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

MI CHAEL J. STARCK Regulatory Docket No. FAA

- 20 14

- 0606

for an exemption from § 61.133(b)(1) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter s posted to the Federal docket on August 14, 2014, and supplemental information posted on August 28, 2014, Mr. Michael J. Starck, 315 S. Cree k Drive, Elkhorn, WI 53121 petitioned the Federal Aviation Admini stration (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

- airpl ane rating on his commercial pilot certificate. In his petition, Mr.

Starck requests relief from “14 CFR 611 .133(b)(1)”, which w e interpret to mean 14 CFR

61.13 3(b)(1):

The petitioner requests relief from the following regulation :
Section 61.133(b)(1) pr escribes 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 contain s 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 requirem ents 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.2

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, h is commercial pilot certificate contains a limitation that restricts his commercial

p ilot 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 p ilot

- 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 V isual

F light R ules (VFR) flying would be within si ght 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 establish ed 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 operation s at night was initiated by the FAA in 1973 to address the increased complexity of aircraft and flight operation s 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 associate d 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 cha nging ATC capabilities. In promulgating the requirement, the FAA3

described this added requirement as an upgrad e to the certification requirements for commercial pilot s

. 1

Although the petition er has 680 hours of night flying (and operates in close proximi ty to the airport where the skydiving operation is based ) these hours and operations are not equivalent to holding an instrument rating. E xtensive experience in VFR

- only operations

, when mostly limited to one airport and one type of operations ( skydiver o perations) do not substitute for, and are not identical to, the specific competencies required for holding an instrument rating.

Finally, t he FAA has previously responded to a request for exemption as it pertains to operations outside the limitation pla ced 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

- carry ing 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 au thority contained in 49 U.S.C. §§ 106(f), 40113

and 44701 , delega ted 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

1 38 FR 3160, February 1 , 1973