TatonO 

C>UTFITTER 

Lltv\ITED - ---·---- -----~-

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

February 3, 2014 

Docket Management Facility 

US Department of Transportation 

1200 Jersey Avenue, SE 

West Building Ground Floor 

Room W12-140 

Washington, D.C. 20590 

Dear Sir or Madam, 

c:; 

Please find enclosed an original and three copies of a 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, if any, for the C-46 will be operated under the lesser safety standard of 

Part 135, thereby degrading the overall safety of flights into remote Alaskan 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 ask that this matter be processed without 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 
TatonOu 

C>UTFITTER 

L I 1'V\ I T E D 

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

February 3, 2014 

Docket Management Facility 

US Department of Transportation 

1200 Jersey Avenue, SE 

West Building Ground Floor 

Room W12-140 

Washington, D.C. 20590 

Re: Request for Exemption 

Petitioner: 

Tatonduk Outfitters Limited., d.b.a Everts Air Cargo 

by its President, Mr. Robert W Everts 

Petitioner's Contact Information: 

Everts Air Cargo 

5525 Airport 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"), 

holds Air Carrier Certificate Number FXGA030A and has operations specifications 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 order to allow 

for continued operations of its Curtiss Wright C-46 Series Cargo Airplanes (the "C-46") in 

support of numerous isolated Alaskan communities. 
Petitioner is the only air carrier operating the C-46 ih the United States. Petitioner utilizes its C46 aircraft solely to conduct all-cargo, supplemental, operations within the state of Alaska and 

will accept a condition to this effect. 

By way of background, the C-46 was type certificated in 1940 under the provisions of CAR 3A2. 

As an older aircraft with limited commercial usage, there is,· understandably, little likelihood of 

the successful development, certification, and production of either a Primary Airframe Detection 

System or an Advisory Airframe Detection System for this aircraft within a foreseeable 

timeframe or within practical economic constraints. As such, the C-46 cannot comply with 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 of the 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; 

hence the need for this exemption. 

Relief Sought 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 

complied with. 

Nature and Extent of the Requested Relief 

Exemption relief is sought in order that Petitioner may operate its C-46 aircraft in icing 

conditions in a manner consistent with the Approved Flight Manual and the procedures outlined 

below in the section entitled "Equivalent Level of Safety", thereby ensuring the highest standard 

of safety for EAC's continued all- cargo charter operations in Alaska. 

Were the petitioner to operate the C-46 in the manner consistent with (a)(3) of this regulation, 

the flight would be contrary to the operating manual for the aircraft and, as such, would violate 

section 121.321 (a)(3)(ii). Therefore, under the circumstances, the Petitioner has been effectively 

prevented from conducting C-46 operations in Alaska during the winter 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 bases for this petition. 

Equivalent Level of Safety 

Petitioner seeks to retain the status quo, but subject to enhanced procedures and conditions 

discussed below which will further assure the highest level of safety for Petitioner's continued C46 operations into icing conditions, thereby providing for the safe operation of an aircraft type 
which Petitioner has effectively operated in extreme icing conditions for over 17 years without 

any incident or accident related to, or caused by, icing. 

Petitioner respectfully asserts that the following procedure for C-46 operations provides not only 

a comparable level of safety to any of the three options permitted under Section 121.321, but 

also the only means of compliance available to Petitioner under the circumstances. 

1. The aircraft shall be determined to be free of ice and upper wing frost accumulation prior 

to flight. 

2. The crew shall be vigilant for the accretion of ice, paying particular attention to the 

unheated cockpit windshield 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 

consistent with the Approved Operating Manual for this aircraft. 

Analysis 

Petitioner has operated the C-46 for nearly two decades in the State of Alaska 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 for the C-46 and, as Petitioner conducts 

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 any way, degrading Part 121 safety standards. 

With this in mind, please note the following additional reasons for granting this exemption: 

A. The C-46 and other similar vintage aircraft were not intended to be covered by the 

FAA in the Part 121.321 Rulemaking. 

It is clear that older aircraft, such as the C-46, were simply not thoroughly 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 aircraft such as the C-46 were not intended to 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 the flight crew to activate the airframe IPS". This statement is simply not accurate 

for a// aircraft covered under Part 121.321. While it may be true for all aircraft certificated under 

Part 23 or 25, it does not apply to certain older aircraft 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 those 
aircraft for which there is now no viable means of compliance, 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, or any other FAA guidance, to aircraft certificated under 

the provisions of CAR 3A2, with a Non-Transport Category Airworthiness Certificate. 

Unfortunately, the "Applicability" language from the AC was not reflected in the Final Rule, and, 

as such, older aircraft, such as the C-46, were included under a regulation meant only for those 

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 draft AC only addresses 

Part 23 and Part 25 aircraft, Petitioner submits 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 

application would be consistent with this interpretation. 

Based upon the apparent inadvertent inclusion of C-46 aircraft in this Final Rule, the only 

meaningful remedies would be to either amend the rule to exclude the C-46, and other similarly 

, situated aircraft, or provide the requested exemption relief. Due to the pressing need for the C46 services in Alaska provided by Petitioner during the winter months, the most efficient and 

expeditious way to remedy this oversight would be to grant this petition on an expedited basis. 

B. FAA did not properly distinguish between Part 121 Scheduled and Part 121 

Supplemental Operations in the Part 121.321 Rulemaking 

In the Preamble to the Final Rule, FAA provides the following explanation for why it decided not 

to include Part 91 and 135 operations under the de-icing requirements: 

We considered including parts 91 and 135 operations during deliberations of the ICHWG 

and during drafting of the NPRM. We determined, however, that the 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 of visible 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 

. avoid flying into weather that would 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 manner not 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 and 
135 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 not fully reflect the scope of operations 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 scheme which is inherently arbitrary. If there is no safety-related reason to apply the 

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 relevant to Petitioner's request for relief since Petitioner utilizes its C-46 

aircraft only for supplemental, 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 operations which 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 

goods that Petitioner provides during the winter months. 

Benefit of 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 relief to allow for continued operations to these regions during the winter months. 

Request for Waiver from 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 

for the grant of this request and that this request meets each of the four factors listed in 11.87 

as follows: 

(a) Whether granting your petition 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) Whether the relief requested is identical to exemptions granted previously. The relief 

requested is not identical to any petition filed previously. 
(c) Whether our delaying action on your petition would affect you adversely: As 

discussed above, any delay in the grant of this petition will prevent Petitioner from 

conducting its C-46 operations in Alaska during the winter months. This has clear 

commercial implications for Petitioner. More importantly, delay in granting the petition 

will restrict the services Petitioner will be able to provide to isolated Alaskan 

communities which rely on deliveries of food and medical supplies during the winter 

months. 

(d) Whether you filed your petition 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 relief from 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 of the requested exemption authority to the greatest extent possible and 

waive the 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 Everts Air Cargo, the petitioner, holds Air Carrier 

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 

Cargo Airplane, well and uniquely suited 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 

during the conduct of all 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 submits that 121.321 was not intended to, and should not apply to, EAC's nonscheduled operations with older airplanes such as the C-46 type certificated under 3A2, as 

opposed to FARs 23 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, while 
sparing these communities the costs associated with payload limits of smaller aircraft operated 

under the less stringent requirements of 14 CFR 135. The absence of the relief sought in this 

petition from the requirements of 14 CFR 121.321, during operations in the State of Alaska will 

result in a disproportionate economic burden for the communities served while at the same time 

preventing the petitioner from operating the C-46 airplane in accordance with its original Type 

Certificate and depriving the affected communities of service with the highest standard of safety 

inherent in this certification.