Exem ption No. 10348

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

TATONDUK OUTFITTERS

LIMITED d/b/a EVERTS AIR

ALASKA Regulatory Docket No. FAA-2011-0442

for an exemption from § 91.313(a) and (c) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated April 21, 2011, Mr. Robert Everts, President, Tatonduk Outfitters Lim ited d/b/a Everts Air Alaska, (Everts), P.O. Box 60908, Fairbanks, AK 99706 petitioned the Federal Aviation Administration (FAA) on behalf of Everts for an exemption from § 91.313(a) and (c) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Everts to operate restricted category Air Tractor AT-802 aircraft in intra-Alaska fuel hauling operations of Everts’ owned or 3 rd party (customer) owned fuel product pursuant to Everts’ part 119 air carrier certificate and part 135 operations specifications.

The petitioner requests relief from the following regulation:

Section 91.313 prescribes, in pertinent part, that (a) no person may operate a restricted category civil aircraft—

(1) For other than the special purpose for which it is certificated; or

(2) In an operation other than one necessary to accomplish the work activity directly associated with that special purpose.

AFS-11-286-E2

(c) No person may operate a restricted category civil aircraft carrying persons or property for compensation or hire. For the purposes of this paragraph, a special purpose operation involving the carriage of persons or material necessary to accomplish that operation, such as crop dusting, seeding, spraying, and banner towing (including the carrying of required persons or material to the location of that operation), and operation for the purpose of providing flight crewmember training in a special purpose operation, are not considered to be the carriage of persons or property for compensation or hire.

The petitioner supports its request with the following information:

The petitioner states that hauling fuel in Alaska is essential to the survival of communities and residents living in remote areas of Alaska. The petitioner further explains that fuels (heating oil, diesel fuel, and automotive fuel) are required for the most remotely located homes, schools, businesses, and vehicles. Since shipments via the limited highway system are impracticable and barge shipments can only occur seasonally when waterways are accessible, large two-engine and four-engine piston

aircraft are considered “the workhorses” for Alaskan fuel hauling. The petitioner explains that these aircraft are limited in their ability to deliver fuel to isolated villages that have small runways (less than 3000 feet). Light aircraft or snow machines are the only means of accessing the most remote locations in Alaska. The petitioner notes that the Pipeline and Hazardous Materials Safety Administration has recognized and accommodated the need to be able to transport fuel by aircraft in Alaska by regulation, rather than requiring specific permits (49 CFR § 175.310(b)(2)(iv)).

The petitioner cites 30 years of flying experience in Alaska, servicing remote villages in the state interior with small and large aircraft. The petitioner is a part 119 certificated air carrier, authorized to conduct common carriage operations under part 121 and 135 operations specifications. The petitioner states that it is an active participant in the Safety Management System (SMS) pilot program, and is a distinguished member of the Alaska Ai r Carriers Association (AACA) Medallion Program.

The petitioner proposes to transport company-owned or third party (customer-owned) fuel products in newly manufactured Air Tr actor AT-802 aircraft. The AT-802 is arestricted category aircraft that the petitioner proposes to operate with an FAAapproved bulk fuel tank system. The petitioner states that the AT-802 was principally developed to operate as an agricultural spraying and firefighting aircraft, specifically designed to haul hazardous chemicals. Modifying the aircraft for the proposed operation would require installing an indepe ndent bulk fuel tank system, loading and offloading pumping systems, venting systems, emergency dump systems, and other modifications for lightning protection and cold weather flying. The petitioner notes that Air Tractor has worked closely with C onair, one of their aircraft dealers and an experienced specialty aircraft operations pr ovider, to modify the AT-802 for bulk fuel3

hauling. Conair and Air Tractor collaborated to achieve Transport Canada final certification of an AT-802 for bulk fuel hauling in remote areas of Canada. The petitioner states that it intends to operate and maintain the AT-802 aircraft under all applicable requirements of part 135. Additionally, all crews are trained under an FAA-approved training program, and personnel ar e trained in the specific techniques of fuel hauling. The petitioner states they will establish a training curriculum based on the current training program utilized by the largest current Air Tractor operator in the

world.

The petitioner states that on August 6, 2009, the FAA proposed adding “Alaskan Fuel Hauling” as a new restricted category special operation under § 91.313 (74 FR 39242). At that time, the petitioner notes that neither the FAA nor any commenting party raised safety concerns with fuel hauling operati ons using restricted category aircraft in

Alaska.

Although the petitioner requested that action on its petition not be delayed for publication

in the Federal Register , the FAA found that the petition, if granted, would set a precedent. Therefore, to allow an opportunity for the public to comment on the petition, a summary of this petition was published in the Federal Register on May 6, 2011 (76 FR 26335). Four comments were received. All commenters stated their support of the petitioner’s request to service remote areas of Alaska with an aircraft that can carry up to 1,000 gallons of fuel product. The commenters noted positive environmental impacts; reducing the requirement to store large quantities of fuel in on-site fuel s upplies (with the resulting fuel spill potential) if the petitioner were allowed to conduct the proposed operation.

The FAA's analysis is as follows:

The FAA has fully considered the petitioner’s supporting information, as well as the information provided by comments submitted to the docket supporting the petition for exemption. The FAA finds that the circumstances presented by the petitioner have sufficiently shown that a grant of exemption would be in the public interest and that a level of safety equivalent to that provided by the regulations would be maintained.

The petitioner states that hauling fuel in Alaska is essential to the survival of communities and residents living in remote areas of Alaska. The petitioner further explains that fuels (heating oil, diesel fuel, and automotive fuel) are required for the most remotely located homes, schools, businesses, and vehicles. Since shipments via the limited highway system are impracticable and barge shipments can only occur seasonally when waterways are accessible, large two-engine and four-engine piston

aircraft are considered “the workhorses” for Alaskan fuel hauling. The petitioner explains that these aircraft are limited in their ability to deliver fuel to isolated villages that have small runways (less than 3000 feet). Light aircraft or snow machines are the only means of accessing the most remote locations in Alaska. The FAA agrees with the petitioner that fuel transport services in large quantities by small aircraft is a unique requirement in Alaska and would serve the public interest of the state citizens.4

The petitioner cites 30 years of flying experience in Alaska, servicing remote villages in the state interior with small and large aircraft. The FAA holds in high regard that the petitioner voluntarily participates in programs designed to promote aviation safety and would conduct the proposed operation under their current air carrier certificate and part 135 operations specifications.

The petitioner proposes to transport company-owned or third party (customer-owned) fuel products in the Air Tractor AT-802. Th e AT-802 is a restricted category aircraft that the petitioner proposes to operate with an FAA-approved bulk fuel tank system. Historically, the FAA's position is that an ai rcraft with a restricted category certificate may only be used for the special purpose for which it is certificated or for an operation necessary to accomplish the work activity directly associated with that special purpose. This position was the result, in part, of the certification standards required

for an aircraft with a normal airworthiness cer tificate compared with an aircraft with a

restricted airworthiness certificate. Certifi cation of restricted category aircraft under § 21.25(a) requires that the applicant for that category of certificate show that the aircraft complies with the appropriate noise requirements of part 36; has no feature or characteristic that make it unsafe when operated under the limitations prescribed for its intended use; and that the aircraft meets the airworthiness requirements of an aircraft category except those requirements that the Administrator finds inappropriate for the special purpose for which the aircraft is to be used, or is of a type that has been manufactured in accordance with the requirements of, and accepted for use by, an Armed Force of the United States and has been later modified for a special purpose.

The FAA determined, as a matter of policy that aircraft used for special purpose operations such as agriculture, forest and wildlife conservation, aerial surveying, patrolling, weather control, aerial advertising (and other operations specified by the Administrator) are in a restricted category and not required to meet the more rigorous standard category design standards. This determination recognizes the public's interest in these special purpose operations which cannot easily be performed by standard category aircraft that have not been specially modified. In the interest of public safety, the FAA must impose certain limitations on the operation of aircraft with restricted category certificates. These limitations are consistent with the FAA's obligation to provide aviation standards for the protection of persons and property in connection with aircraft operations.

The AT-802 was principally developed to operate as an agricultural spraying aircraft and firefighting air tanker. Modifying the aircraft for the proposed operation would require installing an independent bulk fu el tank system, loading and offloading pumping systems, venting systems, emergency dump systems, and other modifications for lightning protection and cold weather flyi ng. The petitioner cites the fact that Air Tractor has worked closely with Conair, one of their aircraft dealers and an experienced specialty aircraft operations pr ovider, to modify the AT-802 for bulk fuel5

hauling. Conair and Air Tractor collaborated to achieve Transport Canada final certification of an AT-802 for bulk fuel hauling in remote areas of Canada.

The FAA’s position with regard to restricted category aircraft, as stated above, remains the same; however we agree with the petitioner that, in general, capabilities of standard category aircraft are limited in their ability to serve the unique conditions in remote areas of Alaska as well as the public interest of the state citizens in these areas. The FAA’s intent is to maintain a level of safety equivalent to that provided by the regulations by applying conditions and limitations to these operations in this particular state, with this particular aircraft modified to FAA safety standards. In this regard, the FAA is granting the petition in full consideration of the language in the FAA Reauthorization Act of 1996 and the unique needs of the citizens of Alaska.

By letter dated January 7, 1993, Air Tractor Inc., petitioned on behalf of the operators of the Air Tractor AT-802 and AT-802A, for an exemption from 14 CFR 61.31(a)(1). This exemption, still in effect, granted by the FAA on April 30, 1993 (Exemption No. 5651), permitted pilots of Air Tractor models AT-802 and AT-802A to operate these airplanes without a type rating although the maximum gross weight of these airplanes exceeds 12,500 pounds. Air Tractor pilots, including those flight instructing and conducting bulk fuel hauling operations are required to comply with Exemption No. 5651 (as amended and extended).

The petitioner states that on August 6, 2009, the FAA proposed adding “Alaskan Fuel Hauling” as a new restricted category special operation. The FAA submitted to the Federal Register a request for comments on the proposed inclusion of “Alaskan Fuel Hauling” as an additional special purpose operation under § 21.25(b)(7). The FAA later concluded that it would be inappropriate to amend the list of approved special purpose operations because it would be contrary to the limitations imposed in § 91.313, and those operators desiring to conduct such operations should apply for an exemption.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption is in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, Tatonduk Outfitters Limited d/b/a Everts Air Alaska is granted an exemption from 14 CFR § 91.313(a) and (c) to the extent necessary to allow Everts to operate restricted category Air Tractor AT-802 aircraft in intra-Alaska fuel hauling operations of

Everts’ owned or 3 rd party (customer) owned fuel product pursuant to Everts’ part 119 air carrier certificate and part 135 operations specifications, subject to the conditions and

limitations listed below.6

Conditions and Limitations

1. This exem ption is only valid for operations conducted by Tatonduk Outfitters Ltd. d/b/a Everts Air Alaska (operator) under 14 CFR part 135 with part 119 certificate number FXGA030A and part 135 operations specifications.

2. This exemption is valid only for bulk fuel hauling operations conducted inside the state of Alaska and only between points in Alaska when other means of surface transportation or air transportation by standard category aircraft are impracticable. For purposes of this exemption “impracticable” means transportation is not physically possible or cannot be performed by routine and frequent means of other transportation, due to extenuating circumstances. Extenuating circumstances include: conditions precluding highway, water, or standard cate gory air transportation, such as a frozen vessel route; road closures due to catastrophic weather or volcanic activity; remote locations requiring service by air with short (less than 3000 foot) runways; or a declared state of emergency. The desire for expedience of a shipper, carrier, or consignor, is not relevant in determining whether other means of transportation are impracticable.

3. This exemption is valid for Air Tractor AT-802 and AT-802A aircraft that operate under a restricted category airworthiness certifi cate, which have been modified or type certificated specifically for bulk fuel hauling.

4. Installations and modifications of the AT-802/802A aircraft to permit bulk fuel hauling must receive approval from the a ppropriate Aircraft Certification Office (ACO).

5. The operator must comply with all applicable guidance and regulations of the Pipeline and Hazardous Materials Safety Administration (PHMSA) and 49 CFR part 175 (Hazardous Material Regulations, Carriage by Aircraft).

6. Within their part 135 approved training program, the operator shall:

a. Develop/maintain training manuals and train pilots on the modified AT-802/802A aircraft systems, performance, and handling characteristics.

b. Train all pilots conducting operations under this exemption on the carriage of hazardous materials (HAZMAT) as well as procedures for on-loading, transporting, off-loading and emergency dumping of bulk fuel. The POI must review and approve the training plan prior to any operations conducted under this exemption.

7. The person authorized to give instruction for bulk fuel hauling operations must met the minimum qualifications listed in the conditions and limitations section of Air Tractor Exemption No. 5651 (as amended and extended).7

8. Prior to operations under this exemption, the PIC must have successfully completed ground instruction on normal/emergency systems performance and normal/emergency handling characteristics of the AT-802/ 802A modified for bulk fuel hauling operations. Additionally, the PIC must have successfully completed 5 cycles with a qualified instructor in the AT-802/802A in Alaskan bulk fuel hauling operations. For the purposes of this exemption, one cycle equals the sequential completion of one fuel on-load, one takeoff, one landing and one fuel off-load. A record of this instruction must be made available by the pilot upon request by the Administrator.

9. The pilot-in-command (PIC) and the pilot receiving instruction (if applicable) for bulk fuel hauling operations are the only persons authorized to be onboard the aircraft during operations conducted under this exemption. Passenger carrying operations are

not authorized.

10. All operations must be conducted in compliance with 91.313(e), and no waivers or operating limitations shall be granted authorizing flight over densely populated areas.

11. Each PIC shall, before beginning a flight, become familiar with the takeoff and landing distance available and required concerning that flight as well as alternatives available if the planned flight cannot be completed.

12. The PIC is responsible for ensuring that the aircraft remains within the AT-802 and AT-802A Airplane Flight Manual (AFM) and AFM supplement limitations at all

times.

13. The operator must collect and submit the following data to the POI on a quarterly basis, and provide a summary of this data in any requests for extension of this exemption. Data must be collected for each flight where the operator transported bulk

fuel:

a. Number of flight hours,

b. Number of flights conducted (i.e. cycles),

c. Description of any incidents or accidents,

d. Description of the product transported, and

e. Any additional information the operator and/or Administrator determines may

be relevant.8

14. The operator must allow the Administrator to make inspections to determine compliance with applicable regulations and the conditions and limitations of this exemption.

15. A copy of this exemption must either be incorporated into the FAA-approved flight manual or carried on the airplane while operating under this exemption.

This exemption terminates on August 31, 2013, unless sooner superseded or rescinded.

Issued in Washington, D.C., on August 31, 2011.

/s/

John W. McGraw Acting Director, Flight Standards

Service .