AFS

- 12

- 242

- E Exemption No. 10416 A

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

S TARFIGHTERS , INC. Regulatory Docket No. FAA

- 2011

- 0937

for an exemption from § 91.319(a) of Title 14, Code of Federal Regulations

DENIAL O F 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 Ad min istration ’s (FAA) December 22, 2011 d enial 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 followi ng 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 ca rrying persons or property for compensation or hire.2

The petitioner supports its request with the following information:

Background:

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

would allow it to operate for mer 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 payload s and to train prospective, non

– pilot space flight participants

, and crew. A nti cipated payloads to be carried include: R ocket components, tracking sensors, future space

- bou nd equipment, space hardware, microgravity experiments 1 (see definition be low)

, 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

• th e 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

accel erated 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 th e 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 gra vity 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.)3

Chronological background concerning Starfighters’ requests for exemption or LODA:

Date Petitioner Result or Action Issued By Reference 2004 (May 7) Starfi ghters,

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 Augu st 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 ar e without governing precedent

.

Furthermore, t he 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.

Starfighter s goes on to provide additional claims to assert the FAA’s assessment o f Starfighters’ proposed operations was false, irrelevant and without merit. The following is a4

list of Starfighters’ description of the facts and its claims related to the petition fo r reconsideration (items 1

- 7) and also th e request for a LODA (items 8

- 10 ) :

1) The FAA’s safety evaluation of Starfighters should only be based up o n th e facts set

forth in its peti ti on

.

2) S pecific payloads to be carried cannot be provided until customer con tracts are signed, and contracts cannot be signed until an exemption is issued.

3) T he 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) M ilitary 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 ’ potenti al private and commercial clients.

8) T he 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 regul ations. 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

,5

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

no r,

• 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 t he 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 rel ationship 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 loc ations across North America since 1996 with no accidents, no incidents and no regulatory

violations. Exhibits D and E discus s 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 denial s. While Exhibit D lists subject areas evaluated and approved by Johnson Space Center, Dryden/Edwards Flight Research Center and Goddard Space Flight Center , t he petitioner provided no

actual docum entation.

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 ar ea W

497A. Starfighters states that a ll 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 Starfig hters 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 whether6

the information broadly discussed in the exhibits outweighs the operational history of

mor e than 2,000 other F

- 104 variants over a 60 year history.

2) Starfighters next claims that t he 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 s pecific 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 seek ing 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 c ategory aeroba tic aircraft that can exceed 7 g loads. Additionally, there are ground based devices, such as centrifuges, that can create what would also be

consi dered extreme acceleration and g loads.

Regarding the statem ent that specific payloads to b e carried cannot be provided until customer contracts are signed , t he 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 stati ng 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

ens ure public safety related to private and commercial use of aircraft. Separately from this safety mandate, t he FAA also supports the declaration by Congress that private commercial space flight activities are an important element of the transportation
syst em 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
operat ions. The FAA’s safety mandate trumps its promotion mandate.

4) Starfighters claims that t he requirement for “an equivalent level of safety” is unclear and ambiguous. Starfighters believes that this statement equates to requiring safety

measures that wou ld be equivalent to not flying at all.

Under § 91.319(a), a n experimental category aircraft is not allowed to carry p ersons or

p roperty for comp ensation or hire

. Under specific circumstances, exemptions have

been granted to allow limited operations for c ompensation or hire where operating limitations preclude risk to the general public and the public interest value of the operation outweigh s the residual risk to the participants. In this case, the value of the7

training to the passengers 2 would have to ju stify 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 pub licly 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 m ilitary operation of the F

- 104 bears no resemblance whatsoever to the petitioner’s proposed operations , that a ll flights are conducted during the day, Visual Flight Rules (VFR) conditions only , and that t he profiles are

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

Historically, seemingly ben ign mechanical failures have result ed 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 e nsuring an equivalent level of safety.

6) Next, Starfighters states that i t is fact ually incorrect to compare Starfighters p roposed 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 permitt ed to carry pe rsons or property for compensation or hire.

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

.

7) Starfighters also states that, u nlike the operations listed above

, o nly the F

- 104 can provide the per formance capability required by Starfighters potential private and

commercial clients.

This statement may be true, but does not make the proposed Starfighters’ passenger

carrying operation s for compensation or hire any different than what was prop osed in those operations listed above

. Additionally, other certificated aircraft and centrifuges may provide comparable experiences.

8) Starfighters next states that t he 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" a nd that Starfighters is “entitled” to the

LODA.

2 Persons are space flight participants only during activities licensed or permitted under 51 USC Chapter 509.8

The FAA has acknowledged that flight trai ning 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. I f the training does not comply with the types of training that are listed in Order 8900.1, th e 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.

Additional ly, t he 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

issu ed a Special Airworthiness Certificate for the purpose of Research and Development activities. T he 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 i ts 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 airc raft 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)learl y 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 req uested.”

In arriving at this erroneous conclusion, the petitioner omit ted the last sentence of paragraph 3

- 291.C, which reads: “ Issuance of a LODA permits the LODA holder to9

provide flight training for compensation or hire in an experimental aircraft whi ch 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 tha t 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

th e 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 n ot 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 unrestr icted 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

ca rrying 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 exem ption. The above discussion of the LODA process was provided as information to the petitioner . T herefore, 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 carryi ng persons or property for compensation or hire is hereby denied

.

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

Michael P. Huerta

Administrator