Exem ption No. 10278

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

ALAN PENZIAS Regulatory Docket No. FAA-2010-1129

for an exemption from § 91.146 of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated Novem ber 1, 2010, Mr. Alan Penzias, 494 Washington Street, Dedham, Massachusetts 02026, petitioned the Federal Aviation Administration (FAA) for an exemption from § 91.146 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Mr. Penzias to offer passenger-carrying flights that exceed the 25- statute-mile limitation of § 91.146(b)(1) for the benefit of the American Fertility Association, a charitable, nonprofit organization, without being subject to the certification requirements of part 119 or the drug and alcohol testing requirements of part 120.

The petitioner requests relief from the following regulation:

Section 91.146(b)(1) prescribes, in pertinent part, that:

(b) Passenger-carrying flights for the benefit of a charitable, nonprofit, or community event identified in paragraph (c) of this section are not subject to the certification requirements of part 119 or the drug and alcohol testing requirements in part 120 of this chapter, provided the following conditions are satisfied and the limitations in paragraphs (c) and (d) are not exceeded:

(1) The flight is nonstop and begins and ends at the same airport and is conducted within a 25-statute-mile radius of that airport;

AFS-11-041-E2

The petitioner supports his request with the following information:

The petitioner states he would like to offer passenger-carrying flights for the benefit of the American Fertility Association, a charitable, nonprofit organization. The petitioner states that the operations will be conducted under day, visual flight rules for four passengers from either White Plains, New York (KHPN), or Farmingdale, New York (KFRG), to Nantucket, Massachusetts (KACK), and back in one day.

Mr. Penzias states that the exemption would be in the public interest because the funds raised would benefit the association. He also states that an exemption would notadversely affect safety because the flights would be conducted in an Embraer EMB500 (N917MM) and the flight would be conducted with two pilots, himself (a commercial pilot) and Mr. Neil Singer (an airline transport pilot). Mr. Penzias states that he and Mr. Singer have more than 40 hours logged flying this specific airplane together and they have logged numerous landings at KHPN, KFRG, and KACK. The petitioner states that the Boston and Farmingda le Flight Standards District Offices will be notified 7 days in advance of the flight.

A summary of the petition was published in the Federal Register on February 16, 2011 (76 FR 9073). No comments were received.

The FAA’s analysis is as follows:

The FAA has considered the petitioner’s request and supporting materials and finds that a grant of exemption would not be in the public interest and would not provide a level of safety equivalent to that provided by the current regulations.

Section 91.146 was promulgated as part of the National Air Tour Safety Standards rulemaking. See 72 FR 6884 (Feb. 13, 2007). In the preamble to the final rule, the FAA recognized that absent this provision, charitable operations would be subject to the certification requirements of 14 CFR part 119, the operating requirements of 14 CFR part 121 or 135 and the drug testing requirements now codified in 14 CFR part 120. The FAA determined that while allowing these operations to occur under the provisions of 14 CFR part 91 was in the public interest, additional safety measures and limitations were necessary because of the carriage of passengers on these f lights and the need to limit potential abuse of this provision. The first restriction, the 25-nautical-mile limitation, is designed to limit these flights to truly sightseeing flights and not provide for the transport of passengers from one location to another. This was not a new limitation but a longstanding requirement stemming from the provisions and interpretations of 14 CFR § 61.113. See 72 FR 6886.

In this instance, the petitioner is proposing to conduct two one-way flights, which begin at an airport 155 nautical miles or more away from the destination airport. In his request for exemption, the petitioner has not demonstrated how operating a passenger-carrying flight outside the 25-nautical-mile limitation provides an equivalent level of safety to the provisions of § 91.146. Given the transport of passengers from one location to another that this3

exemption, if granted, would permit, this appears to be the type of commercial operation that this rule was expressly designed to limit.

The petitioner states that he proposes “to offer a passenger carrying flight for the benefit of the American Fertility Association....” There is no substantive evidence from the petitioner as to how, and to what degree, the charity will benefit, nor is there is any information on the mechanism for how funds will be generated.

In addition, there is no evidence submitted by the petitioner as to whether this request is a one-time request or a schedule in accordance with § 91.146(c), nor is this request in support

of a scheduled event.

Finally, the FAA notes that the aircraft proposed for use in this operation is an Embraer-500 Phenom 100, a twin-engine jet aircraft with a service ceiling of 41,000 feet. Although the petitioner indicates that the operation will be conducted under day, visual flight rules conditions, it seems that the aircraft is more suited to instrument flight rules (contrary to the visual meteorological conditions of § 91.146(b)(6)), particularly when considering that proposed leg length is 155+ nautical miles.

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exem ption 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 Mr. Alan Penzias for an exemption from 14 CFR § 91.146 is hereby denied.

Issued in Washington, D.C., on June 1, 2011. .

/s/

David C. Gillion Acting Deputy Director, Flight Standards

Service