AFS

- 13

- 476

- E Exemption No. 10784

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

AERO SPORTS CONNECTION Regulatory Docket No. FAA

- 2012

- 0815 for an exemption fro m § 103.1(e)(1) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated July 26, 2012 , Mr. James G. Stephenson, 231 SW Bonanza Gln, Lake City,

FL 32025

- 2148 petitioned the Federal Aviation Administration (FAA) on behalf of

Aer o Sports Connection (ASC ) for an exemption from § 103.1(e)(1) of Title 14, Code of

Federal Regulations (14 CFR). The proposed exemption would allow ASC members to conduct flight activities under part 103, in single

- seat gyroplanes that exceed 254 pounds

e mpty weight for the purpose of creat ing the Ultralight Vehicle Safety Equipment research

baseline.

The petitioner request s relief from the following regulation:

Section 103.1(e)(1) prescribes, in pertinent part, that for the purposes of this part, an

ultr alight vehicle is a vehicle that, if powered, weighs less than 254 pounds empty weight, excluding floats and safety devices intended for deployment in a potentially catastrophic situation.

The petitioner support s its request with the following information :
The petitioner state s that it is a § 501(c)(4) nonprofit association, as granted by the Internal Revenue Service, that bring s together aviation enthusiasts, operators, and ultralight vehicle

owners who are dedicated to the continued safety and growth of aviation, the preservation of its history, and a commitment to aviation’s future. ASC ’s p rograms, activities, and events are known throughout the world for supporting aviation safety and promoting personal enjoyment and responsibility within an aviation l ifestyle. Furthermore, ASC has t he goal of promoting2

aeronautical educational experiences by providing its members and the general public with

access to the world of flight.

In 1982, when part 103 was adopted, the typical ultralight vehicle consisted of a basic aircraft and engine without brakes, self

- starters, improved suspension systems, or special equipment for disabled persons. Ultralight vehicles were extremely weight efficient, sacrificing safety to reduce weight to make flight possible. Additional ly, as the ultralight vehicle matured and developed, basic designs and methods resulted in additional weight items that have become

standard. The petitioner points out that the FAA and the ultralight community acceptance of the ballistic parachute i s a pr ime example of a critical safety

- of

- flight component.

According to the petitioner, the ultralight community believes the margin of ground safety could be raised to a higher standard. Changing the wording of § 103.1(e)(1) to allow the addition of simple a nd proven safety devices such as gyrocopter pre

- rotator systems , starters

, and gyroplane horizontal stabilizer systems would raise the margin of ground safety. The addition of these systems could easily prevent serious hand propping and pre

- rotating injur ies

and accidents

.

The petitioner state s that a two

- year exemption would be used to gather accident data on

“ ultralight vehicle s ” covered by this exemption. If the exemption is granted, ASC and the

FAA would use the data gathered to establish a baseline for possible rulemaking changes to 14 CFR part 103 or related documents. The petitioner state s the study w ould :

1. Require all owners of ultralight vehicles operating under the terms of this exemption to submit an annual safety report to the exemption holde r. The annual safety report

w ould consist of the following items:

a. Owner ’ s name ; b. Ultralight vehicle make and model, and registration number (if applicable) ;

c. Hours flown during the annual reporting period ; d. List of any accidents or incidents and their relati on to the use of this additional safety equipment ; and

e. List of injuries that resulted from these accidents and/or incidents

.
2. Consolidate annual safety reports by make and model of ultralight vehicle and forward

them to the FAA, AFS

- 800 for their safety rev iew ; and

3. Develop a listing of horizontal stabilizers which meet ASTM F2353

- 11 stability requirements

, thereby augmenting the knowledge base for both operators and

ma nufacturers.

ASC states that granting this exemption would provide the possibility of futu re growth in all general aviation

- related activities by promoting safety in this national recreational activity.

The petitioner believes the proposed research project serves the purpose of encouraging flight proficiency and safety, while promoting additio nal flight activity and the resultant positive3

economic impact that such increased activity has on all segments of sport and general

aviation. This economic impact includes increased commerce for manufacturers of aircraft and parts, as well as service pro viders.

To ensure a high level of safety during the research project, ASC w ould :

1. Require reporting on all incidents and accidents at each yearly renewal. A failure to report will result in a failure to renew ;

2. Require all ultralight operators, under the terms of the exemption, to be members of the exemption holding organization ; and

3. All horizontal s tabilize r s installed under this exemption must either meet accepted design criteria or be tested for appropriate stability results as defined in an a ddendum

s pecifying particular requirements on horizontal stabilizer designer test. Operators using the exemption for horizontal stabilizers must report to the exemption holders as set forth by the petitioner

.

Under the exemption, each operator would present thei r copies of this exemption and the Technical Standards Committee Finding Sheet to the FAA for inspection upon request. In addition, the petitioner state s that t he FAA and ASC would reserve the right to terminate any program participant who fails to comply with the terms of this exemption. Failure to submit annual reports to the exemption holder would be cause for termination from the program. Upon termination, the individual would be required to comply with the part 103 ultralight vehicle weight limitatio ns. After completion of this 2

- year study, or after appropriate extensions, ASC would recommend to the FAA appropriate recommendations based on the study results.

The database created from the research project would be sufficient to develop a baseline o f information for the FAA to make a reasonable decision on allowing future ultralight vehicle safety equipment. The petitioner expect s an immediate reduction in personal injury and property damage.

The petitioner identifies pilots struck by a propeller a s a result of having to hand

- prop or standing on the seat to spin up the rotor blades by pushing them by hand and Pilot Induced Oscillations (PIO) accidents as being key safety concerns. The petitioner cites that t hese issues have been made worse by the i nstructor limitations imposed by the FAA Rotorcraft

Directorate

, which do not allow gyroplane Special Light Sport Aircraft (SLSA). As a result, the petitioner asserts that the Directorate has prevented possible instruction for most of the gyroplane commun ity. Therefore, training o n operating around a running engine/propeller or standing on the pilot seat while the engine is running to hand spin up the blades without pre

rotors is not available.4

The petitioner states that t he decision by the Directorate f urther impacts the community in that

u ltralight g yroplanes have nowhere to go to add these safety devices. Because t here are no SLSA gyroplanes, there are no Experimental Light Sport Aircraft (ELSA) gyroplane s with a fixed wing aircraft , an owner might ob tain Experimental Amateur Built ( E

- AB) certificate

, but the gyroplane is unique in that once the rotor, the engine, the prop, the wheels, and the seat are bought, there is little else to consider. This makes it very difficult to build 51% of the aircraft

, even from the checklist in FAA Order 8130.2 G. An owner knows how to be safer, but cannot do so legally.

The petitioner request ed that the FAA not publish a copy of the petition in the

Federal Register because of the time

- critical nature of the request a nd the similarity to changes made for flotation devices under the training exemptions.

Although the petitioner requested that action on its petition not be delayed for publication in

the Federal Register , the FAA found that the petition, if granted, would set a precedent. Therefore, to allow an opportunity for the public to comment on the petition, a summary of the petition was published in the Federal Register on October 22, 2012 ( 7 7 FR 64581 ). The

FAA received four comments from four commenters , who ge nerally favored the grant of exemption

.

Three commenters are in favor of the structure of the proposed exemption, which would expand the current list of equipment excluded when measuring empty weight. They also contend that a grant of exemption would be in the public interest or at least would have no adverse impact on the public interest.

One commenter suggests that the single

- most important factor in safety is proper training from

a certified flight instructor and that e verything else is secondary in importance.

The FAA’s analysis is as follows:

The FAA has fully considered the petitioner ’ s supporting information as well as the information provided by comment er s submitted to the docket supporting the petition filed by

ASC , and has determined that the circumstances presented by the petitioner do not justify a grant of exemption. The FAA finds that the petitioner ha s not shown that a grant of exemption would be in the public interest or that a level of safety equivalent to that provided by the regulati ons would be maintained.

In 1982, the FAA promulgated the ultralight vehicle regulations and provided rules governing their operation. At that time, the FAA defined an ultralight vehicle as one that :

1. Is intended for single occupancy ;

2. Is used for sport or recreation ;

3. Does not have a U.S. or foreign airworthiness certificate ; and5

4. If powered, weighs less than 254 pounds empty weight, excluding floats and safety devices intended for deployment in a potentially catastrophic situation; has a fuel capacity not exceeding 5 U.S. gallons; is not capable of more than 55 knots calibrated air speed; and has a maximum power

- off stall speed not exceeding 24 knots.

Vehicles meeting the definition of an ultralight vehicle may be operated under part 103 and are not subje ct to the aircraft certification requirements of part 21, the maintenance requirements of part 43, the marking requirements of part 45, the registration requirements of part 47, the airmen certification requirements of part 61, the medical requirements of part 67, or the operating rules of part 91. However, any vehicle not meeting all of the elements in the ultralight vehicle definition may not be operated under part 103 and is subject to all of certification, operation, and maintenance regulations applica ble to aircraft set forth in the 14

CFR. The FAA notes that the ultralight regulations were intended to protect individuals not involved in the sport, including persons and property on the ground and other users of the airspace.

In response to changes in the state of the art of ultralights and the operation of fat ultralights, the FAA formed the Part 103 (Ultralight Vehicle) Working Group under the Aviation Rulemaking Advisory Committee (ARAC) (58 FR 47172, September 7, 1993). The FAA tasked the working group with reviewing part 103 and developing recommendations concerning new or revised regulations. The FAA also tasked the working group with reviewing a petition (docket No. 25591) to amend part 103 and all comments submitted in response to that petitio n

. The FAA notes that the ARAC considered a variety of alternatives

, but in its final recommendation to the FAA focused on three areas: sport pilot certification ; airm a n medical recommendations ; and Flight Standards Review Board recommendations.

Based on the ARAC’s recommendations, the FAA published Notice No. 02

– 03, Certification of Aircraft and Airmen for the Operation of Light

- Sport Aircraft; (67 FR 5368, February 5, 2002). The FAA noted that it based its proposal on the ARAC’s sport pilot recommendat ions but expanded it to provide a complete regulatory solution. On September 1, 2004, the new
sport pilot and light sport aircraft regulations went into effect (69 FR 44772, July 27, 2004). In promulgating these new rules, the FAA stated that their purpo se includes : (1) increasing safety in the light

- sport aircraft community by closing gaps in existing regulations and accommodating new advances in technology ; and (2) allowing the operation of light

- sport aircraft that exceed the limits of ultralight vehic les operated under part 103. During this extensive rulemaking effort, the FAA noted that it worked closely with industry associations and manufacturers to determine how to best implement the new rules. The FAA points out that during this rulemaking, disc ussion took place over a single

- place ultralight weight limit

increase to 360 pounds empty weight. At that time, the FAA stated th e approach was not part

of the ARAC’s recommendation s
, and therefore would not take action

.

The FAA notes that the rulemak ing process provides the FAA an opportunity to obtain comments from a much larger segment of the industry, the public, and other government agencies, as well as from within the FAA, thereby presenting issues to a much broader6

audience. However, as discuss ed above, the FAA finds that it considered the r equest to increase the weight of ultralight vehicles under part 103 during the sport pilot rulemaking effort and rejected it in lieu of implementing the sport pilot regulations. In fact, the FAA points out t hat it initially formed the P art 103 (Ultralight Vehicles) Working Group

, made up of members from the ultralight community, in response to a petition to increase the weight of ultralight vehicles. The working group provided the FAA a comprehensive recomme ndation that did not include expanding the definition of an ultralight vehicle to include heavier ultralight vehicles. The FAA also has determined that it considered the petitioners’ and commenters’ arguments regarding increased vehicle weight, safety, co st, resources, and flight in general aviation airspace during the sport pilot rulemaking

. The FAA finds that the ARAC, the industry, and the FAA have thoroughly considered this proposal and rejected it.

The FAA disagrees with the petitioners ’ claim that the FAA Rotorcraft Directorate, by not allowing gyroplane SLSA, has prevented possible instruction for most of the gyroplane community. A letter of deviation authority (LODA) for conducting flight training in experimental gyroplanes is widely used to cond uct such instruction within the bounds of current regulation s

. The petitioner states that since there are no SLSA gyroplanes, there are no ELSA gyro planes , and

therefore the builder of a gyroplane might certify it as an experimental amateur built aircraft

. The FAA agrees that gyroplanes cannot be certificated as ELSA under § 21.191(i)(2) or (3) or under

§ 21.191(i)(1) after January 31, 2008. However, the FAA disa grees with the difficulty in meeting the requirements necessary for a builder to certif icate a gyroplane as an experimental

amateur

- built ( E

- AB ) aircraft

. The FAA recognizes the safety benefit of allowing the manufacturer to complete some of the more complex work, and has also tailored the fabrication and assembly checklist for gyroplane kit majo r portion evaluation.

Regarding the petitioners’ request to conduct a safety study in accordance with paragraph 22

of AC 103

– 7, the FAA points out that paragraph 22 does not address gathering data for a safety study; it addresses documenting whether a veh icle meets the part 103 definition of an ultralight vehicle. Although the petitioner requested form ation of a technical standards

committee in accordance with AC 103

– 7 to evaluate and approve vehicles as ultralights when they do not meet the part 103 defi nition of an ultralight

, t he FAA points out that the

committee in AC 103

– 7 is to be used to determine if a vehicle meets the part 103 definition of an ultralight, not whether it can be flown as an ultralight under part 103 when it does not meet

the definit ion of an ultralight. Therefore, the FAA finds that the petitioner ha s no basis for gathering data or forming a committee under AC 103

– 7.

Fu r thermore, the FAA points out that the rules for gyroplanes issued airworthiness certificates

as ELSA under § 21.1 91(i)(1) permit the ir operation as light

- sport aircraft as long as the aircraft are registered, meet minimum airworthiness standards, are in a condition for safe flight, and exhibit no hazardous operational characteristics or design features. These aircra ft

may , within the current regulatory structure, have larger control surfaces, increased structural weight, added safety features, and other items in accordance with § 21.191(i) as desired by the petitioner. The FAA points out that their classification an d certification as light

- sport aircraft would not affect the petitioner ’ s safety study or data gathered.7

The FAA’s Decision

In consideration of the foregoing, I find the grant of exemption would not be in the public

interest. Therefore, pursuant to the a uthority contained in 49 U.S.C. §§ 40113 and 44701 delegated to me by the Administrator, the petition of Aero Sports Connection for an exemption from 14 CFR § 103.1(e)(1) is hereby denied.

Sincerely,

/s/

John S. Duncan Deputy Director, Flight Standards

Service