It has been said that administrations can come and go, but the bureaucracy remains the same. While the ideology of the current administration espouses personal responsibility and limited government, the Federal bureaucracy has other ideas. By the time you read this article an FAA notice of proposed rulemaking memorandum (NPRM) describing new “Sport Pilot” certification requirements will have been released for public comment. We will have 90 days to digest this information and respond before the government decides if, when, and how, to implement the new rule. While the draft rule would impact the hang gliding community only peripherally, it lays the groundwork for sweeping changes in the way hang gliding may be regulated in the future.
In this article I will briefly summarize the Sport Pilot rule as currently drafted, including my take on the potential implications for the sport of hang gliding. I will begin by briefly outlining the genesis of our current regulatory situation, from the publication of FAA Advisory Circular 60-10 in 1974 to FAR Part 103 as it stands today, making use of direct quotations from FAA source documents to highlight the governments thinking. Put in historical perspective, it becomes clear why the current regulations evolved as they did and where I believe the FAA plans to take us in the future with the new proposed Sport Pilot rule. It behooves all who currently enjoy the present state of lightly regulated foot-launched free flight to pay close attention to that which follows.
In 1974 the FAA published an Advisory Circular [AC No. 60-10, 5/16/74] outlining their position regarding the operation of “hang gliders” and the sport of “sky-sailing.” In it the FAA outlined a suggested set of parameters that practitioners of the sport should follow to avoid future regulatory action. These included:
Limiting altitude to 500AGL and below.
Restricting operations to areas outside of controlled airspace, restricted, and prohibited areas, to include uncontrolled (non-towered) airports. [italics mine]
Remaining at least 100 feet away from, and never to overfly at any altitude, any buildings, populated places, or assemblages of persons. [italics mine]
Manufacturers and clubs were encouraged to develop procedures and standards for quality control, safety, and training. The FAA cautioned that it would take steps to “observe the growth and safety status of this activity as it progresses and to continually assess the need for FAA involvement.”
Eight years later the rapid growth of ultralight activity within the U.S. prompted the FAA to propose limited regulation of both powered and unpowered ultralight aircraft. The result was FAR Part 103 [effective 10/4/82]. The purpose of this regulation was to “achieve an acceptable level of air safety by reducing potential conflict with other airspace users and to provide protection to persons and property on the ground.” The FAA left responsibility for pilot certification, vehicle certification, and vehicle registration to the ultralight community with a warning that positive action was expected to address these issues to the government’s satisfaction: “Should this approach fail to meet FAA safety objectives, further regulatory action may be necessary.”
Supplementary information was provided describing the government’s line of reasoning for
adopting this regulation. It began by observing how technology had advanced to
the point that “many hang gliding vehicles no longer fall within the scope
envisioned by Advisory Circular No. 60-10.” We had outgrown the hands-off
approach. Those of us who thought we were not on the radar screen will be
interested to know that as far back as 1982 the FAA was cognizant of the fact
that we could exceed 10,000AGL and achieve distances of over 100 miles! The FAA
was paying attention, and we did a creditable job of shooting ourselves in the
foot as they watched:
“The operations of these vehicles are now a significant factor in aviation safety. The vehicles are routinely operated, without authorization, into regulated airspace, such as airport traffic areas (now known as Class D), terminal control areas (Class B/C), positive control areas (Class A), prohibited and restricted areas. Many operations have also taken place over congested areas and spectators and into adverse weather conditions. The midair collision potential presented by unauthorized operations is contrary to the FAA responsibility of ensuring the safety of all airspace operation including air carrier aircraft.” [parentheses mine]
In addition, it was pointed out that:
“Current hang glider publications have carried a number of articles describing hang glider operations that violate Part 91 regulations as well as the recommendations of Advisory Circular 60-10. Those descriptions have included operation near and into clouds, low-altitude operations over open-air assemblies of persons, and flights in close proximity to airports with large concentrations of airline and general aviation aircraft operations. Those potentially hazardous operations created the requirement for Federal regulatory limitations on hang gliders.”
We did it, announced it proudly to the world, and the FAA responded. To “deter flights which present a serious danger to aircraft and to provide a basis for necessary enforcement action” the FAA published an NPRM on July 27, 1981 to “include both powered and unpowered hang gliders under the generic term ultralights.” After the appropriate comment period, that NPRM formed the basis for FAR Part 103, made effective just over one year later.
The USHGA objected to the inclusion of hang gliders with powered ultralights. While acknowledging the success of USHGA’s efforts to promote safety within the hang gliding community, the FAA defended it’s position, stating that “the basic rationale for issuance of this rule is the safety of all users of the national airspace, not just the ultralight operators.” [italics mine] This theme is raised again and again, and serves to underscore the reason why we came under regulation at this time and why we may well expect increased regulation in the future.
While intent on maintaining safety for all users of the national airspace system, the FAA was not interested in eliminating ultralight activity altogether. Liberal limits on top airspeed, stall speed, fuel capacity, and empty weight were set to ensure that the aircraft falling under Part 103 maintained the flight characteristics commonly associated with ultralights, while at the same time enabling most ultralight aircraft that existed at the time to continue operating without burdensome regulation. Specific consideration was given to maintaining waiverability for ultralight operations so that two-place trainers and airtowing operations could be continued; largely due to the perceived safety-enhancing aspects of these operations. The FAA emphasized the ’sport’ aspect of ultralight operations - flight conducted by informed participants fully cognizant of the dangers and risking only themselves and their own personal property - as justification for not requiring airman and aircraft certification. It was recognized that the economic impact of licensing and aircraft certification requirements could have a devastating effect on the community. The FAA’s intent was to provide safety for all with a minimum amount of regulation.
However, it was “emphasized that the individual ultralight operator’s support and compliance with national self-regulation programs is essential to the FAA’s continued policy of allowing industry self-regulation in these areas.” The FAA would continue to monitor safety and compliance trends and “take additional regulatory actions to preclude degradation of safety to the general public while allowing maximum freedom for ultralight operations.” The community was being served notice. Ultralights would be allowed as much freedom as the government considered prudent, but the safety of all users of the national airspace system would be paramount. Ultralight aircraft were to avoid “areas where significant operations of aircraft are occurring so as to minimize the risk of midair collisions.” Such operations may only be conducted safely if all pilots are aware of the presence of other aircraft, and this is why ultralight operations within controlled airspace (A, B, C, D, or E for an airport) require prior authorization from the controlling agency. In 1993 this rule was beefed up by an amendment to Far Part 103.17 [(Amendment 103-4, Effective 9/16/93)] that prohibited operation within the lateral limits of the surface area of Class E airspace designated for an airport. From then on, no uncertificated aircraft could overfly such airspace at any altitude. I am still researching the rationale for this change, but it is likely due to concern for the safety of those who might be affected by such overflights. In defending it’s prohibition against overflights of congested areas it was explained that the “FAA’s position is based on the fact that ultralight vehicles are not certificated as airworthy by any approved method and are flown by uncertificated pilots. The FAA believes that concentrations of the general public must be protected from the possible dangers inherent in the operations of vehicles of uncertificated, possibly unproven designs.”
Several organizations responding to the NPRM voiced concern over ultralight operations at uncontrolled (non-towered) airports, as well. The FAA sidestepped this issue, pointing out that the large number of variables associated with individual airports in this class would make it difficult to develop workable Federal standards uniformly applicable across the nation. Instead, “The FAA has concluded that such operations could be handled much more efficiently by airport managers developing local procedures in concert with the ultralight community.” This implies that the lateral limit restriction does not apply to airports with the ghostly magenta Class E airspace designation. Indeed, a call to the USUA revealed that the powered ultralight pilots fly in and out of such airports on a regular basis. It would appear that the lateral limits restriction only applies to the dashed magenta Class E that actually extends to the surface, thus constituting a “surface area” per the regulations. Logic dictates that the intent of the regulation is to prohibit us from overflying higher airspace Classes (B, C, and D) as well.
Clouds are another matter. “The FAA has determined that visual reference with the surface is necessary at all times” for ultralight operations. Such seems obvious to most of us, but we are specifically barred by regulation from operating VFR “on top.” Some commentators proposed that hang gliders be permitted to operate in or near clouds since to restrict such activity would eliminate their ability to vie for long-distance and high-altitude records. We need to do better than this next time, folks. The paramount goal of the proposed change was to ensure the safety of the flying public. Enabling record attempts for ultralight pilots was not a primary concern. The FAA’s response, predictably enough, was to uphold the same cloud clearance standards for hang gliders and ultralights as for any other type of aircraft plying the skies: “The cloud clearance requirements serve as a practical buffer to reduce the possibility of having aircraft exit the clouds on an unalterable collision course.” Most scheduled airline operations, commuter, corporate, and military aircraft fly en-route on IFR flight plans - regardless of the prevailing weather conditions. They are cleared to fly through the clouds legally. The FAA did not want us or any other uncontrolled, untrackable VFR aircraft presenting an unexpected and potentially unavoidable obstacle to those aircraft.
In summary, the rapid growth of hang gliding and ultralight activity in the ’70s prompted the FAA to publish an advisory circular. By 1982 near-miss reports, complaints from the general and civil aviation community, and a perceived disregard for the rules prompted the FAA to propose further regulation. The result was FAR Part 103. This regulation made it clear that ultralight pilots (both powered and unpowered) were required to observe certain basic rules of VFR flight operations, and to avoid activities that could endanger the lives and property of others. Additional restrictions, such as remaining outside the lateral boundaries of airport controlled airspace, and not overflying large concentrations of people, were imposed due to the unproven nature of ultralight aircraft and the unknown quality of ultralight pilots. That was then. Now, nearly 20 years later, the FAA has issued another NPRM that could affect the hang gliding community.
In 1988 the USUA petitioned the FAA to amend FAR Part 103, asking to expand the definition of an ultralight vehicle to include two-place and overweight “fat” ultralights. In response the FAA set machinery in motion that led to the new Sport Pilot proposed rule.
In 1989, an effort was made by the FAA to promote the health of general aviation. A new class of airman certificate, the “Recreational Pilot”, was established. This was intended to provide a simpler, lower cost avenue of entry for prospective airmen. The new initiative met with extremely limited success. Meanwhile, the legal industry had discovered a new source of revenue, devastating the US general-aviation manufacturing base in the process. Piper was the only company left standing, and they were considering plans to exit the business. In 1992, in an effort to reverse this trend, the FAA created a new simplified “Primary Category” procedure for securing type, production, and airworthiness certification of new and diverse aircraft types. The problem was ultimately solved by tort reform. But the machinery remained in place - a tool with no use. At the same time, elements within the FAA noted that “Over the years, public misconception of the actual scope of part 103 has led some well-intentioned people to begin operating in a way that is technically outside of that scope.” In other words, people were still busting the rules.
In 1991 the FAA formed a working group to consider the USUA petition, changes to the Recreational Pilot and Primary Category Aircraft programs, and to address the problem of chronic rules violations by pilots in the ultralight community. An Aviation Rulemaking Advisory Committee (ARAC) was formed and eventually issued the following recommendations:
Part 103 should remain intact and unmodified.
The Primary Category aircraft requirements could be used to address the certification of two-place and “fat” ultralights.
The FAA should establish a new Sport Pilot airman certificate modeled on the (currently unpopular) Recreational Pilot certificate but modified to address the “unique training and operational requirements of the types of small, slow, single and two-place aircraft that would be certificated under the Primary Category.”
This is precisely what the FAA wanted to hear. Rather than rewarding pilots operating outside of the scope of Part 103 with a relaxation of restrictions, the solution was to create a new class of FAA certified pilots. The existing base of “fat” and two-place ultralight pilots would provide the ’interest’ required to make the proposal a success this time around. “The proposal is in the public interest because it would improve safety by providing more instructors in type who would be validated through recognized procedures. It would enhance the use of certificated vehicles in additional classes and types and would expand annual condition inspections that would improve safety. The proposal would also expand the number of certified pilots thus increasing the benefits and uses of the national airspace system. This proposal would provide reasonable and required training, airman certification, and promote compliance with general operating rules for persons operating light, slow, unique aircraft. ” [italics mine]
The privileges to be enjoyed by the holder of a basic Sport Pilot certificate would be essentially the same as those now enjoyed under Part 103. Restrictions on aircraft performance and capability would be slightly relaxed to an increased empty weight (to a 1,200 pound maximum), an increased stall speed of 39 kcas, and the ability to fly two-place aircraft. This relatively small expansion of privileges would come at a price, however. Pilots would be required to obtain and maintain FAA certification. Aircraft would require certification and annual inspection by FAA certified technicians.
But the FAA could not impose a new class of pilot certificate without providing for the instructors, examiners, inspectors, and maintainers required to deliver the necessary training and oversight. In the past, these had been showstoppers in any effort to truly regulate the ultralight community. The FAA believes that is has engineered a solution to these problems in the new Sport Pilot proposal.
An extensive study of ultralight activity collected by Air Transport Canada led the FAA to conclude “that ultralight activity is as safe or safer than general aviation.” In fact, it was found that general aviation pilots flying ultralight aircraft experienced a significantly higher accident rate than trained ultralight-only pilots! It would be reasonable then to utilize the resources of the ultralight community itself. This would be accomplished by grandfathering current USUA, EAA, and ASC recognized instructors. A written test and proof of experience would provide them with the FAA certification required to provide the needed services.
To solve the problem of administering such diverse aircraft types, the FAA proposes to stand up a Flight Standards Review Board (FSRB) to review applications for new Sport Pilot certificate classes and ratings. Applicants would petition the FAA to create a new class of certificate; a flex-wing hang glider class, for example. The FSRB would review the application and, if approved, a notice would be published in the Federal Register to inform the public and collect comments. After reconsideration - and taking public comment into account - a final decision on the application would be made. Aircraft manufacturers would be tasked with ensuring and maintaining standards. This would cover the type generation and approval problem. Maintenance and inspection would be addressed by further tasking aircraft manufacturers to provide the required certification training for mechanics and inspectors. Owners would be permitted to maintain their own aircraft, but annual inspections by FAA certified technicians would be required.
The draft proposal states that “This proposal would include the towing of gliders or unpowered ultralights as a Sport Pilot privilege; The U.S. Hang Gliding Association has extensive experience in this arena; The safety record of these operations has been extremely good” Current tow parks operators, and those who enjoy flatland flying, can breath a cautionary sigh of relief. But lest we get too comfortable the FAA notes that: “To preserve this safety record, the activity does require operational guidelines similar to those implemented by the USHGA, and provision is made for the FSRB to establish those; the FSRB could easily adjust the criteria as necessary through administrative action to correct any unforeseen problems to preserve safety.” The good news is that for the near-term we may continue to operate pretty much as before. The bad news is that we are on the slippery slope to becoming a fully regulated aviation activity, with a government appointed FSRB telling us how things should be done.
Important Update: An FAA Sport Pilot Briefing delivered on February 24, 2001 at an Illinois Ultralight Safety Seminar clearly states that the holder of a Sport Pilot Certificate “May not tow any object.” This contradicts the draft NPRM and may signal a change in FAA position. If so, our towparks are indeed in trouble.
The FAA’s intent in proposing this rule is twofold: 1) to rejuvenate general aviation by providing easier entry to prospective pilots, and 2) to improve the safety of the national airspace system. Pilots who chose to certify themselves and their aircraft may fly under this rule and log their flight time. This time could be applied to meet the requirements for higher ratings. The FAA considers the Sport Pilot certificate to be an entry point for pilots who are expected to later move up the pipeline by obtaining their private, commercial, and perhaps ATP certificates. It is touted in their briefings as “The Rebirth of General Aviation.” Additionally, increased training and oversight would serve to make ultralight pilots and their aircraft both safer and more reliable. Thus improving the safety of the system for all.
To understand where this may be going we need to ask the question: Why Sport Pilot? The FAA could have simply amended Part 103 to permit overweight and two place ultralights to operate under that rule. This would have involved considerably less effort. Instead, a multi-year development effort was launched to create a new class of airman certification - the Sport Pilot - that would provide an upgrade path for those ultralight aircraft that do not currently qualify under Part 103. Since the majority of ultralights fall into this category, most ultralight owners will be expected to apply. Once a viable upgrade path exists that would permit these pilots to operate legally, we can expect less forgiveness for those who continue to operate illegally. The Sport Pilot proposal is engineered to transition the majority of ultralight pilots from Part 103 to a conventional certificate. From essentially unregulated to regulated operations.
Part 103 is slated to remain unchanged under this proposal. We as hang glider and paraglider pilots may continue to operate as pretty much as before - assuming that the restriction against towing objects with light sport aircraft is removed from the final version. But the draft Sport Pilot rule is specifically written to include unpowered ultralights as well. The method proposed for certifying new aircraft types and new airman type certificates seems quite adaptable to certifying rigid wing, flex wing, and bag wing glider types. So does the method of provisioning for instructors and examiners. Both were previously insurmountable problems that caused the FAA to take a hands-off approach toward the hang gliding community. At that time self-regulation was the solution. The ’sport’ nature of the operations - no one is endangered but the practitioners themselves - provided the rationale. But with hang glider performance and pilot skill levels dramatically improved, and compliance with existing regulation a perceived problem, the FAA may someday decide that safety could be further improved by requiring that unpowered ultralights transition to the new rule, as well. Thus would end the era of (relatively) unregulated free-flight.
The current NPRM is due early this fall and may be viewed at http://www.faa.gov/avr/arm/proc.htm when issued. There may be significant changes from the current draft form. There are some disturbing inconsistencies between the draft proposal and FAA briefings, which brings into question whether or not “fat” and two-place ultralights like the Dragonfly will be permitted to tow hang gliders. We should scrutinize this issue closely. Hang glider pilots may continue to operate under Part 103, which would remain unchanged under this proposal. But the writing is on the wall. As proposed, hang glider pilots would be eligible to obtain a Sport Pilot certificate, purchase new certified hang glider designs, and operate under the new rule as FAA certified pilots. Few will feel any advantage in doing so, but if this rule proves successful, and if the FAA perceives a significant benefit to the safety of the national airspace system, the next NPRM may be one proposing the dissolution of Part 103. The argument then will be that existing hang glider pilots can easily transition to operation under the Sport Pilot rule. Costs will go up as manufacturers and instructors pass on the expense of certification to the customer, and Federal regulation of our sport will become complete. I encourage everyone to consider this issue closely and make your opinions known.
Joe Gregor is a PhD electrical engineer currently working at the Research and Engineering Division of the National Transportation Safety Board supporting aviation crash investigation efforts. He is an ex-USAF Senior Pilot with 3000 hours total time in the E-3 AWACS, Lear 35, Rockwell Sabreliner, T-38, and T-37.