Exemption No. 10364

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

MARK A. BOYCE Regulatory Docket No. FAA–2008–0950

for an exemption from §§ 61.113(a) and 61.133(a)(1) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letters dated August 27, 2008, and January 6, 2009, Mr. Mark A. Boyce, 664 West Juanita Avenue, Gilbert, Arizona 85233, petitioned the Federal Aviation Administration (FAA) for an exemption from § 61.113 and subpart F of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow an individual holding a private pilot certificate w ith a powered parachute category rating or a person holding a commercial pilot certificate with a powered parachute category rating at the private certificate level to carry persons or property for compensation or hire in a powered parachute. It would also allow Mr. Boyce to obtain a commercial pilot certificate permitting him to exercise the privileges of a commercial pilot in a powered parachute.

Mr. Boyce also petitioned for rulemaking to revise subpart F of 14 CFR part 61 to create a commercial pilot certificate with a powered parachute category rating.

The petitioner requires relief from the following regulations:

Section 61.113(a) prescribes 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.

Although the petitioner requested an exemption from subpart F of 14 CFR part 61, the regulations in that subpart set forth specific requirements applicable to the issuance of a commercial pilot certificate with ratings for aircraft other than powered parachutes.

AFS–08–436–E2

Accordingly, the FAA has determined that the petitioner requires relief from § 61.133(a)(1) of that part.

Section 61.133(a)(1) prescribes that a person who holds a commercial pilot certificate may act as pilot in command of an aircraft – (i) Carrying persons or property for compensation or hire, provided that person is qualified in accordance with the applicable pa rts of this chapter that apply to the operation; and (ii) For compensation or hire, provided the person is qualified in accordance with this part and with the applicable parts of this chapter that apply to the operation.

The petitioner supports its request with the following information:

The petitioner states that his request for relie f from the provisions of § 61.113 differs from previous requests for relief submitted by other airmen, because those airmen could have obtained the relief they sought by training for and acquiring a commercial pilot certificate. The petitioner notes that persons seeking to exercise commercial pilot privileges in powered parachutes are not able to obtain a commercial pilot certificate to operate these aircraft for compensation or hire and “therefore an exemption is necessary.”

The petitioner states that the FAA permits private pilots to fly for compensation or hire under certain circumstances, such as for Civil Air Patrol activities and for certain charitable events under § 91.146. The petitioner also notes that the FAA has proposed to allow private pilots to receive compensation for flight testing certain aircraft.

The petitioner asserts that operations such as law enforcement, pipeline and power line surveys, agricultural related activities, search and rescue activities, aerial surveillance, advertising and promotional activities, Amber alerts, public service announcements, and similar commercial activities are already being conducted in powered parachutes. The petitioner asserts, however, that they are not being performed for compensation or hire because of the lack of appropriate FAA regulation for powered parachutes. The petitioner notes that certain governmental entities can perform these activities and compensate their pilots for their performance when the activity is a public aircraft operation; however, this practice is burdensome on those entities because of insurance and liability expenses.

The petitioner notes that the United States Department of Justice (DOJ) has placed numerous powered parachutes in law enforcement roles across the country and recognizes the usefulness of this category of aircraft for many reasons. Such reasons include: low acquisition and operational cost, ease of use, and portability. The petitioner also provides a DOJ point of contact for the further information about the conduct of these activities.

The petitioner notes that powered parachutes are environmentally friendly, burning a little over 3 gallons of fuel per hour compared to 10 to 40 gallons per hour in aircraft used for similar commercial purposes. The petitioner further notes that a powered parachute operating at low altitude emits far less noise than a helicopter operating at a similar altitude.3

The petitioner states that advertisements on a powered parachute can be displayed more safely than advertisements displayed by banner towing for many reasons. Displaying an advertisement on a powered parachute does not, for example, alter the flight characteristics of a powered parachute. Accordingly, a powered parachute with an advertisement on its canopy has the same flight characteristics as any other powered parachute. The advertisements do not change the aerodynamic characteristics of the canopy. In contrast, the petitioner notes that maneuvering an aircraft to pick up a banner is a dangerous operation. Banner towing changes the flight characteristics of an airplane and can create numerous hazards not only for the pilot but also for persons or property on the surface.

The petitioner further notes that hot air balloons and gliders have been used for commercial operations and flown by commercial pilots for compensation or hire. The petitioner further notes that balloons and gliders have been categorized as sufficiently safe to be used for the purpose of carrying paying passengers as a “common carrier.” The petitioner adds that although powered parachutes are relatively new to FAA regulations, “these aircraft are not completely dependent on Mother Nature for their propulsion” and, accordingly, are much safer than gliders or balloons when operated by qualified pilots.

The petitioner contends that failure to create a commercial pilot certificate for powered parachute operations could be interpreted as discrimination, especially since a commercial pilot certificate exists for powered-lifts. The petitioner notes that regulations have been implemented to provide for a commercial pilot certificate with a powered-lift category rating even though the powered-lift does not exist in the civilian market (and there are no airmen operating this category of aircraft).

The petitioner states that granting this petition will help provide many jobs for commercial pilots, certified flight instructors, and air line transport pilots who are now unemployed because of various reasons, such as the September 11, 2001, terrorists attacks, the weak economy, and the weak aviation sector. The petitioner further believes that a grant of exemption will provide an incentive for these highly qualified pilots to become more involved in powered parachute operations, simultaneously providing a higher level of safety and training for future student pilots who would like to fly these aircraft.

In addition, the petitioner states that the exemption would further stimulate the economy by providing a greater interest in powered parachutes and aviation in general. The petitioner adds that according to the Aircraft Owners and Pilots Association 17 or 18 of the 24 top selling light-sport aircraft in the United States are made in Europe. The petitioner states that an exemption, once granted, will help stimulate the domestic manufacture of aircraft and provide more jobs for citizens of the United States.

The petitioner further states that the granting of this petition for exemption would provide a great incentive for very qualified pilots to get involved in powered parachute operations and, therefore, increase the level of safety of these operations while also improving the quality of training.4

The petitioner further notes that granting his request would provide the FAA with a means to gather valuable information necessary for the creation of a commercial pilot certificate with a powered parachute rating. The petitioner notes that he “has already been a forerunner in this area and has been able to identify many important factors related to the safety of pilots and the general public by having flown his aircraft in controlled airspace, in and out of towered airports and over congested areas.” He further notes that pilots operating under the provisions of this exemption could collaborate with the FAA to develop the applicable aeronautical knowledge requirements and the Practical Test Standards for the rating. The petitioner contends that such a process would help to reduce the FAA’s workload and provide a smoother transition toward the implementation of the certificate and rating.

The petitioner indicates that a grant of exemption would be in the public interest because it would make it possible for Federal, State, and local government agencies that wish to take advantage of the powered parachute’s many unique attributes to save tax dollars by reducing insurance and liability expenses. The petitioner reiterates that a powered parachute is environmentally friendly due to its low fuel consumption and the fact that it emits far less noise than a helicopter at comparable altitudes.

The petitioner indicates that a grant of exempti on would not adversely affect safety because powered parachutes can be landed more safely than other aircraft under an engine out condition and that these aircraft “actually land themselves.” The petitioner notes that airmen have relied on parachutes for decades to make safe landings in emergencies and that powered parachutes have this attribute built into their design. The petitioner also notes that the weight and velocity of powered parachutes are much less than most aircraft, further adding to public safety in the air and on the ground. Additionally, the petitioner notes that the activities that would be permitted under the exemption currently are occurring on a daily basis, yet not for compensation. The petitioner further contends that safety will remain the same or be improved because more experienced pilots would be flying these aircraft for these purposes.

The petitioner asks that the relief he requests be granted until a commercial pilot certificate with a powered parachute rating has been established and that conditions issued with the exemption not include any limitations that would require a safety pilot or other person aboard the aircraft to reduce pilot workload. The petitioner requests that the exempted operations only be conducted under visual flight rules and not permit the carriage of passengers for scenic or other “air carrier type operations.” The petitioner further requests that “canopies (wings), photographic, computing, lighting or communications equipment not be considered property.”

When applying for a commercial pilot certificate with a powered parachute rating under the provisions of the requested exemption, the petitioner states that he would:

 Meet the requirements of §§ 61.123 and 61.125.

 Meet the flight proficiency requirements of § 61.127(b)(6) for a glider category rating.5

 Meet the aeronautical experience requirements of § 61.129(f) for a glider category rating.

 Pass a practical test on the areas of operation listed in § 61.127(b)(6) for a glider category rating.

 Pass the commercial pilot knowledge test for a glider category and class rating under § 61.123(d).

The petitioner has requested that the FAA waive publication, and based on the petitioner’s request, the FAA has determined that good cause exists for waiving the requirement for Federal Register publication.

The FAA’s analysis is as follows:

The FAA has considered fully the petitioner’s supporting information and determined that the circumstances presented by the petitioner do not justify a grant of exemption. The FAA finds the petitioner has 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 regulation would be maintained.

When the FAA issued the Final Rule, Certification of Aircraft and Airmen for the Operation of Light-Sport Aircraft (69 FR 44771; July 27, 2004), the agency established new category and class ratings for the operation of powered pa rachutes and weight-shift-control aircraft. As the FAA originally intended that powered parachutes and weight-shift-control aircraft would primarily be used for the purposes of sport and recreation, the FAA decided to only provide for the issuance of sport and private pilot certificates for the operation of these aircraft. Additionally, airworthiness standards l eading to the issuance of a standard category airworthiness certificate were not developed for these aircraft. Powered parachutes can be certificated either as special-light sport aircraft (S-LSA) in accordance with industrydeveloped consensus standards or as experimental aircraft. However, since such aircraft

cannot be certificated in accordance with airwor thiness standards necessary for the issuance of a standard category airworthiness certificate, these aircraft are issued special airworthiness certificates with operating limitations that significantly limit their ability to be used to conduct operations for compensation or hire (see 14 CFR §§ 91.327 and 91.319).

During the course of the rulemaking, the FAA considered public comments submitted to the docket. Several commenters requested that the FAA consider creating commercial pilot certificates with category ratings for powered pa rachutes and weight-shift-control aircraft. The commenters believed this level of pilot cer tification would be required if the FAA were to consider permitting limited commercial operations of powered parachutes and weight-shift-control aircraft in the future. The commenters noted that powered parachutes and weight-shift-control aircraft are ideal for certain operations typically conducted for compensation or hire such as sightseeing flights, crop-dusting, pipeline and powerline patrols, aerial photography, and traffic reporting.6

In response to commenters, the FAA noted that regulatory provisions to permit limited types of commercial operations to be conducted in these aircraft may need to be considered in the future if there is a proven and viable need for using these aircraft to conduct such operations. Since the issuance of the rule, the FAA has continued to monitor the use of these aircraft. Although the FAA has not created a commercial pilot certificate for their operation, the FAA has revised § 61.113(h) to permit private pilots to act as pilot in command of a powered parachute or weight-shift-control aircraft for compensation or hire for the purpose of conducting a production flight test (75 FR 5220; February 1, 2010).

Additionally, the FAA on May 24, 2011, revised its guidance contained in volume 3, Chapter 11, of FAA Order 8900.1, Flight Standards Information Management System, to permit certain types of flight training to be conducted in experimental aircraft (to include powered parachutes) for compensation or hire. Training may be provided in experimental aircraft under a letter of deviation authority for the operation of ultralight vehicles; however, the training must be conducted in low-mass, high drag aircraft with an empty weight less than 500 pounds and a maximum speed in level flight with maximum continuous power (Vh) less than 87 knots calibrated airspeed. Additionally, training for the issuance of a sport pilot certificate or operating privilege will be permitted to be conducted in aircraft issued an experimental certificate under § 21.191(i)(1), subject to certain restrictions.

The FAA notes that it has significant concerns regarding whether the relief requested for the petitioner or for a larger class of certificate holders through the exemption process would provide a level of safety appropriate for the conduct of the proposed operations. A private pilot operating under the provisions of the proposed exemption would not have received and logged training on the aeronautical knowledge areas required for the issuance of a commercial pilot certificate. Additionally, that person would not have received and logged ground and flight training on the areas of operation necessary for flight proficiency at the commercial pilot level nor possess aeronautical experience in a powered parachute in excess of that required for the issuance of a private pilot cer tificate. Although a commercial pilot operating under the provisions of the exemption would have demonstrated possession of the aeronautical experience appropriate for the exercise of commercial privileges, that person would only have the limited flight proficiency and aeronautical experience in the operation of powered parachutes possessed by a private pilot. Additionally, the FAA has not determined that the aeronautical experience and flight proficiency necessary for the issuance of commercial pilot privileges in a glider would be appropriate for granting similar privileges in a powered parachute.7

In response to the petitioner’s request for exemption from § 61.113 to allow a person who holds a private pilot certificate with a powered parachute category rating or a person holding a commercial pilot certificate and a powered parachute category rating at the private certificate level to carry passengers or property for compensation or hire, the FAA notes that the relief requested by the petitioner is of a general nature that is more appropriate for consideration as a petition for rulemaking. For the reasons stated previously, the FAA does not consider such action to be in the public interest, even if the relief provided is only for the period of time prior to the creation of a commerc ial pilot certificate with a powered parachute rating.

In accordance with § 11.73(e), however, the FAA believes that the issues identified by the petitioner with respect to creating a commercial pilot certificate with a powered parachute category rating may have merit. Accordingly, the petitioner’s comments and arguments for a rule change to revise subpart F of 14 CFR part 61 to create a commercial pilot certificate with a powered parachute category rating have been placed in a database and will be examined when the agency considers future rulemaking.

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exem ption would not be in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, the petition of Mr. Mark A. Boyce for an exemption from 14 CFR § 61.113(a) and 61.133(a)(1) is hereby denied.

Issued in Washington, D.C., on September 23, 2011.

/s/

John W. McGraw Acting Director, Flight Standards

Service