Exemption No. 10429

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

OPERATION MIGRATION Regulatory Docket No. FAA-2011-1458

for an exemption from §§ 61.315(c)(2), and (3), and 91.319(e) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated Decem ber 27, 2011, Mr. Charles R. Barnett, III, Counsel for Operation Migration, Inc., (Operation Migration), 8411 Pyo tt Road, Suite 109, Lake in the Hills, Illinois 60156, petitioned the Federal Aviation Administ ration (FAA) on behalf of Operation Migration for an exemption from §§ 61.315(c)(2) and (3), and 91.319(e) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would permit Operation Migration to use persons holding a sport pilot certificate to operate weight-shift-control aircraft certificated under 14 CFR §21.191(i) for compensation or hire to facilitate the migration of endangered whooping cranes.

The petitioner requests relief from the following regulations:

Section 61.315(c)(2) and (3)prescribes, in pertinent part, that you may not act as pilot in command of light-sport aircraft:

(2) For compensation or hire.

(3) In furtherance of a business.

Section 91.319(2) prescribes, in pertinent part, that no person may operate an aircraft that is issued an experimental certificate under §21.191(i) of this chapter for compensation or hire, except a person may operate an aircraft issued an experimental certificate under §21.191(i)(1) for compensation or hire to —

AFS-12-146-E2

(1) Tow a glider that is a light-sport aircraft or unpowered ultralight vehicle in accordance with §91.309; or

(2) Conduct flight training in an aircraft which that person provides prior to January 31, 2010. Neither of these exceptions is applicable here.

The petitioner supports its request with the following information:

The petitioner states the reason why granting the petitioner’s request would be in the public interest relates to the history of the Whooping Cranes extending back to 1940 and their ability to learn how to migrate by following the parent generation. Unfortunately, all of the birds that used the eastern flyway were extirpated from that area by the late 1800’s so there were no parents to teach them the route.

Beginning in 1993, Operation Migration devel oped the only known method of reintroducing endangered birds in a migratory situation. This is accomplished by imprinting the birds on handler/pilots and conditioning them to follow a specific ultralight aircraft. In 1998, the International Whooping Crane Recovery Team asked Operation Migration to spearhead an attempt to establish a second flock that migrated from Wisconsin to Florida.

An association of nine Federal, State and private agencies known as the Whooping Crane Eastern Partnership (WCEP), was formed in 1999. Beginning in 2001, a new generation of whooping cranes was hatched each year at the USGS Patuxent Wildlife Research Center in Maryland. In June of that year, they were transferred by private aircraft to Wisconsin where their conditioning continued. In the fall, they were led along a preselected route to Florida

that covered 1280 miles and seven states. The birds were monitored over the winter and made the return trip back to Wisconsin on their own. There are now 100 whooping cranes in the eastern flyway. So far, they have produced thr ee offspring that have learned this same route from their parents. These three are the first wild hatched, migratory whooping cranes in this area since the last nest was reported in 1878.

The image of a modern aircraft leading an ancient species has generated worldwide media attention which provides an unprecedented e ducation opportunity. Through Journey North, a global study of wildlife migration and seasonal change, this project reaches 1.6 million students each year with online study plans. It has been featured on such media outlets as 60 Minutes, 20/20, and National Geographic and is the subject of at least nine books. Through Operation Migration’s live web camera and the social media, Operation Migration reaches

hundreds of thousands of followers.

Although Operation Migration receives no funding assistance from the US Fish and Wildlife Service, they have completed critical tasks to contribute both to the recovery efforts of the species under the Endangered Species Act, as well as, supporting the multi-national Migratory Bird Treaty Act.3

The petitioner listed the following as benefits to the American people:

 It safeguards a critically endangered species;

 It fulfills the mandate of the International Whooping Crane Recovery Team;

 It fulfills the mandate of the Endangered Species Act of the US Fish and Wildlife Service;

 It promotes the conservation and restoration of wetland habitat;

 It provides an unprecedented education opportunity; and

 It promotes eco-tourism in Wisconsin, Florida and along the migration route.

The petitioner also stated the following reasons why granting the exemption would not adversely affect safety:

 Operation Migration pilots are high time pilots that have been flying ultralight aircraft, specifically weight-shift aircraft, for many years. Before the FAA instituted the Sport Light Category these pilots held other certificates to fly ultralight aircraft;

 Operation Migration pilots complete an extensive training program that is designed to safely and specifically allow the whooping crane flock to migrate from Wisconsin to Florida;

 To keep the birds wild and away from people, the Operation Migration route was specifically designed through uncontrolled airspace away from airports and over open rural areas. Landing sites are mostly on private property in isolated farm fields;

 Because the birds learn to soar on the vortices created by the wingtip, Operation Migration will fly only in calm, cold air at sunrise. Conditions must be perfect in order for the birds to follow the pilots so Operation Migration pilots do not fly in adverse conditions or marginal VFR weather;

 When Operation Migration is able, it recruits the services of volunteer pilots to fly top-cover. These conventional aircraft fly circles 1000 feet above and one quarter mile out to help monitor the birds, communicate with ATC using flight following and to check weather conditions ahead;

 In order to fly slowly enough for the birds (38 to 40 MPH) its aircraft are very light and therefore able to glide long distance and safely land in small areas;

 Operation Migration aircraft are inspected annually; Operation Migration aircraft are hangared and maintained to high standards;

 Engines are opened for inspection before reaching 400 hours and replaced or professionally rebuilt before 600 hours;

 In leading birds for 11 years, Operation Migration has never experienced an accident involving one of our aircraft; and4

 This exemption is for the limited purpose of Operation Migration and will not have a far reaching impact on any other certificate holders outside of Operation Migration.

Lastly, the petitioner stated it wanted the FAA to note that the current migration has been voluntarily halted in an effort to continue to comply with Federal Aviation Regulations. This places the migration in a precarious position and time is of the essence to reach a successful resolution of this matter. The current migration is still over 600 miles from its destination and so far has expended approximately $650,000.00 in contributions from private citizens. Releasing the young Whooping Cranes at the half way point would jeopardize the project and the welfare of the birds. Any consideration given to this request on an expedited manner will extremely be helpful to the success of the current migration.

The FAA has determined that good cause exists for waiving the requirement for Federal Register publication because any delay in acting on this petition would be detrimental to the conduct of the flights that would be conducted by Operation Migration. There is insufficient time for the FAA to solicit, receive, and review public comments on the petition before the relief requested by the petitioner is necessary.

The FAA's analysis is as follows:

The FAA has fully considered the petitioner’s request and supporting information and finds that the conduct of the proposed operation by the petitioner to facilitate the aerial migration of endangered whooping cranes is in the public interest. The FAA notes that the migration has already started and that there is a limited amount of time for it to be completed. As such, it is impractical to impose the types of conditions necessary to assure the level of safety normally required for operations conducted for compensation or hire. The FAA has no reason to believe these operations are any less safe than other operations conducted with experimental light-sport aircraft.

When the FAA issued the final rule “Certificati on of Aircraft and Airmen for the Operation of Light-Sport Aircraft” (69 FR 44772; July 27, 2004) it created a new set of regulations thatwould permit persons possessing the training and experience of a sport pilot to operate lightsport aircraft for sport and recreation. The rule was not intended to facilitate operations of these aircraft for compensation or hire, especially since it did not create commercial pilot certificates with ratings for powered parachutes and weight-shift-control aircraft. However, the FAA recognized a need to allow an operator to be compensated for limited types of operations. Accordingly, § 91.319 (e) permits compensation for operations conducted in experimental light-sport aircraft (E-LSA) certificated under § 21.191(i) for the purpose of providing flight training or for towing light-s port aircraft that are gliders or unpowered ultralight vehicles. In 2008 the rule was amended by revising § 61.113 to permit private pilots with powered parachute or weight-shift-contro l aircraft ratings to conduct production flight test operations of light-sport aircraft intended for certification under § 21.190 for compensation or hire (75 FR 5220; February 1, 20107). This action was taken because a commercial pilot certificate with ratings appropriate for the operation of these aircraft does not yet exist.5

The FAA recognizes that there may be other types of operations conducted for compensation or hire where the nature of the operation requires the use of light-sport aircraft that do not

have standard airworthiness certificates. Provi ded certain, clearly articulated parameters for such flights are developed, it may be appropriate to expand the existing regulatory exception to the general prohibition on compensation or hire. However, the FAA has not developed any such parameters and would have to amend the existing regulations to provide additional exceptions.

The FAA recognizes the significant public interest in facilitating the aerial migration of endangered whooping cranes to their summer habitat and that time is of the essence in ensuring completion of a successful migration. Additionally, other resources are not currently available to the petitioner to conduct the operation within the necessary time period. Thus, there is insufficient time available to develop and evaluate parameters for assuring that these operations meet the level of safety normally required for operations conducted for compensation or hire. Accordingly this exemption is granted only for a duration sufficient to facilitate the conduct of the current season’s migration. The FAA expects the petitioner to work with its local FAA office to develop a program to facilitate subsequent successful migrations of the endangered whooping cranes.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exem ption 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, Operation Migration, Inc. is granted an exemption from 14 CFR §§ 61.315(c)(2) and (3), and 91.319(e) to the extent necessary to allow Operation Migration to use persons holding a sport pilot certificate to operate weight-shift-control aircraft certificated under 14 CFR §21.191(i) for compensation or hire to facilitate the migration of endangered whooping cranes, subject to the following conditions and

limitations:

Conditions and Limitations

1. The relief provided by this exemption is limited to operations conducted by the following pilots: Joseph William Duff, Pilot Certificate # 3468095 John Brooke Pennypacker, Pilot Certificate # 3344959 Richard Grant Van-Heuvelen, Pilot Certificate # 34471506

2. Operations subject to this exemption must be conducted in the following Cosmos Phase II weight-shift-control aircraft: N2613T, N2614T, N2615T and N2616T.

3. Operations are limited to day VFR conditions.

This exemption terminates on March 31, 2012, unless sooner superseded or rescinded.

Issued in Washington, D.C., on January 9, 2012.

/s/

John W. McGraw Acting Director, Flight Standards

Service