AFS-13-394-E

Exemption No. 10853

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

COMMEMORATIVE Regulatory Docket No. FAA-2013-0482

AIR FORCE

 

for an exemption from § 91.319(c) 

of Title 14, Code of 

Federal Regulations 

 

DENIAL OF EXEMPTION

 By letter received May 24, 2013, Mr. Robert Stenevik, Vice President of Safety, 

Maintenance and Operations, Commemorative Air Force (CAF) 109 San Medina Lane, 

Joshua, TX 76058 petitioned the Federal Aviation Administration (FAA) on behalf of CAF 

for an exemption from § 91.319(c) of Title 14, Code of Federal Regulations (14 CFR). The 

proposed exemption, if granted, would permit CAF to operate their B-29 Superfortress, 

N529B, and their B-24, N24927, over densely populated areas. 

The petitioner requests relief from the following regulation:

Section 91.319(c) prescribes, in pertinent part, that unless otherwise authorized by the 

Administrator in special operating limitations, no person may operate an aircraft that has an

experimental certificate over a densely populated area or in a congested airway. The 

Administrator may issue special operating limitations for particular aircraft to permit takeoffs 

and landings to be conducted over a densely populated area or in a congested airway, in 

accordance with terms and conditions specified in the authorization in the interest of safety in 

air commerce.

The petitioner supports its request with the following information:
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Both aircraft hold special airworthiness certificates issued under the experimental 

exhibition category. CAF requests such relief to display these aircraft at prominent 

public arenas and also to permit the public the opportunity to purchase rides in these 

aircraft over densely populated areas while operating under their Living History Flight 

Experience (LHFE) exemption (Exemption No. 6802, as amended).

The petitioner states that the inability to fly over densely populated areas severely 

limits the public’s opportunity to experience these historic, World War II aircraft. The 

petitioner then describes that both aircraft are four-engine, piston-powered airplanes 

with outstanding engine reliability. Additionally, the petitioner states that given a 

single engine malfunction, both aircraft have excellent three engine operational 

capability.

The petitioner then details five reasons that their request provides an equivalent level of 

safety:

1. Similar aircraft hold special airworthiness certificates in the limited 

category: Those limited category aircraft operate in accordance with 

§ 91.315 not § 91.319, and are not restricted from flying over densely 

populated areas. Examples of similar aircraft that the petitioner provides 

are the B‐17, B‐25, A‐26, and DC‐3. The B‐17 represents the most similar 

example of a Boeing built product with four engines that is currently used 

in LHFE operations over densely populated areas.

2. Engine design and reliability: The petitioner states that all four engines 

on each airplane have been redesigned to improve reliability and longevity. 

Certificated parts have been used and the engines are maintained to the 

standards of type certificated engines present on other standard or limited 

category aircraft. The petitioner also states in their closing paragraph that 

the reliability of the engines, and the fact there are four of them, establish 

the equivalent level of safety to standard category aircraft with fewer 

engines.

3. Crew training and rating requirements: The petitioner states that their 

crews train to the standards required by their LHFE exemption, which are 

the same as standards required for aircraft with limited certifications. 

Additionally, similar to an airman that holds a type rating appropriate to a 

crew served type certificated aircraft, CAF crews are required to either 

hold type ratings for the type certificated variant of the B-24 (LB-30 type 

rating) or hold an experimental aircraft authorization for the B-24 (LB-30) 

or B-29.

4. Operational weights: The petitioner states that they operate both of these 

aircraft at reduced weight which allows for either aircraft to still be 

operated even if two of the four engines become inoperative.
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5. Fire suppression and detection: Fire suppression is provided through 

two Halon bottle systems in each aircraft. In addition, the petitioner states 

that they use highly trained flight crew scanners who are trained in the 

detection and prevention of fire related emergencies.

 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 precedent, and any 

delay in acting on this petition would be detrimental to CAF.

The FAA’s analysis is as follows:

Section 11.81 prescribes, in pertinent part, that the petitioner must include the 

following information:

(d) The reasons why granting your request would be in the public interest; that 

is, how it would benefit the public as a whole;

(e) The reasons why granting the exemption would not adversely affect safety, 

or how the exemption would provide a level of safety at least equal to that 

provided by the rule from which you seek the exemption;

The Massachusetts Institute of Technology (MIT) holds the only partially granted 

exemption from § 91.319(c) (Exemption No. 5210). This exemption was issued based 

on national security needs in which MIT conducts electronic equipment research in 

aircraft that are otherwise certificated in the standard category. Two of the conditions

listed in that exemption and relevant to the CAF petition are:

• Only personnel and equipment essential to the flight may be on board during 

operations under this exemption. (NOTE: The petitioner alluded to the fact that 

they would operate over densely populated areas carrying paying passengers 

under their LHFE exemption.)

• Aircraft operated under this exemption must maintain an en route altitude of no 

lower than 7,000 feet above ground level over densely populated areas. 

Additionally, where possible, aircraft operating under visual meteorological 

conditions must avoid flights over congested areas.

The FAA has subsequently issued a series of denials for exemption from § 91.319(c):

• In 1992 Sundstrand Data Control, Inc. (SDC) was issued a denial of 

petition for reconsideration from §§ 91.319(a)(1), (c), and (e) and 21.191 

(Exemption No. 5444). SDC petitioned to operate their multi-engine, 

turbo-prop King-Air BE-90 aircraft on an experimental certificate in order 
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for SDC to conduct research and development of SDC-produced avionics, 

to show compliance with FAA regulations, to train crewmembers, and to 

use their aircraft for demonstrations.

• In 1994 Lifeguard America, Inc. (LAI) was issued a denial of exemption 

from §§ 21.191(d), 91.203(a)(1), 91.319(a) and (c), and 135.25(a)(1) and 

(a)(2) (Exemption No. 5963). LAI stated that the use of the Bede BD-10 

single-engine jet aircraft would significantly reduce the time restraints and 

excessive costs which cause many human donor organs to go unused due to 

the geographic distance between the transplant organ and recipient. The 

BD-10 held an airworthiness certificate issued in the experimental 

exhibition category.

• In 1997 the Hughes Aircraft Company (Hughes) was issued a denial of 

exemption from § 91.319(c) (Exemption No. 6687) to operate their 

modified Falcon 20 aircraft over densely populated areas. Hughes stated 

that it was awarded a contract by the Department of Defense under a flight 

test program which required flights over densely populated areas.

• In 2002 the World Balloon, L.L.C. (World Balloon) was issued a denial of 

exemption from § 91.319(c) (Exemption No. 7693). That denial precluded 

the COW–106 and Dinosaur 80 experimental exhibition balloons from 

flight over densely populated areas. 

• In 2004 Evergreen International Aviation, Inc. (Evergreen) petitioned for 

exemption from § 91.319(a) and (c) (Exemption No. 8645). Evergreen 

petitioned to operate Boeing 747-200 Supertanker aircraft to conduct proof 

of concept aerial liquid dispensing demonstration flights. In this case, a 

partial grant of exemption was issued regarding § 91.319(a). An 

exemption from § 91.319(c) was denied. 

• In 2006 the Army Aviation Heritage Foundation (AAHF) was issued a 

denial of exemption from § 91.319(c) (Exemption No. 8806). AAHF 

entered into a contract with the U.S. Army to provide former military 

aircraft (experimental exhibition, AH-1 Cobra rotorcraft) to promote the 

Army’s recruiting program. They further explained that the Army had a 

need for civil aircraft to support the Army recruiting due to the Army’s 

lack of aerial resources.

With regard to CAF’s statement that the inability to fly over densely populated areas 

severely limits the public’s opportunity to experience these aircraft, the FAA has 

determined as in the denial of Exemption No. 7693 (World Balloon) that popularity 

itself is not a public benefit. The FAA notes that there are a significant number of 
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popular activities that do not benefit the public, but are, in fact, detrimental to the 

public. The benefit to the public interest must be set forth definitively and explicitly.

As noted in our analysis leading to the decision to deny Exemption No. 8806 (AAHF),

to fulfill its responsibility, the FAA must adopt appropriate rules and regulations of 

general applicability to all persons operating aircraft. The FAA has determined that the 

operating limitations for experimental category civil aircraft, as prescribed in § 91.319, 

have served to protect persons and property in connection with aircraft operations. 

Historically, the FAA's position on this issue has been that an aircraft with an 

experimental certificate may only be used for the special purpose for which it is 

certificated and not over densely populated areas or on congested airways. This 

position is due, in part, by the certification standards required for an aircraft with a 

normal [standard] airworthiness certificate versus an aircraft with an experimental 

airworthiness certificate. Experimental aircraft do not necessarily meet any FAA 

certification standard.

In addition, and as discussed in the 2006 denial of Exemption No. 8806 (AAHF), CAF 

has not clearly shown that its petition is in the public interest. CAF has not explained 

an acceptable means of providing for the safety of the uninformed, non-participating 

public. As a comparison, LHFE exemptions permitting historic rides require that 

persons participating in the program be advised and acknowledge that the aircraft does 

not meet FAA certification standards. Conversely, CAF aircraft would be flown over 

non-participating members of the general public. The general public expects that 

aircraft operating over them meet the certification and safety requirements. Since there 

is no practical way to advise the non-participating public of the hazards, the FAA has 

determined the petitioner has failed to articulate a sufficiently compelling public 

interest to justify flights over many people. 

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 Commemorative Air Force 

for an exemption from 14 CFR § 91.319(c) is hereby denied. 

Issued in Washington, D.C., on August 26, 2013. .

/s/

Michael J. Zenkovich

Deputy Director, Flight Standards

 Service