AFS-14-071-E

 Exemption No. 10984

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

OPERATION MIGRATION Regulatory Docket No. FAA-2013-1075

 

for an exemption from §§ 61.113(a), 

91.319(e), and 91.327(a) 

of Title 14, Code of 

Federal Regulations 

 

GRANT OF EXEMPTION

 By letter dated December 17, 2013, Mr. Charles R. Barnett, III, Counsel for Operation 

Migration, Inc., (Operation Migration), 800 Waukegan Road, Suite 200, Glenview, IL 60025

petitioned the Federal Aviation Administration (FAA) on behalf of Operation Migration for an 

exemption from §§ 61.113(a), 91.319(e), and 91.327(a) of Title 14, Code of Federal Regulations 

(14 CFR). The proposed exemption, if granted, would permit Operation Migration to use persons 

holding a private pilot certificate to operate weight-shift-control aircraft certificated under 

§ 21.191(i) or § 21.190 for compensation or hire to facilitate the migration of endangered 

whooping cranes.

The petitioner requests relief from the following regulations:

Section 61.113(a) prescribes, in pertinent part, that except as provided in paragraphs (b) through 

(h) of this section, no person who holds a private pilot certificate may act as pilot in command of 

an aircraft that is carrying passengers or property for compensation or hire; nor may that person, 

for compensation or hire, act as pilot in command of an aircraft. 

Section 91.319(e) prescribes, in pertinent part, that no person may operate an aircraft that is 

issued an experimental certificate under § 21.191(i) of this chapter for compensation or hire, 

except a person may operate an aircraft issued an experimental certificate under § 21.191(i)(1) for 

compensation or hire to tow a glider that is a light-sport aircraft or unpowered ultralight vehicle in 

accordance with § 91.309; or to conduct flight training in an aircraft which that person provides 

prior to January 31, 2010. 
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Section 91.327(a) prescribes, in pertinent part, that no person may operate an aircraft that has a 

special airworthiness certificate in the light-sport category for compensation or hire except to 

tow a glider or unpowered ultralight vehicle in accordance with § 91.309; or conduct flight 

training.

The petitioner supports its request with the following information:

The petitioner states that the reasons for granting its request would be in the public interest 

relate to the history of the whooping crane, which dates back to the 1940’s when only fifteen 

whooping cranes existed in the world. They migrated from northern Canada to Texas where 

they were threatened by hurricanes, human encroachment, chemical spills or avian diseases.

In order to safeguard the species from extinction a second insurance flock was needed. 

However, whooping cranes learn to migrate by following the parent generation.

Unfortunately, all of the birds that used the eastern flyway were extirpated from that area by 

the late 1800’s so there were no parents to teach them the route.

Beginning in 1993, Operation Migration developed the only known method of reintroducing 

endangered birds in a migratory situation. The petitioner notes that this is accomplished by 

imprinting the birds on handler/pilots and conditioning them to follow a specific aircraft.

In 1998, the International Whooping Crane Recovery Team asked Operation Migration to 

spearhead an attempt to establish a second flock that migrated from Wisconsin to Florida.

An association of nine Federal, State and private agencies known as the Whooping Crane

Eastern Partnership (WCEP) formed in 1999. Beginning in 2001, a new generation of

whooping cranes was hatched each year at the U.S. Geological Survey (USGS) Patuxent 

Wildlife Research Center in Maryland. In June, the whooping cranes continued their 

conditioning once transferred by private aircraft to Wisconsin. In the fall, they were led along 

a preselected route to Florida that covered 1280 miles and seven states. After a period of 

monitoring during the winter, the birds made the return trip back to Wisconsin on their own. 

There are now 100 whooping cranes in the eastern flyway. So far, they have produced three 

offspring that have learned this same route from their parents. These three are the first wild 

hatched, migratory whooping cranes in this area since the last reported nest in 1878.

The image of a modern aircraft leading an ancient species has generated worldwide media 

attention, which provides an unprecedented education opportunity. Through Journey North, 

this project reaches 1.6 million students each year with online study plans. It has been 

featured on such media outlets as 60 Minutes, 20/20, and National Geographic and is the 

subject of at least nine books. Through its live web camera and social media, Operation 

Migration reaches hundreds of thousands of followers.

The petitioner notes that although it receives no funding assistance from the U.S. Fish and 

Wildlife Service, it has completed critical tasks to contribute both to the recovery efforts of 
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the species under the Endangered Species Act as well as the multi-national Migratory Bird 

Treaty Act.

Although the petitioner has previously used experimental light-sport aircraft certificated under 

§ 21.191(i) to facilitate the migration, it believes it will be in a position to replace its fleet of 

these aircraft with a fleet of special light-sport aircraft prior to the commencement of the field

season beginning near the fall of 2014. Replacement aircraft will consist of North Wing 

weight-shift-control aircraft The petitioner requests that its current exemption to § 91.319(e) 

remain in effect until it has accepted delivery of at least three of its special light-sport aircraft,

which is anticipated to be prior to November 1, 2014.

The petitioner summarizes that its operation provides many benefits to American people:

1. It safeguards a critically endangered species.

2. It fulfills the mandate of the International Whooping Crane Recovery Team.

3. It fulfills the mandate of the Endangered Species Act.

4. It promotes the conservation and restoration of wetland habitat.

5. It provides an unprecedented education opportunity.

6. It promotes eco-tourism in Wisconsin, Florida, and along the migration route.

The petitioner also states the following reasons why granting the exemption would not 

adversely affect safety, or how the exemption would provide a level of safety at least equal to 

that provided by the rule from which it seeks the exemption:

1. Operation Migration pilots are high time pilots who have been flying ultralight 

vehicles, specifically weight-shift -control aircraft, for many years.

2. All Operation Migration pilots currently hold private pilot certificates.

3. Operation Migration pilots complete an extensive training program that is designed to

safely and specifically allow the whooping crane flock to migrate from Wisconsin to

Florida.

4. To keep the birds wild and away from people, the Operation Migration route was

specifically designed through airspace that is away from airports and over open rural

areas. Landing sites are mostly on private property in isolated farm fields.

5. Because the birds learn to soar on the vortices created by the aircraft’s wingtip, 

Operation Migration pilots will fly only in calm, cold air at sunrise. Conditions must 

be perfect in order for the birds to follow the pilots, so Operation Migration pilots do 

not fly in adverse conditions or marginal VFR weather.

6. Operation Migration recruits the services of volunteer pilots to fly top-cover. These 

pilots fly circles 1000 feet above and one quarter mile out to help monitor the birds,

communicate with ATC using flight following, and to check weather conditions ahead.
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7. In order to fly slowly enough for the birds (38 to 40 MPH) Operation Migration 

aircraft are very light and therefore able to glide long distance and safely land in small 

areas.

8. Operation Migration aircraft are inspected annually.

9. Operation Migration aircraft are hangared and maintained to high standards.

10. Engines are opened for inspection before reaching 400 hours and replaced or

professionally rebuilt before 600 hours.

11. In leading birds for thirteen years, Operation Migration has never experienced an

accident involving an aircraft.

12. This exemption is for the limited purpose of Operation Migration and will not have a 

far reaching impact outside of Operation Migration.

A summary of the petition was published in the Federal Register on February 25, 2014

(79 FR 10600). One comment was received from Mr. Chris Gullikson. Mr. Gullikson stated

that he was reluctantly in support of this exemption even though he believes the petitioner’s

involvement has declined and the project has not had much success. He believes there is no 

benefit permitting the carriage of persons under the provisions of the exemption and that such 

action would reduce the safe operating envelope of the aircraft used. He also expressed 

concern that the FAA would require Operation Migration to use special light-sport aircraft (SLSA) noting that the use of experimental light-sport aircraft (E-LSA) has proven to be safe 

and efficient. He also stated that the Rotax 503 engine used in new S-LSA does not meet 

American Society for Testing and Materials (ASTM) standards. Additionally, he expressed 

concern that Operation Migration was not operating in the public interest, as other methods of 

accomplishing Operating Migration’s mission are available. 

In response to the commenter’s concerns regarding the carriage of passengers, the FAA 

believes that placing a restriction on a second occupant could hamper Operation Migration’s 

mission. Potentially, such a restriction could keep personnel such as biologists and wildlife 

specialists from conducting research and gathering data. The FAA disagrees with the 

commenter’s contention that safety would be compromised by allowing a second occupant in 

the aircraft since it has set forth conditions and limitations in this document that must be 

complied with by the petitioner to ensure no adverse affect upon that person’s safety.

Accordingly, the FAA will not impose a condition in this exemption that would limit aircraft 

operations to a single occupant. 

The FAA notes that S-LSA are built and maintained to an FAA accepted standard whereas ELSA are not built or maintained to any standard. Although the FAA will require the petitioner 

to use S-LSA, the FAA will allow the temporary use of the E-LSA through the end of the 

2014 migration. The FAA is permitting the temporary use of these aircraft because of the 

petitioner’s inability to obtain delivery of S-LSA prior to November 2014. The FAA does not

concur with the commenter’s concerns regarding the Rotax 503. The FAA finds the Rotax 
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503 would meet ASTM standard F-2317 in accordance with section 7.6 Powerplant 

Requirements, subsections 7.6.2 and 7.6.3

Finally, in the previous grant of exemption to the petitioner (Exemption No. 10429), the FAA 

made a determination that Operation Migration’s mission did fill a public interest role and 

continues to believe that granting the exemption is in the public interest for the reasons set 

forth in both that exemption and this document.

The FAA’s analysis is as follows:

The FAA has fully considered the petitioner’s request and supporting information and finds 

that the continued conduct of operations by the petitioner to facilitate the aerial migration of 

endangered whooping cranes is in the public interest. 

The relief required by the petitioner’s pilots to conduct migration and imprint flights while 

holding private pilot certificates with a weight-shift-control aircraft rating requires relief from 

§ 61.113(a). In the FAA’s analysis to Exemption No. 10429, the agency noted that when it 

issued the final rule “Certification of Aircraft and Airmen for the Operation of Light-Sport 

Aircraft” (69 FR 44772) it created a new set of regulations that permitted persons possessing 

the training and experience of a sport pilot to operate light-sport aircraft for sport and 

recreation. The rule was not intended to facilitate operations of these aircraft for 

compensation or hire, especially since it neither created a commercial pilot certificate with 

ratings for powered parachutes and weight-shift-control aircraft nor established airworthiness 

standards, which would lead to the issuance of standard airworthiness certificates for powered 

parachutes and weight-shift-control aircraft. Although the FAA did recognize a need to allow 

an operator to receive compensation for limited types of operations, the rule did not 

contemplate the use of weight-shift-control aircraft to engage in the operations conducted by 

the petitioner. 

The FAA notes that Operation Migration’s pilots currently possess a private pilot certificate 

with a weight-shift-control aircraft rating and that under the regulations the petitioner’s 

proposed operations for compensation may only be conducted by a person holding at least a 

commercial pilot certificate. However, the FAA does not issue a commercial pilot certificate 

with a weight-shift-control aircraft rating. Accordingly, to ensure that an appropriate level of 

safety can be maintained for the conduct of the petitioner’s operations, the FAA will require 

the petitioner’s flights to be conducted by pilots holding at least a private pilot certificate with 

a weight-shift-control aircraft rating and at least 250 hours as pilot in command in weightshift-control aircraft. This level of pilot in command experience in a specific category of 

aircraft equals that typically required for commercial pilots in other categories of aircraft.

Although the petitioner did not discuss the use of the Cosmos Phase II E-LSA in its current 

petition, the FAA understands that the petitioner continues to utilize these aircraft under the 

provisions of Exemption No. 10429 and seeks to continue their use to conduct its operations. 
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These aircraft have neither been certificated to the airworthiness standards set forth in 14 CFR 

for standard category aircraft nor to consensus standards that have been accepted by the FAA 

for the certification of S-LSAs under § 21.190.

Additionally, the FAA notes that although there is no standard category weight-shift-control 

aircraft that can be used for compensation or hire, weight-shift-control aircraft currently exist 

that have been certificated as S-LSA in accordance with consensus standards accepted by the 

FAA. The petitioner has indicated that it is attempting to acquire the North Wing X2 S-LSA 

to replace its Cosmos Phase II E-LSAs and that such aircraft should become available by 

November 2014.

The FAA recognizes that the petitioner’s Cosmos Phase II E-LSA has been safely used to 

conduct flights under Exemption No. 10429. Both that aircraft and the North Wing X2 SLSA weight-shift-control aircraft have an operating envelope that meets the needs of the 

petitioner. In view of the unique nature of the petitioner’s operations and the lack of standard 

category weight-shift control aircraft, the FAA believes that a continuance of the petitioner’s 

operations using E-LSAs and S-LSAs is in the public interest. Accordingly, it has imposed 

conditions and limitations affecting the maintenance and inspection of these aircraft that it 

believes will permit the petitioner’s unique operations to be conducted without adversely 

affecting safety.

The FAA’s Decision

 In consideration of the foregoing, I find that a grant of exemption is 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, Operation Migration is granted an exemption from 

14 CFR §§ 61.113(a), 91.319(e), and 91.327(a) to the extent necessary to allow Operation 

Migration to use persons holding a private pilot certificate to operate weight-shift-control 

aircraft certificated under § 21.191(i) or § 21.190 for compensation or hire to facilitate the 

migration of endangered whooping cranes, subject to the conditions and limitations listed 

below.

Conditions and Limitations

1. The relief provided by this exemption is limited to operations conducted by the 

following pilots: 

Joseph William Duff, Pilot Certificate No. 3468095 

John Brooke Pennypacker, Pilot Certificate No. 3344959 

Richard Grant Van-Heuvelen, Pilot Certificate No. 3447150 

2. Pilots conducting operations subject to this exemption must have at least 250 hours 

as pilot in command in weight-shift-control aircraft. 
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3. Pilots conducting imprint flights, migration flights, and any subsequent flights 

subject to this exemption must hold at least a private pilot certificate with a weightshift-control- aircraft land rating. 

4. Operations subject to this exemption must be conducted in the Cosmos Phase II 

weight-shift-control aircraft with registration numbers N2613T, N2614T, N2615T 

and N2616T or North Wing Sport X2 weight-shift-control aircraft with registration 

numbers N234NW, N456NW, N567NW. The Cosmos Phase II weight-shift control 

aircraft may not be used after December 31, 2014.

5. Within the last 100 hours of time-in-service, aircraft used to conduct operations 

under this exemption must have had a condition inspection performed in 

accordance with the scope and detail of 14 CFR part 43, Appendix D, or other 

FAA-approved program, and have been found to be in a condition for safe 

operation. This inspection must be performed by an appropriately rated mechanic 

and be recorded in the aircraft’s maintenance records. 

6. Prior to the use of any aircraft specified in this exemption to conduct a migration 

flight it must be inspected by an FAA Aviation Safety Inspector/Airworthiness 

(ASI/AW) from the Light Sport Aviation Branch (AFS-610). This inspection must 

be recorded in the aircraft’s maintenance records. 

7. Imprint flights must be conducted within an imprint area coordinated with, and 

approved by, the geographically responsible FSDO located in Milwaukee, WI.

8. Migration flights must be conducted along a route which has been approved by the 

Light Sport Aviation Branch (AFS-610). The route of flight must be described by 

distance, radius, coordinates, or appropriate landmarks. The designated route must 

be over other than densely populated areas. 

9. Operations are limited to day VFR conditions. 

10. A copy of this exemption must be carried onboard each aircraft used to conduct 

operations subject to the provisions of this exemption when such operations are

conducted.

This exemption terminates on April 30, 2016, unless sooner superseded or rescinded.

Issued in Washington, D.C., on 04/30/2014.

/s/

John S. Duncan

Director, Flight Standards Service
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Project No.: AFS-14-071-E

Project Officer: _______________

ARM-101:KJones:2/6/2014:Doc#38948

ARM-1/100/104:Program Office AFS-600

MR CHARLES R BARNETT III

COUNSEL FOR OPERATION MIGRATION INC

OPERATION MIGRATION 

800 WAUKEGAN ROAD SUITE 200

GLENVIEW IL 60025