AFS

- 13

- 39 4

- 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 Re gulatory Docket No. FAA

- 2013

- 0 4 8 2

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 Administra tion (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 populate d 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 conges ted 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:2

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 Fligh t Experience (LHFE) exemption (E xemption 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 airc raft. 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 op erational 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 accord ance 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 fou r 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. T he petitioner also states in their closing paragraph that the reliability of the engines, and the fact there are f our 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 t o 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 weigh ts: 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.3

5. Fire suppression and detection: Fire s uppression is provided t hrough 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 e xemption 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;

T he Massachusetts I nstitute of Technology (MIT) holds the only partially grante d exemption from § 91.319(c) (E xemption 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 po pulated 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, airc raft 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 ( E xemption No. 5444). SDC petitioned to operate their multi

- engine,

turbo

- prop King

- Air BE

- 90 aircraft on an experimental certificate in order4

for SDC to conduct research and development o f 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) (E xemption 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 geograp hic 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) (E xemption 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 Wor ld Balloon, L.L.C. (World Balloon) was issued a denial of exemption from § 91.319(c) (E xemption No. 7693). That denial precluded

the COW

– 106 and Dinosaur 80 experimental exhibition balloons from flight over densely populated areas.

• In 2004 Evergreen Int ernational Aviation, Inc. (Evergreen) petitioned for exemption from § 91.319(a) and (c) ( E xemption 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) (E xemption No. 8806). AAHF

e ntered 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 E xemption No. 7693 (World Balloon) that popularity itself is not a public benefit. The FAA notes that there are a significant number of5

popular activities that do not benefit the public, but are, in fact, detrimental to the public. The benefit to the publi c interest must be set forth definitively and explicitly.

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

, to fulfill its responsibility, the FAA must adopt appropriate rules and regulations of general applicability to a ll persons operating aircraft

. T he 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, th e 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 a ddition, and as discussed in the 2006 denial of E xemption 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

pu blic. 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 certific ation standards. Conversely, CAF aircraft would be flown over

non

- pa rticipating 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

dete rmined 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 interes t. 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 Au gust 26, 2013.

.

/s/

Michael J. Zenkovich Deputy Director, Flight Standards

Service