Exemption 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 Gomez, President, Florida Air Transport, Inc. 

(Florida Air Transport), 15001 NW. 42nd 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 exemption, 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-E 
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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. 
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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. 
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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 accidents 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. A 
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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 airplanes 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 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 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 

 .