The Sport Pilot and the FAA

Joe Gregor

They say that administrations may come and go, but the bureaucracy remains the same. While the ideology of the current administration espouses personal responsibility and limited government regulation, the Federal bureaucracy has other ideas. By the time you read this article an FAA notice of proposed rulemaking memorandum (NPRM) covering "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 rule. While the proposed change would impact the hang gliding community only peripherally, it carries with it seeds of much greater significance.

In this article I will briefly summarize this rule including my take on its potential longer term implications for the sport of hang gliding. I will begin with a brief outline describing 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. I will make free use of direct quotations from FAA source documents to highlight the salient points. Put in historical perspective, it will become clear where the current regulations have come from and where I believe the new proposed Sport Pilot rule is intended to take us in the future. This is not an advocacy piece. There are pros and cons in this proposal that will effect each pilot differently. My contribution is to bring the issue to light and to initiate a dialog. It behooves all who currently enjoy the present state of (relatively) unregulated foot-launched free-flight to pay close attention to that which follows.

Advisory Circular 60-10

In 1974 the FAA published an Advisory Circular [AC No. 60-10, 5/16/74] outlining the FAA's position regarding the operation of "hang gliders" and the sport of "sky-sailing." In it the FAA outlines a 'suggested' set of parameters that practitioners of the sport should follow to avoid possible 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 stated its intent to "observe the growth and safety status of this activity as it progresses and to continually assess the need for FAA involvement."

The Genesis of FAR Part 103

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] and hang gliding became a regulated (albeit lightly regulated) activity on this day. 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 regular regulatory action may be necessary."

The supplementary information outlining the FAA's line of reasoning for adopting this regulation began by observing that 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 back in 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:



   In addition, it was pointed out that:



We did it, we talked about it, we wrote about it, 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'." That 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 its 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 the 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 certification. Specific thought was given to maintaining waiverability for ultralight operations, so that two-place trainers and airtowing operations could be continued; due primarily to the perceived safety-enhancing aspects of these operations. The FAA emphasized the "sport" aspect of ultralight operations - operations 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 would have a devastating impact 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 promised to continue to monitor safety and compliance trends and to "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 FAA considered prudent, but the safety of all users of the national airspace system would come first. 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 operations within controlled airspace (B, C, D, or E) requires 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 9/1693)] which prohibited operation within the lateral limits of such airspace. From then on, no uncertificated aircraft could overfly such airspace at any altitude. I am still researching the rationale behind this change, but it may be related to concerns for the safety of those on the ground. In defending it's prohibition against overflights of congested areas 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, too. The FAA sidestepped this issue, pointing out that the large number of variables associated with each individual airport 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 like Carroll County, MD. Indeed, a call to the USUA revealed that the powered ultralight pilots fly in and out of there on a regular basis. It appears that we may legally fly over and into such places, provided that the activity is not prohibited by the airport manager. I believe that sporadic, unplanned operations such as would occur on an XC attempt are reasonable, in most cases. If such activity was planned, or occurred on a regular basis, it would be appropriate to contact the airport manager in advance to discuss the situation. This is good news indeed for those of us flying on the congested East coast.

Clouds are another matter. "The FAA has determined that visual reference with the surface is necessary at all times" for ultralight operations. Ultralights cannot operate 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. I winced upon reading this. The FAA's stated goal in the proposed change was to ensure the safety of the flying public. 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 craft plying in 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, commuters, corporate, and military aircraft fly en-route on IFR flight plans, regardless of the prevailing weather conditions. They get to fly through the clouds, legally. The FAA did not want us or any other uncontrolled VFR aircraft presenting an unexpected and potentially unavoidable obstacle on the other side.

In summary, the rapid growth of hang gliding and ultralight activity in the '70s prompted the FAA to publish an advisory circular regarding these activities. By 1982 near-miss reports, complaints from the general and civil aviation community, and our own flamboyant disregard for the rules prompted the FAA to propose further regulation. The result was FAR Part 103. In this regulation the FAA made it clear that, while not required to certify ourselves or our aircraft, hang glider and powered ultralight pilots were required to observe certain basic rules of VFR flight operations, and were restricted from activities that could endanger the lives and property of others. These 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 perceived unproven nature of our aircraft and the unknown quality of our pilots. That was then. Now, nearly 20 years later, in response to requests from the ultralight community, the FAA has issued another NPRM that could affect the hang gliding community.

"Sport Pilot" proposed rule

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, in an effort to promote and maintain the health of general aviation, the FAA had established a new class of airman certificate called the Recreational Pilot. This was to provide a simpler, lower cost avenue of entry for prospective airmen. The new initiative met with extremely limited success due to low popularity. In 1992, in an effort to support the then-dying general aviation manufacturing base, the FAA created new simplified procedures 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. At the same time, the FAA noted that "Over the years...public misconception of the actual scope of part 103 has led to some well-intentioned people to begin operating in a way that is technically outside of that scope." In other words, people were busting the rules.

The USUA petition gave the FAA a launching point to help rationalize its system and address the problem of chronic rules violations. A working group was formed that took both issues in consideration and, with a little guidance from the FAA, issued the following recommendations:

1. Part 103 should remain intact and unmodified.
   
2. The Primary Category aircraft requirements could be used to address the certification of two-place and "fat" ultralights.
   
3. 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 grant of greater privileges, 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 Sport Pilot certificate would be similar to those now enjoyed under Part 103. The differences lie primarily in the limits on the aircraft that may be flow and include 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.

But the FAA could not impose a new class of certificate for which no instructors and examiners were available. Similarly, it could not practically hope to administer this new certificate without in-house expertise in the relevant aircraft types. The proposed new system neatly solved both problems. The provisioning of certified instructors, examiners, and mechanics would be addressed by grandfathering current USHGA and USUA certified instructors. The FAA conducted an extensive study of ultralight activity collected by Air Transport Canada, which regulates ultralights North of the border in a manner that produces valid registration and accident total data. The conclusion: "The available data demonstrates 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! This led the FAA to conclude that the cadre of instructors should come not from existing FAA certified flight instructors, but from the ranks of current ultralight instructor pilots. We cannot thank the Canadian's enough for helping to deflect this particular bullet. By extension, it made sense to grandfather ultralight pilots who have completed a recognized ultralight training program certified by an approved self-regulatory body such as the USUA or the USHGA, as well.

To solve the previously insurmountable problem of acquiring and maintaining the in-house expertise required to administer 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 allow a comment period. After reconsideration taking public comment into account, a final decision on the application would be made. This covers the type generation and approval problem. It is not made clear how the oversight and investigation functions are to be addressed.

It is important to note 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 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.

What Lies Ahead

The method proposed for certifying new aircraft types and new airman type certificates seems most adaptable to certifying rigid wing, flex wing, and bag wing aircraft types. So does the method for ensuring the required cadre of instructors. Both were previously insurmountable problems that led the FAA to take a hands-off approach toward the hang gliding community. Self-regulation was the solution then. The 'sport' nature of the operations - no one is endangered but the practitioners themselves - provided the rationale. But today, with hang glider performance and pilot skill levels dramatically improved, and compliance with existing regulation down, the perception is that the general public is becoming increasingly endangered by ultralight activity. The proposed Sport Pilot rule, together with the Primary Category aircraft certification process, make it possible to correct these problems and improve safety for all.

This is where we stand today. Hang glider pilots may continue to operate under Part 103, which will remain unchanged under this proposal. The recognized safety benefits of airtowing (with regards to training) make it likely that waivers for the practice of using "fat" and two-place ultralights to tow hang gliders will be granted. But the writing is on the wall. As proposed, hang glider pilots will be eligible to obtain a Sport Pilot certificate, purchase new certified hang glider designs, and operate under this 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 will then 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 become complete. The current NPRM is imminent and may be viewed on the web when issued. I encourage everyone to look at this issue closely and make your opinions known.

FAR's, Part 103