Exemption No. 10429A

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-2011-1458

for an exemption from §§ 61.113(a) 61.315(c)(2) and (3), and 91.319(e) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated March 2, 2012, Mr. Charles R. Barnett, III, Counsel for Operation Migration, Inc., (Operation Migration), 8411 Pyott Road, Suite 109, Lake in the Hills, Illinois 60156, petitioned the Federal Aviation Adm inistration (FAA) on behalf of Operation Migration for an exemption from §§ 61.315(c)(2) and (3), and 91.319(e) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would permit Operation Migration to use persons holding a sport pilot certificate to operate weight-shift-control aircraft certificated under 14 CFR § 21.191(i) for compensation or hire to facilitate the migration of endangered whooping

cranes.

The petitioner requests relief from the following regulations:

Section 61.315(c)(2) and (3) prescribes, in pertinent part, that you may not act as pilot in command of light-sport aircraft:

(2) For compensation or hire.

(3) In furtherance of a business.

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 —

AFS-12-277-E2

(1) Tow a glider that is a light-sport aircraft or unpowered ultralight vehicle in accordance with §91.309; or

(2) Conduct flight training in an aircraft which that person provides prior to January 31,

2010.

Although the petitioner has requested relief from §§ 61.315(c)(2),and (3), and 91.319(e) of Title 14, Code of Federal Regulations, the FAA finds that under the conditions and limitations specified in this exemption the petitioner would also require relief from § 61.113(a). Section §§ 61.113(a) states 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.

The petitioner supports its request with the following information:

The petitioner states that the reason why granting its request would be in the public interest relates to the history of the whooping crane population. The petitioner notes that in the early 1940’s only fifteen whooping cranes existed in the world. These birds migrated from northern Canada to Texas where they were threatened by hurricanes, human encroachment, chemical spills, and avian diseases. The petitioner states that in order to safeguard the species from

extinction a second insurance flock was needed.

The petitioner notes that whooping cranes learn to migrate by following the parent generation, however, all of the birds that used the eastern flyway were extirpated from that area by the late 1800’s. Accordingly, there were no parents to guide younger whooping cranes along the migratory route.

The petitioner states that beginning in 1993, Operation Migration developed the only known method of reintroducing endangered birds in a migratory situation. This is accomplished by imprinting the birds on handler/pilots and conditioning them to follow a specific ultralight vehicle. In 1998, the International Whooping Crane Recovery Team asked Operation Migration to spearhead an attempt to establish a second whooping crane flock that migrated from

Wisconsin to Florida.

In 1999 an association of nine Federal, State, and private agencies known as the Whooping Crane Eastern Partnership (WCEP), was formed. Beginning in 2001, a new generation of whooping cranes was hatched each year at the USGS Patuxent Wildlife Research Center in Maryland. In June of that year, they were transferred by private aircraft to Wisconsin where their conditioning continued. In the fall, they were led along a preselected route to Florida that

covered 1280 miles and seven states. The birds were monitored over the winter and made the return trip back to Wisconsin on their own. The petitioner notes that there are now 100 whooping3

cranes in the eastern flyway and that 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 nest was reported in 1878.

The petitioner notes that the image of a modern aircraft leading an ancient species has generated worldwide media attention which provides an unprecedented education opportunity. Through Journey North, a global study of wildlife migration and seasonal change, 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 Operation Migration’s live web camera and the social media, the petitioner states that it 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 the species under the Endangered Species Act, as well as supporting the multi-national Migratory Bird Treaty Act.

The petitioner states that its program provides many benefits to the American people to include: safeguarding a critically endangered species; fulfilling the mandate of the International Whooping Crane Recovery Team and the mandate of the Endangered Species Act; promoting the conservation and restoration of wetland habitat; providing an unprecedented education opportunity; and promoting eco-tourism in Wisconsin, Florida, and along the migration route.

The petitioner further states those reasons it believes demonstrate that granting its petition would not adversely affect safety or provide a level of safety at least equivalent to that provided by the

rules from which it seeks relief. The reasons it sets forth are stated below:

 Operation Migration pilots are high time pilots that have been flying ultralight aircraft [sic], specifically weight-shift [control] aircraft, for many years. Before the FAA instituted the Sport Light Category [sic] these pilots held other certificates to fly ultralight aircraft [sic];

 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;

 To keep the birds wild and away from people, the Operation Migration route was specifically designed through uncontrolled [sic ] airspace away from airports and over open rural areas. Landing sites are mostly on private property in isolated farm fields;

 Because the birds learn to soar on the vortices created by the wingtip, Operation Migration 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;4

 When Operation Migration is able, it recruits the services of volunteer pilots to fly top-cover. These conventional aircraft [sic] fly circles 1000 feet above and one quarter mile out to help monitor the birds, communicate with ATC using flight following, and check weather

conditions ahead ;

 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;

 Operation Migration aircraft are inspected annually;

 Operation Migration aircraft are hangared and maintained to high standards;

 Engines are opened for inspection before reaching 400 hours and replaced or professionally rebuilt before 600 hours;

 In leading birds for 11 years, Operation Migration has never experienced an accident involving an aircraft;

 This exemption is for the limited purpose of Operation Migration and will not have a far reaching impact on any other certificate hol ders outside of Operation Migration.

 This request is for a temporary exemption in order to allow Operation Migration to replace its fleet of experimental light sport ai rcraft with a fleet of special light sport aircraft which [Operation Migration contends] will not require an exemption for Operation Migration’s use.

 Operation Migration anticipates all of its pilots will hold Private Pilot Certificates prior to the commencement of the 2012 migration.

The petitioner notes that it requires a “solution of a permanent nature” to be in place no later than April 1, 2012 in order to properly plan for the 2012 fall migration. Operation Migration anticipates all of its pilots will hold private p ilot certificates prior to the commencement of the 2012 migration and any flying conducted on behalf of Operation Migration pilots will be only incidental to the business of Operation Migration. Operation Migration believes it will be in a position to replace its fleet of experimental light-s port aircraft with a fleet of special light-sport aircraft prior to the commencement of the 2013 fall migration. The petitioner states that any consideration given to this request in an expedited manner will be extremely helpful to the success of the current migration.

The FAA has determined that good cause exists for waiving publication in the Federal Register because any delay in acting on this petition would be detrimental to Operation Migration. The relief requested by the petitioner is similar to the relief requested in Exemption No. 10429 and any delay in in acting on the petitioner’s request would affect Operation Migration adversely.

The FAA's analysis is as follows:5

The FAA has fully considered the petitioner’s request and supporting information and finds that the continued conduct of the operations by the petitioner to facilitate the aerial migration of endangered whooping cranes is in the public interest.

The FAA notes that Operation Migration’s pilots currently possess only sport pilot privileges for the operation of weight-shift-control aircraft. Although the petitioner asserts that its proposed operations would be considered incidental to its business, the FAA does not agree. Accordingly, such operations for compensation could only be conducted by a person holding at least a commercial pilot certificate. A commercial pilot certificate with a weight-shift-control aircraft rating, however, currently does not exist, yet a priv ate pilot certificate with a weight-shift-control aircraft rating does.

The FAA recognizes a significant public interest in facilitating the aerial migration of endangered whooping cranes and the need to provide the relief necessary to permit the petitioner to successfully complete the migration flights. To ensure that an appropriate level of safety can be maintained for the conduct of the petitioner’s operations, all pilots conducting either imprint flights or migration flights must have at l east 250 hours as pilot in command in weight-shiftcontrol aircraft before conducting those flights. 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. The FAA recognizes that Operation Migration’s pilots only possess sport pilot privileges for the operation of weight-shift-control aircraft and accordingly will permit imprint flights in a specifically defined area to be conducted during the 2012 season by those pilots in accordance with the conditions and limitations specified in this exemption. For the longer and more extensive flights involved with the actual migration of the whooping cranes, however, the FAA will require such flights to be conducted by pilots holding at least a private pilot certificate with a weight-shift-control aircraft rating. The FAA believes that this condition can be met by the petitioner’s pilots prior to the conduct of the 2012 migration flights and the Light Sport Aviation Branch (AFS-610) will speci fically assist Operation Migration with coordinating those actions necessary to obtaining these certificates for its pilots prior to the 2012 migration.

Additionally, the FAA notes that while the relief required by the petitioner’s pilots when holding sport pilot certificates necessitates relief from § 61.315(c)(2), and (c)(3), the relief required by the petitioner’s pilots to conduct migration flights while holding private pilot certificates with a weight-shift-control aircraft rati ng 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 fo r the Operation of Light-Sport Aircraft” (69 FR 44772; July 27, 2004) it created a new set of regulations that would permit 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 light-sport aircraft for compensation or hire, especially since it created neither a comme rcial 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-6

shift-control aircraft. Although the FAA did recognize a need to allow an operator to becompensated for limited types of operations, the rule did not contemplate the use of weight-shiftcontrol aircraft to engage in the operations conducted by the petitioner.

The Cosmos Phase II experimental light-sport aircraft (E-LSA) currently operated by the petitioner 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 special light-sport aircraft (S-LSA) under § 21.190. Additionally, the FAA notes that there is no standard category weight-shift-control aircraft that can be used for compensation or hire. However, weight-shift-control aircraft currently exist that have been certificated as SLSA in accordance with consensus standards accepted by the FAA. These aircraft, however, do not meet the flight parameters necessary for the conduct of the petitioner’s operations without modification. The petitioner’s Cosmos Phase II wei ght-shift-control aircraft have an operating envelope that extends from 32-50 mph - an enve lope that is critical to leading the whooping cranes during the conduct of their migration. In view of the petitioner’s unique situation, the FAA has imposed conditions and limitations affecting the maintenance and inspection of the petitioner’s aircraft in this exemption that it believes will permit the petitioner’s operations to be conducted in its weight-shift-control aircraft cer tificated as E-LSA during the period of this exemption without adversely affecting safety.

The FAA notes that (contrary to assertions set forth in the petitioner’s request) aircraft certificated as S-LSA cannot be used to conduct the operations specified in this exemption due to the restrictions imposed by the operating limitations for S-LSA under § 91.327. These restrictions significantly limit the scope of operations that may be conducted for compensation or hire in these aircraft. The FAA does, however, expect the petitioner to work with its local FAA office to develop a program to facilitate subsequent successful migrations of the endangered whooping cranes that would include the use of special light-sport aircraft certificated under § 21.190 if subsequent extensions of this exemption are contemplated.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exem ption is in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, Operation Migration, Inc. is granted an exemption from 14 CFR §§ 61.113(a), 61.315(c)(2) and (3), and 91.319(e) to the extent necessary to allow OperationMigration to use persons holding a sport pilot or private pilot certificate to operate weight-shiftcontrol aircraft certificated under 14 CFR §21.191(i) for compensation or hire to facilitate the migration of endangered whooping cranes, subject to the following conditions and limitations:

Conditions and Limitations

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

Joseph William Duff, Pilot Certificate # 34680957

John Brooke Pennypacker, Pilot Certificate # 3344959 Richard Grant Van-Heuvelen, Pilot Certificate # 3447150

2. Pilots conducting operations subject to this exemption must have at least 250 hours as pilot in command in weight-shift-control aircraft.

3. Pilots conducting imprint flights during the 2012 season must hold at least a sport pilot certificate with weight-shift-control land aircraft privileges.

4. Pilots conducting migration flights during the 2012 season and any subsequent flightssubject to this exemption must hold at least a private pilot certificate with a weight-shiftcontrol aircraft land rating.

5. Operations subject to this exemption must be conducted in the following Cosmos Phase II weight-shift-control aircraft: N2613T, N2614T, N2615T and N2616T.

6. 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 maintenance records.

7. Prior to the use of any aircraft specified in this exemption to conduct a migration flight it must be inspected by an FAA Aviation Safe ty Inspector/Airworthiness (ASI/AW) from the Light Sport Aviation Branch (AFS-610). This inspection must be recorded in the

aircraft maintenance records.

8. Imprint flights must be conducted within an imprint area approved by the geographically responsible FSDO. The area should be designe d by Operation Migration in coordination with the responsible FSDO.

9. 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 landmar ks. The designated route must be over other than densely populated areas.8

10. Operations are limited to day VFR conditions.

11. 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, 2014, unless sooner superseded or rescinded.

Issued in Washington, D.C., on March 30, 2012.

/s/

John W. McGraw Acting Director, Flight Standards

Service