Exem ption No. 10320

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

FLORIDA AIR TRANSPORT, Regulatory Docket No. FAA-2009-0796

INC.

for an exemption from §§ 119.1(a)(2), 119.5(h), 119.23, and 125.1 of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated August 13, 2009, Mr. Carlos Gom ez, President, Florida Air Transport, Inc. (Florida Air Transport), 15001 NW. 42 nd Avenue, Building 47, Opa Locka, Florida 33054, petitioned the Federal Aviation Administration (FAA) on behalf of Florida Air Transport for an exemption from §§ 119.1(a)(2), 119.5(h), 119.23, and 125.1 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemp tion, if granted, would allow Florida Air Transport to operate DC-4 aircraft in common carriage with a payload greater than 6,000 pounds.

The petitioner requests relief from the following regulations:

Section 119.1(a)(2), which extends the applicability of the requirements of 14 CFR part 119 to each person operating or intending to operate civil aircraft, when common carriage is not involved, to operations of U.S.-registered civil airplanes with a seat configuration of 20 or more passengers, or a maximum payload capacity of 6,000 pounds or more.

Section 119.5(h) prescribes, in pertinent part, that a person holding an Operating Certificate authorizing noncommon or private carriage operations shall not conduct any operations in common carriage. A person holding an Air Carrier Certificate or Operating Certificate authorizing common carriage operations shall not conduct any operations in noncommon carriage.

AFS-09-376-E2

Section 119.23, which requires operators engaged in passenger-carrying operations, cargo operations, or both with airplanes when common carriage is not involved to comply with the certification and operation specifications requirements of 14 CFR part 125, and conduct operations in accordance with 14 CFR part 125.

Section 125.1 prescribes, in pertinent part, rules governing the operations of U.S.- registered civil airplanes which have a seating configuration of 20 or more passengers or a maximum payload capacity of 6,000 pounds or more when common carriage is not

involved.

The petitioner supports its request with the following information:

Florida Air Transport holds a part 125 operating certificate restricting its operations to passenger-carrying or cargo operations, or both, when common carriage is not involved. Florida Air Transport requests a deviation from this restriction to allow it to conduct common carriage operations typically required to be conducted in accordance with the operating rules of 14 CFR part 121, in accordance with the certification and operating rules of 14 CFR part 125. Florida Air Transport has received economic authority from the Department of Transportation (DOT)to operate in common carriage.

The petitioner states that there is great market need for Florida Air Transport to operate its DC-4 aircraft in common carriage. Due to the short distance between the petitioner’s departure points and arrival destinations, only small aircraft with limited cargo door size, limited cargo weight per shipment, and with a payload restriction of 7,500 pounds are

available.

According to the petitioner, there is only one alternative for operators wishing to engage in common carriage and that is to seek part 121 operating authority. Cost of initial certification, in addition to complexity inherent in part 121 operations, would increase ongoing operating costs to the point that the petitioner could not operate its DC-4 aircraft profitably in the

current market.

Florida Air Transport has held a part 125 operating certificate for over 27 years using pistonpowered aircraft and meets the safety requirements 14 CFR part 125. The petitioner states that the Office of the Secretary of Transportation has given it approval to operate in common carriage; therefore, it is seeking a deviation from the FAA for the same authority.

Florida Air Transport is not requesting any operational safety deviations. The petitioner’s aircraft are maintained and provide an equivalency to supplemental operations conducted under 14 CFR part 121 and exceed 14 CFR part 135 requirements for all cargo operations. Florida Air Transport is prepared to upgrade its aircraft considerably in order to meet any safety concerns from the FAA with respect to specific equipment and technology identified in the 125/135 Aviation Rulemaking Committee and 18,000 pounds FAA study.

Florida Air Transport will operate the DC-4 with the required two pilot flightcrew.3

1. Florida Air Transport will institute a flight following program equivalent to that specified in § 121.125 as a condition of this grant.

2. Florida Air Transport has a Continuous Airworthiness Maintenance Program.

3. Florida Air Transport will install a ground proximity warning system (GPWS) on its

aircraft.

4. Florida Air Transport will install onboard weather radar.

5. Florida Air Transport will install Traffic Alert and Collision Avoidance System (TCAS).

6. Florida Air Transport will install a cockpit voice recorder.

7. Florida Air Transport will implement a training program acceptable to the FAA addressing any differences associated with the additional equipment installed on the

aircraft.

The petitioner states that this exemption will serve the public interest in the following ways:

1. The market in which Florida Air Transport operates is limited to propeller-driven aircraft due to the short distance between points of travel. The DC-4 would allow freight to be transported via air that is also moving via ship due to the limited cargo door size of the aircraft or weight of the shipment.

2. Not allowing Florida Air Transport to operate in common carriage puts it at a disadvantage and would drive it out of business. Due to the economic conditions in the United States and around the world, the need for private carriage has disappeared with no recovery in sight. Most shippers now consolidate all their freight in order to cut costs, and they can no longer sustain any air operations without doing so. This makes the part 125 operators obsolete and with little to no business. Florida Air Transport is a small, minority-owned part 125 air operator. There is no regulatory burden of its proposed operation on small businesses or small organizations.

A summary of the petition was published in the Federal Register on August 3, 2010 (75 FR 45696). No comments were received.

The FAA’s analysis is as follows :

The petitioner initially sought a deviation to operate its DC-4 in common carriage under the certification and operating rules of part 125. The FAA determined that the petitioner’s request was not appropriate as a deviation and subsequently construed it as a petition for exemption from these requirements. 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 an equivalent level of safety to that provided by the regulation.4

The petitioner asserts a grant of this deviation is essential to Florida Air Transport’s survival and is in the public interest as it would promote and allow for small, minority-owned business competition. As a basis for this grant, the petitioner states it has obtained economic authority from the DOT to conduct common carriage operations. Further, Florida Air Transport maintains that a grant of this exemption would be in the public interest, because currently, there is a limited market of cargo carriers. If Florida Air Transport is permitted to use the DC-4 in common carriage operations, this would allow increased movement of freight to this market that currently must be moved primarily by ship.

The certification and operating rules of part 125 were designed to provide a uniform set of rules for large airplanes having a seating capacity of 20 or more passengers or a maximum payload capacity of 6,000 pounds or more when these airplanes are used for any purpose other than common carriage. See (45 FR 67215; Oct. 9, 1980). These provisions were promulgated following a review of several accide nts involving U.S.- registered large airplanes operating under part 91 and an indepth study of charter operations using large airplanes as directed by the DOT Secretary. The analysis of these accidents and review of the study indicated a need to address “sham arrangements developed by some operators to mask de facto commercial operations” that were being conducted under 14 CFR part 91 rather than 14 CFR part 121. As discussed in the preamble to the final rule with regard to the requirements of § 125.11, “a certificate holder is prohibited from conducting any operation which results directly or indirectly from any person’s holding out to the public to furnish transportation. This will help to ensure that no subterfuges are utilized by contract or other means to feed common-carriage generated transportation to part 125 certificate holders.” 45 FR 67215, 67217 (Oct. 9, 1980). It is clear, based on the discussion in the preamble to the final rule and text of § 125.11, that part 125 was not designed to allow common carriage operations using large aircraft to be performed under any other certification and operating rules than those contained in part 121. To now allow common carriage operations to be conducted under part 125 via a grant of this exemption would be contrary to the very intent and purpose of the development of part 125 and not in the public interest. This is also consistent with DOT Enforcement Policy, which states that part 125 operators are prohibited from holding out to the public or providing air transportation to the public for compensation or hire, either directly or indirectly through a third party. See DOT Notice, Role of Air Charter Brokers in Arranging Air Transportation (October 8, 2004), available at http://airconsumer.ost.dot.gov.

In support of this request, the petitioner submitted a copy of its air taxi registration as evidence that it has received economic authority to conduct common carriage operations. Just like all other forms of economic authority given to direct air carriers, this is not effective until the appropriate form of FAA safety authority has been granted. In this instance, to conduct the type of operations the petitioner desires to conduct, a part 121 certificate is required. To authorize common carriage operations to be conducted under a part 125 certificate would be contrary to the intent of the regulations, as well as DOT enforcement policy, as described above. Furthermore, the cost of this certification is not unique to Florida Air Transport. It is a cost that any business, small or large, must bear to conduct common carriage operations. A5

grant of this exemption would actually provide Florida Air Transport an economic advantage over other local operators, both parts 121 and 135, who are currently conducting operations in these areas. As such, a grant of this exemption is not in the public interest.

The petitioner provides that a grant of this exemption will not have an adverse impact on safety because it is not requesting exemption from any operating requirements. The petitioner states that its aircraft are maintained and provide an equivalency to supplemental operations conducted under part 121 and even exceed the requirements under part 135 for cargo operations. Furthermore, Florida Air Transport has stated that it will upgrade its aircraft with respect to specific equipment and technology as identified by the 125/135 Aviation Rulemaking Committee when it considered increasing the maximum payload capacity of aircraft that could operate under part 135 to 18,000 pounds. This would include installation of GPWS, onboard weather radar, and TCAS. Before the FAA created part 125, it performed an accident study that uncovered defects in engines, improper operating techniques, and failure to follow operating limitations in many aircraft including DC-4s, that were operated

under part 91. The FAA created part 125 specifically to upgrade safety with respect to the use of these aircraft and reduce accidents. Part 125 was created to permit the use of large aircraft but not in common carriage. In the 125/135 Aviation Rulemaking Committee study, the FAA reviewed the effects of certain characteristics of part 121 in reducing accidents in part 135 cargo operations. The specific characteristics outlined in the study included performance predicated on turboprop airplanes as opposed to reciprocating engine-powered airplanes. Due to the findings of its study, the FAA is not considering increasing the maximum payload capacity for reciprocating engine-powered ai rplanes in part 135. Operators wishing to conduct common carriage operations carrying more than 7,500 pounds of cargo must operate under part 121.

Based on this analysis, the FAA finds that Florida Air Transport has not demonstrated that a grant of this exemption would be in the public interest.

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 Florida Air Transport, Inc., for an exemption from 14 CFR §§ 119.1(a)(2), 119.5(h), 119.23, and 125.1 is hereby denied.

Issued in Washington, D.C., on July 18, 2011.

/s/

Michael J. Zenkovich Acting Deputy Director, Flight Standards

Service

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