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Tel: 978.562.9182 ● Fax: 978.568.8231 ● info@collingsfoundation.org ● www.collingsfoundation.org 

### T H E C O L L I N G S F O U N D A T I O N

P . O. Box 24 8, 1 37 Ba r t on Roa d , St ow, M A 01 7 7 5

`

December 22 , 2010

RE: EXEMPTION No. 6540L Regulatory Docket No. FAA

- 2001

- 11089

John W. McGraw

, Acting Director Flights Standards Service

Federal Avia tion Administration 800 Independence Ave. Washington, DC. 20591

APPLICATION FOR PARTIAL RECONSIDERATION

OF OCTOBER 26 2010 EXEMPTION LETTER

Dear Acting Director McGraw,

By letter you authored on October 26, 2010 the FAA denied in p art a petition of The Collings Foundation (“TCF”) regarding its request to remove limitations imposed on 6540K.

TCF respectfully requests that you reconsider that denial on a substantive basis and also requests an expedited reconsideration on a procedur al basis in contemplation of 14 CFR 11.101 [a] TCF has significant additional facts, [b] the FAA made several important factual errors, together with the contention that [c] the FAA did not correctly interpret and apply a law, regulation, or precedent

.

T CF’s positions may be fairly summarized as follows:

A. THE PROHIBITION OF AEROBATICS

THE AGENCY’S ANALYSIS2

Tel: 978.562.9182 ● Fax: 978.568.8231 ● info@collingsfoundation.org ● www.collingsfoundation.org 6540 Paragraph 35. “... [ T ] he PIC is prohibited from performing aerobatic flights while passengers are aboard the aircraft. ”

“ Passengers wish ing to experience aerobatics can obtain rides in aircraft type certificated for aerobatics. The living historical flight experiences (LHFE) are designed to provide for experiences not otherwise available to the public. Therefore, the conditions and limitat ions regarding aerobatic flight will remain in effect. These limitations will be added to all LHFE exemptions in order to clarify the intent of the exemptions”

TCF RESPONSE

In the meeting on December 15 th 2010 chaired by Mel Cintron it was stated by the FAA that the intent of the Exemption program all along has been not to include aerobatics and that it never has been allowed. There is no FAA policy that supports this statement. TCF has been involved with the Exemption letter process since 1996 when we

r eceived the first Exemption letter. The intent of the FAA previous to the publication of 72 FR No. 194 is irrelevant since that modified the policy.

As a matter of reference Coll ings Foundation was an attendee of an FAA gathering of stakeholders at EAA headquarters previous to the publication of 72 FR No. 194. The meeting was chaired by John Allen to get feedback on the future of the Exemption program. Aerobatics was discussed in the meeting, with the only concern of the FAA being egress from fighter typ e aircraft that did not originally have a second seat and the need for ejection seats to comply with 91.303. It was never discussed that aerobatics was against FAA “intent”

.

11/17/09: In a meeting chaired by John Allen with TCF the issue of ejection seats was a primary issue. When it was suggested by the FAA that the seats be made “cold” TCF stated that not only is that a safety issue but additionally TCF would not be able to comply with 91.303. If the intent of the FAA was not to allow aerobatics it would have been brought up at that time.

12/10/09: In a meeting chaired by Mel Cintron TCF presented our egress and ingress route out of Ellington Field. This route included an area boxed out as our maneuvering area in order to comply with 91.303. The FAA wa s well aware of what complying with 91.303 means and did not raise an issue that aerobatics were not the

intent of the E xemption program.

5/13/10: In a meeting chaired by Mel Cintron TCF discussed the prohibition of aerobatics in Exemption 6540J. It was stated by D ennis Pratte that the provision was added to comply with 91.146 which does not have any bearing on Exemption activities. It

was never stated that it was the intent of the FAA not to allow aerobatics.

Historically, the FAA has never made the argument that aerobatics were not the intent of the program. Therefore:3

Tel: 978.562.9182 ● Fax: 978.568.8231 ● info@collingsfoundation.org ● www.collingsfoundation.org

[a] The FAA made factual errors and did not correctly interpret current FAA objectives

. The limitation prohibiting aerobatics by the FAA was arbit rary and contrary to its Policy in 72 FR No. 1 94 and Precedent

.

[b] There is no FAR’s including 91.303 (Aerobatics), 91.315 (Limited Category Aircraft) or 91.319 (Experimental Category Aircraft) that prohibit aerobatics with passengers onboard these aircraft. In fact the Operating Limitations specif ically allow any aerobatic maneuver that had been demonstrated in Phase I (test phase of Experimental Aircraft)

[c] Nowhere in the F.R. Vol. 72 No. 194, the rules and guidelines for issuance of Exemption letters, does it state that aircraft are prohibit ed from aerobatic flight. In fact it

states in section 16. “Passengers must be fully informed of the risks associated with the proposed rides, and that occupying a seat in these aircraft may subject the rider to a high level of risk”. This passage specific ally addresses the risks of an aerobatic flight.

[d] 72 FR No.194 (4) states: “ Passenger training programs must be at least as thorough as what is provided by the manufacture or military service user when preparing an individual for a “familiarization” f light ”

. Military familiarization flights do entail

aeroba tics . Therefore it was the intent of the FAA to allow this activity.

[e ] Significant Additional Fact : There are NO “experiences otherwise a vailable to the public” in Standard category aircraft that are similar to LHFE flights. Just because you could fly aerobatics in a Citabria, T

- 6 or even an Extra does not make it the same as a

P

- 51, A

- 4 or F

- 4. The FAA’s statement completely go es against t he intent of the

Ex e m ption program. It would be like saying that anyone that wishes to fly in a B

- 17 can fly in a DC

- 3 instead since it is standard category!

[f ] Significant Additional Fact : The vast majority of riders in a fighter type

aircraft want to do some form of aerobatics. If this option is taken away then they will not fly as that is the experience that the participants want. This will cause an unfair economic

burden to TCF.

[h ] Precedent : No other FAA issued Exemption Letter has had this pro vi sion in the past and even Exem ption letters issued after T CF

, C ommemorative A ir F orce
, and

C avanaugh F light M useum have not had these restrictions.

TCF PROPOSED RISK MIDIGATION4

Tel: 978.562.9182 ● Fax: 978.568.8231 ● info@collingsfoundation.org ● www.collingsfoundation.org TCF request modifi catio n exemption 6540L Paragraph 37 as written:

“ The PIC is prohibited from performing aerobatic fl ight while passengers are onboard the aircraft ”

.

C HANGE TO READ :

37. Aerobatic maneuvers other must be completed at, or above 3,000’ AGL. Only pilots who are evaluated on aerobatics during their initial qualification/recurrent flight training are authoriz ed to perform these maneuvers.

B. THE PROHIBITION OF MANIPULATION OF FLIGHT CONTROLS

THE AGENCY’S ANALYSIS

6540 Paragraph 40

. “No persons other than the assigned flight crewmembers may be permitted to manipulate the flight controls during flight ope rations”.

TCF RESPONSE

[a] Exemption holders are exempt from 91.315 and 91.319 (a) (2) to allow Limited or Experimental category aircraft from carrying passengers or cargo for compensation or hire. Nowhere in Part 91 does it prohibit these Limited or E xperimental aircraft from allowing a passenger to manipulate the controls, not flight training, unless other passengers are carried. Manipulation of flight controls is a basic ability that all pilots flying under part 91 have extended to passengers to shar e the joys of flight and does not constitute flight training. The Exemption holders do not advocate nor are asking for the ability to give “stick time” on a B

- 24 or B

- 17 (multi pax aircraft) during an exemption flight. A passenger should not be able to man ipulate the controls unless he/she is the only passenger on board (two person aircraft) and does not occupy the pilot station

as outlined in the limitations. T his limi tation should be modified since it does not correctly interpreted the law and follow prece dent.

[ b ] 72 FR No.194 (4) states: “ Passenger training progra ms must be at least as thorough as what is provided by the manufacture or military service user when preparing an individual for a “familiarization” flight ”

. Military familiarization flights do entail the manipulation of the controls when it is a dual contr ol aircraft. Therefore it was the intent of the FAA to allow this activity.

[ c ] Incorrect interpretation of law : 72 F.R. 57197, the rules and guidelines for issuance of Exemption letters, does not state in any section that a passenger cannot5

Tel: 978.562.9182 ● Fax: 978.568.8231 ● info@collingsfoundation.org ● www.collingsfoundation.org manipulate the controls. In fact since the flight are for living history, not sig htseeing as outlined therein. The use of the controls, provided it is not at the pilot station, would be an essential part of the experience.

[ d ] Precedent : No other FAA issued Exemption Letter until now has had this provision.

[ e ] This limitation is n ot in line with any current FAR since it is not defined as flight training, but manipulating the controls. Nowhere in the F.R. does it prohibit this from taking place. Application of this as an FAA policy would have a devastating impact

on many great progr ams. Also, there is long standing precedent that this provision has not ever been part of any exemption letter for organizations that operate dual control aircraft that do not require an SIC. If this precedent for allowing manipulation of the flight

contr ols is overturned it will cause great harm too many major organizations that currently fly experience flights in several types of dual control aircraft under their exemption letters that allow this.

TCF PROPOSED RISK MIDIGATION

TCF request modifi cation exe mption 6540L Paragraph 40 as written:

“ No persons other than the assigned flight crewmembers may be permitted to manipu late the flight controls during flight operations ”

.

C HANGE TO READ :

In aircraft that only require one pilot and are equipped with two sets of controls, the pilot may allow a hands on demonstration of flight characteristics during cruise conditions at, or a bove 1,000’ AGL.

For the above reasons, TCF respectfully asserts that it meets all of the crit eria in the P olicy for an Exemption with out the prohibition of aerobatic flight and the manipulation of the flight controls.

The conclusion is compelled that you reconsider your denial and grant TCF a n amended Exemption letter 6540 that adopts the proposed risk mitigation language.

Very t ruly y ours
,

/ s /

Robert Collings

E xecutive Director The Collings Foundation