CHAPTER 3. APPLYING FOR AN EXEMPTION.
6. ADMINISTRATOR'S EXEMPTION AUTHORITY.
In General. The FAA Administrator has the authority to grant exemptions, provided certain requirements are met, to units of government for operations that do not have public aircraft status. The Independent Safety Board Act Amendments of 1994, Pub. L. 103-411, provide, in pertinent part:
(1) AUTHORITY TO GRANT STATUTORY EXEMPTIONS.
(i) IN GENERAL. The Administrator of the Federal Aviation Administration may grant an exemption to any unit of Federal, State, or local government from any requirement of part A of subtitle VII of title 49, United States Code, that would otherwise be applicable to current or future aircraft of such unit of government as a result of the amendment made by subsection (a) of this section (the revised "public aircraft" definition).
Note: The above provision authorizes exemptions from the United States Code--specifically, the Federal Aviation Act of 1958, as amended and recodified--rather than from the regulations. The above provision authorizes such exemptions only for operations whose status has changed as a result of the revised definition of public aircraft. This authorization does not apply to operations conducted for commercial purposes, in as much as they were considered civil aircraft operations under both the original and revised definitions.
b. Statutory Requirements. The statute provides as follows:
(1) The Administrator may grant an exemption [to a unit of government] ... only if--
(i) the Administrator finds that granting the exemption is necessary to prevent an undue economic burden on the unit of government and
(ii) the Administrator certifies that the aviation safety program of the unit of government is effective and appropriate to ensure safe operations of the type of aircraft operated by the unit of government.
Independent Safety Board Act Amendments of 1994, Section (b) (2), Pub. L. 103-411 (emphasis added).
Chap 1 Par 6 21
C. Delegation of Authority. In the interest of administrative efficiency, the Administrator's authority to grant exemptions to units of government has been delegated to the Director, Flight Standards Service, and the Director, Aircraft Certification Service. FAR Section 11.25 (b) (6).
7 . KEY STATUTORY TERMS.
"The Administrator Finds ... and... Certifies." This language indicates that the Administrator, or his or her delegate, is to make an independent determination as to whether the statutory requirements for granting an exemption have been met. This is in contrast to an earlier portion of the statute in which the unit of government rather than the Administrator makes the required certifications (that the operation was necessary to respond to a significant and imminent threat, and that no private operator was reasonably available to meet the threat).
"Undue Economic Burden." One finding that the Administrator or his or her delegate must make before granting an exemption is that the exemption is necessary to prevent an undue economic burden on the unit of government. 'Undue economic burden means that it would cost substantially more to comply with FAA regulations than with an aviation safety program that is effective and appropriate to ensure safe operations of the type of aircraft operated by the unit of government" under the statute's exemption provision. To show "substantial additional costs," a petitioner for exemption should submit information that will allow the FAA to compare the cost of operating in compliance with Part A of Subtitle VII of Title 49 of the United States Code with comparable costs if an exemption were granted.
"Aviation Safety Program." The Administrator or the Administrator's delegate may not grant an exemption to a unit of government without certifying that the aviation safety program of the unit of government is "effective and appropriate to ensure safe operations of the type of aircraft operated by the unit of government." As a result, in the petition for an exemption, the petitioner must show to the Administrator's satisfaction that the petitioner's aviation safety program is effective and appropriate to ensure safe operations of the type of aircraft operated by the petitioner. Example: A unit of government applies for an exemption on an aircraft whose wings were modified to carry external pods for various surveillance activities. In its proposed aviation safety program, the unit of government would need to identify how the continued airworthiness of the modification will be accomplished. At minimum, the following may be required: a special structural inspection at the wing attach points, additional training for pilots operating the aircraft Chap 1 22 Par 6
during pod installations, and flight manual changes to reflect any new operating limitations that may be necessary due to the modifications.
d. Aircraft with No Previous FAA Type Certification. It may be difficult for units of government to show that, for aircraft having no previous FAA type certification, e.g., military surplus aircraft, they have "an aviation safety program that is effective and appropriate to ensure safe operations of the type of aircraft operated by the unit of government." In order to make the effective and appropriate aviation safety programi finding, the FAA must be assured that the safety of the aircraft in question is comparable to that provided by the FAR.
Aircraft that have no history of civil certification often present significant "unknowns" when it comes to such critical safety matters as life-limited parts and aircraft design. Thus, such aircraft often do not have the basis on which to build an aviation safety program that is effective and appropriate to ensure safe operations. A unit of government developing a proposal for an aviation safety program may find the information
(1) Generally. Subpart E of FAR Part 91 prescribes the rules governing the maintenance, preventative maintenance, and alterations of U.S.-registered aircraft civil aircraft operating within and outside the United States. FAR Section 91.403 states that the owner or operator of an aircraft is primarily responsible for maintaining that aircraft in an airworthy condition, including compliance with FAR Part 39. FAR Part 39 describes the requirements for compliance to AD's issued by the FAA.
Inspection Programs. Operators of large aircraft, turbojet multiengine airplanes, or turbopropeller powered multiengine airplanes, should select and use one of the four inspection program options outlined in FAR Sections 91.409 (e) and For one of the four inspection program options, that identiiied in FAR section 91.409(1) (4), the inspection program submitted should be compared with the manufacturer's recommended program. Where there is no identified in FAR Section 91.409(f).
(ii) For the other three inspection options outlined in FAR Sections 91.409 (e) and (f), the basis for the development of the inspection program or the instructions for Chap 1 Par 7 23
continued airworthiness, including the detail of the parts areas of the airplane to be inspected, is the manufacturer's recommendations. In the case of surplus military aircraft, the manufacturers provide this basic information to the specific military service that has contracted for the airplane. The military service then develops a reliability-centered maintenance program to meet its needs and environment which are often comparable to the continuous airworthiness maintenance programs developed by air carriers.
(iii) In many cases, manufacturers may be unwilling or unable to provide instructions for continued airworthiness for operation of the airplane in other than a military environment.
Therefore, in keeping with existing policy as provided by the FAA, the only reasonable basis that for detailing the inspection criteria for the aircraft to be inspected, as required by FAR section 91.409(g) (1), is the scope and detail developed by the applicable military service.
In addition to the "field" level inspection requirements set forth in the military maintenance program, the "depot" level inspection requirements should also be included in any inspection program approved under FAR Section 91.409 (f) (4).
The military "field" level maintenance is roughly equivalent to the civil terminology that air carriers use to describe iA, B or c" checks. The military "depot" level maintenance is comparable to the "heavy C or D" checks used by air carriers. Some air carriers may use a numerical description verses the alphabetical identifier for inspection checks.
(v) The inspection frequency and program structure established by the military may not be appropriate for use in a civilian environment. Therefore, inspection frequency and program structure may require adjustment to meet the government operator's requirement. However, facts and sound judgment must form the basis for any inspection frequency adjustment beyond that which has been established for use by the military.
(vi) An alternate means of compliance for individual specific inspection requirements, in lieu of that which is called for in the military "field" or "depot" level programs, may be approved following evaluation of the applicant's inspection process instructions.
(vii) Revisions to an operator's existing approved inspection program can be requested by the Administrator in accordance with FAR Section 91.415.
Chap 1 24 Par 7
Persons Conducting Inspections and Maintenance.
The program proposed by the petitioner should include procedures to insure that inspections and maintenance tasks are performed by persons authorized by FAR Sections 43.5 and 43.7.
(4) identify all major modifications and repairs accomplished since the aircraft was put into service. Additionally, all further modifications and major repairs will need to be approved in the same format as required for civil aircraft under the regulations.
8 . PETITION FOR EXEMPTION.
Procedure FAR Section 11.25--contains the procedures to be followed by a unit of government seeking any kind of exemption. The petition for exemption should be submitted in duplicate to the Rules Docket (AGC-10), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. Under FAR Part 11, petitions for exemption are published in the Federal Register for notice and comment period.
b. Contents. The petition for statutory exemption must set forth the text or substance of the statute from which the exemption is sought. (As noted above, Congress authorized exemptions from the statute--the Federal Aviation Act of 1958, as amended and recodified--rather than from the regulations). The petition for exemption must contain any information, views, or analysis available to the petitioner to show that the statutory requirements for granting an exemption have been met--i.e.:
(1) that the exemption is necessary to prevent an undue economic burden on the unit of government; and
(2) that the aviation safety program of the unit of government is effective and appropriate to ensure safe operations of the type of aircraft operated by the unit of government.
Individuals drafting a petition for exemption on behalf of a unit of government should familiarize themselves with FAR Part 11.
Chap 1 Par 7 25
U.S. Department of Transportation POSTAGE & FEES PAID BULK MAIL Federal Aviation FEDERAL AVIATION Administration ADMINISTRATION PERMIT NO. G-44 800 Independence Ave.., S.W.
Washington, D.C. 20591
FORWARDING AND RETURN
POSTAGE GUARANTEED Official Business Penalty for Private Use $300