AFS-12-242-E

Exemption No. 10416A

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

STARFIGHTERS, INC. Regulatory Docket No. FAA-2011-0937

 

for an exemption from § 91.319(a)

of Title 14, Code of 

Federal Regulations 

 

DENIAL OF PETITION FOR RECONSIDERATION

 By letter dated February 20, 2012, Mr. Jerry H. Trachtman, Attorney for Starfighters, Inc., 

1735 W. Hibiscus Blvd., Suite 300, Melbourne, Florida 32901, filed a petition for 

reconsideration of the Federal Aviation Administration’s (FAA) December 22, 2011 denial of 

Starfighters' request for exemption from § 91.319(a) of Title 14, Code of Federal Regulations 

(14 CFR). The FAA denies petitioner’s request for exemption for the reasons discussed 

below. The FAA is unable to grant petitioner’s request for issuance of a Letter of Deviation 

Authority (LODA) because a petition for exemption does not provide the correct procedure 

for such a request and because petitioner would have to provide more information as 

discussed below.

 

The petitioner requests relief from the following regulation:

Section 91.319(a) prescribes, in pertinent part, that no person may operate an 

experimental category civil aircraft for other than the purpose for which the certificate 

was issued, or for carrying persons or property for compensation or hire. 
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The petitioner supports its request with the following information:

Background:

The petitioner requests an exemption and/or a Letter of Deviation Authority (LODA) which 

would allow it to operate former military, F-104 experimental exhibition certificated aircraft 

to support the emerging commercial space flight industry. The petitioner plans to support this 

industry by servicing private and commercial entities requiring a cost effective means to test

payloads and to train prospective, non–pilot space flight participants, and crew. Anticipated 

payloads to be carried include: Rocket components, tracking sensors, future space-bound 

equipment, space hardware, microgravity experiments1 (see definition below), and other

experiments. The petitioner claims that the F-104’s capabilities for high altitude and high 

speed (in excess of Mach 2) allow for testing payloads and training individuals under the 

following conditions:

• extreme acceleration

• the ability to pull 7 g's (seven times the force of gravity) or more

• the ability to simulate microgravity 

 1 microgravity: A condition in which an object in the gravitational field of some other body (such as the Earth) is 

accelerated freely as a result of the gravitational force. Free-falling objects, such as a skydiver or a satellite 

orbiting the Earth, are in a condition of microgravity, while objects held up by forces resisting gravity (as in the 

case of objects resting on the Earth's surface) or held up by aerodynamic forces (as in the case of birds or aircraft) 

are not. Since the normal experience of weight on Earth is the result of forces that resist gravity, objects in 

microgravity appear weightless. Not all effects of gravity are eliminated in such conditions; tidal forces, for 

example, still affect bodies in microgravity, especially large bodies such as the Earth and the Moon. (The 

American Heritage® Science Dictionary Copyright © 2002. Published by Houghton Mifflin.)
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Chronological background concerning Starfighters’ requests for exemption or LODA: 

Date Petitioner Result or Action Issued By Reference

2004 (May 7) Starfighters, 

Inc.

Denial of Exemption James J. Ballough 

Director, Flight 

Standards Service 

(FSS)

Exemption 

No. 8316

2009 (October) Starfighters, 

Inc.

Issued LODA North Florida Flight 

Standards District 

Office (FSDO)

Statement of 

petitioner in 

letter dated 

August 16, 

2011

2010 (June 22) Starfighters, 

Inc.

Suspended LODA North Florida 

FSDO coordinating 

with FAA 

Headquarters in 

Washington, DC

Statement of 

petitioner in 

letter dated 

August 16, 

2011

2011 

(February 18)

RLB Aviation, 

Inc. D.B.A. 

Starfighters, 

Inc.

Denial of Exemption John W. McGraw 

Director, FSS

Exemption 

No. 10214

2011

(December 22)

Starfighters, 

Inc.

Denial of Exemption John S. Duncan 

Acting Director, 

FSS

Exemption 

No. 10416

The petitioner states that in the FAA’s denial of Exemption No. 10416:

• the FAA has made important factual errors and findings of material fact that are 

erroneous;

• the FAA has not correctly interpreted the applicable law, rules, regulations, and 

precedent; and

• the FAA has failed to make necessary legal conclusions that are without governing 

precedent.

Furthermore, the petitioner indicates that its petition for reconsideration is also a renewed 

request for a LODA. The request for a LODA, if granted, would possibly allow for certain 

flight training operations.

Starfighters goes on to provide additional claims to assert the FAA’s assessment of 

Starfighters’ proposed operations was false, irrelevant and without merit. The following is a 
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list of Starfighters’ description of the facts and its claims related to the petition for 

reconsideration (items 1-7) and also the request for a LODA (items 8-10):

1) The FAA’s safety evaluation of Starfighters should only be based upon the facts set 

forth in its petition. 

2) Specific payloads to be carried cannot be provided until customer contracts are signed, 

and contracts cannot be signed until an exemption is issued.

3) The FAA is ignoring the mandate of Congress and the President of the United States 

by stating that the operations proposed by Starfighters are not in the public interest.

4) The requirement for “an equivalent level of safety” is unclear and ambiguous. 

5) Military operation of the F-104 bears no resemblance whatsoever to the petitioner’s 

proposed operations. 

6) It is factually incorrect to compare Starfighters proposed flights to scenic tours, aerial 

photography, carrying company personnel, scattering ashes and extended test pilot 

training to non-test pilots.

7) Unlike the operations listed above, only the F-104 can provide the performance 

capability required by Starfighters’ potential private and commercial clients.

8) The FAA failed to comply with FAA Order 8900.1, Volume 3, Ch 11, Section 1, 

paragraph 3-293 (B)(2) and Starfighters is “entitled” to the LODA.

9) That pursuant to FAA Order 8900.1, a LODA may be issued to carry persons or 

property for compensation or hire in an aircraft with an experimental airworthiness 

certificate when pilot training is not being given.

10) The petitioner concludes that it has established that it is entitled to a LODA for its 

proposed operations.

The FAA's analysis is as follows:

The FAA has reviewed 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 current regulations. Additionally, as required by 14 CFR 

§ 11.101, Starfighters has not:

• offered additional facts for the FAA to consider that have not been considered 

previously, 
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• shown that the FAA made important factual errors in denying the original petition, 

nor,

• shown that the FAA incorrectly interpreted a law, regulation or precedent,

to warrant a grant of its Petition for Reconsideration.

Analysis of Petition for Reconsideration:

1) Starfighters first states that the FAA’s safety evaluation should be based upon only the 

facts set forth in its petition ( Exhibits D and E) detailing the safety measures it has

implemented while working with NASA. Starfighters asserts that a safety decision 

based upon the anecdotal early military history of the F-104 has no relationship to the 

type of flying proposed by Starfighters. This is not a new fact for reconsideration, but 

a recasting of previously presented facts.

Research shows that the Italian Air Force continued to operate the F-104 until 2004 

but with a loss rate of an alarming 38%. This high loss rate indicates that even a 

national air force with all its available resources and factory support of maintenance, 

inspection, and parts has trouble operating these aircraft safely. With no manufacturer 

support for data or parts, the continued operation of these aircraft by Starfighters will 

have an increasing level of risk as the operator is forced to use recycled parts to 

continue the operation.

The petitioner states it has conducted over 1,000 sorties at over 120 locations across 

North America since 1996 with no accidents, no incidents and no regulatory 

violations. Exhibits D and E discuss the safety analysis by NASA conducted in 

accordance with a contract that did not involve carrying members of the general 

public. The FAA did consider these factors in its previous denials. While Exhibit D 

lists subject areas evaluated and approved by Johnson Space Center, Dryden/Edwards 

Flight Research Center and Goddard Space Flight Center, the petitioner provided no 

actual documentation. 

Exhibit D describes flight operations that depart the Kennedy Space Center Shuttle 

Landing Facility (SLF) and then transition over the Atlantic Ocean to Starfighters’ 

own Air Traffic Control Assigned Airspace (ATCCA ) located within warning area W497A. Starfighters states that all flights are with the coordination and approval of 

Miami Center Military Airspace Chief, NASA Flight Operations, and the United 

States Air Force Cape Canaveral Airspace Manager. Starfighters maintains its own 

flight operations personnel in the SLF Control Tower during all flights. There is no 

documentation beyond the SLF operations to describe the operational experience that 

Starfighters is relying upon. Exhibit E is an undated letter from NASA stating that 

Starfighters passed a formal safety review. Again, there was no actual documentation 

of what was part of this review. Therefore, the FAA has been unable to assess whether 
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the information broadly discussed in the exhibits outweighs the operational history of 

more than 2,000 other F-104 variants over a 60 year history. 

2) Starfighters next claims that the FAA stated that little detail was provided by 

Starfighters describing how its specific operations would be in the public interest and 

responds by stating that specific payloads to be carried cannot be provided until 

customer contracts are signed, and contracts cannot be signed until an exemption is 

issued.

Starfighters has not demonstrated a reason for seeking relief through exemption that

supports a substantial need to expose both the flying and non-flying public to training 

that can currently be accomplished in certificated aircraft. There are commercial 

operators currently offering microgravity flights in standard category aircraft. There 

are also standard category aerobatic aircraft that can exceed 7 g loads. Additionally, 

there are ground based devices, such as centrifuges, that can create what would also be 

considered extreme acceleration and g loads. 

Regarding the statement that specific payloads to be carried cannot be provided until 

customer contracts are signed, the FAA cannot issue an exemption based upon 

speculated business.

3) Third, Starfighters claims that the FAA is ignoring the mandate of Congress and the 

President of the United States by stating that the operations proposed by Starfighters 

are not in the public interest. 

Starfighters misunderstands the different Congressional mandates placed upon the 

FAA. Title 49 of the United States Code (USC), in pertinent part, requires the FAA to 

ensure public safety related to private and commercial use of aircraft. Separately from 

this safety mandate, the FAA also supports the declaration by Congress that private 

commercial space flight activities are an important element of the transportation 

system of the United States and are consistent with the need to develop a strong space 

transportation infrastructure with significant private sector involvement. However, it 

is the FAA’s aviation safety mandate that applies to the proposed Starfighters 

operations. The FAA’s safety mandate trumps its promotion mandate. 

4) Starfighters claims that the requirement for “an equivalent level of safety” is unclear 

and ambiguous. Starfighters believes that this statement equates to requiring safety 

measures that would be equivalent to not flying at all.

Under § 91.319(a), an experimental category aircraft is not allowed to carry persons or 

property for compensation or hire. Under specific circumstances, exemptions have 

been granted to allow limited operations for compensation or hire where operating 

limitations preclude risk to the general public and the public interest value of the 

operation outweighs the residual risk to the participants. In this case, the value of the 
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training to the passengers

2 would have to justify the risk to their safety arising from 

flying in this experimental aircraft rather than a standard category aircraft, where no 

exemption would be required. The analysis of the limited operational history provided 

by Starfighters combined with the publicly available operational history of the aircraft, 

places the residual risk at a higher level than a level at which an equivalent level of 

safety could be found to exist.

5) Starfighters also claims that military operation of the F-104 bears no resemblance

whatsoever to the petitioner’s proposed operations, that all flights are conducted 

during the day, Visual Flight Rules (VFR) conditions only, and that the profiles are 

well established and are the same for each type of flight.

Historically, seemingly benign mechanical failures have resulted in requiring the 

occupant(s) to eject from the aircraft at 200 Miles Per Hour. As pointed out above, 

absent detailed analysis of the types of operations and given the historical record of 

Starfighter’s operations, the FAA does not have enough information with which to 

meet its mandate of ensuring an equivalent level of safety.

6) Next, Starfighters states that it is factually incorrect to compare Starfighters proposed 

flights to scenic tours, aerial photography, carrying company personnel, scattering 

ashes and extended test pilot training to non test pilots.

All of the comparisons listed above relate to the applicant's proposed operations 

because they were all operations requested to be performed in experimental aircraft

that were also not permitted to carry persons or property for compensation or hire. 

Additional denials include exemption numbers 10150, 10128, 8189, and 5936.

7) Starfighters also states that, unlike the operations listed above, only the F-104 can 

provide the performance capability required by Starfighters potential private and 

commercial clients.

This statement may be true, but does not make the proposed Starfighters’ passengercarrying operations for compensation or hire any different than what was proposed in 

those operations listed above. Additionally, other certificated aircraft and centrifuges 

may provide comparable experiences. 

8) Starfighters next states that the FAA failed to comply with FAA Order 8900.1, 

Volume 3, Ch 11, Section 1, paragraph 3-293 (B)(2) since a LODA may be issued for 

"OTHER SPECIFIC TRAINING APPROVED BY THE GENERAL AVIATION 

AND COMMERCIAL DIVISION, AFS-800" and that Starfighters is “entitled” to the 

LODA.

 2 Persons are space flight participants only during activities licensed or permitted under 51 USC Chapter 509.
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The FAA has acknowledged that flight training is of significant safety value and as a 

result made a change to part 91 by the addition of § 91.319(h). This rule change 

permits the issuance of a LODA. While Starfighters has correctly referenced the FAA 

Order 8900.1 in its petition, it has failed to understand the necessary application of the 

order.

The process for approval of a training program under a LODA begins with an 

application to the local FSDO. If the training does not comply with the types of 

training that are listed in Order 8900.1, the FSDO can request that AFS-800 approve 

the proposed training. This gives the FAA flexibility, after due research, to ensure 

safety when new technologies are being developed. There is, thus, no “entitlement” 

when it comes to issuance of a LODA. 

In the case of commercial space flight training, the FAA has determined that Flight 

Standards does not have the technical expertise to evaluate space flight training. AST 

is the responsible line of business for commercial space flight activities and will 

review and provide a recommendation as to whether an applicant for a LODA, such as 

Starfighters, is proposing operations that mirror a space flight experience. AFS-800 

will take AST’s determination into account when deciding whether to issue a LODA.

Additionally, the FAA indicated to Starfighters in the previous exemption denial that 

approvals for flight training will be handled through the deviation authority contained 

in §91.319(h) and that its proposed flight testing must be done in an aircraft properly 

issued a Special Airworthiness Certificate for the purpose of Research and 

Development activities. The flight testing of aircraft and other items must be done in 

accordance with FAA Order 8130.2(G), Airworthiness Certification of Aircraft and 

Related Products. Starfighters may wish to make application to the appropriate 

Manufacturing and Inspection Office (MIDO) for a Special Airworthiness Certificate 

for the purpose of Research and Development activities to permit the appropriate flight 

test program. 

9) In its petition, Starfighters quotes the following: “FAA Order 8900.1, Volume 3, 

Ch 11, Section 1, paragraph 3-291.C permits the Federal Aviation Administration 

(FAA) to issue a LODA to an applicant for the purpose of conducting flight training 

when the aircraft intended to be used will not be operated for a purpose for which its 

certificate was issued, or when the aircraft will be used to carry persons or 

property for compensation or hire. (emphasis added).” Starfighters then goes on to 

conclude: “(c)learly pursuant to FAA Order 8900.1, a LODA may be issued to carry 

persons or property for compensation or hire in an aircraft with an experimental 

airworthiness certificate when pilot training is not being given, and this is precisely 

what Starfighters has requested.”

In arriving at this erroneous conclusion, the petitioner omitted the last sentence of 

paragraph 3-291.C, which reads: “Issuance of a LODA permits the LODA holder to 
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provide flight training for compensation or hire in an experimental aircraft which the 

LODA holder provides.” This last sentence of the guidance properly explains the 

regulatory requirement that a LODA providing relief from § 91.319(a) can only be 

issued for the purpose of conducting flight training. 

10) The petitioner concludes that it has established that it is entitled to a LODA for its 

proposed operations.

As stated in the answer to #8 above, a LODA is not an “entitlement.” The FAA must 

evaluate each request to ensure that it meets the intent of the regulation. As stated in 

the previous denial, Exemption No. 10416, December 22, 2011, and full reading of 

§ 91.319(g) and FAA Order 8900.1 Volume 3, Chapter 11, Section 1, Paragraph 3-

291C, a LODA for the carriage of persons or property, other than for the purpose of 

training, is not allowed by § 91.319(h). 

The FAA has consistently denied exemptions in circumstances similar in many respects to 

those presented in Starfighters’ petition. In these previous denials of exemption, the FAA 

stated that it found that permitting unrestricted operation of experimental aircraft carrying 

persons for compensation or hire was not in the public interest. Absent additional 

documentation and analysis, the identified hazards of the F-104 pose a safety risk beyond that 

allowed by § 11.81(e): “The reasons why granting the exemption would not adversely affect 

safety, or how the exemption would provide a level of safety at least equal to that provided by 

the rule from which you seek the exemption.” Additionally, operation of experimental aircraft 

carrying property for compensation or hire would require a Special Airworthiness Certificate 

for the purpose of Research and Development.

As discussed above, the petitioner’s request for the issuance of a LODA is not appropriate to 

be in a petition for exemption. The above discussion of the LODA process was provided as 

information to the petitioner. Therefore, this decision does not grant or deny any request for a 

LODA.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption is not in the public interest. 

Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, the petition 

of Starfighters, Inc. for reconsideration of Denial of Exemption No.10416 from 14 CFR

§ 91.319(a) to operate F-104 aircraft carrying persons or property for compensation or hire is 

hereby denied. 

Issued in Washington, D.C. on February 11, 2013.

Michael P. Huerta

Administrator