Part 103 and Tandem
I have looked far and wide for any documents from the FAA authorizing training flights for hire or Part 103 commercial operations. I have not found any document remotely suggesting that those activities are legal and on the contrary, the more I find on the subject, the more I believe for hire operations under Part 103 are illegal. I wish I could tell you what you want hear, but I can’t.
First there is the premise for an activity to be illegal there must be a statute stating the action is prohibited. In other words if there is no law stating you can’t charge for tandem hang gliding/paragliding training, then it would be legal to charge for tandem flight instruction. So where does it state a person cannot charge for giving tandem hang gliding/paragliding flight instruction?
Starting with the defined applicability of Part 103
, it is to be a manned operation in the air by a single occupant and is used or intended to be used for recreation or sport purposes only. So what does the FAA actually mean by the terms “recreation or sport”? Looking at the “Preamble” to Part 103
, the FAA tells us what their intent is in enacting this regulation (Part 103). Preamble to Part 103
Please read the sections “Single Occupant” and “Recreation or Sport Purposes Only”.
The intent of the FAA is the operations under Part103 are to be a single occupant who knows and accepts the risks in hang gliding/paragliding and they clearly point out that this “assumption does not hold true of a passenger selected randomly from the general public”
. This is a key point. Furthermore the FAA clearly states that commercial operations with an uncertificated pilot and uncertificated aircraft are not allowed under the rule. Which rule? Part 103. Let me repeat what the FAA said, “Those types of operations are not allowed under the rule.”
What operations are not legal under Part 103? Commercial operations.
It should also be pointed out there are no certification requirements for the aircraft or certification, training, aeronautical knowledge, age, or experience requirements for the operators of Part 103 operations. Therefore there are no requirements or certification for Instructors under Part 103. Training is not required. Instructors are not required.
The FAA states in the Preamble to Part 103, “Persons wishing to operate two place vehicles have the availability of existing provisions of the FAR's for conducting such operations.” In other words fly under other “Parts” of the Regulations that apply. Original Tandem USHGA Exemption
The current USHPA Tandem Exemption No. 4721N
is an extension of the Original Petition No. 4721
granted October 9, 1986. The current USHPA Tandem Exemption No. 4721N is based on the premise and intent of the Original Tandem Exemption Petition. The exemption requires both the Tandem Instructor and the student to possess a current pilot rating issued by the USHPA. The Original Petition states: “Further, the petitioner states a student would be someone who elects to accept the risks of the ultralight sport, rather than a passenger selected randomly form the general public.
” The Original Petition also stated: “The petitioner considers the possibility of abuse of the exemption by person intent on using two-place vehicles for other than sport and recreation or training to be minimal, certainly no greater than the possibility of other regulatory violations in the absence of the exemption. The USHGA is aware that at present the FAA is concerned for compensation or hire.
Denial of this exemption will not deter those who would engage in such illegal operations
, nor would grant of the exemption be incentive for increased illegal activities.” The USHGA has clearly stated compensation or hire operations are illegal in their original petition to the FAA for the Tandem Training Exemption.
The FAA wrote in the Original Exemption: “When promulgating Par 103, the FAA considered the comments of those who suggested that two-occupant operation be allowed. A blanket authorization of this type of operation was considered inappropriate because there would be no safeguards for the unsuspecting public.
The assumption is made that persons who fly vehicles with unknown performance and structural integrity are responsible for their own personal safety and risks that are inherent in such an operation. Such an assumption could not be made in two-occupant operations which might include the carriage of passengers who were unaware of the uncertificated nature of the operations involved.”
Under the current Tandem Exemption the FAA states: “In your petition, you indicate that there has been no change in the conditions and reasons relative to public interest and safety
that were the basis for granting the original exemption.”
In summary, the Original and the Current Tandem Exemption require both occupants to be current USHPA rated pilots with the premise that they are not randomly selected from the general public who are unaware of the risks involved. Furthermore, it is clear that the USHGA/USHPA acknowledged compensation or hire operations are deemed illegal by the FAA for Part 103 operations in their petition(s) for the Tandem Exemption(s). Advisory Circular 103-7 The Ultralight Vehicle
The FAA makes it clear in Advisory Circular 103-7 “The Ultralight Vehicle” that Part 103 operations are to be a single occupant for sport or recreational purposes only. If the pilot is advertising his/her services to perform any task using an ultralight, Part 103 does not apply. If the pilot is receiving any form of compensation for the performance of a task using an ultralight vehicle, Part 103 does not apply. If the flight undertaken accomplishes some task, then Part 103 does not apply. In this usage “any” is defined as all, inclusive, or every describing task defined as a piece of work to be done or undertaken. Any task or some task would be inclusive of training.
The Advisory Circular specifically lists prohibited tasks and specifically lists examples of situations involving money or some other form of compensation allowable under the recreation and sport limitation. Neither the prohibited list nor the examples of allowable compensation references training under Part 103.
The Advisory Circular does address the USHGA exemption “to authorize use of two-place ultralights under Part103 for limited training
purposes and for certain hang glider operations”. The exemption as authorized is controlling. Final Summation
The central core of Part 103 is the single individual is responsible for his/her safety with the knowledge of the risk involved while engaged in flying. With the solo occupant rule flying for sport and recreation, the rules and regulations can be kept at a minimum. With uncertified pilots and uncertified aircraft there is concern for the general public’s safety. Therefore Part 103 prohibits compensation, for-hire, and commercial operations along with advertising of those services to the general public.
The USHPA’s Tandem Exemption No. 4721N allows tandem operations under Part103 and also allows an additional task of training to be performed along with recreation and sport flying. This exemption applies only to members of the USHPA and is not meant for the general public’s consumption. The USHGA in the original petition for the tandem exemption acknowledges that compensation, for-hire operations are deemed illegal by the FAA. The current exemption No. 4721N is an extension of the original and states there are no changes in the basis of the petition. There is no exemption for compensation, for hire, or commercial operations in the USHPA’s Tandem Exemption No. 4721N. There is no exemption for proffering, soliciting, or advertising services under Part103 in USHPA’s Tandem Exemption No. 4721N.
With the documents available to me this is the only conclusion I see. The smoking gun is the admission by the USHPA that compensation, for hire operations are illegal.
The majority of this post are quotes from the FAA describing their intent and interpretation of Part 103. If you have additional documents from the USHPA or the FAA regarding the subject please share. You are free to petition the FAA with your own exemption request, free to operate in compliance with in other parts of the FARs, and free to request an official interpretation from the FAA’s Legal Department.