A FS

- 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 Universi ty 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 n o specific aircraft was indicated, FAA records indicate that AAA operate s part 135 certificate number A2KA929W with single

- engine airplanes and no helicopters.

The petitioner requests relief from t he following regulation:

Section 135.203(a)(1) prescribes, in pertinent part, e xcept 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 fro m any obstacle

.

The petitioner supports its request with the following information:

The petitioner states the following:

1. These flights would be only for the D epartment of I nterior

.2

2. The se flights would only be condu ct ed 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 h ave received

Arctic Air Alaska In c. low level training and are authorized to perform low level flights by Arctic Air Alaska Inc.

4. The se flights would only be conducte d with Arctic Air Alaska Inc. pilots that have passed the special use, low level flight evaluation by the US D epartment of Interior

, Aviation Safety Compliance Specialist as per § C.3.6.1.3 of the Avi ation Rental and Contract Agreement from the Department of the Interior.

5. The pilots must have on their pe rson a current USDA Interagency USDI Airplane Pilot Qualificat ion Card with the proper authorizat ion to perform these low l evel flights.

6. These flights would carry only Departm ent 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 commen ts were received.

The FAA's analysis is as follows:

In reviewing the petition for exemption, t he FAA find s a grant of exemption would not provide an equivalent level of safety to that of the regulations. Al though the petition did not meet the requirement s of part 11, General Rulemaking Procedur es, the FAA evaluat ed the petition based on the AAA ’s long

- standing attempt to obtain an exemption to this section of the regulations

. The FAA believe s this history gives us enoug h information to understand the
pet itioner’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 lett er, the petitioner requested an exemption from a legal interpretation o f § 119.1

, which was also denied in

J une 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 re quire an exemption to conduct the survey flights described in his petitio n.

As long as AAA was not carrying other people or property for compensation or h ire, the petitioner could operate under part 91. However, the petitioner could not operate mixed

m issions under part 91. For instance, if the petitioner carrie d other people or property for3

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 interpr etation 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” fl ights

. 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 s tated at that time that passengers were never carried, only essential crewmem bers,

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 , p ublished 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 op erator, such as Arctic Air

Alaska

, and a U.S. government agency (DOI) doe s not alone establish that all flights would be public aircraft op e rations. 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

- leve l official) of public aircraft status for applicable flights;

2. Arctic Air Alaska provides the local FAA F light Standards District Office having oversight of Arctic Air Alaska with a copy of the written declaration;

3. The flights in question are determined t o 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 l etter dated December 6, 2011

, the petitioner asked F AA 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 interpreta tion 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 F light Standards response also discussed the “dual purpose” issue and s tated it was not clear if the petitioner’s operations for the purposes of wildlife surveys would fall into that category. Finally

, the FAA4

discussed the issue of public aircraft explain ing that the government entity with whom the petitioner contract s makes the determination as to whether or not the operations will be conducted as public or civil.

At one time, th e FAA did issue grants of exem ption from § 135.203 . Such grants started

abo ut 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 cond itions and

limitations.

Today, t he 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 unaccepta ble. 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 s ufficiently identif ied how it would provide a level of safety equivalent to that in the regulation. The petitioner also has not indicate d what type of aircraft it intend ed

to use

, bu t our records indicate that it operate s with sin gle

- 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 th e 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, vehi cle, 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 propose d 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 ope rations the petitioner

conduct on its behalf as public aircraft operations. P art 135 regulatory requirements would not apply t o the extent that those operations comply with the statutory requirements for public aircraft operations (49 U.S.C. §§ 40102(a)(4 1) and 40125). DOI may not require the petitioner to conduct flights under part 135 if it is not applicable.

The FAA note s , however, that many of the requirements contained in part 91 continue to apply during public aircraft operations, including the m inimum 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 , the n you must comply with the requirements of § 135. 203(a)(1).5

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