AFS-12-328-E

Exemption No. 10841

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

EXPERIMENTAL AIRCRAFT Regulatory Docket No. FAA-2012-0442

ASSOCIATION

 

for an exemption from §§ 91.319(a)(2); 

61.101(a)(2); 61.101(e)(3) and (4); 

61.113(a); 61.113(b); 61.113(c); 

61.315(b); 61.315(c)(1) and (2); 

120.105(a) and (g); and 120.215(1) 

and (7) of Title 14, Code of 

Federal Regulations 

PARTIAL GRANT OF EXEMPTION

 By letter dated April 17, 2012, Mr. Randy Hansen, Government Relations Director, 

Experimental Aircraft Association (EAA), P.O. Box 3086, Oshkosh, WI 54903, petitioned the 

Federal Aviation Administration (FAA) on behalf of EAA, a § 501(c)(3) charitable 

organization, for an exemption from §§ 91.319(a)(2); 61.101(a)(2); 61.101(e)(3) and (4); 

61.113(a); 61.113(b); 61.113(c); 61.315(b); 61.315(c)(1) and (2); 120.105(a) and (g); and 

120.215(1) and (7) of Title 14, Code of Federal Regulations (14 CFR). The proposed 

exemption, if granted, would allow pilots to be reimbursed for fuel costs when operating 

flights for EAA Eagle Flight and Young Eagles (EF/YE).

The petitioner requests relief from the following regulations:

Section 91.319(a)(2) prescribes that no person may operate an aircraft that has an 

experimental certificate carrying persons or property for compensation or hire.

Section 61.101(a)(2) prescribes that a person who holds a recreational pilot certificate may not 

pay less than the pro rata share of the operating expenses of a flight with a passenger, 

provided the expenses involve only fuel, oil, airport expenses, or aircraft rental fees.
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Section 61.101(e)(3) prescribes that, except as provided in paragraphs (d) and (i) of this 

section, a recreational pilot may not act as pilot in command of an aircraft that is carrying a 

passenger or property for compensation or hire.

Section 61.113(a), (b) and (c) prescribes that—

(a) no person who holds a private pilot certificate may act as a 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.

(b) a private pilot may, for compensation or hire, act as pilot in command of an aircraft in 

connection with any business or employment if:

(1) The flight is only incidental to that business or employment; and

(2) The aircraft does not carry passengers or property for compensation or hire.

(c) a private pilot may not pay less than the pro rata share of the operating expenses of a 

flight with passengers, provided the expenses involve only fuel, oil, airport expenditures, 

or rental fees.

Section 61.315(b) and (c)(1) and (c)(2) prescribe that—

(b) you may share the operating expenses of a flight with a passenger, provided the 

expenses involve only fuel, oil, airport expenses, or aircraft rental fees. You must pay at 

least half the operating expenses of the flight. 

(c) You may not act as pilot in command of a light-sport aircraft:

(1) That is carrying a passenger or property for compensation or hire.

(2) For compensation or hire.

Section 120.105(a) and (g) prescribes that each employee, including any assistant, helper, or

individual in a training status, who performs a safety-sensitive function listed in this section 

directly or by contract (including by subcontract at any tier) for an employer as defined in this

subpart must be subject to drug testing under a drug testing program implemented in 

accordance with this subpart. This includes full-time, part-time, temporary, and intermittent 

employees regardless of the degree of supervision. The safety-sensitive functions are

(a) flight crewmember duties, and 

(g) aviation screening duties.

Section 120.215(a), (a)(1) and (a)(2) prescribes that—

(a) each employee, including any assistant, helper, or individual in a training status, who 

performs a safety-sensitive function listed in this section directly or by contract 

(including by subcontract at any tier) for an employer as defined in this subpart must be 
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subject to alcohol testing under an alcohol testing program implemented in accordance 

with this subpart. This includes full-time, part-time, temporary, and intermittent 

employees regardless of the degree of supervision. The safety-sensitive functions are:

(1) Flight crewmember duties; and 

(2) Aviation screening duties.

The petitioner supports its request1 with the following information:

EAA seeks an exemption to allow volunteer pilots flying youth and adults at EF/YE events to 

be reimbursed with free fuel for their actual fuel expense incurred. The exemption, if granted, 

would ease the financial burden on EAA member volunteers. The reimbursement of actual 

expenses is not compensation for commercial activity. The petitioner emphasizes that no 

EF/YE passengers are charged anything in exchange for the flights; the flights serve as an 

introduction to general aviation flying. The petitioner includes a request for relief from the 

drug and alcohol testing requirements of 14 CFR part 120.

In its petition, EAA cites trend data showing increases in the price for aircraft maintenance 

and for 100LL aviation gasoline. Without an exemption, these expenses are placed upon 

pilots and aircraft owners and cause a corresponding decrease in pilot volunteers in the EF/YE 

program. EAA states its petition is submitted in accordance with section 6, paragraph (6)(a) 

of the Volunteer Protection Act of 1997. 

The free fuel used to compensate EF/YE pilots would be donated by individual donors, EAA 

chapters, airport sponsors using Federal Airport Improvement Program (AIP) marketing 

funds, local and state government agencies, and corporate supporters. The free fuel would not 

be provided by EF/YE passengers. The petitioner says it has been forced to decline offers of 

free aviation fuel from organizations such as fixed base operators and airport authorities 

because of regulatory requirements. 

The petitioner seeks relief for volunteer pilots holding sport, recreation, or private pilot 

certificates, so that pilots with those airman certificates could volunteer to fly EF/YE flights. 

It also requests that aircraft certificated in the light-sport, experimental, and standard 

airworthiness categories be allowed for EF/YE flights. The petitioner notes that the 

requirements of § 91.319(a)(2) prohibit pilots from being compensated for flying aircraft 

certificated in the experimental airworthiness category. Pilots flying under the exemption will 

also need to be allowed to log the flight time, which the FAA considers to be compensation. 

The petitioner emphasizes that the flight time logged on EF/YE flights will be insignificant.

 1 The petition from EAA is 32 pages, divided into seven sections. It includes five charts and several documents 

incorporated by reference. The petition is arranged in a manner that repeats the specific areas of relief sought 

under several topic headings, such as “interest of the petitioner,” “safety,” and “public interest issues.” 
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The EF/YE activities are sightseeing flights and are not intended for raising funds for any 

nonprofit, charitable, or community organization/event. The operation is also not a 

commercial operation certificated under 14 CFR part 119. The petitioner states that applying 

the FAA’s pro-rata compensation regulatory criteria is “inherently wrong and self-defeating”

for EF/YE activity. 

The petitioner includes a chart indicating a decreasing number of certificated pilots and an 

increasing aggregate age of pilots for the time period between 1990 and 2010. EAA states

that the FAA lacks a national strategic or guidance policy to counteract these trends. EAA 

cites the importance of its petition, considering future demand for commercial pilots. It states 

future demand for commercial transportation and the economy of the United States will suffer 

for the FAA’s failure to promote civilian aviation careers. EAA cites text from “FAA 

Destination 2025” and data from the FAA Aerospace Forecast for fiscal years 2011-2031 

projecting future goals and growth in support of its claim. 

Several times, the petitioner refers to its Exemption No. 7830 (July 2, 2002; 

FAA-2002-11986). That exemption granted identical relief requested in this 2012 petition. 

However, EAA states that it did not exercise the privileges of the 2002 exemption because 

doing so would have “destroyed the root benefits of the EAA Young Eagles Flight Program.” 

EAA cited conditions and limitations of that exemption, such as required standard 

airworthiness certification for aircraft used for EF/YE flights and placing requirements from 

§ 91.146 (for charity/nonprofit events) as a condition of that relief, along with total time 

requirements for private pilot volunteers. 

EAA added to its petition a matrix showing the numbers of Young Eagle participants and the 

numbers of type-certificated and experimental and light-sport aircraft used for EF/YE flights. 

The petitioner also includes some information about proposed procedures for fueling aircraft 

used for the flights under the proposed exemption. EAA states it would not ask the volunteer 

pilots to “top off” fuel tanks, and would rely on pilot integrity to ensure pilots are 

compensated with the amount of fuel actually used. 

The petitioner cites its efforts to improve safety and lists successes in maintaining a safe 

operating environment for the EF/YE programs. In this section, EAA states that safety is 

EAA’s paramount mission. It states that pilots with more experience flying for the EF/YE 

program increase the overall safety for the EF/YE program. The petitioner provides 

information about three occurrences it classifies as major aviation accidents that involved 

EF/YE operations and offers several perspectives about the EF/YE safety record.

The “Public Interest Issues” section repeats some of the EF/YE objectives and adds 

information about human inclination toward flying and having an opportunity to visualize 

earth from a different perspective. It cites anecdotal stories about the program and 

information about organizations that have partnered with EF/YE, such as Tuskegee Airmen 
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and Make-A-Wish Foundation. It includes examples of marketing and promotional efforts 

through its “EAA Young Eagles Flight Plan” campaign.

The petitioner includes a list of conditions and limitations established by EAA for EF/YE 

flights, which it requests be applicable to the exempted activities, rather than any the FAA 

would impose independently of EAA. EAA’s conditions and limitations, according to the 

petitioner, can be changed to suit variations in its program’s safety requirements.

The petitioner cites by reference the following documents in its petition:

• A letter to EAA from Mr. Mike Henry, Manager, FAA General Aviation and Commercial 

Division stating that the receipt of free fuel is considered compensation. 

• A letter from the EAA to the FAA (July 28, 1999) emphasizing that the flights are not 

sightseeing flights and compensation, certification, and operational and drug testing 

requirements of 14 CFR are not applicable.

 A summary of the petition was published in the Federal Register on June 25, 2012

(77 FR 37951). The FAA received 670 comments from 519 individuals and one advocacy 

organization. The total comments received does not include thirteen comments submitted to 

the docket for this petition that are unrelated to the relief requested from EAA. 

All but two comments were in favor of the relief requested by EAA. Most frequently, 

commenters referenced the high costs associated with operating aircraft for EF/YE flights; 

194 commenters made this assertion, almost universally citing the high cost of fuel, but also 

referencing other expenses like aircraft maintenance and insurance. One hundred forty-five 

commenters said the relief would be a benefit to the general aviation industry, generally by 

adding potentially interested young people to the workforce. Nineteen commenters 

specifically cited an exemption’s benefit of adding airmen to a decreasing pool of 

FAA-certificated pilots.

Many that commented about the improvement in health of the general aviation industry 

focused on the new pilots who decided to pursue an aviation career because of their EF/YE 

flight experience. Seventy-four commenters said that an exemption would benefit the EF/YE 

program, mostly suggesting that the relief would add volunteers (and, subsequently, EF/YE 

events and passengers).

Eighty-nine commenters cited specific benefits for the passengers of the EF/YE program, 

including learning about general aviation, experiencing being aloft, and general personal 

enjoyment of the experience.
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Twenty-five commenters asserted that flying for the EF/YE program is distinctly separate 

from commercial flying, and that the fuel received by volunteer pilots is merely 

reimbursement, not compensation. Four commenters said that safety would be enhanced by 

means of the exemption, generally, because the pilots’ flying time for the EF/YE program

would result in more experience for the pilots. 

The Aircraft Owners and Pilots Association (AOPA) submitted a comment advocating for the 

relief requested by EAA. It included a document listing benefits of the proposed relief that 

were closely aligned with the other comments received. AOPA, along with six individuals, 

added that the exemption would cause a valuable increase in visibility and contact with 

regional general aviation airports.

One hundred and nine commenters limited their feedback to general agreement with the 

proposal, without identifying specifics. Many commenters included themes of fairness, 

common sense, and justice. Many cited the recent challenges faced by the general aviation 

community. Many cited anecdotal stories about the positive experience for the passengers and 

for the pilots flying in the EF/YE program. A few said that FAA fuel taxes will still be paid, 

since the fuel offered by EAA will be purchased by someone, if not the pilot. 

One commenter said that the government should give money to the EF/YE program under a 

grant program; another stated that no government funds should be applied to flying under the 

EF/YE flights. Only two of the commenters provided negative comments. The comments 

pertained to safety issues with granting the exemption; both referenced EF/YE clients 

manipulating cockpit controls without the pilot’s permission. In one of those comments, the 

commenter said, “one of them pressed a forbidden button in my rear cockpit and caused me to 

replace both the prop and engine on my warbird.”

One commenter, who self-identified as a Young Eagles Coordinator for an EAA chapter,

indicated that he thinks other chapters have found methods to circumvent the rule and 

compensate EF/YE pilots. Another said that he believes that EF/YE received free fuel from 

oil companies in the past. 

Lastly, one comment labeled “multiple signatures (150)” was blank and did not have any other 

information with it, so we did not count this comment. 

The FAA’s analysis is as follows:

The FAA finds that a partial grant of exemption would be in the public interest. The 

following is a summary of our analysis of EAA’s petition.

The FAA has previously determined that it is in the public interest to allow a volunteer pilot 

who holds at least a private pilot certificate to accept limited compensation for providing 

orientation flights to participants in the EAA Young Eagles program. The FAA finds that the 
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EF/YE flights are similar to sightseeing operations offered by commercial entities on a 

for-hire basis. However, we acknowledge that the EF/YE program is unique and designed 

strictly as a tool to familiarize the non-flying public with general aviation operations. For that 

reason, we find it is worthwhile to assist EAA’s cause, and to place conditions and limitations 

that provide an equivalent level of safety and meet the general public’s expectations.

When the FAA receives any petition for exemption, it evaluates that petition on its own merit 

and makes a determination about equivalent level of safety and public interest. In reviewing 

this petition, the FAA also seeks to differentiate the relief requested from EAA’s petition 

submitted on March 21, 2002. The FAA’s response to the 2002 petition was a partial grant of 

exemption (Exemption No. 7830). That exemption allowed volunteer pilots holding private 

pilot certificates to conduct EAA Young Eagles flights for compensation, to include meals, 

aircraft operating expenses, aircraft and airport security costs, and logging of flight time. The 

FAA limited the exempted activity to certain aircraft airworthiness requirements, pilot 

experience and certification requirements, and operational requirements. This was a 

significant concession for the FAA, because private pilots were never intended to participate 

in a program so similar to commercial sightseeing operations. 

EAA petitioned for and received two extensions of Exemption No. 7830, but after the FAA 

issued Exemption No. 7830C on November 30, 2006, the federal docket shows that EAA did 

not petition for any more extensions of the exemption. In its 2012 petition, EAA indicates 

that it chose not to operate under Exemption No. 7830 because it felt the conditions and 

limitations of that exemption were unreasonably restrictive.

As we considered this 2012 petition, the FAA reviewed EAA’s description of today’s general 

aviation industry, compared to the conditions when FAA granted its exemption in 2002 to 

EAA. In the time since the 2002 exemption, EAA cites the following changes:

• an increase in aircraft fuel and maintenance costs;

• a decrease in the number of certificated pilots;

• an increase in the average age of certificated pilots;

• an increase in demand for pilots; and

• a cessation in FAA promotion of aviation careers.

The petitioner describes these changes but does not tie those changes to any justification for 

change in the level of safety the FAA should require, when compared to the level the FAA 

required in the 2002 exemption. 

In its petition, EAA asks for additional relief from the 2002 exemption; specifically, from the 

restricted nature of recreational and sport pilot certificates, so that persons holding those 

certificates can operate flights in the EF/YE program. We find that the general public is 
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unlikely to understand the difference between qualifications required for recreational or sport 

pilot certificates and those required for private pilot certificates. Because of the nature of the 

EF/YE program, its passengers will likely have an expectation that pilots operating flights 

under the EF/YE program will have qualifications of someone holding a commercial pilot

certificate. In our conditions and limitations, we compensate for this by requiring those 

passengers be verbally informed of the certification level of its pilots, and that the pilots are 

volunteering their services.

In this exemption, we again find that the minimum level of pilot certification to operate under 

the terms of an exemption for the EF/YE program is at least a private pilot certificate. The 

inherent limitations of the recreational pilot and sport pilot certificate do not lend themselves 

to quasi-commercial flying of this nature. Similarly, the FAA has previously determined that 

the airworthiness requirements of a standard airworthiness certificate are the appropriate level 

of airworthiness certification for the operations proposed by EAA. This includes any 

standard-category aircraft that meet the definition of a light-sport aircraft (i.e., existing typecertificated aircraft weighing less than 1,320 pounds). Experimental, restricted, or limited 

airworthiness certificates are intended for operating special aircraft and do not meet the 

airworthiness requirements determined appropriate for the operations described in EAA’s 

petition. 

The FAA believes that EAA has a vested interest in aviation safety, and we find that EAA has 

demonstrated progressive organizational initiatives, many of which mitigate risk. In its 

petition, EAA cites some pilot qualification and weather requirements that are lower than 

what the FAA required in its 2002 petition and under 14 CFR § 91.146. The FAA has 

reexamined its 2002 conditions and limitations and added relief, where possible. To maintain 

an appropriate level of safety for these operations, the FAA has added to the relief in this 

exemption operational requirements and pilot qualifications that include minimum experience 

and certification levels. 

Finally, the FAA has determined that the drug and alcohol testing requirements of part 120 do 

not apply to EAA’s EF/YE program. Accordingly, relief from these provisions is 

unnecessary.

The FAA’s Decision

In consideration of the foregoing, I find that a partial grant of exemption meets an equivalent 

level of safety and 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, Experimental Aircraft 

Association, Inc., is granted an exemption from 14 CFR §§ 61.113(a); 61.113(b); and 

61.113(c) to the extent necessary to allow:

1. Reimbursement, in the form of free fuel for the amount of fuel used in transit and 

during EF/YE events;
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2. Compensation, in the form of logging of flight time, to pilots operating aircraft in 

EF/YE events; and

3. Relief from limitations of pilot certificates held by individuals who are exercising 

private pilot privileges during EF/YE events.

The exemption is subject to the following conditions and limitations:

 

Conditions and Limitations

1. This exemption allows limited regulatory relief to EAA and to individuals operating 

aircraft under its EF/YE events. This exemption is effective only for passenger flights 

at EF/YE events; other EAA flight operations are not included in this relief. 

2. EAA must maintain a record of all disbursements of fuel under this exemption. The 

record must be provided to any representative of the FAA Administrator upon request. 

That record must contain the following information:

a. The date of the EF/YE event and airport name and identifier; 

b. The name and FAA pilot certificate number of the pilot-in-command (PIC) 

receiving compensation;

c. The make, model, and registration number of the aircraft used for the flight; 

and

d. The amount of fuel reimbursement in gallons.

3. EAA must ensure that each aircraft used for EF/YE flights under this exemption:

a. Holds a valid FAA standard airworthiness certificate;

b. Valid FAA “N” registration, and;

c. Is airworthy, in accordance with 14 CFR part 43 and 91.

4. The PIC of each aircraft used for EF/YE flights under this exemption must:

a. Hold a private pilot certificate, commercial pilot certificate, or airline transport 

pilot certificate with the category, class, and type rating appropriate for the 

aircraft to be used.

b. Have a minimum of 500 hours total flight time;

c. Have a minimum of 200 hours in the category of aircraft to be flown;

d. Have a minimum of 50 hours in the class of aircraft to be flown;

e. Have performed at least three takeoffs and landings in the previous 60 days in 

the make and model of aircraft to be used for the EF/YE flights; and
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f. Make an individual pilot logbook entry in the pilot’s logbook for each EF/YE 

flight, to include at a minimum:

i. The date, route, and duration of the flight;

ii. The aircraft make, model, and registration (“N”) number; and

iii. A notation that the flight was an EF/YE event conducted under the 

auspices of this exemption. 

5. All flights under this exemption must be conducted:

a. At a minimum altitude of 1,000 feet above ground level (AGL) and 2,000 feet 

AGL for mountainous terrain except for the purposes of takeoff or landing; 

b. Between the hours of official sunrise and sunset;

c. Under visual meteorological conditions (VMC) with a minimum flight 

visibility of five statute miles at all times;

d. With a minimum ceiling of 2,000 feet AGL;

e. Within a 25-nautical-mile radius of the departure airport;

f. With landings permitted at only the departure airport;

g. With wind conditions at or less than 20 knots; and

h. With a crosswind component of no greater than 15 knots.

6. The following activities may not be conducted by any aircraft which operating under 

this exemption: 

a. Any other commercial activity;

b. Towing, aircraft external load operations, or maintenance test flights;

c. Aerobatic or formation flights or flying involving any unusual attitude; and

d. Flights operated over water and beyond power-off gliding distance from shore.

7. This exemption does not apply to flights conducted outside United States airspace.

8. EAA must continue to hold a determination from the U.S. Internal Revenue Service 

that it is a § 501(c)(3) nonprofit, tax-exempt, charitable organization under 

§§ 509(a)(1) and 170(b)(1)(a)(vi) of the Internal Revenue Code.

9. No later than 72 hours prior to commencing flight operations under the terms of this 

grant of exemption, EAA must notify the jurisdictional FAA Flight Standards District 

Office (FSDO) of when and where it intends to conduct the EF/YE flight operations,

and shall provide a copy of this exemption to that jurisdictional FAA FSDO. 
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10. Before conducting operations under this exemption, EAA must:

a. Brief its pilots on the conditions and limitations of this exemption;

b. Ensure all pilots operating any EF/YE flight have accessible within the aircraft 

a copy of this exemption; and

c. Ensure the PIC of each flight briefs each passenger (and parent or legal 

guardian if the passenger is under 18 years old) with the following information:

i. The event status as a non-commercial operation that is exempted from 

FAA requirements for compensation-or-hire flights;

ii. That neither the EAA nor the EAA chapter operating the flights hold an 

FAA operating certificate for the EF/YE flights; and the aircraft does 

not meet airworthiness standards required for commercial operations;

iii. The pilot’s status as a volunteer pilot exercising private pilot privileges; 

and may not meet the pilot qualification nor have received the training 

required for commercial operations.

iv. All relevant safety information, including emergency aircraft egress 

procedures.

EAA’s request for relief from §§ 91.319(a)(2); 61.101(a)(2); 61.101(e)(3) and (4); 61.315(b), 

and 61.315(c)(1) and (2) is denied.

This exemption terminates on August 31, 2015, unless sooner superseded or rescinded.

Issued in Washington, D.C., on August 12, 2013.

/s/

John S. Duncan

Deputy Director, Flight Standards Service