AFS

- 12

- 537

- E Exemption No. 10779

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

DESERT AEROSPACE, LL C Regulatory Docket N o. FAA

- 2012

- 0970

for an exemption from § 61.58 of Title 14, Code of Federal Regulations

DENIAL OF PETITION

By letter dated September 5, 2012, Mr. Robert Carlton, Desert Aerospace, LLC

, (Desert Aerospace), 604 Ne wport Court SE., Albuquerque, NM 87123 petitioned the Federal Aviation Administration (FAA) on behalf of Desert Aerospace for an exemption from § 61.58 of Title 14, Code of Federal Regulations (14 CFR)

. The proposed exemption, if granted, would allow reli ef from annual proficiency check requirements for pilot(s) of your turbo

- jet powered Comp

- Let TST

- 14 (TST

- 14) glider.

The petitioner requests relief from the followi ng regulation :
Section 61.58 pre scribes, in pertinent part, to serve as pilot in command o f an aircraft that is type certificated for more than one required pilot flight crewmember or is turbojet

- powered, a person must

-- (1) Within the preceding 12 calendar months, complete a pilot

- in

- command proficiency check in an aircraft that is type certifica ted for more than one required pilot flight crewmember or is turbojet

- powered; and (2) Within the preceding 24 calendar months, complete a pilot

- in

- command proficiency check in the particular type of aircraft in which that person will serve as pilot in comman d, that is type certificated for more than one required pilot flight cre wmember or is turbojet

- powered.

The petitioner supports its request with the following information: The petitioner states that t here are only a few turbojet

- powere d gliders that are af fected by 14 CFR § 61.58. Aside from their turbojet self

- launching or self

- sustaining capability, they2
maintain essentially the same operating parameters as conventional piston

- powered motor gliders, the operation of which requires only an endorsement fro m an authorized instructor.

The petitioner also states that : 14 CFR § 61.58 was originally written with the words “an airplane that is ...turbojet

- powered”. This wording was continued throughout the NPRM process. The word “aircraft” replaced the word “airp lane” only upon publication in the text of the Congressional Record (although the paraphrased chart still used the word “airplane”). The petitioner states that i t is probable that the addition of the word “aircraft” was inadvertent, and may be in violation of the Administrative Procedures Act (APA), as the public did not have an opportunity to comment on the rule as it pertained to aircraft that are not airplanes, such as gliders.

The petitioner states: “ i t seems obvious that the intent of this rule is to ensure competency of pilots of turbo

- jet airplanes, the operation of which requires specific skills not normally required for piston

- powered airplanes. Turbo

- jet airplanes typically fly higher, farther and faster than their piston

- powered counterparts. Th ey require specific navigation skills, system operation skills, an understanding of high altitude operations, energy management skills on landing, etc. Turbo

- jet powered gliders operate at essentially the same flight parameters as their piston

- powered coun terparts. In fact, the only distinct differences are generally somewhat superior climb performance, simpler operation, higher reliability and less volatile fuel. The turbo

- jet engine is typically only used for self

- launching (without a tow plane) or to
pre vent off

- field landings while cross

- country soaring. All of these actually improve the safety of these aircraft without requiring any skills that would necessitate an annual proficiency check. They do not operate at significantly higher speeds, higher weig ht or higher altitude than piston

- powered motorgliders. Landings are normally conducted with the engine shutdown and retracted.”

The petitioner further states that “ t h e petition will benefit the public as a whole by reducing the training burden on pilots ” of the petitioner’s turbo

- jet powered glider, which according to the petitioner offers substantial safety enhancements and has demonstrated an excellent safety record.

Finally, t he petitioner states that “ t his exemption will provide an equivalent level o f safety by encouraging development of low workload, reliable self

- launch and self

- sustain capabilities for gliders, thereby increasing the safety of motorglider operations. ”

A summary of the petition was published in the Federal Register on October 22 , 20 12

, ( 77 FR 64581 ). Nineteen comments were received , including comments from the following organizations: The Soaring Society of America (SSA), International Council of Air Shows (ICAS) and Arizona Soaring Inc. All of the comments were in support of the p etition

. Fourteen commenters state that they currently operate gliders, while three indicated they have experience operating a turbojet

- powered motorglider, along with one commenter stating that they currently hold an authorization to operate the TST

- 14 motorglider.3

T welve commenters, including SSA

, r eque st a change to the applicability of the final rule to apply to “airplanes” only, not “aircraft

. ” Seven commenters mention that this technology equates to i ncrease d safety

. Ten commenters, including SSA, c ite increased s implicity of turbojet

- powered motorgliders when compared to th eir piston powered counterparts

. One “motorglider pilot” commenter state s that gliders powered by turbojet engines use them for short periods of time for self

- powered takeoff or retrieval. The commenter states that these aircraft have simple controls and do not require significant training for the intended operations.

The FAA's analysis is as follows:

T he petitioner operates a glider; registration number N3JJ, serial number 14031809. This aircraft is currently issued a n experimental special airworthi ness certificate for the purpose s of Exhibition and Air R acing

. The petitioner refers to this aircraft as a turbo

- jet powered motorglider.

Although gliders are typically unpowere d aircraft, 14 CFR § 1.1

, General definitions, define s a glider as follows:

Glider means a heavier

- than

- air aircraft, that is supported in flight by the dynamic reaction of the air against its lifting surfaces and whose free flight does not depend princip ally on an engine.

The FAA notes that even though this glider does not depend principally on an engine for free flight, it remains a turbo

- jet powered aircraft

. Section 61.58(a) states the requirements for pilot

- in

- command proficiency checks in turbojet

- p owered aircraft. Since the petitioner’s Comp

- Let TST

- 14 glider is experimental, § 61.58(d)(5) provides a number of ways for a pilot

- in

- command to accomplish a proficiency check

. Additionally, § 61.58(e) provides an exception for pilots of experimental turb ojet

- powered aircraft by only requiring compliance when carriage of persons is involved.

Regarding the petitioner’s statements that the use of the word “aircraft” in § 61.58 was inadvertent, the FAA disagrees. Although the “Summary Table” and “Descriptio n of Proposed Changes” sections in the Notice of Proposed R ulemaking (NPRM) referenced by the petitioner (Docket No. FAA

- 2008

- 0938; Notice No. 09

- 08) incorrectly used the word “airplane”, the “Proposed Amendment” section containing the draft regulatory tex t used “aircraft” with regard to proposed changes to § 61.58

. The Final R ule issued after th e NPRM also us ed “aircraft” in the same manner , consistent with the requirements of § 61.58 prior to issuance of the NPRM

. Additionally, the Final Regulatory Evalua tion considered the impacts of the change on aircraft, not airplanes. Furthermore, t he NPRM did not describe proposed impacts of changi ng the requirement from “aircraft” to “airplane” and the result is that the current rule continues to use the term “aircr aft” as it had in previous versions of § 61.58

.4
Regarding comments submitted in support of changing the rule to revise applicability to “airplanes” only, t he FAA notes that the exemption process is not an appropriate mechanism by which to petition for a rule change

.

The FAA notes that the requirement for pilots of turbojet

- powered aircraft to comply with § 61.58 is not dependent upon the performance of the particular aircraft, or similarities to piston

- powered aircraft

. In [Docket No. FAA

- 2008

- 0938; Amen dment Nos. 61

- 128, 91

- 324, 141

- 15, and 142

- 7] August 31, 2011 within the Discussion of the Final Rule section the FAA
states:

“ the FAA firmly believes that pilots conducting flight in turbojet

- powered experimental aircraft with more than one seat, who wish to carry a passenger, must receive annual proficiency checks to ensure their continued understanding of the unique operating characteristics common to turbojet

- powered aircraft. An experimental jet aircraft that by original design or through modification possesses more than a single seat, has the potential to carry one or more passengers. In such a case, the pilot will be directly responsible for those passengers. We believe these circumstances demand a higher level of confirmation of the pilot's ability t o operate safely in a turbojet

- powered aircraft.”

The FAA believes there are significant differences in performance and capabilities of turbojet powered aircraft (including gliders) when compared to that of similar piston

- powered aircraft. In this instan ce, the petitioner’s website discusses significant differences inherent to the turbojet

- powered TST

- 14.

The FAA has determined that the public as a whole would not benefi t from the proposed relief. FAA data indicates that only three airman currently hold an experimental aircraft authorization to act as pilot in command of the TST

- 14. The petitioner has not demonstrated how reducing the perceived “ training burden ” on these pilots will benefit the public. The petitioner seeks exemption from the requ irement for proficiency checks , but the rule does not specify a required training curriculum or “training burden.”

The rule that the petitioner requests exemption from (14 CFR § 61.58) require s proficiency checks when an aircraft is turbojet

- powered. Other turboje t powered experimental aircraft may possess similar or increased capabilities when compared to their piston counterparts

, but the fact remains that there are still differences that require proficiency checks

. P roficiency of those pilots is required when c arriage of persons is involved. I nformation presented on the petitioner’s web site pertaining to training available for this particular aircraft demonstrates that there are operational and performance differences from non

- turbojet powered gliders

.
The FA A encourages the development of technologies that increase safety. However, the FAA also believes that pilot proficiency, especially in aircraft that are turbojet

- powered

, should be routinely checked. The FAA does not agree that the absence of a requireme nt for proficiency checks would meet an equal level of safety to that provided by the rule.5

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption is not in the public interest. Therefore, pursuant to the authority contai ned in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator , the petition of Desert Aerospace, LLC for an exemption from 14 CFR § 61.58 is hereby denied

. Issued in Washington, D.C., on May 24, 2013.

Sincerely,

/s/ John M. Allen Director, Flight Standards Service