Exemption No. 10598 A

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

BELL HELICOPTER TEXTRON Regulatory Docket No. FAA

- 2012

- 0123

CANADA LI MITED

for an exemption from § 27.1

of Title 14, Code of Federal Regulations

DE CISION ON PETITION FOR RECONSIDERATION

By letter dated January 16, 2012, Mr. M. Peryea, VP BHTCL Engineering, Bell Helicopter Textron Canada Limited (Bell Canada), petition ed the Federal Aviation Administration (FAA) on behalf of Bell Canada for an exemption from § 27.1 of Title 14, Code of Federal Regulations (14 CFR). The exemption, if granted, would have allowed type certification of the Bell 429 model helicopter with an increase in the maximum gross weight from 7,000 pounds to 7,500 pounds under part 27 of the Federal Aviation Regulations (14 CFR part 27) as a normal category

rotorcraft.

By decision dated August 13, 2012, the FAA denied the petition. On October 10 , 2012, Bell

Canada submitted its P etition for R econsideration

.

Standard/ R egulatory basis:

A petition for an exemption from the requirements of a current regulation must include specific

information to be submitted to the FAA

. 14 CFR §§ 11.15, 11.81. T hat infor mation must include the reasons why granting the request would benefit the public as a whole, and the reasons why granting the exemption would provide a level of safety at least equal to that provided by the rule under which the exemption is sought. 14 CFR § 11.81(d)

- (e). The FAA publishes information about petitions for exemption in the Federal Register and invites comments from the public to assist in evaluation of the petition. 14 CFR § 11.85.2

Where a petition for exemption is denied, the petitioner ma y request that the FAA reconsider the denial. The FAA will accept petitions for reconsideration that show: (1) there is a significant additional fact with an explanation why the fact was not presented in the original petition; (2) that the FAA made an impo rtant factual error in its denial of the original petition; or (3) that the FAA did not correctly interpret a law, regulation, or precedent. 14 CFR § 11.101.

Summary of c omments r eceived and FAA’s r esponse :

The FAA published a summary of the P etition for R econsideration in the Federal Register on December 18, 2012 (77 FR 74914 )

, to allow interested parties to submit their comments to the

FAA

. The FAA received f ifty

- seven comments. The majority of the commenters wer e from

Bell 429 operators or those associ ated with the product

, and they supported the reconsideration petition

. The se included part 27 rotorcraft manufacturers, several emergency medical service (EMS) organizations, law enforcement departments, helicopter maintenance facilities, governmental off icials at both state and local levels (including the Governor of Texas and Mayor of Fort Worth) , and other businesses and individuals who own or were looking to purchase

Bell 429 helicopters

. T he comments oppos ing the reconsideration petition were from thr ee other

part 27 rotorcraft manufacturers.

Several comment er s submitted general comments in support of granting the petition without providing any additional information or quantifiable data not already addressed in the original

denial decision for the FA A to consider.

Some comments discuss ed the rotorcraft competitive market in the U.S. and considered the FAA’s denial of the exemption to be political in nature. Similarly, commenters stated that U.S.

economic considerations should take priority over the e conomics of non

- domestic

manufacturers. We disagree that denial of the exemption wa s based on political considerations.

T he Denial Order (“Denial”) noted that the exemption sought by Bell Canada would place the Bell 429 at a competitive advantage. T his poi nt illustrated the unfair consequence that would result from granting the exemption request , which essentially amounted to a request to deviate

from the applicability sections in parts 27 and 29

.

The majority of the comments supporting the reconsideratio n petition cite many benefits the

Bell 429 would provide with an increased weight. One commenter preferred the design and technology of the Bell 429 to that of other

, older part 27 rotorcraft. However, these comments

are either the same as those provided b y the petitioner in its original petition or do not provide any additional information for the FAA to consider.

Two commenters state that because the Bell 429 is certificated to operate at 7,500 pounds with an external load, it is clearly capable of safel y operating at that weight. We disagree

, and the

commenters do not show how t he certification standards for maximum take

- off weight equate to

the certification standards for t otal weight with a jettisonable external load

.

Several commenters suggested the exemption should be granted because the FAA ha s granted previous exemptions for maximum gross weight . These comments are the same as those3

provided by the petitioner in its original petition or do not provide any additional information for

the FAA to consi der.

A few commenters stated that certification of the Bell 429 under part 29 would either be economically unfeasible or would result in an increased cost to Bell Canada ’s customers. The

FAA ’s exemption process addressed whether a petitioner has met the a gency’s standards, not the

costs involved. If Bell were to pursue certificating the 429 to part 29, which it has not to this point, the costs and benefits of stepping up to part 29 standards would be a business decision for

Bell and its current Bell 429 cu stomers.

Lastly, s ome commenters stated the current 7,000 pound maximum gross weight limit for part 27 rotorcraft is arbitrary and addressed the need for a regulatory change

. There w ere also comments relating to a product gap for rotorcraft , mostly due t o economic reasons, in the 7,000 to 10,000 pound range. T he FAA finds t hese comments more relevant to the request for public interest on regulatory reform of the certification standards for parts 27 and 29 rotorcraft initia t ed in February

2013

. Interest in Restructure of Rotorcraft Airworthiness Standards

, 78 FR 12254 ( Feb. 22,

2013 ). These comments are outside of the scope of th e petition for reconsideration but will be

retain ed for future rulemaking consideration

.

Issues raised by the petitioner:

1. Whe ther the Denial Order m ade an important factual error or did not correctly interpret a law, regulation, or precedent as to whether granting the exemption would provide a level of safety at

least e qual to that provided by § 27.1

.

2. Whether the Denial Orde r made an important factual error or did not correctly interpret a law, regulation, or precedent as to whether granting the exemption would be in the public interest.

3. Whether the petitioner presents a significant additional fact not presented in its or iginal petition and showing why the additional fact was not presented in the original petition

.

The FAA’ s analysis follows:

At the outset, the FAA observes that Bell Canada ’s petitions fail to address the threshold legal issue of whether it may seek an exemption to an applicability provision of the FAA’s regulations. It may not. Even were it able to request such an exemption, neither Bell Canada ’s original petition nor its latest petition seek to show how a grant would not adversely affect safety or

wou ld provide an equal level of safety. Instead, Bell Canada seeks to associate its situation with other exemptions that the FAA has granted in the past. Finally, Bell Canada does not show how grant of its petition would benefit the public as a whole.

Exempt ions apply to requirements

A grant of exemption relieves an individual or entity from the requirements of a current regulation and thus does not apply to Bell Canada ’s petition . The petition for exemption at issue4

requests relief from the “7,000 pound max imum gross weight limit” of s ection 27.1(a). T hat

section defines the rotorcraft to which part 27 applies

. That section does not itself contain regulatory requirements. The FAA’s regulations describe an exemption as a request for relief from the requiremen ts of a regulation

, 14 CFR § 11.15. By requesting an exemption to the applicability of part 27, the p etitioner, in essence, request ed an exemption from all of the regulatory requirements of part 29 (which applies to rotorcraft weighing more than
7, 000 poun ds). This legal issue is the heart of the petitioner’s exemption request , and one that the FAA cannot, as a matter of law, grant

. From one perspective, Bell Canada ’s petition is, as is evident from the comments above, the equivalent of a petition for rulem aking to change the applicability of part 27. If not that, Bell Canada might have been better served by petitioning for an exemption to the prov isions with which it takes issue in part 29

.

While we recognize that a denial on this basis appears contrary to an exemption granted to ICON

Aircraft 1 (ICON) from multiple regulations applicable to special light sport aircraft (SLSA) , the

conditions of each situation are quite different. Where Bell attempted to avoid certain requirements of part 29, the ICON exempt ion allowed the FAA to effectively account for the

innovative spin

- resistant airframe (SRA) technology that it had not considered in its original rulemaking. ICON sought to operate above the maximum takeoff weight for light sport aircraft

so that it could incorporate a n SRA in the design of its Model A5

. As a threshold matter, SLSA are not produced under type and production certification procedures. Unlike airplanes under parts 23 and 25

, and rotorcraft under parts 27 and 29, there are no airworthiness sta ndards for SLSA that are required to be met before the FAA will issue a type certificate. The only certification regulations concerning SLSA are found in part 21, and they do not specify airworthiness standards. ICON’s only alternative in designing the A5 with an SRA would have

be en to seek type certification under part 23 as an airplane weighing 12,500 pounds or less with a seating capacity of nine or fewer passengers

. This would have required ICON to demonstrate compliance with the airworthiness standards contained in part 23 , much of which are unnecessary to establish a level of safety appropriate for the type of operation permitted for

SLSA

. For example, SLSA are prohibited from being used for compensation or hire except in limited circumstances. They a re limited to carrying no more than one passenger. Compared with airplanes certificated under part 23, they are significantly limited in airspeed, equipment, engine power, and weight.

Moreover, the ICON exemption, which was granted after issuance of the D enial to Bell Canada, specifically recognized that ICON’s petition was unique and distinguishable from previous

denials of petitions for relief from weight limitations. In granting the ICON exemption, the FAA recognized its seeming departure from previou s actions concerning maximum takeoff weight and emphasized the non

- precedential value and limited application of granting such an exemption.

Bilateral Aviation Safety Agreement

Contrary to the arguments in the petition, t he FAA acted in accord with the international validation request process . V alidation procedures and the provisions of the Bilateral Aviation

1 ICON Aircraft, Exemption No. 10829 (July 24, 2013).5

Safety Agreement (BASA) between the U nited S tates and Canada do not cover exemptions. In fact, Transport Canada Civil Aviation ( TCCA ) made no stat ement of compliance when granting

its exemption to the petitioner . T he FAA/TCCA BASA , and its Implementing Procedures for Airworthiness, provide s an exchange of validity only for certifications made by the exporting civil airworthiness authority, and not f or exemptions. Although t he petitioner claims the FAA departed from the international validation and should have instead accepted the findings of TCCA as to the safety aspects of granting a gross weight exemption, as well as the determination

of TCCA that the exemption was in the public interest , we do not presume that the conditions imposed by TCCA in granting Bell Canada its exemption for the Bell 429 would achieve part 29 compliance or equivalence. The petitioner is required to make that showing , and did not do so

.

Past exemptions

The Denial is consistent with the FAA’s past grants of exemption. The petitioner contends that the FAA’s decision to continue to distinguish part 27 from part 29 certification by weight contradicts grants of exemption issued t o Terrafugia, Inc. (Terrafugia), 2 Indigenous People Technology and Education Center (ITEC), 3 and Ameriflight, Inc. (Ameriflight). 4 However, these grants of exemption are distinguishable from Bell Canada’s petition.

Terrafugia sought an exemption from § 21 .190(c)(2), which requires a light

- sport aircraft to meet consensus standard provisions

. Terrafugia sought certification of its aircraft in the special light

sport category under the consensus standards for roadable aircraft . Under §1.1, light

- sport
aircra ft have a maximum takeoff weight of not more than 1,320 pounds ( when not intended for operation on water ) or 1,430 pounds ( when intended for operation on water ) . Terrafugia designed its roadable aircraft for dual

- use operation in two separate transportatio n modes. As a result, and in order to meet Federal Motor Vehicle Safety Standards, the aircraft needed additional systems similar to those required for light

- sport aircraft intended for operation on water. The FAA issued a partial grant of exemption to Ter rafugia, subject to specific conditions and limitations. Unlike Bell Canada’s petition for the Bell 429, Terrafugia had no alternative for certification, as consensus standards did not exist to address light

- sport roadable aircraft

. Moreover, not only was the increase in weight limited to use for those safety features required for driving on the road, but it satisfied § 1.1’s definition of one kind of light sport aircraft, namely, light

- sport aircraft intended for operation on water, because it weighed less than the 1,430 pounds of the definition . The grant of exemption issued to Terrafugia specifically did not extend to an increase in weight for conventional configuration safety enhancing equipment. The exemption request for ITEC was granted based on simila r circumstances and reasons.

Likewise , there is no similarity between Bell Canada’s petition and the Ameriflight grant of exemption. The petitioner claims in granting the Ameriflight request the FAA “breached the

wall” between p arts 135 and 121 to permit an aircraft to be operated above the 7,500 pound weight limit for on

- demand (part 135) operations. But unlike the petition for the Bell 429, the

2 Terrafugia, Inc., Exemption No. 10072 (May 27, 2010).

3 Indigenous Peoples Technology and Education Center, Inc., Exemption No. 10450 (Feb. 15, 201 2).

4 Ameriflight, Inc., Exemption No. 8480A (April 21, 2006)

.6

Ameriflight grant of exemption did not involve an increase in the aircraft’s certificated maximum takeoff weigh t. Additionally, the Ameriflight grant of exemption was limited and conditioned upon Ameriflight’s compliance with regulatory provisions above those required for an operation under part 135. In granting the exemption, the FAA found the conditions and

limit ations of the exemption ensured an equivalent level of safety to part 121 supplemental operations and in part exceeded part 121 requirements. The FAA also found that Ameriflight’s circumstances met a unique demand that only a limited population of aircraft could fill. Contrary to the arguments by the petitioner, the FAA has found that the features of the Bell 429 are common on other rotorcraft without the need for an increased weight.

Safety

The petitioner argues that by f ocusing exclusively on gross weig ht , the Denial ignores the effect

of the 1999 amend ment to part 27 and results in a decision that places form over substance

. This argument neither provides new information nor shows how the Denial made an important factual error or incorrectly interpreted a law, regulation, or precedent. As with its original petition, rather than demonstrating that grant would not impair safety or provides an equivalent level of safety,

Bell Canada focuses instead on arguing similarity with other grants and contesting the FAA’s approach to improved safety standards through rulemaking over time.

It is th e petitioner’s burden to demonstrate that granting its exemption request would not adversely affect safety. Both the original petition and the petition for reconsideration f ail to meet

this burden. T he petitioner questions the failure of the Denial to make specific findings as to

whether Bell Canada has met the safety requirement of part 11

. The p etitioner is correct that the

Denial d id not address the relative safety of the Bell 429 with an increased weight. However,

w hile Bell Canada ’s original petition discussed several features of the Bell 429, it did not address how those features would provide a level of safety at least equal to that currently provided by the
7, 000 pound limit on maximum gross weight for normal category rotorcraft

. 5 Thus, the petitioner provided the FAA no basis upon which to assess the safety issue.

The petitioner also argues that, w ith additional equipment required by TCCA, the Bell 429 meets

97.8% of part 29 requirements or provides an equivalent level of safety to part 29 requirement s

. Similarly, throughout the petition, the comparison is made between the part 29 bird strike and flaw tolerance exemptions granted to Eurocopter and the s ection 27.1(a) a pplicability exemption sought by Bell Canada

. The p etitioner ’s assertion that the Bell 429 meets “almost all” of the

current part 29 requirements gives even more weight to the FAA’s position that the p etitioner

could have , and should have (as Eurocopter di d)

, sought certification of the Bell 429 under

part 29 and requested exemptions for those part 29 requirements the aircraft could not meet. Understandably, certification under part 29 is more burdensome. Y et it appears the petitioner

wishes to be granted t he same regulatory relief as Eurocopter and other manufacturers who pursued the more burdensome path, without the petitioner taking that path itself

.

5 It is also for this reason that the ICON grant of exemption is distinguishable. ICON provided sufficient data for the FAA to determine that the ICON A5 provides an equivalent level of safety , and possibly a greater level of safety,

than aircraft that meet the maximum weight set forth in14 CFR § 1.1 for light sport aircraft.7

T he additional equipment required by TCCA , which the petitioner claims provide s the Bell 429

with almost an equivalent level of safety to part 29

, is not unique to the Bell 429. Such equipment is readily available and exists in many other part 27 rotorcraft for which a weight exemption was not sought or needed

. 6 Moreover, as s uggested in the Denial, Bell 429 operators have the option of removing some equipment in order to seek and obtain approval to install additional equipment and still comply with the part 27 weight limitation. The petitioner states this amounts to “removing safety equipment to increase payl oad” as a solution

. While the petitioner acknowledges its business decision to include many safety enhancements as standard features for the Bell 429, it fails to acknowledge that this same decision resulted in designing the

Bell 429 at the maximum gross w eight allowed under part 27, impeding any opportunity for future growth and safety enhancing design improvements. The petitioner’s election to certificate

the Bell 429 to part 27 under those circumstances has resulted in challenges with its customers’

desi res.

The argument throughout the petition that the FAA is applying a regulatory “grandfathering” unfairly to Bell Canada is unavailing and fails to establish the safety of the exemption. T he petitioner states that other helicopter models operate under par t 29 without meeting current regulatory standards and therefore, it cannot be unsafe for the Bell 429 to do so. The petitioner is correct to the extent that, before the FAA certificates any helicopter model, we require that

model to meet the airworthiness standards in effect at the time of application for certification. This is true for any helicopter manufacturer, including Bell Canada and its older rotorcraft models. Over the years, airworthiness standards have continued to advance the required

minimum le vel of safety. The reality of such an evolving set of standards is that a more recently

- certificated rotorcraft can claim to exceed the standards to which older (or derivative)

models were certifi cat ed

— a claim Bell Canada itself may take advantage. However , this argument, as well as the petitioner’s comparison of the Bell 429 to older part 29 rotorcraft models, is not relevant to whether the exemption should have been granted.

The petitioner ’s conten tion that the FAA erred as a matter of law and fact in fi nding that an exemption would not serve the public interest is also unpersuasive

. T he petitioner claims

p recedent and the agency’s own economic analysis establish that granting the exemption would provide important public benefits , and argues that its exem ption request is “almost identical” to previous weight limitation exemptions granted to Agust a S.p.A. (Agusta)

, McDonnell Douglas

H elicopter Corp

. (McDonnell Douglas)

, and Kaman Aerospace Corp

. 7 While the FAA review s such exemptions for precedent, the fact that other exemptions have been granted does not ensure that further exemptions will be granted. Each case must be analyzed individually as to whether

6 Again, unlike Bell Canada, ICON did not seek relief to incorporate a safety feature that already existed in designs

b y other manufacturers who had not exceeded the established weight limit. Rather, ICON sought approval for extra weight solely to incorporate a new and unique safety feature, spin resistance, not found in other SLSA. ICON’s spin resistance technology direc tly addressed the leading cause of general aviation fatal accidents . In addition, the FAA had not initially considered SRA in establishing the regulatory maximum takeoff weight for light sport aircraft.

7 Agusta S.p.A. Exemption No. 6518 (Oct. 9, 1996); McDonnell Douglas Helicopter Systems , Exemption No. 6505 (Sept. 5, 1996) ; Kaman Aerospace Corp. , Exemption No. 6433 (April 25, 1996)

.8

t he conditions and rationale justify relief from a regulatory requirement

. As explained in the Denial, t he exemptions cited by the petitioner were granted after the FAA determined that an increase in gross weight for part 27 helicopters was necessary for the entire helicopter community, but prior to final rulemaking. Such is not the case here. To the extent t he petitioner

understood the Denial to requir e that rulemaking for the entire community be underway or an industry consensus exists before Bell Canada ’s petition could be granted , we did not intend for

the Denial to imply that the FAA relied on such think ing

. Instead, the Denial merely provided the historical context for those exemptions. Additionally, to the extent those exemptions addressed applicability provisions, they suffer the same logical flaws as Bell’s current petition as discussed

above.

Public interest

The Denial did not exclude EMS patients from its consideration of public interest, despite t he petitioner ’s argument that it did . In fact, t he FAA ’s position is that public interest includes more than Bell 429 customers and EMS patients. Public interest includes the entire populous

, and the

Denial found that there would be very minimal economic benefit to the overall public from granting the petition . As stated in the Denial , other normal category helicopters that do not require a gross weight ex emption are currently operating or available in the market and can achieve similar operational capabilities proposed by the petitioner

.

The Denial did not err in its competitive analysis by considering the interests of manufacturers

located outside the Un ited States

. The Denial does not affect whether Bell Canada produces the

Bell 429; rather, it affects under which part of the regulations the helicopter is certificated.

Bell Canada is also a non

- domestic (non

- U.S.) manufacturer , and it is not the only non

- domestic

manufacturer to have facilities in the United States. Similarly, t he petitioner argues t he D enial should have considered the impact of the exemption on U.S. j obs. However, the denial of the petitioner’s exemption request does not prevent the manu facture of the Bell 429. Bell Canada

can create the same number of jobs by pursuing certification of the Bell 429 under part 29 or by building other Bell Canada helicopters.

Lastly, to the extent the petition states it has presented significant additiona l facts, they are not clearly identified or explained in the petition. In addition, when significant additional facts are submitted with a reconsideration request, they must include an explanation of why the y were not presented in the original petition ( 14 CFR § 11.101 ) . The petitioner provides two explanations for its submission of additional facts. The first is that the Denial relied upon information submitted by commenters during the comment period, which failed to give the petitioner a procedural opport unity to respond. This argument not only incorrectly describes the findings in the Denial, but it also depicts a situation present for every exemption request published in the Federal Register. The second is that the petitioner did not believe certain info rmation was necessary because of prior exemptions granted by the FAA. Petitioner’s strategic decision failed to account for differences between its petition and the earlier exemptions on which it relied. Neither explanation adequate ly justifi es the petitio ner’s fail ure to submit its data with its original exemption request or supports the petitioner’s position that the FAA erred by considering all information before it prior to rendering its decision

.9

The FAA’s Decision:

In consideration of the foregoing

, I find that this grant of exemption would not be in the public interest and that the case presented on reconsideration does not warrant a change to the original

conclusions. The petitioner may have submitted additional details to support its exemption

pet ition but there was no new information to consider beyond th a t provided in the original petition for exemption. I find that there were no factual errors or incorrect interpretation s of law, regulation, or precedent by the FAA in the denial of the original petition. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, reconsideration of the petition of Bel l Helicopter T extron Canada Limited for an exemption from 14 CFR § 27.1 is denied.

Issued in Washington, DC , on October 17, 201 4.

//s//

Michael G. Whitaker Deputy Administrator