AFS-16-4708-E Exemption No. 17201

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

In the matter of the petition of

WILLIAM R. NELSON Regulatory Docket No. FAA-2016-0030

for an exemption from §§ 61.315(c)(6) and (11), 91.215(b)(1) and 91.135 of Title 14 Code of Federal Regulations

DENIAL OF EXEMPTION

By letter posted to the docket on January 4, 2016, Mr. William R. Nelson, 1064 Yakima Avenue, Prosser, Washington, 99350 petitioned the Federal Aviation Administration (FAA) for an exemption from §§ 61.315(c)(6) and (11) and 91.215(b)(1) of Title 14, Code of Federal Regulations (14 CFR). Additional relief from §§ 91.135 and 91.205 was requested by the petitioner via posting to docket on August 30, 2016. The proposed exemption, if granted, would allow the petitioner, while holding a sport pilot certificate, to act as pilot in command of a light-sport aircraft in Class A airspace, a nd at an altitude of more than 10,000 feet mean sea level (MSL) or 2,000 feet above ground level (AGL), whichever is higher. The proposed exemption would also allow the petitioner to operate an aircraft in Class A, Class B, and Class C airspace areas without that aircraft being equipped with an operable coded radar beacon transponder in order to set a world altitude record in a powered parachute. Additionally, the proposed exemption would allow the petitioner to operate in airspace designated as Class A Airspace under visual flight rules (VFR).

The petitioner requests relief from the following regulations:

Section 61.315(c)(6) prescribes that if you hold a sport pilot ccertificate you may not act as pilot in command of a light-sport aircraft in Class A airspace.

Section 61.315(c)(11) prescribes that if you hold a sport pilot certificate you may not act as pilot in command of a light-sport aircraft at an altitude of more than 10,000 feet MSL or 2,000 feet AGL, whichever is higher.2

Section 91.135 prescribes, in pertinent part, that each person operating an aircraft in Class A airspace must conduct that operation under instrument flight rules (IFR) and operate an aircraft that is equipped with the applicable equipment specified in § 91.215 unless under the provisions of an ATC authorization issued by the ATC facility having jurisdiction of the airspace concerned.

Section 91.205(d) prescribes, in pertinent part, that for IFR flight, the following instruments and equipment are required: (1) Instruments and equipment specified in paragraph (b) of this section, and, for night flight, instruments and equipment specified in paragraph (c) of this section. (2) Two-way radio communication and navigation equipment suitable for the route to be

flown. (3) Gyroscopic rate-of-turn indicator. (4) Slip-skid indicator. (5) Sensitive altimeter adjustable for barometric pressure. (6) A clock displaying hours, minutes, and seconds with a sweep-second pointer or digital presentation. (7) Generator or alternator of adequate capacity. (8) Gyroscopic pitch and bank indicator (artificial horizon). (9) Gyroscopic direction indicator (directional gyro or equivalent).

Section 91.215(b)(1) prescribes, in pertinent part, that no person may operate an aircraft in Class A, Class B, and Class C airspace areas unle ss that aircraft is equipped with an operable coded radar beacon transponder having either Mode 3/A 4096 code capability, replying to Mode 3/A interrogations with the code specified by ATC, or a Mode S capability, replying to Mode 3/A interrogations with the code specified by ATC and intermode and Mode S interrogations in accordance with the applicable provisions specified in TSO C-112, and that aircraft is equipped with automatic pressure altitude reporting equipment having a Mode C capability that automatically replies to Mode C interrogations by transmitting pressure

altitude information in 100-foot increments.

The petitioner supports its request with the following information:

The petitioner states that he wants to attempt to set a world altitude record in a powered parachute. The petitioner states that he believes an attempt to set a world record in a powered parachute would attract local and state media attention, raise the public’s awareness of a different type of flying other than in a “regular ” airplane, and attract public interest in light sport aviation.

The petitioner states that he holds a sport pilot certificate and a repairman (light-sport aircraft) certificate with a maintenance rating. The petitioner mainly flies and teaches students to fly powered parachutes and has approximately 600-700 hours of flight time in gliders, small airplanes, paragliders, light sport airplanes, and powered parachutes. The petitioner asserts that powered parachutes are fairly simple to build and fly. The petitioner states that he is a flight instructor with a sport pilot rating, enabling him to follow-up with members of the3

public who may be interested in obtaining a ride in this type of aircraft. The petitioner asserts that after being a passenger in a light-sport aircraft, members of the public will themselves want to learn to fly these aircraft, thus drawing positive attention to flight in light -sport

aircraft.

The petitioner’s originally stated goal was to reach an altitude around 25,000 feet mean sea level (MSL). He later states that once reaching his intended altitude of 19,000-23,000 feet MSL, he would then shut-down the engine a nd drift down to approximately 5,000 feet, where he would then restart the engine for a powered landing. The powered parachute would be of a standard configuration, although the petitioner st ates that he would add a tank with enough oxygen to take him from below the minimum altitude where oxygen is required until he

returns to that altitude.

The petitioner states that he plans to remove the rear seat and fabricate a strap-down system for an oxygen tank. The petitioner states that he has flown to 10,000 feet, taking approximately 45 to 60 minutes to reach that altitude. The petitioner estimates his climb rate to be 100 to 200 feet per minute, requiring at least two to three hours of oxygen on board to complete his flight to 25,000 feet. The petitioner goes on to state that he is aware of the requirement to use oxygen continuously while operating above 14,000 feet and that his plan is to carry an “E” cylinder of oxygen with the necessary regulator, flowmeter system, and nasal cannula or non-rebreather mask. The petitioner states that he plans to use oxygen continuously while operating above 10,000 feet. The petitioner estimates the entire flight to take approximately 3 hours and 15 minutes, requiring a minimum of 150 liters of oxygen. He states that the “E” cylinder carries far more oxygen than he should need for this flight.

The petitioner also states that he may add a secondary fuel tank in the rear seat area. The petitioner estimates that based on the powerplant in his aircraft being a Rotax 912UL, he will require at least 20 gallons of fuel to make a successful flight based on his proposed plan to climb to 19,000 to 23,000 feet MSL, shut down the engine, coast to an altitude of 5,000 feet MSL, restart the engine, and land using engine power. The petitioner asserts that a powered parachute can make landings without engine power quite easily, so fuel supply is not a

concern.

The petitioner states that his proposed flight w ould not adversely affect public safety because he would be operating over sparsely populated areas of eastern Washington, specifically within a 50 mile radius of the Prosser, WA Airport (S40). The petitioner asserts that this area is comprised of mostly desert and farmland ar eas and that finding an off-airport landing site

would not be difficult.

The petitioner also states that operating above 10,000 and 18,000 feet MSL would not adversely affect safety since the aircraft is la rge, colorful and flies slowly, making it easier to be seen by other aircraft.

The petitioner states that he intends to inform air traffic control towers in Pasco and Yakima, Washington, allowing other aircraft to be notif ied of his operation. The petitioner also states4

that he intends to maintain two way radio communication with air traffic control (ATC) via hand-held radio and a cellular phone.

The petitioner states that he is seeking relie f from § 91.135, requiring operations in Airspace designated as Class A airspace (18,000 feet MSL up to and including FL 600) to be conducted

under IFR. He states that he should not have to operate his powered parachute under IFR in Class A airspace because he would be in contact with either Chinook Approach or Seattle Center during the flight, and would maintain contact either facility via radio or cellular telephone throughout the flight as well as having a ground team who would be in contact with either facility throughout the flight.

The petitioner also states that he understands that to operate under IFR, his aircraft is required to be equipped with certain instruments and equipment but that it should not have to be equipped with these instruments and equipment because due to the unique flight characteristics of a powered parachute, certain instruments are not needed. He supports this argument by stating that he finds that he does have all of the instrumentation required except for a magnetic compass, a manifold pressure gauge, a rate of turn indicator, a slip-skid indicator, a pitch and bank indicator, and a di rection indicator. The petitionerasserts that powered parachutes are not equipped with these instruments due to the pendulum effect on the flight characteristic of powered parachutes, which renders those instruments unnecessary. He states that a powered parachute tends to fly straight and level quite naturally by itself, having only 2 controls: the throttle, which allows climbs and descents and two foot bars which, when pushed, cause the aircraft to turn to the right or left. The petitioner states that a powered parachute maintains a constant airspeed of 28-30 miles per hour, depending on the

wind.

The petitioner also offers that he recognizes th at the “Apple iPad” electronic tablet software program titled “ForeFlight” is not an approved program for aviation but he would like to make use of this program to determine his position over the ground,wind speed, and direction of flight. The petitioner states that he also possesses a “Garmin 96C” global positioning system (GPS).

The petitioner states that he does not wish to exercise the privileges of this exemption outside the United States of for any length of time longer than that required to complete the altitude record attempt.

A summary of the petition was published in the Federal Register on April 22, 2016 (81 FR 23800). Additional information was provided by the petitioner on July 26, August 17 and August 30, 2016. No additional comments were received.

The FAA’s analysis is as follows:

The FAA finds that although the petitioner describes the aircraft as large, colorful, and capable of slow flying, these characteristics do not provide a level of safety equivalent to the requirements of §§ 61.315(c)(6) and (11), .91.215(b)(1), and 91.135. The FAA does not find these inherent characteristics of the aircraft sufficient to mitigate the risk of collision with the5

type of aircraft that typically operate at higher speeds (greater than 250 knots) above 10,000 feet MSL and above 18,000 feet MSL (in Class A Airspace) under IFR. Aircraft operating under IFR at high altitude are less likely to rely on visual separation techniques because they are being separated from other aircraft primar ily by ATC. Air traffic control, as well as aircraft operating in Class A airspace rely on transponders for ensuring aircraft separation at the higher speeds and closure rates typically encountered at those higher flight altitudes.Additionally the FAA does not believe that operations in such highly demanding airspace should be conducted by persons with only the aeronautical knowledge and experience of a sport pilot.

The petitioner has also requested relief from th e requirement of § 91.135, Operations in Class A airspace, to operate under IFR. Section 3

− 2

− 2 of the Aeronautical Information Manual (AIM) defines Class A Airspace as that airspace from 18,000 feet mean sea level (MSL) up to and including FL 600 (pressure altitude of approximately 60,000 feet), including the airspace overlying the waters within 12 nautical miles off the coast of the 48 contiguous States and Alaska. The FAA finds that the actions proposed by the petitioner do not provide an equivalent level of safety to the requirements necessary to operate under IFR in Class A Airspace. Operating under Visual Flight Rules (VFR) in Class A Airspace poses a significantly higher risk of collision with the type of aircraft that typically operate at higher speeds (greater than 250 knots) in that airspace under IFR. Additionally,the FAA notes that the petitioner’s aircraft lacks the instruments and equipment required for flight under VFR(day) specified by § 91.205(b).

The petitioner states that his aircraft is powered by a Rotax 912UL engine. The FAA, in reviewing the information submitted by the petitioner to support a determiniaton that his proposed actions would provide an equivalent le vel of safety to the requirementsfor operating under IFR in Class A Airspace, has found that the manufacturer restricts the use of this engine to VFR conditions only. The manufacturer states on Page 1-5, section 1.4 of its“Operator’s Manual for Rotax Engine Type 912 Series” (see Figure 1) and on Page 13, section 5.2 “Maintenance Manual for Rotax Engine Type 912 Series” (see Figure 2) that aircraft equipped with this engine must only fly in Day VFR conditions.The FAA finds that the presence of these restrictions (which preclude operations in Class A airspace where VFR flight is not permitted), and that the petitioner has provided no information to negate the need for these retrrictions, precludes an FAA determination that the petitoner’s proposed operation provides an equivalent level of safety to that mandated by the regulations.

The petitioner’s proposed area of operation is over the Prosser, Washington Airport (S40.) The FAA, in it is analysis of this area, has determined it lies within a low level victor airway (“V4”), a high level jet airway (“J20”) as well as a defined Instrument Military Training Route (“IR-341/343”). These routes indicate a concentrated amount of low and high level civilian and military air traffic. For these reasons, the FAA finds that the conduct of the petitioner’s proposed operation with in the specified area presents a high risk of collision with another aircraft [see Figure 3 - FAA Low-Level In strument Flight Rules Aeronautical Chart].

The FAA has reviewed the petitioner’s request for relief from § 91.205(d), Powered civil aircraft with standard category U.S. airwor thiness certificates: Instrument and equipment6

requirements. However, as the proposed operation would not be conducted under IFR the FAA finds that an exemption from the instru ment and equipment requirements of § 91.205(d) would not be applicable.

Although the petitioner has not requested relief from the requirements of § 91.211, Supplemental Oxygen, the FAA has reviewed the petitioner’s proposal to carry and use supplemental oxygen to meet the requirements of § 91.211. The FAA finds that an exemption from this rule would not be necessary because the petitioner can apparently comply with this requirement. The FAA also reviewed the information provided by the petitioner regarding

the use of certain electronic software on a tabl et computer for the purpose of navigation. The agency, however, did not find it specifically applicable to the analysis of the petitioner’s request for relief.

The petitioner contends that granting the proposed exemption would be in the public interest as his proposed operation would garner positive media attention and further the public’s positive perception and interest in light sport aviation as well as in learning to fly light-sport aircraft. However, the FAA finds that promoting both an interest in and a positive perception of light sport aviation could be accomplished in other ways without the increased risk to the public that would occur by conducting an operation at high altitudes without a transponder and under VFR in Class A Airspace. The FAA finds that by holding a flight instructor certificate with a sport pilot rating the petitioner is able to use that qualification to support his outreach to the public without risking a collision with aircraft operating at the higher speeds and higher altitudes that would be encountered during his proposed record attempt.

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exemption would not be in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113, and 44701, delegated to me by the Administrator, the petition of William R. Nelson for an exemption from 14 CFR §§ 61.315(c)(6) and (11), 91.215(b)(1) and 91.135 is hereby denied.

Issued in Washington, D.C., on January 12, 2017.

/s/

John Barbagallo Deputy Director, Flight Standards Service7

Figure 1— Operator’s Manual for Rotax Engine Type 912 Series, page 1-5, section 1.48

Figure 2— Maintenance Manual for Rotax Engine Type 912 Series, page 13, section 5.29

Figure 3—FAA Low Altitude Instrument Flig ht Rules Enroute Aeronautical Chart Petitioner's proposed area of operation near the Prosser, WA Airport (S40)