ATA-09-081-E

Exemption No. 10100

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

HIGHEST WIND Regulatory Docket No. FAA-2008-1296

for an exemption from §§ 101.13(a)(1), (2), and (3), and 101.17 of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated December 5, 2008, Mr. Dimitri Chernyshov, President, Highest Wind, (Highest Wind), 117 Cushing Road, Newmarket, NH 038 57, petitioned the Federal Aviation Administration (FAA) on behalf of Highest Wind for an exemption from §§ 101.13(a)(1), (2), and (3), and 101.17 of Title 14, Code of Federal Re gulations (14 CFR). The proposed exemption, if granted, would allow Highest Wind to operate its unmanned, tethered, semiautonomous glider, at approximately 1,000 feet abov e ground level (AGL), for the purpose of generating electrical power from the wind.

The petitioner requests relief from the following r egulations:

§ 101.13 Operating limitations.

(a) Except as provided in paragraph (b) of this se ction, no person may operate a

moored balloon or kite—

(1) Less than 500 feet from the base of any cloud;

(2) More than 500 feet above the surface of the ea rth;

(3) From an area where the ground visibility is le ss than three miles.

§ 101.17 Lighting and marking requirements.

(a) No person may operate a moored balloon or kite , between sunset and sunrise unless the balloon or kite, and its mooring l ines, are lighted so as to give a visual warning equal to that required for obstructio ns to air navigation in the FAA2

publication “Obstruction Marking and Lighting ”.

(b) No person may operate a moored balloon or kite between sunrise and sunset unless its mooring lines have colored pennan ts or streamers attached at not more than 50 foot intervals beginning at 150 feet above the surface of the earth and

visible for at least one mile.

The petitioner supports its request with the follow ing information:

The petitioner states that his company, Highest Win d, has developed an unmanned, tethered, semi-autonomous glider that generates electrical po wer from the wind. It alternately ascends and descends above and below about 1,000 feet above ground level (AGL). While climbing, it pulls a tether that spins a ground based electri cal generator. The petitioner recognizes that this glider does not fall under any current FAA reg ulation, but believes that sections 101.13 and 101.17 are the most appropriate for this device

.

Specifically, the petitioner requests to be exempt from the provisions contained in Subpart BMoored Balloons and Kites, section 101.13(a) (1) th rough (3), Operating Limitations, and section 101.17, Lighting and Marking Requirements. Section 101.1(a) (1) through (3) require that no person may operate a moored balloon or kite (1) less than 500 feet from the base of any cloud; (2) more than 500 feet above the surface of the earth; and (3) from an area where ground visibility is less than 3 miles. Section 10 1.17 requires anyone operating a moored

balloon or kite between sunset and sunrise to mark the balloon or kite, and its mooring lines in accordance with FAA guidelines for obstructions.

The petitioner requests to be exempt from sections 101.13(a) (1) and (3). He requests that the altitude requirement in section 101.13(2) be increa sed for his operation from 500 feet to 1200 feet. He also requests that in lieu of having to comply with marking and lighting requirements prescribed for obstructions, that his operations be subject to the marking and lighting requirements prescribed for light sport ai rcraft. In addition, he requests that the altitude prescribing the height above the earth whe re colored pennants or streamers are attached to mooring lines be increased for his oper ations from 150 feet to 500 feet above the

surface.

A summary of the petition was published in the Federal Register on November 4, 2009 (74 FR 57219). No comments were received.

The FAA's analysis is as follows:

United States Code, Title 49, Section 40103, Sovere ignty and use of airspace, states that the United States government has exclusive sovereignty of airspace of the United States. Further, a citizen of the United States has a public right o f transit through the navigable airspace. The FAA is authorized to develop plans and policy for t he use of the navigable airspace in order to ensure the safety of aircraft and the efficient use of airspace.3

The FAA finds that the petitioner’s request, if gra nted, would adversely impact the efficient use of the National Airspace System (NAS). In addi tion, we find the request is outside the scope of part 101. Section 101.11, Applicability, states that Subpart B applies to the operation of moored balloons and kites. The petitioner descr ibes the system as an unmanned tethered glider, which we find falls outside the current def initions of either a moored balloon or kite.

Even though we find that the provisions of part 101 do not apply here, we do have concerns with this request. Our concerns deal with the effe ct of this system to aircraft operating above 500 feet AGL, the ease of relocating the system, an d the unknown impact of the system to radar used by the air traffic control system for th e separation of aircraft. Each of these

concerns is addressed below.

(1) Altitude . The petitioner requests an exemption from Sectio n 101.13(a), which in part prohibits the operation of kites above 500 feet abo ve the earth. The petitioner requests to operate these energy generators up to 1200 feet abo ve ground level (AGL). The petitioner correctly states that in some areas, uncontrolled a irspace extends from the surface up to1200 feet above ground level. He contends that in uncon trolled airspace, there would be no impact to the NAS from these systems. We do not agree. I n accordance with Section 91.119, minimum safe altitudes: General, pilots must not op erate below 500 feet above the surface, unless they are over open water or sparsely populat ed areas. The FAA has long held that the NAS begins at 500 feet AGL and structures above tha t altitude are considered to be an obstruction to air navigation unless an aeronautica l study reveals otherwise (see 14 CFR part 77). Thus, whether in controlled or uncontrolled a irspace, these systems would have an adverse impact to aircraft operations in the NAS.

It should be noted that the petitioner believes 14 CFR part 101 requires operation of this system beyond 5 miles of an airport. Since this “u nmanned tethered glider” does not fall under the auspices of part 101, this restriction do es not apply. The FAA recommends that aircraft operating in a traffic pattern operate at 1000 feet AGL. If one of these systems were constructed within 5 miles of an airport, it would have an adverse impact to aircraft operations at that airport.

(2) Mobility . One of the system components of the High Wind En ergy Glider System is a car towable power trailer. According to the Highest Wi nd website, the system can be installed in one day, making it easily portable. While this may be a desirable marketing feature, it poses considerable concern for the FAA. If the system is operating at altitudes from 500 – 1200 feet AGL, the system is in navigable airspace. The owne r of one of these systems has the capability of moving it at his discretion, without notifying the FAA. Consequently, the FAA would not have adequate time to study the systems i mpact at each location, and disseminate timely information to pilots about the system’s loc ation.

(3) Radar . Land based wind turbines have increased substa ntially over the last few years. The FAA has conducted numerous studies, research of the impact of wind turbines to radar, and concluded that wind turbines can adversely impa ct radar. There have been occasions that4

the impact to radar can be mitigated by adjusting t he angle of the turbines, or upgrading the radar. However, if the system is mobile, attempts to mitigate adverse impacts could prove futile, as moving the system could negate those eff orts, or create new problems.

One way to mitigate some of our overall concerns is to fix the location of these systems. If we had assurances that the system would remain in one area, and were provided those coordinates, then the FAA could conduct an aeronaut ical study to determine if there are any adverse impacts to the NAS. The results of the stud y would indicate not only if there is an impact to the NAS, but may also indicate whether th ere is any feasible way to mitigate the impacts. However, the mobility of the system raise s significant safety concerns.

The FAA’s Decision:

In consideration of the foregoing, I find that your request for exemption from the stated provisions of part 101 is not appropriate for the o perations described in your petition. Therefore, pursuant to the authority contained in 4 9 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, the petition of Highest Wi nd for an exemption from 14 CFR §§ 101.13 and 101.17 is hereby denied.

Issued in Washington, DC, on Jul 16, 2010.

/s/ Elizabeth Ray Director, Airspace and Aeronautical Information Man agement

.5

Project No.: ATA-09-081-E

Project Officer: _______________

ARM-107: LBrunache: 07/02/2010: Doc# 28382

ARM-1/100/107: AJR-33

Statistics: rulemaking-#28382-v3-Highest_Wind.DOC , 1,551 words Original, 02 Jul 2010 09:23 Style Index 63 Average for a Legal Document Average Sentence Length 19 Excellent

Passive Index 15 Excellent

MR DIMITRI CHERNYSHOV

PRESIDENT

HIGHEST WIND

117 CUSHING ROAD

NEWMARKET NH 03857