Exemption No. 10009

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

MERCY MEDICAL AIRLIFT, ANGEL FLIGHT MID-ATLANTIC, AND AIRLIFT HOPE OF AMERICA Regulatory Docket No. FAA-2009-0702

for an exemption from § 61.113(c) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated June 4, 2009, Mr. Stephen Craven, Angel Flight Mid-Atlantic (Angel Flight), Stephen Patterson, Airlift Hope of America (Airlift Hope), Edward R. Boyer, Mercy Medical Airlift (Mercy Medical), 4620 Haygood Road, Suite 1, Virginia Beach, Virginia 23455, petitioned the Federal Aviation Administration (FAA) on behalf of Mercy Medical, Angel Flight, and Airlift H ope for an exemption from § 61.113(c) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow for reimbursement of their volunteer pilots for fuel costs incurred in conducting charitable flights.

The petitioner requests relief from the following regulation: Section 61.113(c) which prescribes, in pertinent part, that a private pilot may not pay less than the pro rata share of the operating expenses of a flight with passengers, provided the expenses involve only fuel, oil, airport expenditures, or rental fees

. The petitioner supports its request with the following information: Mercy Medical, Angel Flight, and Airlift Hope are requesting an exemption to allow for reimbursement of volunteer pilots for fuel costs incurred in conducting charitable flights for transporting persons who are in need of medical care and transportation to medical facilities.

AFS-09-343-E2 The petitioners provided several definitions to ensure clarity of their petition. 1. Volunteer Pilot Organization (VPO): an Internal Revenue Service-approved 501(c)(3) organization with a primary purpose of facilitating charitable public benefit flight. The VPO must functi on through an organized corporation of registered or member-volunteer pilots. 2. Charitable flight: a flight facilitated by the VPO for which no payment is made to the pilot, the VPO, or any other party or entity for conduct of the flight. The purpose of the flight must be totally dedicated for a charitable purpose that has demonstrable public benefit. 3. Reimbursement: if there is any reimbursement, the reimbursement process must be administered as stated herein: a. The reimbursement process must be administered by the VPO that facilitated the flight; and b. The reimbursement may be for any amount up to the full cost of fuel used in the charitable flight(s). Mercy Medical, Angel Flight, and Airlift Hope believe that a grant of exemption is in the public interest. The petitioners believe that an exemption will allow those who are normally without the best available medical care to be given life saving opportunities. The petitioners contend that this exemption would both enhance safety in charitable aviation and allow for volunteer pilot reimbursement, stopping the existing decline in volunteer pilot charitable air transportation.

Mercy Medical, Angel Flight, and Airlift Hope maintain that the cost to establish and facilitate organized charitable medical air transportation rests on the VPO. The full cost of working the flight rests on the volunteer pilot. The petitioners contend that the majority of the cost to the pilot is the fuel and that these costs are easily calculated based on recorded flight times, nominal burn rates, and average retail fuel costs. The petitioners further state that allowing VPOs to reimburse volunteer pilots for some or all fuel costs allows other philanthropic participants to join in the process by providing donations to help cover the fuel costs.

The petitioners state that in the past 2 years, the public benefit in charitable medical volunteer pilot operations has decreased about 20 percent, which equates to a loss of approximately $1.6 million. The petitioners believe that a grant of this exemption will allow the volunteer pilot charitable medical air transportation service to grow.3 The petitioners state there will be additional availability of charitable medical transport which will provide increased access to specialized medical care that would not be available without the exemption, and lives will be improved and possibly saved.

The petitioners request that an exemption be granted for 2 years. Upon renewal, the VPO will provide the FAA with the following: (1) number of charitable flights accomplished in the past 2 years; (2) number of volunteer pilots receiving reimbursement of any amount during the period; and (3) total amount of reimbursement provided.

Finally, Mercy Medical, Angel Flight, and Airlift Hope believe that their proposed grant of exemption would ensure that only pilots certified as “registered approved members” of bona fide charita ble volunteer pilot organizations would be reimbursed. Also, a grant of exemption will ensure that no reimbursement is made that would apply to training or flights for unintended purposes.

The petitioners requested a meeting and met with FAA representatives at the FAA’s Office of Rulemaking on November 17, 2009. The petitioners explained that they have developed a Safety Management System (SMS) document that contains their safety operating practices and that all of their pilots and operators are required to follow this SMS. The FAA advised the petitioners to submit the referenced SMS document to the public docket (FAA-2009-0702) so it could be considered as part of the petition.

According to the SMS document, its purpose is multifold.

● To facilitate the identification of hazards and risks.

● To create and maintain a positive culture of safety.

● To incorporate safety as the major component of Mercy Medical, Angel Flight and Airlift Hope operations.

● To combine performance standards with safety standards.

● To “talk the talk and walk the walk.”

● To provide top-down support and bottom-up implementation.

This SMS document addresses the petitioners’ safety policy for:

● Volunteer pilot minimum qualifications, standards, recommended operating procedures and expectations.

● Continuous hazard and risk assessment.

● Volunteer pilot list of best practices.

● Incident occurrence and hazard reporting.

● Occurrence investigation and analysis.

● Periodic safety audits.

● Non-punitive reporting policy.4 ● Volunteer pilot follow up and accountability.

● Continuous safety-related education and communication.

● Identification of leadership role in the safety process.

● Emergency preparedness and response.

● Measurement of performance and continuous improvement.

● Regular distribution of safety newsletter.

● Annual volunteer pilot affirmation.

● Creation of the position of director of safety.

A summary of the petition was published in the Federal Register on August 11, 2009 (74 FR 40285). No comments were received.

The FAA's analysis is as follows:

The FAA has considered the petitioners’ request and supporting materials and finds that a grant of exemption would be in the public interest and would provide a level of safety equivalent to that provided by the current regulations if specific conditions and limitations are met.

With the conditions and limitations that the FAA has established in this grant of exemption, the FAA believes there will be an equivalent level of safety. The FAA believes that these conditions and limitations will minimize the risk factors and will ensure an orderly and safe operation of transporting medical patients who are in need of the services that Mercy Medical, Angel Flight, and Airlift Hope provide.

Section 61.113(c) allows for a volunteer pilot and his or her passengers to share a common purpose in the charitable flight, such that the pilot may seek a pro rata share of the operating expenses of the flight from the passengers. In this petition, the volunteer private pilots are seeking to be reimbursed for operating expenses incurred in transporting individuals who are ill or injured and cannot financially afford commercial transportation to medical treatment facilities. The FAA has determined that the petitioner’s request would be contrary to the provisions set forth in § 61.113(c). In the scenario presented in the petition, the choice of destination (i.e., transportation to a medical treatment facility/hospital) would be dictated by the passenger, not the pilot. The sole purpose that a volunteer pilot would have in making the flight is to provide transportation for the passenger to seek medical treatment. In such cases, the FAA has permitted these flights to be conducted under part 91 provided the pilot receives no compensation for the flight. Reimbursement for the pro rata share of operating expenses for transporting a passenger to a medical treatment facility would constitute compensation and would be considered a commercial operation for which a part 119 operator’s certificate would be required. On May 27, 2005, Rebecca B. MacPherson, Assistant Chief Counsel for Regulations, issued a legal interpretation to Joseph Kirwin determining that charitable medical flight s involve point-to-point transportation for which any kind of compensation received would be considered a commercial operation. In that legal interpretation, the FAA stated, in essence, that the only allowable sharing of5 costs of operating expenses are those which are bona fide (i.e., “joint ventures for a common purpose”). The FAA concluded that there is no “common purpose” if the volunteer pilot is only flying to a destination for the purpose of providing transportation services for the patient/passenger to receive medical treatment at a medical facility/hospital.

However, the FAA has found that the humanitarian efforts of these volunteer pilots who volunteer their time and piloting services are commendable, and the FAA wants to encourage this kind of volunteerism and public service for the common good of our citizens. The FAA recognizes the fact of rising costs for fuel and aircraft operating expenses; however, when money is exchanged for transportation, the public expects, and the FAA has a duty to demand, a higher level of safety for the flying public. The FAA believes by requiring the petitioners and their pilots to comply with the conditions and limitations set forth in this grant of exemption, we can ensure that a higher level of aviation safety for the flying public will be maintained.

As a result of the petitioners submitting their SMS document (FAA-2009-0702) to the docket, the FAA has included many of these safe operating practices into the conditions and limitations of this grant of exemption. The FAA recognizes that many of the petitioners’ safe operating practices are much more restrictive than the requirements in part 135. However, by accepting the petitioners’ safe operating practices and including them in the conditions and limitations of this grant of exemption, the FAA believes this will minimize the risk factors and provide an equivalent level of safety.

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exemption would be in the public interest. Therefore, under the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, the petition of Mercy Medical Airlift, Angel Flight Mid-Atlantic, and Airlift Hope of America for an exemption from 14 CFR § 61.113(c) is hereby granted, subject to the following conditions and limitations:

Conditions and Limitations

1. The exemption holder must maintain operational control of the flight and ensure the flight can be conducted in accordance with the provisions and limitations, as set forth in this grant of exemption.

2. The FAA may at any time or place conduct inspections of the pilot(s) and aircraft being flown in accordance with this exemption.

3. All pilots must possess the following qualifications and aeronautical experience, as appropriate:6 a. Must hold an instrument rating or privilege that is appropriate to the aircraft being flown;

b. For the operation of any single-engine piston aircraft, the pilot must have a minimum total time of 500 hours, with no less than 400 hours as pilot in command (PIC), and a minimum of 50 hours in the specific make and model of single-engine aircraft being flown;

c. For the operation of any multiengine aircraft, the pilot must have a minimum total time of 1,000 hours as PIC, a minimum of 250 hours in multiengine aircraft, and a minimum of 50 hours in the specific make and model of multiengine aircraft being flown; d. For the operation of any turbine-powered aircraft, the pilot must have a minimum total time of 1,000 hours as PIC, a minimum of 100 hours in turbine-powered aircraft, and a minimum of 50 hours in the specific make and model of turbine-powered aircraft being flown;

e. A minimum of 50 hours as PIC must have been flown and logged within the preceding 12 calendar months immediately preceding the month of the flight;

f. A minimum of 12 hours must have been flown and logged within the preceding 3 calendar months prior to the month of the flight (this requirement may be waived if the pilot has completed at least 2 hours of dual flight training with a certificated flight instructor within the preceding 3 calendar months prior to the month of the flight); g. Must hold a current and valid second class medical certificate (per § 61.23(d)(2)(i)); h. Must have a current flight review (per § 61.56(a)) in the same aircraft category, class, and type (if a type rating is required) being flown; i. Must be instrument current (per § 61.57(c) or (d), as appropriate) in the same aircraft category, class, and type (if a type rating is required) being flown; j. Within the preceding 3 calendar months prior to the flight, the pilot must have logged at least three takeoffs and three landings to a full stop in the same aircraft category, class, and type (if a type rating is required) being flown. This condition may also be satisfied by having accomplished and logged at least three takeoffs and three landings to a full stop at night within the preceding 3 calendar months in the same aircraft category, class, and type (if a type rating is required) being flown; and k. All pilots are required to meet the drug and alcohol testing requirements in accordance with § 91.147.

4. Flight duty, rest, and flight time limitations:a. No pilot may fly more than 8 hours of flight time within any 24-consecutivehour duty day period;7 b. No pilot may perform a duty day in excess of 12 consecutive hours (a duty day starts when the pilot arrives at the airport and begins preparation for the flight and terminates upon completion of the post flight of the aircraft); c. Once 12 consecutive hours of duty has been performed, the pilot must rest a period of at least 12 consecutive hours before conducting another flight; and d. No pilot may accept a flight if that pilot’s flight time will exceed 8 hours, nor may the exemption holder assign a pilot whose flight time will exceed 8 hours in that duty day.

5. Passenger and medical crew briefing requirements: Prior to each takeoff, the pilot in command must ensure that all passengers have been orally briefed on the following: a. The flight is being permitted under this grant of exemption and that the operator is not a certificated commercial operator; b. When, where, and under what conditions smoking is allowed; c. When, where and under what conditions it is necessary to have his or her safety belt and, if installed, his or her shoulder harness fastened about him or her; d. The placement of seat backs in an upright position before takeoff and landing; e. Location and means for opening the passenger entry door and emergency exits; f. Location of survival equipment; g. Use of normal and emergency oxygen installed; h. Location and operation of fire extinguishers; and i. The patient, who may need the assistance of another person to exit the aircraft if an emergency occurs, has received a briefing as to the procedures to be followed if an evacuation occurs.

6. Pilot training: The exemption holder must establish a pilot training program that is acceptable to the FAA Certification and General Aviation Branch, AFS-810, 800 Independence Avenue, SW., Washington, D.C. 20591-0001; telephone (202) 267-8212. All pilots must have completed this Mercy Medical, Angel Flight, and Airlift Hope/FAA-accepted training program. The training program must include the following elements:

a. Risk, hazard identification;

b. Accident trends and factors for general aviation fixed wing under 12,500 pounds;

c. Current edition of the Aircraft Owners and Pilots Association’s Air Safety Foundation Nall Report;8 d. High risk phases of flight: i. Takeoff and climb; ii. Takeoff stall/settling; iii. Loss of airspeed resulting in non-recoverable stall or sink rate; iv. Loss of control; and v. Crosswinds/other conditions leading to loss of directional control; e. Maneuvering: i. Stall or loss of control; and ii. Loss of airspeed resulting in stall/spin; f. Descent/approach: Beginning of descent from cruise altitude to missed approach point or runway threshold; g. Stalls/spins; h. Loss of airspeed; i. Collisions with objects, terrain; j. Loss of engine power; k. Carburetor icing (if appropriate, for the aircraft the pilot is assigned to fly); l. Incorrect fuel mixture; m. Wind gusts or wake turbulence; n. Landing: i. Loss of directional control; ii. Crosswinds; iii. Inadequate airspeed control; iv. Stalls, hard landing, short-long touchdown; v. Runway conditions; and vi. Runway contamination;

o. Flight planning and decisionmaking: i. Flight planning; ii. Proper pre-flight planning; iii. Fuel reserve requirements; iv. In-flight monitoring of ground speed; v. Systems operation;9 vi. Proper operation of fuel system; vii. Fuel contamination; viii. Proper fueling procedures; ix. Weather; x. Continued visual flight rules into instrument meteorological conditions (IMC); xi. Instrument flight rules (IFR) techniques; xii. Following appropriate IFR procedures; xiii. Descending to and maintaining minimum descent altitude on approach; xiv. Thunderstorm; xv. Flying too close or penetrating turbulence; xvi. High winds; xvii. Mountainous terrain; xviii. Icing; xix. Loss of lift and performance;

xx. Instrument malfunction; and xxi. Missed approach/go around; p. Other factors: i. Single pilot IFR; ii. Night operations at unfamiliar airports; iii. Mission mentality; iv. “Get-there-it is;” v. Distractions; and vi. Incomplete/stale weather briefings.

7. Recurrent training. A recurrent training program must ensure: a. The pilot remains adequately trained, current, and proficient regarding all of the elements contained in the FAA-accepted training program; b. The crewmember’s knowledge of the aircraft and crewmember position, including low altitude wind shear and operations in icing conditions; and c. Recurrent flight training sufficient to complete satisfactorily the recurrent proficiency flight check.10 8. Pilot checking: The exemption holder must appoint a sufficient number of check pilots to administer initial and recurrent testing to the pilots that operate under this grant of exemption. The check pilot(s) must be acceptable to the FAA Certification and General Aviation Branch, AFS-810, 800 Independence Avenue, SW., Washington, D.C. 20591-0001; telephone (202) 267-8212.

a. Every 12 calendar months, all pilots must complete a proficiency flight check appropriate to the commercial pilot certification level for the category and class of aircraft being flown. Every pilot operating an aircraft that requires the pilot to hold the appropriate type rating must complete a proficiency check equivalent to the airline transport pilot certification level; and b. Every 6 calendar months, every pilot operating under IFR must complete an instrument proficiency check in the specific make and model of aircraft being operated under this grant of exemption.

9. The exemption holder must establish a flight locating program for operations under this exemption that is accepted by the FAA Certification and General Aviation Branch, AFS-810, 800 Independence Avenue, SW., Washington, D.C. 20591-0001; telephone (202) 267-8212.

10. The exemption holder must report all accidents, incidents, and National Transportation Safety Board reportable events to the FAA Certification and General Aviation Branch, AFS-810, 800 Independence Avenue, SW., Washington, D.C. 20591-0001; telephone (202) 267-8212.

11. Aircraft requirements: Each aircraft mu st meet all of the requirements of part 91 subpart C.

12. Aircraft maintenance: Maintenance may not be performed by the owner or pilot unless that owner or pilot is a certificated mechanic, repairman, or repair station. All maintenance must be performed by a certificated mechanic, repairman, or repair station. a. Each aircraft owner who participates in this program must keep the records specified in § 91.417(a) for the periods specified in § 91.417(b);

or b. Maintain the aircraft in accordance with all the provisions set forth in part 91, subpart E, and that includes annual inspections and 100-hour inspections as specified in § 91.409(b), or the equivalent maintenance/inspections, and approved by the FAA.

13. Inoperable instruments and equipment: All instruments and equipment must be in an operational and functioning condition, unless the aircraft has an approved minimum equipment list (i.e., § 91.213).11 14. Areas of operations: All flights must remain within the contiguous United States.

15. Each pilot must adhere to the following best practices/policies of the exemption holder which are:

a. In IMC conditions, each pilot must plan to land at an airport with a precision approach; b. Each pilot must add 100 feet to all instrument approach minimums; c. For night landings, the pilot should only use runways with functional vertical guidance, such as visual approach slope indicator or instrument landing system; d. The pilot may not attempt circling approaches at night; e. The pilot should utilize qualified co-pilots when destination is in a busy Class B airspace with potential high workload. If not available, the pilot must be thoroughly briefed and organized; f. The pilot must add 50 percent to pilot operating handbook runway length performance to clear the obstacle for takeoff and landing under ambient conditions; g. For IMC take-off: minimums, the pilot must apply 50 percent above the approach landing minimums (example: FDK Airport minimums 200/1/2, then the takeoff minimums should be at least 300 feet and 1 statute mile visibility); h. If destination is unfamiliar, the pilot must obtain briefing from a pilot or fixed base operator at that airport with experi ence with that airport prior to flight; i. The pilot is required to report to the exemption holder any and all situations when safety of flight was compromised; j. The pilot is required to provide feedback to the exemption holder on all matters that could compromise safety for future flights to the exemption holder including weather, airports, and air traffic control; k. The pilot must ensure that all passengers are restrained by FAA-approved seatbelts or FAA-approved child safety seat. The only exception shall be change of seat positions, quick access to luggage, care and/or feeding of child, or use of lavatory; l. The pilot will consult all available weather products, including wind socks and the like, to verify departure will be from the correct runway relative to wind conditions; m. The pilot will utilize computer devices and reading material only as these are pertinent to safe operation of the flight and will refrain from any and all distractions that could compromise safety of flight; and12 n. The pilot will utilize and brief passengers that a sterile cockpit condition exists during taxi and takeoff until reaching cruise altitude and also during descent from cruise altitude, descent, approach, landing, and taxi to ramp.

16. Each pilot must complete and adhere to a go/no-go checklist; patient, passenger, copilot release forms, and post-flight report. The checklist must be kept for 30 days. The go/no-go checklist will consist of at least the following information:

Pilot Go/No-Go Checklist

E XCELLENT OK M ARGINAL P OOR Pilot Physical health 

### □ □ □ □

Mental health 

### □ □ □ □

Prepared/confident 

### □ □ □ □

Well rested 

### □ □ □ □

Aircraft Maintenance 

### □ □ □ □

Fuel reserve 

### □ □ □ □

Pre-flight 

### □ □ □ □

Equipment sufficient for the flight 

### □ □ □ □ conditions

Weight and balance 

### □ □ □ □

Weather Current & WX forecast conditions 

### □ □ □ □

Departure 

### □ □ □ □

Destination 

### □ □ □ □

Return 

### □ □ □ □13 Explain if marginal or poor:

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

Other Y ES N O NA

Child safety seat appropriately secured ___ ___ ___

Passengers briefed ___ ___ ___

Pre-departure weather briefing completed ___ ___ ___

Departing on correct runway verified ___ ___ ___

Release forms signed ___ ___ ___

Flight # ____________________________________

Pilot Signature ____________________________________

Date ____________________________________

17. Flight locating procedures required: The pilot must file and activate an IFR flight plan for each flight. The flight plan may be canceled upon acceptance of a visual approach clearance from air traffic control.

18. The exemption holder must ensure that each aircraft used in this grant of exemption carries a minimum of a $1 million liability insurance policy that provides for $100,000 per seat per passenger.

19. The exemption holder must ensure that each aircraft used in this grant of exemption is properly registered, licensed, and airwor thy. The aircraft components must be overhauled upon reaching the specified time between overhaul.

This exemption terminates on February 29, 2012 unless sooner superseded or rescinded.

Issued in Washington, D.C., on February 26, 2010.14 /s/ Raymond Towles Acting Director, Flight Standards Service