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

EXPERI MENTAL 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. Ra nd y 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 fo r 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 compen sation or hire.

Section 61.101(a)(2) prescribes that a person who holds a recreational pilot certificate may not pay less than the pro rat a share of the operating expenses of a flight with a passenger, provided the expenses involve only fuel, oil

, airport expenses, or aircraft rental fees.2

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 compen sation 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 com pensation 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 emplo yment; 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, airpo rt 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 m ust pay at
least half the o perating 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) presc ribes that e ach 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 fun ctions are

(a) f light crewmember duties , and

(g) aviation screening duties

.

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

— (a) e ach employee, including any assistant, helper, or individual in a training status, who performs a safety

- sensitive functi on listed in this section directly or by contract (including by subcontract at any tier) for an employer as defined in this subpart must be3

subject to alcohol testing under an alcohol testing program implemented in accordance with this subpart. This inclu des 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 request 1 with the followin g information:

EAA seeks an exemption to allow volunteer pilots flying youth and adults at EF/YE e vents to be reimbursed with free fuel for their actual fuel expense incurred. The exemption, if granted,

would ease the financial bu rden on EAA member volunt eers. 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 flight s serve as an introduction to general aviation flying. The petitioner includes a request for relief from the drug and alc ohol testing requirements of 14 CFR part 120.

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

and for 1 0 0LL aviation gasoline . Without an e xemption, t hese expense s are placed upon pilots and aircraft owners and cause a corresponding decrease in pilot volunteers in the EF/YE

program

. EAA states its petition i s submitted in accordance with s ection 6, paragraph (6)(a)

of the Volunteer Protectio n 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 suppor ters

. The free fuel would not be provided by EF/YE passenger s

. 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.

T he 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, e xperimental, and standard airworthiness categor ies 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 categor y. Pilots flying under the exempt ion 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 s even 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,” a nd “public interest issues

. ”4

The EF/YE activities are sightseeing flights and are not intended for raising funds for any nonprofit, charit able, 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 be tween 1990 and 2010 . EAA state s that the FAA lacks a national strategic or guidance policy to counteract these trend s

. EAA

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

future deman d for commercial tran sportation 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, t he petitioner refer s to its E xemption No. 7830 ( July 2, 2002 ; FAA

- 2002

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

. However, EAA state s 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 certif ication 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 requirement s for private pilot volunteers.

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

- certificated and e xperimental and light

- s port 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 impro ve safety and lists successes in maintain ing a safe operating environment for the EF/YE programs . In this section, EAA states that s afety is EAA’s paramount mission

. It states that pilots with more experience flying for the EF/YE program increase the ove rall 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 Is sues” section repeats some of the EF/YE objectives and adds

info rmation 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 org anizations that have partnered with EF/YE, such as Tuskegee Airmen5

and Make

- A

- Wish Foundation. It includes examples of marketing and promotional efforts through its “EAA Young Eagles Flight Plan” campaign

.

T he 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 considere d 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 s ummary of the petition was published in the Federal Register on June 25, 2012 ( 77 FR 37951 ). The FAA received 6 70 comments from 5 19 individual s 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. M ost frequently,

comment ers 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 hund red forty

- five

commenters said the relief would be a benefit to the general aviatio n 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 th e 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 su ggesting that the relief would add volunteers (and

, subsequently, EF/YE

events and passenger s ).

Eighty

- nine commenters cited specific benefits for the passenger s of the EF/YE program, including learning about general aviation, experiencing being aloft, an d general personal enjoyment of the experience.6

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. Fou r 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 com ment 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 specific s

. 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 passenger s and for the pilots flying in the EF/YE program. A few said that FAA fuel taxes wi ll 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 prog ram under a
grant program; another stated that no government funds should be applie d 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

, “o ne 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

- identifie d as a Young Eagles Coordinator for an EAA c hapter

, 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 n o t 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 analy sis 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 EA A Young Eagles program. The FAA finds that the7

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 famil iarize the non

- flying public wit h general aviation operations . For that

reason, we find it is worthwhile to assist EAA’s cause, and to place conditions and limit ation s that provide a n equivalent level of safety and meet the general public’s expectation s

.

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 reque sted 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 fl ights 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 certificatio n 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 ext ensions of Exemption No. 7830, but after the FAA issued Exemption No. 78 3 0 C 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 conditi ons 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 o f 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 requ ire, when compared to the level the FAA required in the 2002 exemption

.

In it s petition, EAA asks for additional relief from the 2002 exemption; specifically, from the restricted nature of recreational and sport pilot certificates , so that persons holdi ng those

certificates can operat e flights in the EF/YE program. We find that the general public is8

unlikely to understand the difference between qualifications required for recreational or sport pilot certificates and those required for private pilot cert ificate s

. 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 l imitations, 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 certifica tion to operate under the terms of an exemption for the EF/YE program is at least a private pilot certificate. T he 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 air craft that meet the definition of a light

- sport aircraft (i.e., existing type

certificated aircraft weighing less than 1,320 pounds). Experimental, restricted, or limited

airworthiness certificates are intended for operating special aircraft and do not me et 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 , ma ny of which mitigate risk. I n 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 a nd add ed relief, where possible. To maintain

an appropriate level of safety for these operations, the FAA has add ed 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 tha t 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;9

2. Compensation, in the form of logging of f light 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 limita tions:

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 a re 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 fu el reimbursement in gallons

.

3. EAA must ensure t h at each aircraft used for EF/YE flights under this exe mption:

a. Hold s a valid FAA sta ndard 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 fl ights 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 u sed

.
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 takeoff s and landings in the previous 6 0 days in the make and model of aircraft to be used for the EF/YE flights ; and10

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, mod el, 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 th is exemption must be conducted:

a. At a minimum altitude of 1,000 feet above ground level (AGL) and 2,00 0 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 mi nimum ceiling of 2,000 feet AGL;

e. Within a 25

- nautical

- mile radius of the departure airport;

f. With landing s permitted at only the departure airport;

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

h. W ith 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 a ny 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 Reve nue 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 exempti on, 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.11

10. Before conducting operatio ns 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 EA A n or 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 exer cising 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 A ugust 31 , 201 5 , unless sooner superseded or rescinded.

Issued in Washington, D

. C

. , on August 12, 2013.

/s/

John S. Duncan Deputy Director, Flight Standards Service