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 Connecti on, 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 raffl e ticket. The draw of the flight is that2

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 f light 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 cu rrent in and has been racing the L-39 for 9 years, and holds an FAA-issued airline transport pilot certificate and a 1 st 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 fli ght 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 or3

property for compensation or hire. The operating limitations of § 91.9 should also be

considered.

Historically, aircraft with an experimental airw orthiness certificate have been used for flight only where no compensation is involved. Airc raft issued experimental airworthiness certificates are provided those certificates for a pa rticular 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 fo reign 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 tur bojet-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 ha ve 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 require d 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 th at registered owner has given Mr. Brown operational control.4

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 ai rcraft 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

Enclosure5

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