Exem ption No. 10342

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

In the matter of the petition of

AERO SPORTS CONNECTION FAA Docket FAA-2009-0340

for an exemption from § 91.319(a)

of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated January 25, 2011, Mr. Jim Stephenson, CEO/President, Aero Sports Connection (ASC), 231 SW. Bonanza Glen, Lake City, Florida 32025, petitioned the Federal Aviation Administration (FAA) to take action on ASC’s March 27, 2009, petition for an exemption from § 91.319(a) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would permit flight training for compensation or hire in experimental aircraft.

The petitioner requests relief from the following regulation:

Section 91.319(a) prescribes that no person may operate an aircraft that has an experimental certificate –

(1) For other than the purpose for which the certificate was issued; or

(2) Carrying persons or property for compensation or hire.

The petitioner supports its request with the following:

In the petitioner’s March 27, 2009, letter, it requests an exemption “to allow training for hire in experimental and experimental light sport-aircraft.” The petitioner notes that such activity is also prohibited by operating limitations issued for the aircraft which restrict the carriage of persons or property for compensation or hire.

The petitioner asserts that granting its petition would be in the public interest and specifically notes that training is critical and that training in similar aircraft models is important for

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improving safety. The petitioner contends that even though special light-sport aircraft (S-LSA) have been certificated with the intent of permitting training to be conducted in them, this effort has not been entirely successful. The petitioner notes that of 93 models of S-LSA certificated, only 5 are powered parachutes (PPC ), 9 are weight-shift-control (WSC) aircraft, 72 are “fast clean enclosed ships,” and 2 are seaplanes. The petitioner further states that only one model is “open frame”; however, it does not replicate all of the unique characteristics of aircraft such as the Quicksilver for which an S-LSA version is not available. The petitioner also notes that since gyroplanes cannot be certif icated as S-LSA, there is not an aircraft available for training that possesses characteristics similar to gyroplanes certificated as experimental aircraft. The petitioner emphasizes that by not granting its petition for exemption many aircraft that could be used as effective training aircraft will not be able to be used for this purpose.

The petitioner notes that experimental aircraft owned by students may be used by instructors to provide training but states that this option is often impractical. The petitioner asserts that permitting training to be conducted for compensation in experimental aircraft will provide a level of safety greater than that which can be achieved in a regulatory structure which does not permit training in aircraft that match the characteristics of experimental aircraft. The petitioner notes that the relief it requests is similar to the relief provided in Exemption 6080, which demonstrated that safe training could be achieved in ultralight-type aircraft.

The petitioner specifically recognizes that a deviation under the provisions of § 91.319(h) could be obtained to conduct the training; howev er, it notes that each request for a deviation must be individually processed, thereby taking up valuable agency resources. The petitioner notes that by granting its request ASC will be able to ensure a uniform application of the provisions of the exemption while saving the Government valuable resources.

ASC proposes to maintain a list of those aircraft in which training would be permitted to be conducted; such as, gyroplanes, Quicksilvers, light-float planes, PPCs, WSCs, Challengers, CGS Hawks, and Pterodactyls. ASC also states that it would maintain a list of instructors conducting training under the exemption and require a yearly renewal.

On September 30, 2010, Mr. Raymond Towles, the Ac ting Director of the Flight Standards Service, responded to ASC’s petition noting that “§ 91.319(h) permits for-hire flight training in experimental aircraft in accordance with a Letter of Deviation Authority (LODA). The LODA guidance was published on September 15, 2010.” Mr. Towles stated that the agency, therefore, “will take no further action” on the petitioner’s request.

By letter dated January 25, 2011, the petitioner objected to the FAA’s determination that no further action will be taken on its request. ASC asserts that many aircraft which are not subject to regulations applicable to LSA will be flown by unsupported and untrained individuals. ASC asserts that very light traine rs must be available for ab initio training and that the LODA process prevents this training. The petitioner asserts that training to operate3

very light aircraft must now be conducted in heav ier and faster aircraft and that this training establishes detrimental and hazardous habits in students converting to very light aircraft.

ASC also asserts that the LODA process esta blished under § 91.319(h) significantly restricts training in existing very light aircraft. It asse rts that there are currently far fewer instructors available to provide training and that many examiners did not become sport pilot examiners. The petitioner notes that previously there were over 4,000 instructors who could provide training, but now there are less than 1,000 and less than 200 have aircraft available that are certificated as S-LSA. The petitioner also notes that few examiners for PPCs exist and that in Michigan, for example, there is only one PPC examiner.

The petitioner notes that there are few S-LSA that can be classified as very light aircraft and due to current economic conditions, new very light training aircraft are not being manufactured or sold. The petitioner asserts only one “Quicksilver–like” aircraft has been certificated as an S-LSA. The petitioner notes that half of the six PPC manufacturers “are basically defunct” and two others are in financial difficulty. Because of the lack of available instructors and training aircraft, the petitioner asserts that persons are often training themselves and, sometimes, in aircraft that do not meet regulatory requirements. The petitioner believes that these practices will cause fatalities.

The petitioner, therefore, states that the public needs to use existing experimental aircraft for training for compensation and suggests that the FAA could limit the relief provided by the exemption to aircraft with a maximum speed of 87 knots in level flight with maximum continuous power.

The FAA’s analysis is as follows:

The FAA has considered fully the petitioner’s request and recognizes the value of specialized flight training that may only be available in aircraft holding experimental certificates. The agency also agrees that proper training in high-drag, low-mass aircraft is essential for their continued safe operation.

Although the agency published its initial guidance for the issuance of LODAs under § 91.319(h) on September 15, 2010, the agency recognized that the original guidance did not provide pilots with sufficient means to obtain the training necessary to operate those aircraft discussed by the petitioner in its request. Accordingly, after reviewing the information provided by the petitioner and the concerns of other interested parties, the FAA on May 24, 2011, revised the guidance contained in Volume 3, Chapter 11, of FAA Order 8900.1, Flight Standards Information Management System, to address the use of aircraft issued experimental certificates in flight training for compensation or hire.

The process for obtaining a LODA set forth in that guidance may be used to permit certain types of flight training to be conducted in expe rimental aircraft for compensation or hire and can be used to provide flight training for the operation of a specific make and model of4

experimental aircraft. Although LODAs are genera lly not issued to permit flight training in experimental aircraft leading to the issuance of a pilot certificate, rating, or operating privilege, the recent revisions to the agency’s process for issuing a LODA now permit LODAs to be issued for the conduct of flight training in gyroplanes with experimental certificates for persons seeking a rotorcraft gyr oplane rating at any certificate level. Training may also be provided in experimental aircra ft under a LODA for the operation of ultralight vehicles; however, the training must be conducte d in high-drag, low-mass aircraft with an empty weight less than 500 pounds and a maximum speed in level flight with maximum continuous power (Vh) less than 87 knots calibrated airspeed.

Additionally, training for the issuance of a sport pilot certificate or operating privilege can be permitted to be conducted in aircraft issued an experimental certificate under § 21.191(i)(1), subject to certain restrictions. A LODA will not be issued, for example, if an aircraft with other than an experimental certificate issued under § 21.191(i)(1) is available for the conduct of this training in the geographic area of the F light Standards DistrictOffice (FSDO) issuing the LODA. The aircraft in which training is intended to be provided must also have been owned by the person providing the training prior to January 31, 2010 and that person must have been appropriately certificated or otherwis e authorized to provide the training prior to

that date.

The petitioner has not demonstrated that a grant of exemption permitting flight training in experimental aircraft for compensation or hire outside of the LODA process would provide an equivalent level of safety to that provided by the regulation or that it would be in the public interest. The FAA agrees with the petitioner that certain training in experimental aircraft for compensation or hire should be permitted and has established a process to permit such training to be conducted under a system that establishes an appropriate level of safety for those operations which includes effective local FSDO review and oversight.

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exem ption would not be in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, the petition of Aero Sports Connection for an exemption from 14 CFR § 91.319(a) is hereby denied.

Issued in Washington, D.C., on August 29, 2011.

/s/ .

John W. McGraw Acting Director, Flight Standards

Service