Greg Reigel's Aero Legal Services

Obtaining An Exemption From A Federal Aviation Regulation

By Gregory J. Reigel

© 2006 All rights reserved.

The rules exist for a reason. So we are told. But must we always follow the rules? Not necessarily. Sometimes it is possible to receive an exemption or excuse from compliance with certain rules. In the aviation world, it is possible to obtain an exemption from certain Federal Aviation Regulations (“FAR’s”). As matter of fact, exemptions are frequently requested. However, they aren’t necessarily granted. This article will discuss the process for petitioning the FAA for an exemption, some of the exemptions that the FAA has granted and some of the exemption requests that the FAA has denied.

Petitioning For An Exemption

A petition for exemption is a request to the FAA by an individual or entity asking for relief from the requirements of a current regulation. Petitioners typically seek exemptions from FAR’s that they feel treat them unfairly or which may be overly burdensome on their intended operations. Petitioners can be individuals (e.g. pilots, mechanics, etc.), businesses (e.g. manufacturers, commercial operators, etc.) or organizations representing individuals or businesses (e.g. NBAA, AOPA, EAA, etc.). The process for obtaining an exemption is governed by FAR Part 11. Part 11 describes the procedures a petitioner must follow to petition for an exemption and the manner in which the FAA will handle a petition for exemption.

A petition for exemption must be filed with the FAA and may be sent via U.S. Mail or filed online. In addition to the petitioner’s contact information, the petition should include (1) the specific FAR(s) from which an exemption is sought; (2) the extent of relief the petitioner is seeking and the reason the petitioner is seeking the relief; (3) how the request will benefit the public as a whole; (4) reasons why the exemption would not adversely affect safety, or how the exemption would provide a level of safety at least equal to the existing rule; (5) a summary the FAA can publish in the Federal Register stating: the rule from which the petitioner is seeking the exemption and a brief description of the exemption the petitioner is seeking; (6) Any additional information, views, or arguments available to support the request. Additionally, if the petitioner would like to exercise the privileges of the exemption outside the United States, the petition should provide supporting reasons.

Within 45 days of receiving a petition for exemption, the FAA will often, although not always, publish a summary of the petition in the Federal Register seeking comment to the petition. The public typically has 20 days within which to provide the FAA with comments to the petition. Once any comments are received, the FAA will then issue a written decision granting or denying the petition, usually within 120 days. It will often then publish its disposition of petitions for exemption in the Federal Register.

The FAA has discretion as to whether it will grant or deny a petition. In each instance, the FAA will provide an explanation of its decision and its impact on the petition. It may grant the petition as filed or it may grant the petition with conditions or limitations. If it is granted, the petition is only granted for a limited time and will expire unless it is renewed by the petitioner.

The FAA may also deny the petition. If the petition is denied, the petitioner can ask the FAA to reconsider the petition denial. The FAA must receive the request for reconsideration within 60 days after it issued the denial. In order for the FAA to accept the request, the petitioner must show the following: (1) that the petitioner has a significant additional fact and an explanation of why that fact was not included in the original petition; (2) that the FAA made an important factual error in its denial of the original petition; or (3) that the FAA did not correctly interpret a law, regulation, or precedent.

Exemptions The FAA Has Granted

The FAA has granted and continues to grant exemptions from certain FAR’s. As an example, over the years the EAA has requested, and been granted, several exemptions from specific FAR’s including the Small N Number Exemption (exemption from FAR’s 45.25 and 45.29 to allow its members to operate their historic military aircraft with 2-inch high nationality and registration marks) and the Experimental Aircraft Training Rental Exemption (exemption from FAR 91.319(a)(1) and (2) to allow members who own certain amateur, kit-built and exhibition aircraft to receive compensation for the use of their aircraft for the purpose of conducting aircraft-specific flight training and flight reviews under FAR 61.56).

And just today, the FAA published Notice of a petition for exemption filed by the EAA requesting an exemption to permit sport pilots' who have not received the required ground and flight training, and endorsements to operate within the Wittman Regional Airport (Oshkosh, Wisconsin) Class D airspace during the period July 22, 2006, through July 31, 2006, for the purpose of attending AirVenture 2006.

Individuals and other aviation organizations have also applied for, and been granted, a variety of other exemptions such as the exemption from drug testing for charitable sightseeing events and the exemption allowing a flight instructor to provide dual instruction in a Beechcraft Bonanza with a single throw-over yoke, to name a few.

Exemptions The FAA Has Denied

Not all petitions for exemption are granted. Many are denied. For example, AOPA and many individuals have petitioned for exemptions from the Age 60 Rule (FAR 121.383(c)) for many years. Unfortunately, the FAA has denied all of these requests. Another example of a denied request is the Confederate Air Force’s petition to exempt its operation of its Lockheed T-33 turbojet aircraft for compensation contrary to FAR 91.319(a). These are just two of the multitude of petitions the FAA has denied.

Conclusion

As you can see from these examples, it is possible to obtain exemptions from some of the FAR’s. However, not all petitions for exemption will be granted. The FAA places a significant emphasis on both the public benefit and safety requirements. If you are requesting an exemption, you will need to persuade the FAA that the benefit of your intended operation is worth the anticipated non-compliance. You will also need to provide the FAA with the data necessary to convince it that the intended operation can be conducted safely despite the anticipated non-compliance. And keep in mind that the FAA has discretion as to whether a petition is granted or denied. However, if you give the FAA what it wants, you just may receive your exemption.