# TatonO

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d/b/a Everts AirAlaska, d/b/a/Everts AirCargo • P.O. Box 61680, Fairbanks, AK 99706-1680 • (907) 450-2345,fax: (907) 450-2320 • www.evertsair.com February3, 2014
Docket Management Facility US DepartmentofTransportation 1200JerseyAvenue, SE West Building Ground Floor Room W12-140 Washington, D.C. 20590

DearSiror Madam, c:;

Please find enclosed an original and three copies ofa petition for an exemption from Everts Air Cargo (EAC) for relief from certain previsions of 14 CFR Part 121.321, a newly implemented regulation. The petition addresses a unique situation, which, if not addressed promptly, will unnecessarily restrict operations of EAC's Curtis Wright C-46 Aircraft within Alaska and prevent EAC from providing food, medicine and other essentials to isolated Alaskan communities. Further, replacement services, ifany, for the C-46 will be operated underthe lesser safety standard of Part 135, thereby degradingthe overall safetyofflights into remoteAlaskan destinations. During the colder months, as contaminated runways and landing facilities in poor condition become the norm rather than the exception, the need for exemption relief becomes urgent. Accordingly, we respectfully askthatthis matterbe processedwithout publication in the Federal Register and the exemption granted as a matter of urgency thereby serving the public interest and assuring the highest standard of safety for EAC's continued C-46 all-cargo operations in icing conditions.

Enclosures

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d/b/a Everts AirAlaska, d/b/a/EvertsAirCargo • P.O. Box 61680, Fairbanks, AK 99706-1680 • (907) 450-2345,fax: (907) 450-2320 • www.evertsair.com

February3, 2014
Docket Management Facility US DepartmentofTransportation 1200JerseyAvenue, SE West Building Ground Floor Room W12-140 Washington, D.C. 20590

Re: Requestfor Exemption Petitioner: TatondukOutfitters Limited., d.b.a EvertsAirCargo by its President, Mr. RobertW Everts
Petitioner's Contact Information: EvertsAirCargo 5525Airport Industrial Road Fairbanks, Alaska 99709 (907) 450-2345 zadams@evertsair.com Background: CJ

Tatonduk Outfitters Limited, doing business as Everts Air Cargo, (the "Petitioner" or "EAC"), holdsAirCarrierCertificate Number FXGA030Aand has operationsspecifications authorizing it to conduct supplemental operations in common carriage pursuant to Title 14 Code of Federal Regulations (CFR) 119.21(a)(3)

. The Petitioner primarily provides intrastate transportation of cargo, mail and commodities essential to commerce and the sustainability of outlying communities and villages, as well as serving the Department of Defense within the State of Alaska.
As discussed in detail below, the Petitioner seeks specific relief from 121.321 in orderto allow for continued operations of its Curtiss Wright C-46 Series Cargo Airplanes (the "C-46") in supportofnumerous isolatedAlaskan communities.Petitioner is the only aircarrier operating the C-46 ih the United States. Petitioner utilizes its C46 aircraft solely to conduct all-cargo, supplemental, operations within the state ofAlaska and will accepta condition tothis effect. Byway ofbackground, the C-46 was type certificated in 1940 underthe provisions ofCAR 3A2. As an older aircraft with limited commercial usage, there is,· understandably, little likelihood of the successful development, certification, and production ofeithera PrimaryAirframe Detection System or an Advisory Airframe Detection System for this aircraft within a foreseeable timeframe orwithin practical economic constraints. As such, the C-46 cannot complywith either 121.321(a)(1) or 121.321(a)(2). Further, the C-46flight manual specifically prohibits continuous

- de-icing while in flight, thereby preventing compliance with 121.321(a)(3)(ii) which, by its terms,

restricts operations under 121.321(a)(3) which are contrary to the Airplane Flight Manual. As the C-46 is not able to comply with any ofthe de-icing options provided in 121.321, Petitioner has been instructed by the Denali Certificate Management Office to terminate all C-46 operations during known icing conditions. In Alaska, such a restriction, which has been in place since October 29, 2013, has effectively grounded Petitioner's C-46 fleet in icing conditions; hencethe needforthis exemption.
ReliefSought From Regulatory Sections EAC seeks relief from 14 CFR 121.321 to the extent necessary to allow for continued operations into icing conditions so long as the equivalent levels of safety listed below are compliedwith.
Nature and Extentofthe Requested Relief Exemption relief is sought in order that Petitioner may operate its C-46 aircraft in icing conditions in a mannerconsistentwith theApproved Flight Manual and the procedures outlined below in the section entitled "Equivalent Level ofSafety", thereby ensuring the highest standard ofsafetyfor EAC's continued all- cargo charteroperations in Alaska. Were the petitionerto operate the C-46 in the manner consistent with (a)(3) ofthis regulation, the flight would be contrary to the operating manual forthe aircraft and, as such, would violate section 121.321(a)(3)(ii). Therefore, underthe circumstances, the Petitioner has been effectively prevented from conducting C-46 operations in Alaska duringthewinter months. Not only does the grounding of Petitioner's C-46 fleet harm Petitioner commercially, but, more importantly, this grounding restricts the services which Petitioner is able to provide to isolated communities requiring necessities for sustenance and survival during the winter months. The ability to provide these services safely and reliably at a sustainable economic level establishes the safety and public interest basesforthis petition. Equivalent Level ofSafety
Petitioner seeks to retain the status quo, but subject to enhanced procedures and conditions discussed belowwhich will furtherassurethe highest level ofsafetyfor Petitioner's continued C46 operations into icing conditions, thereby providing for the safe operation of an aircraft typewhich Petitioner has effectively operated in extreme icing conditions for over 17 years without any incidentoraccident related to, orcaused by, icing.
Petitioner respectfully assertsthatthefollowing procedurefor C-46 operations provides not only a comparable level of safety to any ofthe three options permitted under Section 121.321, but alsothe only means ofcompliance availableto Petitioner underthe circumstances.

1. The aircraft shall be determinedto be free ofice and upperwing frost accumulation prior toflight. 2. The crew shall be vigilant for the accretion of ice, paying particular attention to the unheated cockpitwindshield structure. 3. During operations in conditions conducive to airframe icing, the flight crew shall follow the guidance provided in 14 CFR 121.321(d)(3). 4. This deviation is limited to operations conducted within the State of Alaska and is consistentwith theApproved Operating Manual forthis aircraft. Analysis Petitioner has operated the C-46 for nearlytwo decades in the State ofAlaska and has utilized this aircraft as the mainstay of its non-scheduled cargo operations into remote areas during the winter months. The C-46's lift capacity, durability, and functionality in restricted runway and weather conditions has made it a reliable and economic choice in these extreme conditions. Further, there is currently no ice alert system available forthe C-46 and, as Petitionerconducts the only commercial operations utilizing C-46 aircraft, there is no incentive for any aircraft manufacturer to create such a system. Based upon these factors, it is clear that the relief granted here is narrowly tailored to address an unintended consequence of the Part 121.321 rulemaking without, in anyway, degrading Part 121 safetystandards. Withthis in mind, please notethefollowing additional reasonsforgrantingthis exemption:
A. The C-46 andothersimilar vintage aircraft were notintended to be coveredby the FAA in the Part 121.321 Rulemaking. It is clearthat olderaircraft, such as the C-46, were simply notthoroughly considered by FAA in the Part 121.321 rulemaking, and, as such, these aircraft have been inadvertently included in a regulatory regime for which there is no means of compliance - a classic Catch-22. Evidence that aircraftsuch asthe C-46were not intendedto be covered by FAA is as follows. First, the Notice of Proposed Rulemaking (NPRM) to the Final Rule (see 74 FR 61055) states that "The FAA and IPHWG reviewed the current state of ice detector technology and found viable means of compliance with the proposed rule. There are several methods available to reliably alert theflight crewto activate the airframe IPS". This statement is simply not accurate for a//aircraftcoveredunderPart 121.321. While it may betruefor all aircraft certificated under Part23 or25, itdoes notapplyto certain olderaircraft such as the C-46. In effect, therefore, by not addressing the capability (or, in the case of the C-46, the lack thereof) for a// aircraft to comply with this rule, FAA has unnecessarily, and, presumably, unwittingly, grounded thoseaircraftforwhich there is now no viable means ofcompliance, such as the C-46, for operations in icing conditions. Second, Advisory Circular 121.321-1, published nearly concurrently with the Final Rule, contemplates a means of compliance applicable only to Part 23 (small) and Part 25 (transport category) aircraft with a maximum certificated take-off weight less than 60,000 pounds. However, no reference is made in this, oranyotherFAA guidance, to aircraftcertificatedunder the provisions of CAR 3A2, with a Non-Transport Category Airworthiness Certificate. Unfortunately, the "Applicability" languagefrom the AC was not reflected in the Final Rule, and, as such, olderaircraft, such as the C-46, were included undera regulation meant onlyforthose more modern aircraft which had a viable means of compliance. While no explanation is·given for- this oversight, we can only conclude that it was inadvertently based upon a lack of awareness, or focus upon the fact, that there remains a very limited number of CAR 3A2 certificated aircraft conducting commercial operations. Further, as the draftAC only addresses Part 23 and Part 25 aircraft, Petitionersubmits that FAA is interpreting the new 121.321 -as not applying to vintage aircraft, such as Petitioner's C-46. The relief sought by this exemption applicationwould be consistentwith this interpretation. Based upon the apparent inadvertent inclusion of C-46 aircraft in this Final Rule, the only meaningful remedies would be to eitheramend the rule to exclude the C-46, and othersimilarly

, situated aircraft, or providethe requested exemption relief. Dueto the pressing needforthe C46 services in Alaska provided by Petitioner during the winter months, the most efficient and expeditiouswayto remedythis oversightwould betograntthis petition on an expedited basis.
B. FAA did not properly distinguish between Part 121 Scheduled and Part 121 SupplementalOperationsin the Part 121.321 Rulemaking In the Preambleto the Final Rule, FAA provides the following explanation forwhy it decided not to include Part 91 and 135 operations underthe de-icing requirements: We considered including parts 91 and 135 operations during deliberations ofthe ICHWG and during drafting ofthe NPRM. We determined, however, thatthe increased flexibility afforded by unscheduled operations (the types of operations governed by parts 91 and 135), -coupled with appropriate direction on when pilots could activate ice protection systems (usually at the first sign of icing or in conditions ofvisible moisture and specific temperatures) provides an adequate level of safety for ice protection system activation. Pilots flying scheduled operations, on the other hand, may not have the flexibility to

.avoidflying intoweatherthatwould otherwise be avoided. (Final Rule at page 52244) Put another way, the FAA determined that, for non-scheduled operations, the operational environment was such that,. so long as the pilots administered de-icing procedures consistent with the Aircraft Flight Manual, the flight crew would be in the position to detect and prevent a hazardous accumulation of ice in a mannernot requiring the additional safeguards of 121.321. Further, the FAA drew a bright line between Part 91 and 135 non-scheduled operations, on the one hand, and, Part 121 scheduled operations, on the other hand, and excluded Part 91 and135 non-scheduled operations from the requirements of 121.321, but included a// Part 121 operations, both scheduled and unscheduled alike, under 121.321. This distinction, however, does notfully reflect the scope ofoperations covered under Part 121. While, with limited exception, Part 121 encompasses all forms of scheduled operations, Part 121 also applies to supplemental operations, which, by definition, are non-scheduled. In other words, the inclusion of supplemental operations under 121.321 is inconsistent with the stated purpose of the regulation quoted above to apply only to scheduled operations and creates a regulatory schemewhich is inherently arbitrary. Ifthere is no safety-related reason to applythe requirements of 121.321 to Part 91 and 135 non-scheduled operations, then, it necessarily follows that, Part 121 non-scheduled operations should be treated in the same manner and excluded from the applicability of 121.321. This point is particularly relevantto Petitioner's requestfor reliefsince Petitioner utilizes its C-46 aircraftonlyforsupplemental, on-demand, intrastate flights. At no time does Petitioner utilize its aircraft to perform scheduled operations. As such, from an operational standpoint, Petitioner's operations are identical to the type of operationswhich FAA addressed in the quoted preamble language and the same argument for excluding such operations from Part 121.321 apply equally to Petitioner as they do to Part 91 and 135 operators. To conclude differently elevates form over function to the detriment of those Alaskan communities which rely upon the vital goodsthat Petitionerprovides duringthewintermonths.

Benefitof Public Interest In promulgating a regulation that effectively precludes the operation of an airplane proven to operate effectively in type of severe icing conditions existing in Alaska, the Administrator will deprive numerous outlying communities and villages access to affordable transportation of essential commodities including subsistence and medical supplies. Such a result serves no discernible public interest or safety related purpose; as such, Petitioner is entitled to the requested reliefto allowforcontinued operationsto these regions duringthe winter months. RequestforWaiverfrom Publication in the Federal Register Under 14 CFR 11.87. In accordance with 11.87, Petitioner requests that the FAA issue this exemption without publication for comment in the Federal Register. Petitioner represents that good cause exists forthe grant ofthis request and that this request meets each ofthe fourfactors listed in 11.87 as follows: (a) Whether granting yourpetition would set a precedent: Petitioner is the only air carrier operating C-46 aircraft in the United States. Therefore, the grant of this petition would be limited to Petitioner and would not set a precedent for other carriers. (b) Whetherthe reliefrequestedis identicalto exemptionsgrantedpreviously. The relief requested is not identicalto any petitionfiled previously.(c) Whether our delaying action on your petition would affect you adversely: As discussed above, any delay in the grant ofthis petition will prevent Petitioner from conducting its C-46 operations in Alaska during the winter months. This has clear commercial implicationsfor Petitioner. More importantly, delay in grantingthe petition will restrict the services Petitioner will be able to provide to isolated Alaskan communities which rely on deliveries offood and medical supplies during the winter months. (d) Whether you filed yourpetition in a timely manner. As discussed above, since 121.321 became effective on March 13, 2013, Petitioner has been working with Denali Certificate Management Office, as well as Petitioner's local Flight Standard District Office in Fairbanks, to obtain relieffrom the requirements of 121.321 for it C46 operations. Upon the exhaustion of these other administrative remedies, Petitioner has acted diligently in preparing and submitting this petition.
In light of the above considerations, Petitioner respectfully submits that good cause exists to expedite the issuance ofthe requested exemption authority to the greatest extent possible and waivethe publication in the Federal Register.
In the event that FAA denies the above request, Petitioner provides the following summary for publication in the Federal Register:
Tatonduk Outfitters Limited, doing business as EvertsAirCargo, the petitioner, holdsAirCarrier Certificate Number FXGA030A and has operations specifications authorizing it to conduct allcargo, non-scheduled operations in common carriage pursuant to Title 14 Code of Federal Regulations (CFR) 119.21(a)(3)

. Everts Air Cargo primarily provides intrastate non-scheduled transportation of cargo, mail and commodities essential to commerce and the sustainability of outlying communities and villages, as well as serving the Department of Defense within the state of Alaska. Everts Air Cargo's fleet of group I aircraft includes the Curtiss-Wright C-46 CargoAirplane, well and uniquelysuited for operations into landing facilities which would not be safe for larger tricycle landing gear aircraft. This aircraft is operated in the United States only duringthe conduct ofall cargo, non-scheduled, intrastate commerce.
Evert's Air Cargo's C-46 does not have the capability to comply with either Section 121.321(a)(1) or (a)(2), and compliance with 121.321(a)(3) would result in a violation of the aircraft's Airplane Flight Manual. As such, EAC's non-scheduled C-46 operations in icing conditions

- which, historically, have operated safely and without incident or accident

- have been terminated and will rerpain terminated unless EAC is exempted from 121.321, as requested. EAC submitsthat 121.321 was not intended to, and should notapplyto, EAC's nonscheduled operations with older airplanes such as the C-46 type certificated under 3A2, as opposed to FARs23 and 25.
Everts Air Cargo seeks relief in order to continue to operate at the highest standard of safety, providing the necessary services to the outlying communities in the State of Alaska, whilesparing these communities the costs associated with payload limits ofsmaller aircraft operated underthe less stringent requirements of 14 CFR 135. The absence ofthe relief sought in this petition from the requirements of 14 CFR 121.321, during operations in the State ofAlaska will result in a disproportionate economic burden forthe communities servedwhile atthe sametime preventing the petitioner from operating the C-46 airplane in accordance with its original Type Certificate and depriving the affected communities ofservicewith the highest standard ofsafety inherent in this certification.