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 03857, 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 Regulations (14 CFR). The proposed 

exemption, if granted, would allow Highest Wind to operate its unmanned, tethered, semiautonomous glider, at approximately 1,000 feet above ground level (AGL), for the purpose of 

generating electrical power from the wind. 

The petitioner requests relief from the following regulations:

§ 101.13 Operating limitations. 

(a) Except as provided in paragraph (b) of this section, 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; 

(3) From an area where the ground visibility is less 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 lines, are lighted so as to give a visual 

 warning equal to that required for obstructions to air navigation in the FAA 
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 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 pennants 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 following information:

The petitioner states that his company, Highest Wind, has developed an unmanned, tethered, 

semi-autonomous glider that generates electrical power 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 electrical generator. The petitioner recognizes that 

this glider does not fall under any current FAA regulation, 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) through (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 101.17 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 increased 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 aircraft. In addition, he requests that the 

altitude prescribing the height above the earth where colored pennants or streamers are 

attached to mooring lines be increased for his operations 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, Sovereignty 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 of transit through the navigable airspace. The 

FAA is authorized to develop plans and policy for the use of the navigable airspace in order to 

ensure the safety of aircraft and the efficient use of airspace. 
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The FAA finds that the petitioner’s request, if granted, would adversely impact the efficient 

use of the National Airspace System (NAS). In addition, 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 describes the system as an unmanned tethered 

glider, which we find falls outside the current definitions 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 effect of this system to aircraft operating above 

500 feet AGL, the ease of relocating the system, and the unknown impact of the system to 

radar used by the air traffic control system for the separation of aircraft. Each of these 

concerns is addressed below. 

(1) Altitude. The petitioner requests an exemption from Section 101.13(a), which in part 

prohibits the operation of kites above 500 feet above the earth. The petitioner requests to 

operate these energy generators up to 1200 feet above ground level (AGL). The petitioner 

correctly states that in some areas, uncontrolled airspace extends from the surface up to1200 

feet above ground level. He contends that in uncontrolled airspace, there would be no impact 

to the NAS from these systems. We do not agree. In accordance with Section 91.119, 

minimum safe altitudes: General, pilots must not operate below 500 feet above the surface, 

unless they are over open water or sparsely populated areas. The FAA has long held that the 

NAS begins at 500 feet AGL and structures above that altitude are considered to be an 

obstruction to air navigation unless an aeronautical study reveals otherwise (see 14 CFR part 

77). Thus, whether in controlled or uncontrolled airspace, 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 “unmanned tethered glider” does not fall 

under the auspices of part 101, this restriction does 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 Energy Glider System is a car 

towable power trailer. According to the Highest Wind 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 owner 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 impact at each location, and disseminate 

timely information to pilots about the system’s location. 

(3) Radar. Land based wind turbines have increased substantially 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 impact radar. There have been occasions that 
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the impact to radar can be mitigated by adjusting the 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 efforts, 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 aeronautical study to determine if there are any 

adverse impacts to the NAS. The results of the study would indicate not only if there is an 

impact to the NAS, but may also indicate whether there is any feasible way to mitigate the 

impacts. However, the mobility of the system raises 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 operations described in your petition. 

Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to 

me by the Administrator, the petition of Highest Wind 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 Management 

 . 
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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