AFS-12-434-E

Exemption No. 10672

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

ARCTIC AIR ALASKA Regulatory Docket No. FAA-2012-0615 

for an exemption from § 135.203(a)(1) 

of Title 14, Code of 

Federal Regulations 

 

DENIAL OF EXEMPTION

By letter dated February 15, 2012, Mr. James Hamilton, President, Arctic Air Alaska, Inc. 

(AAA), 3540 University Avenue, South Fairbanks, AK 99709 petitioned the Federal Aviation 

Administration (FAA) on behalf of AAA for an exemption from § 135.203(a)(1) of Title 14, 

Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow 

AAA to operate day flights for the Department of the Interior (DOI) at less than 500 feet 

above the surface or less than 500 feet horizontally from any obstacle. This would allow

AAA to comply with § 91.119, Minimum Safe Altitudes, instead of § 135.203(a)(1). The 

proposed flights would be conducted in accordance with AAA’s part 135 air carrier certificate 

and involve low-level survey flights of wildlife in remote areas. Although no specific aircraft

was indicated, FAA records indicate that AAA operates part 135 certificate number 

A2KA929W with single-engine airplanes and no helicopters. 

The petitioner requests relief from the following regulation:

Section 135.203(a)(1) prescribes, in pertinent part, except when necessary for takeoff 

and landing, no person may operate under VFR an airplane during the day, below 500 

feet above the surface or less than 500 feet horizontally from any obstacle. 

The petitioner supports its request with the following information:

The petitioner states the following:

1. These flights would be only for the Department of Interior.
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2. These flights would only be conducted under a special use authorization with the 

Aviation Management Division [Office of Aviation Services] of the National Business 

Center. 

3. These flights would be conducted with part 135 current pilots that have received 

Arctic Air Alaska Inc. low level training and are authorized to perform low level 

flights by Arctic Air Alaska Inc.

4. These flights would only be conducted with Arctic Air Alaska Inc. pilots that have 

passed the special use, low level flight evaluation by the US Department of Interior, 

Aviation Safety Compliance Specialist as per § C.3.6.1.3 of the Aviation Rental and 

Contract Agreement from the Department of the Interior. 

5. The pilots must have on their person a current USDA Interagency USDI Airplane Pilot

Qualification Card with the proper authorization to perform these low level flights.

6. These flights would carry only Department of Interior personnel that have completed 

B3 training with the Department of Interior.

 A summary of the petition was published in the Federal Register on August 10, 2012

(77 FR 47912). No comments were received.

The FAA's analysis is as follows:

In reviewing the petition for exemption, the FAA finds a grant of exemption would not 

provide an equivalent level of safety to that of the regulations. Although the petition did not 

meet the requirements of part 11, General Rulemaking Procedures, the FAA evaluated the 

petition based on the AAA’s long-standing attempt to obtain an exemption to this section of 

the regulations. The FAA believes this history gives us enough information to understand the 

petitioner’s request. 

AAA originally sought an exemption from § 135.203(a)(1) in May 1997. That petition was 

denied in June 2002, as exemption number 7809. In a May 2001 letter, the petitioner

requested an exemption from a legal interpretation of § 119.1, which was also denied in 

June 2002, in exemption number 7809. In 2002, the FAA advised the petitioner that the 

requested activities were aerial works as described at 14 CFR § 119.1(e)(4) and not part 135 

operations. Therefore, the petitioner did not require an exemption to conduct the survey 

flights described in his petition. 

As long as AAA was not carrying other people or property for compensation or hire, the 

petitioner could operate under part 91. However, the petitioner could not operate mixed 

missions under part 91. For instance, if the petitioner carried other people or property for 
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compensation or hire on a flight that is also conducted for aerial works then he must conduct 

that flight under part 135. 

In July 2001, AAA requested an interpretation of 119.1(e)(4)(iii) based on two possible survey 

routes. In our response, the FAA acknowledged among other things that § 119.1(e)(4)(iii) 

contains an exception for aerial survey flights. However, that exception does not apply to 

“dual purpose” flights. A flight has a dual purpose if the purpose is both aerial survey and 

transporting passengers from one point to another for compensation or hire. Although the 

petitioner stated at that time that passengers were never carried, only essential crewmembers, 

the FAA cautioned that crewmembers must be employees and persons other than the 

petitioner’s employees are passengers.

In January 2011, the FAA announced a new public aircraft policy, published in the Federal 

Register on March 23, 2011 (76 FR 16349). The policy clarified that public aircraft status is 

not automatic. The existence of a contract between a civil operator, such as Arctic Air 

Alaska, and a U.S. government agency (DOI) does not alone establish that all flights would be 

public aircraft operations. With reference to the petitioner’s contract with DOI, the FAA 

considers all contracted aircraft operations to be civil aircraft unless:

1. DOI provides Arctic Air Alaska with a written declaration (i.e., from the contracting 

officer or higher-level official) of public aircraft status for applicable flights;

2. Arctic Air Alaska provides the local FAA Flight Standards District Office having 

oversight of Arctic Air Alaska with a copy of the written declaration;

3. The flights in question are determined to be public aircraft operations under the terms 

of the statute; and

4. The above declarations are made in advance of any proposed public aircraft 

operations.

By letter dated December 6, 2011, the petitioner asked FAA about contract operations for low 

level wildlife surveys. In our response, we included a copy of a legal interpretation issued 

September 7, 2011. The interpretation was addressed to another individual but offered as an 

interpretation in which the petitioner might be interested. The interpretation explained that if 

the person carried on board the aircraft for the purpose of conducting the survey were returned 

to the starting point of the survey, an exemption from § 135.203(a)(1) would not be needed 

because the exception in § 119.1(e)(4), aerial work operations, would allow you to conduct 

those flights in accordance with part 91. 

However, it also explained that “dual purpose” flights that include transporting passengers for 

compensation or hire would not fit the § 119.1(e)(4) exception. The Flight Standards 

response also discussed the “dual purpose” issue and stated it was not clear if the petitioner’s

operations for the purposes of wildlife surveys would fall into that category. Finally, the FAA
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discussed the issue of public aircraft explaining that the government entity with whom the 

petitioner contracts makes the determination as to whether or not the operations will be 

conducted as public or civil.

At one time, the FAA did issue grants of exemption from § 135.203. Such grants started 

about 1978 exclusively for seaplane operations and several other similar exemptions were 

issued over the years. The FAA experience with the exemptions was not favorable. When the 

exemptions were issued initially, the FAA had no history of granting such conditions and 

limitations. 

Today, the FAA has enough data to make a better assessment as to the equivalent level of 

safety. The FAA finds that the accident rate and risk for accidents by Alaska operators with 

an exemption from § 135.203(a)(1) is unacceptable. The accident data indicates air carriers 

have allowed operations in conditions that represent an elevated risk for controlled flight into 

terrain including low visibility and low ceilings with glassy water and flat-light. 

The petitioner has not sufficiently identified how it would provide a level of safety equivalent 

to that in the regulation. The petitioner also has not indicated what type of aircraft it intended

to use, but our records indicate that it operates with single-engine airplanes and no helicopters. 

Additionally, the petitioner has not described where it intended to conduct its flights. 

The difference between § 135.203(a)(1) and § 91.119 is that under § 135.203(a)(1), an air 

carrier may not operate at less than 500 feet above the surface or less than 500 feet 

horizontally from any obstacle except during takeoff and landing. However, under

§ 91.119(c), an operator could operate over open waters or sparsely populated areas by staying 

at least 500 feet from any person, vessel, vehicle, or structure. The operator would still need 

to operate so that any power unit failure would result in an emergency landing without undue 

hazard to persons or property on the surface in compliance with § 91.119 (a) and the takeoff 

or landing exception would still exist. The remote area survey flights proposed by the 

petitioner could likely be operated down to the surface during most if not all of the survey 

including near wildlife. 

Notwithstanding this finding, DOI may choose to declare certain operations the petitioner 

conduct on its behalf as public aircraft operations. Part 135 regulatory requirements would 

not apply to the extent that those operations comply with the statutory requirements for public 

aircraft operations (49 U.S.C. §§ 40102(a)(41) and 40125). DOI may not require the 

petitioner to conduct flights under part 135 if it is not applicable. 

The FAA notes, however, that many of the requirements contained in part 91 continue to 

apply during public aircraft operations, including the minimum safe altitude requirements of 

§ 91.119. If DOI requires you to conduct flights in accordance with part 135, and is not 

willing to declare the flights as public aircraft flights, then you must comply with the 

requirements of §135.203(a)(1). 
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The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exemption 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 Arctic Air Alaska, Inc. for an exemption 

from 14 CFR § 135.203(a)(1) is hereby denied.

Issued in Washington, D.C., on December 12, 2012

/s/

John S. Duncan

Deputy Director, Flight Standards

 Service