AFS

- 13

- 560

- E Exemption No. 11023

UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

MENT E, LLC Regulatory Docket No. FAA

- 2013

- 0 839

for an exemption from p art 91, SFAR 87 of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated September 20

, 2013 , Mr. Mark McIntyre

, Mente, LLC (M ente )

, 6771 Perimeter Road, Seattle, WA 98108

, petitioned the Federal Aviation Administration (FAA) o n behalf of Mente for an exemption from 14 CFR p art 91, S pecial F ede ral A vi a tion
R egulation (SFAR) 87 to allow Mente to operate flights within the airspace of Ethiopia north of 12 degrees north latitude in support of the philanthropic activities of a U.S. charitable
foundation

. Mr. McIntyre supplemented Mente’s initial pe tition with additional information on November 25, 2013, and Roncevert D. Almond, The Wicks Group, PLLC, 733 10 th Street, NW, Suite 3002, Washington, DC 20001, counsel for Mente, further supplemented Mente’s petition on May 20, 2014.

P etitioner requests r elief from the following regulation : SFAR 87, in pertinent part, prohibits all U.S. air carriers or commercial operators, all persons exercising the privileges of an airman certificate issued by the FAA, and all operators using aircraft registered in the U nited States from conducting flight operations within the territory and airspace of Ethiopia north of 12 degrees north
latitude , with certain exceptions not relevant here

.

P etitioner provides the following supporting information:2

Mente states that SFAR 87 was promulgated in 2000 in response to the August 1999
shoot down of a U.S.

- registered Learjet by the Ethiopian Air Force

. According to
Mente , t he non

- commercial flight was proceeding along the published high altitude airway and operating on an Internati onal Civil Aircraft Organization ( ICAO ) instrument flight rules ( IFR ) flight plan. At the time of the shoot down

, the p etitioner states, there

was an Ethiopian restriction prohibiting flights across the Ethiopian and Eritrean
border. The p etitioner conte nds that the location of the Learjet wreckage indicates that the Learjet had crossed the Ethiopian/Eritrean border , contrary to its originally planned

route

.

Mente states that the reason for the promulgation of SFAR 87 no longer exists and
infers that fli ghts within the airspace can be conducted safely. In support of this contention, the p etitioner states that the Ethiopian and Eritrean governments signed a peace agreement in 2000 that ended the border war and the conditions that likely led to
the shoot d own of the Learjet.

Mente further states that

, when it contacted the U.S. Embassy in Ethiopia, Embassy personnel indicated that they are currently working through the U.S. Department of State to request removal of SFAR 87. Petitioner states that neither the Ethiopian nor the Eritrean governments have any prohibitions against cross

- border flights. Petitioner indicates that a variety of non

- U.S.

- commercial air carriers make daily flights along airways that cross the airspace defined in SFAR 87. In additio n, petitioner noted that U.S. Embassy personnel routinely travel by air to Axum, Ethiopia, which is within SFAR 87, aboard non

- U.S. registered aircraft and that a Congressional Delegation traveled to Axum in August 2013 aboard U

. S

. military aircraft withou t incident

. It also

states there have been no subsequent hostile actions toward civil aircraft since the 1999
shoot down

.

Mente continues by stat ing its flights will have valid flight plans and Ethiopian Airspace and Landing Permits and will operate whol ly within Ethiopian airspace

, without crossing any international borders , and would take place during the day

. Consequently, Mente argues that its proposed operations will not provoke any condition that led to the promulgation of SFAR 87.

Mente states th is request is in the public interest because its requested flight operations would transport personnel and supplies for philanthropic missions conducted by a U.S.
char i table foundation. The p etitioner indicates that granting this exemption will allow
it t o facilitate missions to develop new vaccines , hybrid seeds, and other agricultural products that will provide significant benefit to Ethiopian citizens and beyond and is consistent with U.S. interests in the region. It contends t he potential discoveries may also have a worldwide impact

. It further states that this petition is in the public interest

, if granted

, because it w ould be able to provide direct flights to areas where the charitable foundation provides philanthropic work. If the exemption is no t granted, the

p etitioner will be forced to use more costly foreign charter operations

, which it states3

may affect funding for research and development. The p etitioner also state s that , if it is
forced to use foreign chartered aircraft , that those aircraf t would be less safe than the

p etitioner’s aircraft.

Mente adds that its flight crews are highly experienced and receive regular simulator and international procedures training. Mente further states that charter aircraft flight
crews have not received the same level of training as it s flight crews

. The p etitioner
also contends that its flight crews have extensive international experience, including in Africa and Ethiopia. According to Mente , their flight crews have made numerous trips to Ethiopia

, hav e operated extensively in Africa over the past 10 years, and have been recognized by aviation organizations for their expertise in African operations

. The

p etitioner contends that passengers face a higher risk when required to travel i n foreign
chartered aircraft in Ethiopia. Additionally

, Mente states that its crews safely completed flights to several Ethiopian airports in November 2013, including Bahir Dar airport, which is just south of the SFAR 87 prohibited airspace

.

Mente also conduct s extensive p re

- trip risk assessments prior to any flight outside of
North America using its own private security resources and will conduct continuing
risk assessment s for operations within the SFAR 87 area

. The petitioner adds that it will maintain frequent contact with Department of State personnel in country

, contributing to its pre

- trip and ongoing risk assessments to determine if conditions support safe flight operations within the SFAR 87 area. It indicated that

, if risk assessments deemed areas unsafe, it w oul d not conduct flights to those areas.

Mente stated the degree of operational control exercised by the p ilot in c ommand (PIC) in its supplemental information, to includ e authority over initiating, conducting, terminating or diverting the flight

. The p etit ioner adds that the PIC will ensure that only operations authorized by this exemption are conducted

, that only crewmembers trained and qualified under T itle 14, C ode of Federal Regulations

, will conduct these operations

, and that other crew members comply with flight and duty time requirements. The PIC will further access all necessary information for the safe conduct of the flight

, to includ e threat assessments

, specifically during pre

- flight

. Mente has granted the PIC the authority to cancel, delay, re

- route , or divert a flight in the event conditions specified for flight release cannot be met. While enroute, Mente
also states the PIC may also divert the aircraft for safety or security event s or if there is

an increase in threat level

, to one of the di vert airports listed in its supplemental
information . The divert airports provided by the petitioner are Addis Abeba (HAAB)

, Bahir Dar (HABD)

, and Djibouti (HDAM).

Mente provided information on how it plan s on using a commercial company for
international trip support

, to includ e aircraft handling and logistics. It outlined its method for flight monitoring and how it would provide aircraft security while on the ground in the SFAR 87 area , primarily by limiting the time that the aircraft would be in
the SF AR 87 area and by having the flight crew remain on board while the aircraft is on4

the ground . Of note, the p etitioner mentioned that, i n the unlikely event that the flight

crew had to leave the aircraft, its policy is for the aircraft to be disabled, the aircraft
doors and hatches locked, and the the aircraft’s security system armed

.

Mente stated it ha s plans on how maintenance will be performed on the aircraft if circumstances arise requiring maintenance that would ground the aircraft, to includ e charter ing a flight to bring maintenance support directly to the aircraft

, if necessary. To avoid the need to refuel at locations within the SFAR 87 area, Mente stated that the
Global XRS aircraft it plan s on using ha s the capability of carrying enough fuel to f ly from any location in Ethiopia to any of the five airports (Axum [HAAX]

, Gondar [HAGN]

, Humera [HAHU]

, Lalibella [HALL]

, and Makale [HAMK]) the p etitioner

propose s to operate at within the SFAR 87 area and then continue on to any of the three
alternate aerodromes listed above.

Mente also provided supporting information to show that its aircraft are properly equipped with navigation and safety equipment for the proposed operations

. The

p etitioner states that its aircraft possess U.S. registry and com ply with the safety and
maintenance requirements imposed by the FAA.

A summary of the petition was published in the Federal Register on January 21, 2014 ( 79 FR 3455)

. No comments were receive d

.

The FAA ’s analysis is as follows : The FAA carefully co nsidered all information presented by Mente and finds that granting the petition for exemption would provide a level of safety at least equal to that provided by the current regulation and would be in the public interest.

Mente describes at length why it believes that SFAR 87 is no longer necessary, citing the peace agreement between Ethiopia and Eritrea, the lack of prohibitions against

cross

- border flights, and the absence of hostile actions against civil aircraft since the
1999 incident. The p etitione r also claim s that unnamed sources at the U.S. Embassy in Ethiopia seek to lift SFAR 87

. Contrary to the petitioner’ s assertion , Ethiopia has
closed certain air routes that cross the border between Ethiopia and Eritrea

, and they
remain closed

. However, Mente d oes not seek to cross the Ethiopia

- Erit r e a border in con ducting its proposed operations and has demonstrate d in its supplemental information that an exemption is appropriate to its particular circumstances. The FAA has determined that granting this exemption , subject to certain conditions and limitations, would provide a level of safety at least equ a l to that provide d by the rule from which it seeks exemption

, as well as, prohibits flights by a U

. S

. operator in the area north of 12 degrees north
lat itude within Ethiopia

. At the time SFAR 87 was issued, open hostilities between the armed forces of Ethiopia and Eritrea, which included modern surface

- to

- air missle systems and interceptor5

aircraft capable of engaging aircraft at cruising altitudes, wer e ongoing near their
common border. The FAA also had concerns regarding the heightened state of readiness maintained by Ethiopian military forces that posed an imminent threat to civil aircraft oper ations in the area, as demonstr ated by the 1999 shootdown of the U.S.

- regist ered Learjet. The FAA was further concerned about the degree of coordination between civil air traffic authorities and military air defense commanders for civil aircraft overflight in Ethiopia, to includ e military rules of engagement, i n the event an aircraft strayed from its assigned route of flight. T here are continuing tensions between the two countries which have led to periodic exchanges of military weapons fire across the border. However, the FAA has determined there have been no recent air defense engagements against aircraft, and the Ethiopian government closed air routes crossing the border with Eritrea several years ago

. In addition, Mente has proposed certain measures to reduce the risks to its proposed operations . The p eti tioner anticipates that its flights will be conducted during the day

, and originate and conclude strictly within Ethiopia n airspace

. The p etition er stated in its supplemental information that flights would be screened with extensive pre

- trip risk

assessmen ts using its own “private security resources,” and that the PIC would access threat assessments and confirm prior to each flight if circumstances still support a safe operation. As part of its pre

- trip and on

- going risk assessment, the p etitioner will
mai ntain frequent contact with the U.S. Embassy and the State Department’s consular resources in country.

The FAA also finds that Mente ’s plan for operational control and flight monitoring

, subject to the additional conditions and limitations required by th e FAA

, will contribute to its safe operation in the SFAR area

. It indicated that the PIC will exercise authority over initiating, conducting, terminating, or diverting flig h ts as necessary to ensure the safety of the aircraft and passengers on board

. It also specified that the PIC will
communicate by satellite telephone with Mente ’s management personnel or a home base of operations prior to takeoff and after landing

, and its threat assessment will be monitored during flight. The FAA acknowledges that Ment e’s aircraft are equipped
with appropriate navigation and safety equipment for the proposed operations.
Finally

, the FAA finds Mente provides sufficient information supporting how its proposed exemption is in the public interest. T he p etition er state d the proposed flights
are humanitarian in nature and would provide needed transportation of personnel and supplies for philanthropic missions by a U.S. charitable foundation conducting vaccine trials and agricultural studies . This work would facilitate the de velopment of new vaccines, hybrid seeds and other agricultural products for the benefit of Ethiopia and beyond

, and could lead to potential discoveries that may have a worldwide impact.6

The FAA’s Decision

In consideration of the foregoing, I find tha t a grant of exemption is in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113 and 44701, delegated to me by the Administrator, Mente, LLC is granted an exemption from 14 CFR

p art 91, SFAR 87 to operate with in the SFAR 87 area and land at and take off from the five airports named in the petition in support of the foundation ’s philanthropic activities described in the petition , subject to the conditions and limitations listed below

.

Conditions and Limitations

1. Aircrew/aircraft will continuously squawk their Air Traffic Control (ATC) assigned transponder codes.

2. Aircrew/aircraft will maintain continuous contact , to the greatest extent possible, with Ethiopian ATC.

3. This exemption applies to the following Mente

- o perat ed aircraft : Global XRS
N194WM and N887WM. Mente will coordinate any aircraft swaps in advance with its assigned F light S tandards D istrict O ffice (FSDO) and must receive prior approval for swaps from the FSDO manager.

4. Any “disabling of the aircraft

, ” as described in the “Aircraft security ” portion of
Mente’s supplemental information dated May 20, 2014

, will be conducted by appropriate ly qualified maintenance personnel and in accordance with all applicable FAA regulations and applicable flight manual s.

5. Recognizing the importance of operational control measures in the context of the proposed operations in the SFAR 87 area, the FAA further requires Mente to have a
means to exercise enhanced operational control while the aircraft is en

- route or during
fl ight. (i.e.

, processes and procedures for communicating time

- sensitive information to the flight crew via on

- board communication equipment of any changes to conditions

, including threat information, that would negatively affect the safe ty of the operation)

. Mente must not allow any flight to take place, u n less all on

- board equipment necessary for flight crews to communi cate with ATC and Mente management or home base is operable and readily available for their use.

6. This exemption is contingent upon Mente’s provision of the following information to the FAA, to the satisfaction of AFS

- 200 :

a. A description of Mente’s “own private security resources

, ” including a copy of

a contract or proposed contract with a provider of security and intelligence information appl icable to operations associated with this exemption ; b. A sample of a pre

- trip risk assessment . Future samples must be available to
the FAA upon request ;

c. A description of the enhanced operational control measure s to be taken in
Condition No. 5 above ; and7

d. A copy of the applicable pages of Mente’s flight operation s manual outlining the procedures submitted to the FAA in its petition containing adjustments

, as
necessary , to address the conditions and limitations contained herein

.
7. Prior to condu cting any opera tions within Ethiopia under this exemption, Mente must secure all necessary permissions from the appropriate auth orities of Ethiopia and, if necessary, other countries. Mente must also comply with the Ethiopia Aeronautical Information Publication (AIP) in c onducting any operations in Ethiopia under this exemption.

8. Ensure that all personnel, including pilots

, participating in or responsible for operations conducted pursuant to this exemption are trained in all aspects of Mente’s proposed operations with in t he SFAR 87 area

. This includ es all conditions and
limitations contained in this grant of exemption and any other Mente processes and procedures regarding operations in Ethiopia relevant to their job functions.

9. If a secu rity

- related incident occurs, Ment e must immediately notify the FAA C urrent
I ntelligence and T hreat E valuation (CITE) Watch at 202

- 267

- 3333.

10. The flight crew must carry a copy of this grant of exemption on all flights operated under this exemption.

11. The operator, prior to conducting any fl ights under this exemption, must complete and
submit to its assigned FSDO the attached document, captioned “Waiver of Claims and Agreement to Indemnify and Hold Harmless the United States of America

, ” containing the operator’s agreement to release the U.S. Government from any and all claims and liabilities, as well as its agreement to indemnify the U.S. Government with respect to any third party claims and liabilities relating to any and all events arising from or related to operations authorized under this grant of exemption.

This exemp tion is also extended to the Mente airmen who will be exercising the privileges of airmen certificates issued by the FAA in connection with the operations authorized under this exemption

, only to the extent necessary to condu ct such operations.

This exemption terminates on July 31, 2016 , unless sooner superseded or rescinded.

Issued in Washington, DC, on J uly 8, 2014

.

/s/ Ricardo Domingo Acting Deputy Director, Flight Standards Service

Enclosure8

Page 1 of 2

WAIVER OF CLAIMS

AND AGREEMENT
TO INDEMNIFY AND HOLD HARMLESS T HE UNITED STATES OF AMERICA

1. In consideration of the Federal Aviation Administration (“FAA”) issuing operations specifications or a letter of authorization to:

____________________________________ [Operator’s corporate name]
(“Operator”) for one or mor e aviation operations in the territory of Ethiopia (the
“SFAR 87 Operations”), pursuant to Special Federal Avi ation Regulation (“SFAR”)
No. 87 , Operator enters into this Waiver of Claims and Agreement to Indemnify and
Hold Harmless the United States of Ame rica (“Waiver and Agreement”), and hereby

—

a. W aives any and all claims and liabilities of whatever type or kind, brought in the United States of America or elsewhere, including without limitation those for personal injury, death, or property damage, that it may assert against the United States of America, or any department, agency, or instrumentality thereof, or any current or former officer or employee thereof, or any of them (the “Government Parties”) arising out of or related to Operator’s SFAR 87 Operati ons;

b. A grees to indemnify and hold harmless the Government Parties against any and all claims or liabilities of whatever type or kind, brought in the United States of America or elsewhere, including without limitation those for death, personal injury, or p roperty damage, that arise out of o r are related to Operator’s SFAR 87 Operations and that may be asserted against the Government Parties by any third person, including without limitation any employee, agent, or supplier or other contractor of Operator; an d

c. A grees to reimburse the United States of America for any and all costs and expenses that the United States of America may incur in defending against the claims or liabilities referred to in paragraph B, above.

2. Nothing in this Waiver and Agreement may b e interpreted to affect adversely any protection provided to Operator

—

a. U nder Public Law 85

- 804, as amended (50 U.S.C. § 1431 et seq .) ; or

b. U nder an effective non

- premium insurance policy that the United States of America issued under 49 U.S.C. § 44305.

3. Th is Waiver and Agreement applies to events occurring during the time period that begins when the first aircraft operated by the o perator enters into t he territory or9

airspace of Et h iopia to which SFAR 87 applies , and terminates when all aircraft operated by the Operator have permanently exited such territory or airspace.

4. Operator understands that this Waiver and Agreement is required as a condition of, and forms part of the proceedings for:

a. A letter of authorization issued by the Director, Flight Standard s Service;

b. A grant of exemption issued pursuant to part 11 of title 14, Code of Federal Regulations; or

c. A grant of approval issued by the Associate Administrator for Aviation Safety or the Deputy Associate Administrator for Aviation Safety

, whichever appl ies.

5. Operator agrees to be bound by this Waiver and Agreement, as indicated by the signature of Operator’s duly authorized representative, who is an Officer of Operator and is authorized to bind Operator.

For:

_____________________________ The Feder al Aviation Administration Operator’s Corporate Name By: By:

_____________________________ ___________________________ Signature Signature

_____________________________ ___________________________ Name (please print legibly) Name (please print legibly)

_____________________________ ___________________________ Title Title

_____________________________ ___________________________ Date Date