AFS–10–242–E Exemption No. 10222

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

WEST BEND AIR, INC. Regulatory Docket No. FAA–2010–0415 for an exemption from § 135.385(d) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated April 9, 2010, Mr. John M. Morris, Director of Operations, West Bend Air, Inc. (West Bend Air), P.O. Box 409, West Bend, Wisconsin 53095, petitioned the Federal Aviation Administration (FAA) on behalf of West Bend Air for an exemption from § 135.385(d) of Title 14, Code of Fede ral Regulations (14 CFR). The proposed exemption, if granted, would allow West Bend Air to operate its aircraft in common carriage with the runway length landing requirements determined in accordance with 14 CFR § 91.1037(e) applicable to part 91, subpa rt K, Fractional Ownership Operations.

The petitioner requests relief from the following regulation:

Sec. 135.385 (b) Except as provided in paragraph (c), (d), (e), or (f) of this section, no person operating a turbine engine powered large transport category airplane may take off that airplane unless its weight on arrival, allowing fo r normal consumption of fuel and oil in flight (in accordance with the landing distance in the Airplane Flight Manual for the elevation of the destination airport and the wind conditions expected there at the time of landing), would allow a full stop landing at the intended destination airport within 60 percent of the effective length of each runway described below from a point 50 feet above the intersection of the obstruction clearance plane and the runway. For the purpose of determining the allowable landing weight at the destination airport the following is assumed:

(1) The airplane is landed on the most favorable runway and in the most favorable direction, in still air.2

(2) The airplane is landed on the most suitable runway considering the probable wind velocity and direction and the ground handling characteristics of the airplane, and considering other conditions such as landing aids and terrain.

Sec. 135.385 (d) Unless, based on a showing of actual operating landing techniques on wet runways, a shorter landing distance (but never less than that required by paragraph (b) of this section) has been approved for a specific type and model airplane and included in the Airplane Flight Manual, no person may take off a turbojet airplane when the appropriate weather reports or forecasts, or any combination of them, indicate that the runways at the destination airport may be wet or slippery at the estimated time of arrival unless the effective runway length at the destination airport is at least 115 percent of the runway length required under paragraph (b) of this section.

Sec. 135.385 (f) An eligible on-demand operator may take off a turbine engine powered large transport category airplane on an on-demand flight if all of the following conditions

exist:

(1) The operation is permitted by an approved Destination Airport Analysis in that person's operations manual.

(2) The airplane's weight on arrival, allowing for normal consumption of fuel and oil in flight (in accordance with the landing distance in the Airplane Flight Manual for the elevation of the destination airport and the wind conditions expected there at the time of landing), would allow a full stop landing at the intended destination airport within 80 percent of the effective length of each runway described below from a point 50 feet above the intersection of the obstruction clearance plane and the runway. For the purpose of determining the allowable landing weight at the destination airport, the following is assumed:

a. The airplane is landed on the most favorable runway and in the most favorable direction, in still air.

b. The airplane is landed on the most suitable runway considering the probable wind velocity and direction and the ground handling characteristics of the airplane, and considering other conditions such as landing aids and terrain.

c. The operation is authorized by operations specifications.

The petitioner supports its request with the following information:

The petitioner states that West Bend Air is seeking to have the same options afforded to its part 91, subpart K competitors under § 91.1037(e), which would allow West Bend Air to choose between the 60 or 80 percent rule for wet or slippery runway usage under its Destination Airport Analysis Program (DAAP). The petitioner notes that West Bend Air has operated jet aircraft safely for many years and has, to the best3

of its knowledge, complied with all regulatory requirements in accordance with its air carrier certificate. The petitioner states that § 135.385 addresses the runway length required for landing at destination airports for West Bend Air’s operation. The petitioner adds that § 135.385(d) requires the effective runway length at a destination airport with a wet or slippery runway to be 115 percent of the runway length required under paragraph (b). The petitioner states § 135.385(b) prohibits an aircraft from landing at its destination airport unless the aircraft will be at a weight that will allow it to come to a full stop within 60 percent of the effective runway length. The petitioner notes that § 135.385(f) addresses the DAAP, which allows the use of 80 percent of the effective runway length at the destination airport instead of the 60 percent rule.

The petitioner states that part 91, subpart K operators must follow § 91.1037 for runway length landing requirements. The petitioner explains that § 91.1037(b) contains the same regulatory language as § 135.385(b) covering the 60 percent rule. In addition, § 91.1037(c) contains the same re gulatory language as § 135.385(f) covering the 80 percent rule.

According to the petitioner, § 91.1037(e) differs from § 135.385(d) in how it addresses the 115 percent rule for wet or slippery runways. The petitioner adds that § 91.1037(e) is sequenced differently than § 135.385(d). The petitioner states that under § 91.1037(e) an aircraft operated under part 91, subpart K cannot be dispatched with an expected landing on a wet or slippery runway “unless the effective runway length at the destination airport is at least 115 percent of the runway length required under paragraph (b) or (c) of this section.” The petitioner points out § 91.1037(b) contains the 60 percent rule and § 91.1037(c) contains the DAAP 80 percent rule.

The petitioner further states that according to § 91.1037(e), part 91, subpart K operators are allowed to use a wet or slippery runway, restricted only by the program they operate under. The petitioner states that West Bend Air uses an FAA-approved DAAP in its operational procedures. The petitioner believes the part 91, subpart K DAAP requirements are identical to the part 135 DAAP requirements used in West Bend Air’s operation. The petitioner states that no additional training or special procedures are required for any part 91, subpart K operator to use the DAAP and yet West Bend Air, with the same DAAP, equipment, crewmember qualifications, and training requirements is restricted to the 60 percent rule when landing on a wet or slippery

runway.

The petitioner requests a permanent change to its air taxi commercial authorization to allow its flightcrew members qualified to use the DAAP to use either the 60 percent rule or the 80 percent rule when dispatch requires operating onto a wet or slippery runway. The petitioner concludes that this would allow West Bend Air to have the same competitive advantage as part 91, subpart K operators.4

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 26, 2010 (75 FR 29603). No comments were received.

The FAA’s analysis is as follows:

The Federal Aviation Administration (FAA) has considered the petitioner’s request and supporting materials for exemption to section 135.385, 135.385(b), 135.385(d) and 135.385(f). The FAA finds that a grant of exemption would not be in the public interest.

West Bend Air, a part 135 operator, is requesting an exemption that would permit it to use effective runway length standards of part 91, subpart K. West Bend argues that because it is a DAAP qualified operator, it should be able to use the more lenient runway length standards available to subpart K operators who are likewise DAAP qualified. The primary justification given for requesting the exemption is to “allow[] us the same competitive advantage afforded the Subpart K operators by regulation.”

The FAA does not find West Ben Air’s petition to be in the public interest. West Bend Air, when conducting its on-demand operations is required to adhere to the safety regulations of part 135. Part 135 rules are deliberately more stringent than rules governing entities operating under the rules of part 91 because passengers transported by on-demand operators bear no responsibility for the aircraft on which they ar e flown (66 FR 37521). Conversely, “[a]ircraft owners flying aboard aircraft they own or lease exercise full control over and bear full responsibility for the airworthiness and operation of their aircraft.” Id. The FAA has determined that the general operating and flight regulations of part 91 provide the appropriate level of safety for these operations. Id.

This regulatory framework is reflected in the landing limitations discussed by the petitioner. Section 135.385, which is applicable to on-demand operators, contains a more conservative requirement than that found in § 91.1037, which is applicable to fractionally owned aircraft operations. Accordingly, the FAA finds that West Bend Air’s argument that the landinglimitations in § 91.1037 provide fractionally owned aircraft a competitive advantage over ondemand operators is not sufficiently in the public interest to alter the FAA’s regulatory

structure.

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 West Bend Air, Inc. for an exemption from 14 CFR § 135.385, 135.385(b), 135.385(d), and 135.385(e) is hereby denied.5

Issued in Washington, D.C., on March 3, 2011. .

/s/ Raymond Towles Acting Director, Flight Standards

Service