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Legal BriefingLegal Briefing

Ultralight Enforcement

Inside FAR Part 103
The FAA developed Federal Aviation Regulation Part 103 to regulate certain piloted "vehicles" flown for recreation and sport purposes. Such ultralight vehicles are described in FAR 103.1 and the FAA includes what we commonly know as hang-gliders, ultralights, paragliders, powered paragliders, and powered parachutes. If the vehicle is unpowered, to be an ultralight under Part 103 it must weigh less than 155 pounds. If the vehicle is powered, FAR 103.1 requires that its empty weight (excluding certain safety devices) be less than 254 pounds, its fuel capacity not to exceed five U.S. gallons, and its power-off stall speed be no more than 24 knots.

Paragliders, powered paragliders, and powered parachutes designed for a single occupant and meeting the other FAR 103.1 restrictions are all, therefore, classified as ultralight vehicles.

The FAA defines an ultralight as a vehicle a "single occupant" uses in the air. Pilots can fly two-seat vehicles for flight instruction purposes under an FAA exemption. Currently Aero Sports Connection (ASC) , the United States Ultralight Association (USUA), and the Experimental Aircraft Association (EAA) are the only organizations that hold an exemption for flight instruction in two-place vehicles.

If you fly a two-place ultralight without operating under an FAA exemption, you may be flying an unregistered airplane in violation of the federal aviation regulations because your vehicle no longer qualifies as a Part 103 ultralight. Such was the case of Administrator v. Herrington, 1996 WL 861984 (NTSB). In this case, the pilot flew an ultralight and engaged in an aerobatic display with a wing rider strapped to a T bar.

Part 103 doesn't authorize a pilot's operation of the ultralight with a passenger on the wing because the exemption granted to the United States Ultralight Association allows operation with two passengers for the purpose of flight instruction only. The National Transportation Safety Board judge found that the purpose of the flight was not flight instruction.

Because the flight was not authorized under either Part 103 or the exemption, the pilot was operating under Part 91 and had to comply with the requirements of Part 91 and Part 45 for the registration of aircraft. It was undisputed that the ultralight aircraft did not have a U.S. registration - an N number. Nor did the aircraft have a current airworthiness and registration certificate, and required annual inspection. The NTSB administrative law judge suspended the pilot's airman certificate for 120 days.

Part 103 states that an ultralight vehicle cannot be used in commercial operations, or operated in any manner that creates a hazard to persons or property. It cannot be operated over any congested area, over an open area assembly of persons, or any airport traffic area, air traffic control zone, or any area covered by airport radar service.

In the case of Administrator v. Crabtree, 1987 WL 122370 (NTSB), the FAA sought to revoke the commercial pilot and flight instructor certificate of an ultralight operator in Hawaii. The FAA claimed that the operator was using an ultralight in commercial operations. Evidence indicated that the pilot operated an ultralight on pontoons from the beach, and that the manager of the operation remained on the beach most of the time to meet and arrange with people who inquired about taking a flight in the ultralight.

The manager testified that she told those individuals that they could not go for a ride but rather the ride must be an instructional flight. This was done because she was aware of the requirements of the exemption in the provisions in Part 103. The FAA provided testimony that the operator reportedly gave flight instruction to individuals who did not even speak or understand English. After hearing all of the testimony, the administrative law judge concluded that the operation was a commercial tourist operation, and that the flights were conducted not for the purpose of giving flight instruction but were merely sightseeing or recreational flights.

The FAA had also charged the ultralight operator with violating FAR 103.9, which prohibits operation of an ultralight in a manner that creates a hazard to persons or property. The operator testified that the ultralight only flew over open water, and that if anyone approached while the ultralight was in the water, the operator would shut off the engine. In this circumstance, the administrative law judge found that it was appropriate that it would be "left to the judgment of the ultralight pilot as to what constitutes a hazard to other persons or property."

The judge found that the FAA didn't prove a violation of FAR 103.9 because it failed to show actual endangerment or that a reasonable and prudent ultralight pilot would not, under all of the particular circumstances, have operated in a similar manner. In the end, however, the judge determined that the ultralight operator was engaged in a commercial operation and operated the ultralight over a congested area, and revoked the ultralight operator's flight instructor certificate.

In Administrator v. Grey, 1994 WL 808022 (NTSB), a pilot was accused by another family member of making low-level flights over houses, sporting events, and other places where persons were assembled. The FAA investigated the complaint and found that the ultralight being operated was a King Cobra, which exceeded the speed and wing load limits for an "ultralight vehicle."

The FAA determined that the vehicle was an aircraft and not an ultralight. The pilot didn't have a current medical certificate and the FAA brought an emergency order of revocation to revoke the pilot's private pilot certificate. The FAA also alleged that the pilot's conduct constituted careless operation, and that the pilot had made intentionally false and fraudulent statements on his medical application. The pilot's certificate was revoked.

Ultralight vehicles have become a very enjoyable and popular part of sport aviation. Ultralight pilots should be familiar with the operating rules of Part 103 and know and understand that any hazardous or unsafe operation of an ultralight may be reported to the FAA for further investigation, and that the FAA is serious about their enforcement policies to ensure compliance.

James E. Cooling

Senior Aviation Attorney at Cooling & Herbers, P.C.

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