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 Administration (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-E 
2

(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 whooping 
3

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 holders 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 aircraft 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 pilot 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-sport 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 private 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 least 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 specifically 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 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; 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 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-
6

shift-control aircraft. Although the FAA did recognize a need to allow an operator to be 

compensated 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 weight-shift-control aircraft have an operating 

envelope that extends from 32-50 mph - an envelope 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 certificated 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 exemption 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 Operation 

Migration 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 # 3468095 
7

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 flights 

subject 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 Safety 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 designed 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 landmarks. 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