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, LLC Regulatory Docket No. 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 Newport 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 relief 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 following regulation:

Section 61.58 prescribes, in pertinent part, to serve as pilot in command of 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 certificated 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 command, that is type certificated for more than one required 

pilot flight crewmember or is turbojet-powered.

The petitioner supports its request with the following information:

The petitioner states that there are only a few turbojet-powered gliders that are affected by 

14 CFR § 61.58. Aside from their turbojet self-launching or self-sustaining capability, they 
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maintain essentially the same operating parameters as conventional piston-powered motor 

gliders, the operation of which requires only an endorsement from 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 “airplane” only upon publication in the text of 

the Congressional Record (although the paraphrased chart still used the word “airplane”). The 

petitioner states that it 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: “it 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. They 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 counterparts. 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 

prevent 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 weight or higher 

altitude than piston-powered motorgliders. Landings are normally conducted with the engine 

shutdown and retracted.”

The petitioner further states that “the 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, the petitioner states that “this exemption will provide an equivalent level of 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, 2012, 

(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 petition. 

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.
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Twelve commenters, including SSA, request a change to the applicability of the final rule to 

apply to “airplanes” only, not “aircraft.” Seven commenters mention that this technology 

equates to increased safety. Ten commenters, including SSA, cite increased simplicity of 

turbojet-powered motorgliders when compared to their piston powered counterparts.

One “motorglider pilot” commenter states 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:

The petitioner operates a glider; registration number N3JJ, serial number 14031809. This 

aircraft is currently issued an experimental special airworthiness certificate for the purposes of 

Exhibition and Air Racing. The petitioner refers to this aircraft as a turbo-jet powered 

motorglider.

Although gliders are typically unpowered aircraft, 14 CFR § 1.1, General definitions, defines

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 

principally 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-powered 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 turbojet-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 “Description of 

Proposed Changes” sections in the Notice of Proposed Rulemaking (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 text used

“aircraft” with regard to proposed changes to § 61.58. The Final Rule issued after the NPRM 

also used “aircraft” in the same manner, consistent with the requirements of § 61.58 prior to 

issuance of the NPRM. Additionally, the Final Regulatory Evaluation considered the impacts 

of the change on aircraft, not airplanes. Furthermore, the NPRM did not describe proposed 

impacts of changing the requirement from “aircraft” to “airplane” and the result is that the 

current rule continues to use the term “aircraft” as it had in previous versions of § 61.58. 
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Regarding comments submitted in support of changing the rule to revise applicability to 

“airplanes” only, the 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; Amendment 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 to 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 instance, 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 benefit 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 requirement 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) requires proficiency 

checks when an aircraft is turbojet-powered. Other turbojet 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. Proficiency of 

those pilots is required when carriage of persons is involved. Information 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 FAA 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 requirement for 

proficiency checks would meet an equal level of safety to that provided by the rule.
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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 contained 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