AFS-14-441-E

Exemption No. 12405

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

MICHAEL J. STARCK Regulatory Docket No. FAA-2014-0606

 

for an exemption from § 61.133(b)(1) 

of Title 14, Code of 

Federal Regulations 

 

DENIAL OF EXEMPTION

By letters posted to the Federal docket on August 14, 2014, and supplemental information 

posted on August 28, 2014, Mr. Michael J. Starck, 315 S. Creek Drive, Elkhorn, WI 53121 

petitioned the Federal Aviation Administration (FAA) for an exemption from § 61.133(b)(1) 

of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, 

would allow Mr. Starck to carry passengers for hire, in an airplane and at night, without 

holding an instrument-airplane rating on his commercial pilot certificate. In his petition, Mr. 

Starck requests relief from “14 CFR 611.133(b)(1)”, which we interpret to mean 14 CFR 

61.133(b)(1):

The petitioner requests relief from the following regulation:

Section 61.133(b)(1) prescribes that a person who applies for a commercial pilot 

certificate with an airplane category or powered-lift category rating and does not hold 

an instrument rating in the same category and class will be issued a commercial pilot 

certificate that contains the limitation, “The carriage of passengers for hire in 

(airplanes) (powered-lifts) on cross-country flights in excess of 50 nautical miles or at 

night is prohibited.” The limitation may be removed when the person satisfactorily 

accomplishes the requirements listed in § 61.65 of this part for an instrument rating in 

the same category and class of aircraft listed on the person's commercial pilot 

certificate.
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The petitioner supports its request with the following information:

Mr. Starck states that he is employed as a pilot and operates aircraft used for transporting 

passengers aloft for skydiving during daylight hours. He states that he needs to do so at night;

however, his commercial pilot certificate contains a limitation that restricts his commercial 

pilot privileges during night hours. 

Mr. Starck describes his FAA certification in his petition: he holds a commercial pilot 

certificate and does not hold an instrument-airplane rating. He includes summaries of his 

experience, including hours logged as pilot-in-command (6,000); at night (680); hours logged 

flying skydivers (4,000); and his 8,000 jumps as a skydiver. 

Mr. Starck states that an exemption would not adversely affect safety because his night Visual 

Flight Rules (VFR) flying would be within sight of the departing airport and would not expose 

a pilot to hazards from flying at night, such as navigation and spatial disorientation. 

Mr. Starck states that his experience and expertise both as a pilot and skydiver enhance safety 

for the public and for skydiving operations. 

A summary of the petition was published in the Federal Register on November 18, 2014 

(79 FR 68750). No comments were received.

The FAA’s analysis is as follows:

The FAA evaluates all petitions for exemption on the basis of the information provided by the 

petitioner. In accordance with Section 11.81 of 14 CFR, the petition must show how an 

exemption, if granted, will maintain a level of safety equivalent to that of the rule. It also must 

show how the proposed exemption is in the public interest. 

Based on the information provided by Mr. Starck regarding his experience as a skydiver and 

as a pilot and the limited nature of the night operations within sight of the airport, the FAA 

finds that the petitioner has not established an equivalent level of safety to holding an 

instrument rating, as required for night operations carrying passengers for hire.

The requirement to hold an instrument rating for passenger-carrying operations at night was 

initiated by the FAA in 1973 to address the increased complexity of aircraft and flight 

operations in the National Airspace System (NAS). The FAA added the instrument rating 

requirement for commercial operations at night, in part, to compensate for increasingly 

complex navigation tasks associated in the NAS, especially when combined with the 

operation of higher performance and complexity of aircraft generally used in commercial 

operations. The added instrument rating also enabled a commercial pilot to be better able to 

participate in new and changing ATC capabilities. In promulgating the requirement, the FAA 
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described this added requirement as an upgrade to the certification requirements for 

commercial pilots.

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Although the petitioner has 680 hours of night flying (and operates in close proximity to the 

airport where the skydiving operation is based) these hours and operations are not equivalent 

to holding an instrument rating. Extensive experience in VFR-only operations, when mostly 

limited to one airport and one type of operations (skydiver operations) do not substitute for, 

and are not identical to, the specific competencies required for holding an instrument rating. 

Finally, the FAA has previously responded to a request for exemption as it pertains to 

operations outside the limitation placed on a commercial pilot certificate for those applicants 

who do not hold an instrument rating. In Exemption No. 6842, the FAA denied a request that 

would have permitted a commercial pilot, who did not hold an instrument rating, to conduct 

passenger-carrying operations on cross-country flights in excess of 50 nautical miles 

(attached). The FAA finds the overall justification for the issuance of that denial to be 

applicable to the request received from Mr. Starck. As in that denial, this petitioner has not

provided any reason as to why he cannot comply with the requirement to hold an instrument 

rating. 

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exemption would not be in the public 

interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113 

and 44701, delegated to me by the Administrator, the petition of Michael J. Starck for an 

exemption from 14 CFR § 61.133(b), is hereby denied.

Issued in Washington, D.C., on August 5, 2015.

/s/

John Barbagallo

Deputy Director, Flight Standards Service

 

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38 FR 3160, February 1, 1973