistics: Curtis Brown.doc, 1,795 words 

 Original, 15 Jul 2010 11:47 

 Style Index 50 Good for a Legal Document 

 Average Sentence Length 20 Excellent

 Passive Index 25 Excellent

MR CURTIS LEE BROWN 

204 STARRWOOD 

HUDSON WI 54016