FAA OFFICE OF RULEMAKING 800 Independence Ave SW Washington D.C., 20591 202

- 267

- 9677

http:// www.reg u lations

. gov FAA

- 2011

-

PETITION FOR EXEMPTION

FROM

FEDERAL AVIATION REG ULATION S

14 CFR Section s 91.313 (a), and (c)

Communications with respect to this document should be sent to:

Marty Hall, LDER Tatonduk Outfitters Ltd. d/b/a EVERTS AIR ALASKA P.O. 60908 Fairbanks Alaska 99706 Phone 907

- 450

- 2300 Cell 907

- 590

- 5111 mhall@evertsair.com

April 04/ 21 /11 Gary B. Garofalo Jason E. Maddux Garofalo Goerlich Hainbach PC 1200 New Hampshire Avenue NW Washington, D.C. 20036 Phone 202

- 776

- 3970 Fax 202

- 776

- 3975 ggarofalo@ggh

- airlaw.com jmaddux@ggh

- airlaw.com

Counsel for Tatonduk Outfitters L imited d /b/a Everts Air Alaska d/b/a Everts Air Cargo2 Nature of Relief from the Regulation requested

In accordance with 14 C.F.R. Part 11, Tatonduk Outfitters Ltd. d/b/a Everts Air Alaska ( Everts ), a Part 135 Air Carrier, 1 hereby petitions the Federal Aviation Administration (FAA) for exemption from the requi rements of 14 C.F.R. §§ 91.313 (a), and (c), and any other applicable regulations, 2

Exemption Request ed from the Following Regulation to the extent necessary, to conduct intra

- Alaska fuel hauling operations in restricted category Air Tractor AT

- 802 aircraft pursuant to Everts
Part 119 air carrier certifi cate and Part 135 operations specifications as described more fully below.

**•** 91.313(a) No person may operate a restricted category civil aircraft

- (1) For other than the special purpose for which it is certificated; or (2) In an operation other than one necessary to accomplish the work activity directly associated with that special purpose.

**•** 91.313 (c)No person may operate a restricted category aircraft carrying persons or property for compensation or hir e. For the purposes of this paragraph, a special purpose operation involving the carriage of persons or material necessary to accomplish that operation, such as crop dusting, seeding, spraying, and banner towing (including the carrying of required personal or material to the location of th at operation), and operation for the purpose of providing f light crewmember training in a special purpose operation, are not considered to be the carriage of persons or property for compensation or hire.

1 Air Carrier Certificate number FXGA030A.

2 E verts notes that 14 CFR § 135.25(a) provides, “no certificate holder may operate an aircraft under this part unless that aircraft

— (1) Is registered as a civil aircraft of the United States and carries an appropriate and current airworthiness certificate issued under this chapter.” While E verts believes a restricted category airworthiness certificate satisfies the “appropriate” requireme nt of section 13 5.25(a), to the extent FAA disagrees, E verts requests an exemption from that section to operate the AT

- 802 purs uant to its Part 135 operations specifications.3 Background of R equest

Fuel hauling in Alaska is essential to the survival of communities and residents living in
remote areas of Alaska. It is an understatement to say that it is a difficult and challenging business to operate because of the isolated locations of Alaskan villages,
their runway availability and condition s and the harsh Alaska weather . The majority of
Alaska is not served by major road systems. There is no Interstate Highway system, and
the state highways that do exist service less than a dozen major cities. The only interconnected cities are Fairbanks and Anchorage and their “suburbs.” Parallel to this
minimal road system is the Alaska Railroad which facilitates large scale fuel movement
which is limited to shipments between the Fairbanks and Anchorage areas. Smaller amounts of fuel are hauled by either private light aircraft, or snow machine, and the
occasional cat

- train operated by the larger mining outfits.

The rest of the state is serviced by air or barge

. Barge transp ort can only occur when the waterways are accessible, which is seasonal at best and discussed further on page 8 . Air transport of fuel is the only other option for communities and residents to receive their
fuel

, and this service is provided year round. The majority of fuel transport by air is primarily accomplished by large two and four piston

- engine aircraft (the C

- 46 and DC

6, respectively) currently considered the workhorses for fuel hauling in Alaska

. However, due to their size and runway landing r equirements

, these aircraft are unable
to support villages with limited airport infrastructure (less than 3000 foot runways)

. In fact, t hey cannot operate into many of the smaller runways throughout Alaska. Nevertheless, the isolated villages served by these runways are often limited to air transport of fuel alone making them the most remote locations in our State.

Indeed, the Pipeline and Hazardous Materials Safety Administration has recognized and
accommodated the need to be able to tran sport fuel by aircraft in Alaska by regulation,
rather

, than requiring specific permits . The allowance for transportation of flammable liquids, by aircraft, when other means of transportation are impractical

, is specified in

section 175.310(b ) (2)(iv) of Title 49 of the Code of Federal Regulations (49 CFR).4 The fuels hauled by air in Alaska include heating oil (fo r homes, schools

, medical

treatment centers
, and stores ) jet fuel, diesel fuel for vehicles

, and the electrical generators that power the villa ges. There is a significant demand for automotive fuel for vehicles, including boats, cars, trucks, snow machines and four

- wheelers

. A ll of these
represent a primary means of transportation or subsistence in the Alaskan Bush. Accordingly, providing fuel transport services by air is uniquely needed in Alaska due to
the lack of surface infrastructure and navigable waterways.

Background of E verts Air Alaska

Everts Air Alaska was started in 1977 as Tatonduk Outfitters Limited, dba T a t onduk Flying Servi ce. It was sold to the current owner in 1993. Since then, the company name

was changed and they have operated scheduled and on demand service in Alaska, including considerabl e flying to the remote villages of Alaska with both small and large
aircraft.

Tatonduk Outfitters Ltd. d/b/a Everts Air Alaska has over 30 years of experience flying safely in the interior. It is a “Part 135 certificated operator” in the sense that it holds a Part 119 air carrier certificate and Part 135 operations specifications. Tatonduk Outfitters Limited also operates under the trade name Everts Air Cargo purs uant to its Part 121 operation specifications. It is an active participant in the Safety Management System ( SMS ) Pilot Program and distinguished member of the AACA Medall ion Program in Alaska

, due to receive the Medallion Shield later this year. 3

3 http://medallionfoundation.org/5 Proposed Operation

This exemption would permit E verts to operate newly manufactured Air Tractor AT

- 802
aircraft to be used to transpor t Everts owned

, or 3 rd party (customer) owned

, fuel product to Alaskan villages, mines, cabins, and other remote sites within Alaska. The
Air Tractor AT

- 802 is a restricted category aircraft and will be operated with a FAA approved bulk tank system

.

Equivalent and Additional Level s of Safety Beyond Part 91.

Grant of this exemption should not adversely affect safety. Indeed, grant of this exemption may increase the safety of air operations in Alaska. As discussed elsewhere herein, transportation by air is often the only means of hauling fuel to many remote parts of Alaska. Unfortunately, many Standard Category aircraft are not well equipped to operate in the harsh conditions of the Alaskan Bush, nor are they often capable of landing on the short runways that offer the only me ans of access to these locations. Furthermore, these aircraft are not as well equipped to safely haul fuel, even in small

amounts

.

**•** When the situation in a community approaches a dire level, small amounts of fuel are occasionally hauled by private aircraft that are not equipped to safely transport the fuel, and by pilots who are not trained to haul fuel safely. Often, these aircraft are limited to carrying 400 gallons

, or less

, of fuel, sometimes in containers aft of the cockpit.

**•** If these aircraft are owned and operated by a Native Village or Tribal entity, they can be operated as public aircraft with little or no FAA oversight into their safe operation or maintenance.6 Air s afety in Alaska will be increased by this exemption because E verts propos es to operate the Air Tractor AT

- 802 restricted category aircraft. The AT

- 802 is better suited than most standard category aircraft to haul fuel in Alaska’s harsh conditions. As an agricultural aircraft, the AT

- 802 is specifically designed to haul hazard ous chemicals,
unlike s tandard category aircraft. The AT

- 802 aircraft can haul up to 1000 gallons of
fuel at a time in an aircraft whose max allowable landing weight is the same as the max
allowable take

- off weight. The original fiberglass hopper is used with an aluminum addition to the bottom of the hopper. The whole system, as well as the aircraft, is bonded for lightening protection

. ( Schematics are attached at the end of this document.) Because of its greater fuel carrying capacity compared to small er , standard category aircraft currently serving remote areas of Alaska, fewer flights will be required in the
AT

- 802 to deliver the same amount of fuel. Fewer flights will result in decreased flight risk exposure and increased safety. Accordingly, because it is specifically equipped for this purpose, the level of safety will be substantially increased by E verts delivering fuel
in the AT

- 802 rather than small amounts of fuel being delivered by some of the other means, such as by s tandard c ategory, private o r public aircraft.

**•** T he AT

- 802 has design features that significantly increase its crash worthiness compared to many standard category aircraft. For example, the aircraft carries most of its useful load in a hopper located forward of the cockpit. The FAA has recognized that this design feature in agricultural aircraft reduces the chance of the cockpi t collapsing should a crash occur. The
AT

- 802’s design further reduces the chance of pilot injury in a crash by incorporating rugged cockpit structure and a 5

- point restraint equipped with an AmSafe Airbag system. Granting this petition would positively affect safety by allowing Everts, a 121 carrier with substantial experience hauling fuel
within the State of Alaska and Canada to add the AT

- 802 to their f leet.
S ignificant e quivalent l evel of s afety considerations have been taken into account when choosing this aircraft. The safety features of the AT

- 802 would enhance the safe delivery of fuel to remote areas of Alaska.7 **•** E verts proposes to operate and maintain the AT

- 802 aircraft under all applicable requirements of Part 135. All E verts pilots are trained under an
FAA

- approved training program . This program is tracked, along with flights and flight times, in a similar manner a s a Part 121 operation’s crews. Everts personnel are also trained in the specific techniques of fuel hauling, and draw
on their close association with Everts Air Fuel Inc. , which has over 3 5 years of experience transporting fuel in Alaska.

**•** E verts will e stablish a training curriculum based on the current training program utilized by a Canadian company that is the largest Air Tractor operator in the world with 40 Air Tractors in service worldwide

. The first Air
Tractor mode l being purchased will be a two

- seater to facilitate training and pilot qualification. In addition to crew training, E verts will draw on and
benefit from this Canadian operator’s experience for maintenance training.
Moreover, t he first two Air Tractors will be new ly manufactured specif ically to the needs and requirements of E verts

.

**•** E verts also notes that, on August 6, 2009, the FAA proposed adding Alaska Fuel Hauling to Section 91.313 as a special purpose. At that time, neither the FAA nor any party submitting comments raised safety concerns with conducting fuel hauling operations with restricted category aircraft in Alaska

. Furthermore, it cited the Air Tractor line of aircraft as potentially able to operate safely in this environment.8 Public Interest

Grant of this exemption is in the public interest. As the FAA noted in its August 6, 2009 Proposed New Restricted Category Special Purpose Operations (Notice):

“Alaskan Fuel Hauling would provide a means to transport fuel to isolated
individuals or loca tions, such as villages, towns and mining operations, within the State of Alaska. Currently, in rural Alaska there are numerous remote villages, mining camps, and individuals that have no practical access except by air. During the winter months, transpor tation of fuel to remote locations is limited to small quantities hauled by ground on trail access vehicles or by aircraft owners carrying fuel for their own use.” 74 Fed. Reg. 39242 (Aug. 6, 2009).

The high cost of fuel, which has further increased as a result of unrest in the Middle East and North Africa, and impediments to its transportation

, have adversely affected the number and size of barges carrying fuel to remote locations in recent years. Specifically, during the past few years when the river l evels have been lower than normal, and in some areas, when the ice has arrived early, the villages and barge companies have not
been able to consistently schedule delivery of the required supply of fuel

. This predicament can and has cause d a serious shorta ge of fuels , in particular heating oil. In addition, when a winter is far more severe than anticipated, and a village has limited storage ability, fuels and heating oil can run dangerously low. In some cases, v illages cannot wait on the barge to arrive a nd must fly fuel in to survive. Also, due to EPA requirements for storage tanks at some villages that can no longer be used , these villages cannot purchase and store the larger quantities of fuel as they did in the past. They now rely on smaller tanks and more frequent deliveries. These conditions have caused severe hardships in some villages, which then necessitate special fuel deliveries. Indeed, fuel shortages in rural Alaska have become such a concern that the Alaska Dep artment of Commerce, Community and Economic Development established Fuel Watch, a program designed to be a proactive approach to preventing the kind of seasonal hardship that fuel shortages caused in many rural communities in the winter and early spring of 2009.9 Public concern is growing over availability and price of fuel in rural Alaska. Two independent reports on the pricing of fuel in rural Alaska were issued in February 2010. Components of Alaska Fuel Costs: An Analysis of the Market Factors and
Characteristics that Influence Rural Fuel Prices 4 was issued by the Institute of Social and Economic Research (ISER) of the University of Alaska Anchorage. The ISER report was prepared for the Alaska State Legislature Senate Finance Committee to identify policy opti ons for reducing fuel prices. Rural Fuel Pricing in Alaska 5 was issued by the state's Attorney General. Both reports highlight the challenges rural Alaskans face in delivery of gasoline, diesel, and home heating fuel. Specifically, t he ISER report states :

“Rural communities across Alaska continue to face high fuel prices. People in these remote, cold places need large quantities of fuel for heat, electricity, and transportation. The estimated household cost for energy
in remote rural Alask a increased significantly since 2000

— increasing from approximately 16% of total household income in 2000 to 47% in 2008 for the lowest income rural households. Compared to Anchorage, energy costs are a higher portion of income for all income levels in

rem ote rural Alaska. High energy costs exacerbate the issues of a shortage of cash paying jobs, limited local economic bases, and local governments struggling to provide basic services to residents and
businesses.”

The ISER report also notes that in January 2010, some small communities paid as much as $7.00 and $6.50 per gallon for gasoline and diesel fuel, respectively. The report notes, “ [t] ransportation costs are a critical factor affecting fuel prices in Alaska rural

4 Available at http://www.iser.uaa.alaska.edu/publications/componentsoffuel3.pdf

.

5 Available at http://www.law.state.ak.us/pdf/civil/021810RuralFuelPricinginAlaska.pdf

.10 communities. ” The report provides d ata on communities whose only method for fuel delivery is air and highlights one such community as having a “very short runway” and only being able to “handle small shipments per trip.”

In addition, t he ISER report discusses problems associated with the c ombination of high energy costs and low incomes. The situation is somewhat alleviated by various financial assistance and subsidy programs, such as the federally funded Low Income Heating Assistance Program ; but even those programs are in danger of losing funding due to proposed budget cuts . With high energy costs in Alaska contributing to the need for federally funded financial assistance, granting this exemption to increase the efficiency
and lower the cost of fuel delivery to rural Alaskans is clearly in the public interest.

Fuel hauled by barge has become increasingly more expensive

, or even unavailable. Barge companies have had to repair or replace aging tugs and barges

, and to recover
that investment in the prices charged for fuel transport by inc reasing rates

. Furthermore, n ew federal rules requiring the use of double

- hulled barges will add even

more expense to fuel transported by barge. As a result of the barge industry ’s delay in meeting the new federal requirements, off

- road communities are increasingly reliant on
air

, and other means of transportation. One alternative is for residents and businesses in the villages to use snow machines making multiple trips . This is inefficient at best and unsafe as compared to transporting fuel by air. Gi ven the harsh, cold winters of Alaska, low cost and efficient fuel hauling operations are important and possibly life saving to many Alaskans.

The FAA is always mindful that good environmental stewardship is important

. E verts
and the Air Tractor AT

- 802 can contribute to that goal by providing a more efficient
service to those in the b ush v illages of Alaska. The AT

- 802 can carry a larger quantity of fuel as compared to small, standard category private or public aircraft currently serving
remote areas of Alaska, thus reducing the number of flights required to service rural

communities.11 Granting an exemption to E verts authorizing the use the Air Tractor AT

- 802 restricted category aircraft in intra

- Alaska fuel hauling operations will enhance safety and increase efficiency. Accordingly, the public interest would be served and many Alaskans would
benefit from E verts being granted this exemption.

Prior Precedent

The FAA has granted substantially similar exemption authority to that requested herein. In Exemption No. 770, as amended, FAA exempted Northern Air Cargo and other air carriers holding operations specifications issued under Part 121 by the appropriate FAA

cer tificate holding office located in the State of Alaska from 14 CFR §§ 91.39(b) (now 91.313(b)) and 121.157 to permit the use of restricted category aircraft to carry cargo for compensation or hire, subject to certain conditions and limitations. The exempt ion permitted Northern Air Cargo to operate ex

- military C

- 82 aircraft, which, though restricted category aircraft, were uniquely situated to carry outsized cargo to remote areas of Alaska that were inaccessible by any other means. The FAA found that a gra nt of this exemption, which had been renewed on a yearly basis for more than 20 years, was in the public interest “because an equivalent level of public safety will be maintained provided that conditions and limitations of this exemption are met.” 6

Grant of the E verts exemption petition would be in the public interest for identical reasons. There is a demonstrated need to carry small quantities of fuel to remote areas
of Alaska for the many reasons stated previously . E verts proposes to operate newly

manu factured Air Tractor AT

- 802 aircraft, which, as agricultural aircraft, are specifically designed not only for rugged conditions but also to haul hazardous
chemicals such as fuel. The operation of the Air Tractor by Conair and Wilderness
North in Canada d emonstrates not only how uniquely situated the AT

- 802 is for operating in the rugged n orth but also for fire fighting and fuel hauling, respectively.

6 FAA Exemption No. 770R, Docket No. 8429, pg. 6 (May 30, 1986).12 T he safety and reliability of the AT

- 802 over uncertificated

, exmilitary aircraft

, and light planes not suited for fuel haulin g was a significant contributing factor to its selection. 7

Moreover, E verts proposes to operate the Air Tractor aircraft under the stringent safety
controls of Part 135. E verts also would agree to substantially similar conditions as those found in Exemption No. 770R. Specifically, E verts Air Tractors would be limited to carriage of fuel, transportation of passengers would be prohibited, operations must be conducted over sparsely populated areas, and operations would be confined to t he State
of Alaska

. In addition, E verts would accept reasonable reporting requirements, and other reasonable conditions prescribed by the Director of the Alaska Region. As the FAA noted in Exemption No. 4906 (Feb. 29, 1988),

“The FAA has imposed more safety controls on operators engaged in common carriage. These additional safety controls, coupled with the very restrictive conditions and limitations of Exemption No. 770, as amended, provided a level of safety equivalent to that of the FAR.” 8

Accordin gly, because E verts will operate the Air Tractor aircraft under the common carriage safety controls of Part 135, as well as substantially similar conditions and limitations to those imposed by Exemption No. 770R, E verts proposed operations will provide an additional level of safety above the minimum requirements of the Federal

7 See articles about Conair of Abbortsford, B.C. and its operation of the Air Tractor as a Fire bomber at http://www.prweb .com/releases/2005/03/prweb222704.htm , and Wilderness North and its operation of the Air Tractor as a fuel hauler at www.wildernessnorth.com/pdf/WN

- fishing

- report

- 073107.pdf , at pg.2 and imbedded pod cast. See also www.airtractor.com/at

- 802

- bulk

- fuel

- tanker.

8 In Exemption No. 4906, FAA denied the petition of Northern Pacific Transport, Inc. to operate restricted category aircraft under 14 CFR Part 125 noting that the safety cont rols imposed on common carriers “are not required for operators engaged in air commerce under Part 125.” This is not the case here. E verts proposes to operate the AT

- 802 under the safety controls imposed on common carriers, namely Part 135.13 Aviation Regulations in that E verts will take the aircraft from a uncontrolled and unsupervised Part 91 level to an Air Carrier level of safety

.

Conditions

In addition to the st ipulations discussed above, E verts will accept other reasonable conditions on its operation of the AT

- 802 restricted category aircraft for fuel hauling.

Additional Public Interest Considerations

When enacting legislation governing air transportation, Congress has repeatedly acknowledged, and directed FAA to acknowledge, the unique nature of operations in Alaska. Of particular relevance here, s ection 1205 of the FAA Reauthorization Act of 1996 ( 49 USC § 40113(f) ) states , “ [i] n amending title 14, Code of Federal Regulations , in a manner affecting intrastate aviation in Alaska, the Administrator of the Federal Aviation Administration shall consider the extent to which Alaska is not served by
transpor tation modes other than aviation, and shall establish such regulatory distinctions as the Administrator considers appropriate.”

Granting the present petition would be consistent with Congress ’ s intent by establishing a regulatory distinction for the limite d purpose of authorizing the operation of
restricted

- category Air Tractor aircraft for fuel hauling in Alaska. G ranting this petition would not specifically amend 14 CFR, however, FAA ’ s internal guidance notes,

“[t]he granting of an exemption is generally viewed as an alternative method of complying with a regulatory requirement. A grant of exemption and each specific condition and limitation is a regulatory requirement. ”14 Order 8900.1, V. 3, CH. 2, § 1, para. 3

- 26 . An exemption is akin to a private reg ulation. Accordingly, when reviewing this petition, FAA should take into consideration the

extent to which Alaska is not served by transportation modes other than aviation , as required by Congress.

Request for Immediate Issuance Without Comment Period

Everts requests that the FAA forgo publishing a summary of this exemption in the Federal Register seeking comments

, since

, recent and

, directly related publications have
occurred. T he FAA has twice sought comments on the use of restricted category aircra ft for fuel hauling in Alaska: first by its own August 6, 2009 Notice and a second time in response to a petition for an exemption submitted by Everts Air Fuel Inc. , which was later withdrawn (see Docket FAA

- 2010

- 0897). The FAA received no negative comments in response to either its own Alaska f uel h auling proposal or that of Everts Air Fuel Inc. petition. E verts is filing this petition because the approval of this (and two other) proposed special purposes have languished, a nd in recognition that the need for fuel hauling to remote Alaska remains a critical need

. Accordingly, because public comment was already requested and received on the proposed “ Alaska Fuel Hauling R estricted
C ategory S pecial P urpose ” and a prior substant ially similar exemption petition, E verts requests the exemption be issued immediately without a request for comments.

Respectfully submitted,

By:

____________ Robert Everts
President
Tatonduk Outfitters L imited
d/b/a Everts Air Alaska d/b/a Everts Air Cargo

Paper copy to follow.1516