A recent NTSB case discusses when an ultralight aircraft is subject to FAR Part 103 and when it is not. Administrator v. Hopkins arose after Mr. Hopkins was involved in an incident in which the 2-passenger Parasender II he was operating (also called a “powered parachute” by Mr. Hopkins) hit a power line and landed in a soybean field. As a result, the soybeans suffered some minor damage and the power company spent over $3,000 in equipment and labor investigating and evaluating the effect of the strike and subsequent safety of the power line. As you might imagine, when the FAA found out about the incident, it initiated a civil penalty action against Mr. Hopkins alleging violations of FAR’s 61.3(a)(1) and (c)(1)(requiring pilot certificate to operate civil aircraft), 91.13(a)(1)(careless and reckless), and 91.203(a)(1) and (2)(requiring airworthiness and registratio certificates for operation of civil aircraft). The FAA asked for a civil penalty of $2,500.00.
At the hearing, the administrative law judge (“ALJ”) agreed with the FAA and found that Mr. Hopkins had violated all of the FAR’s alleged by the FAA except FAR 61.3(c)(1) which the ALJ dismissed. The ALJ then reduced the civil penalty to $1,500.00. Mr. Hopkins appealed the ALJ’s findings of violation of FAR’s 61.3(a)(1) and 91.203(a)(1) and (2) to the full NTSB Board.
Initially, the Board noted that “[t]he facts conclusively establish a violation of § 91.13(a)(1).” Mr. Hopkins appeared to concede this fact when he failed to appeal this issue. However, the main issue before the Board on appeal was whether “the vehicle an ultralight governed by 14 C.F.R. Part 103, in which case the regulations cited by the Administrator do not apply and there would be no regulatory violations, or was the vehicle subject to Part 91.” Under FAR 103.1(a), the rule states that: “For the purposes of this part, an ultralight vehicle is a vehicle that: (a) Is used or intended to be used for manned operation in the air by a single occupant[.]”
Mr. Hopkins argued that despite the 2-seat configuration, the vehicle was being used by a single occupant. However, the FAA reads the rule to cover a vehicle that permits, by virtue of its design, carriage of only one person. The Board held that the FAA’s position was a reasonable interpretation and under 49 U.S.C. § 44709(d)(3) the Board was bound by that interpretation. It also cited Advisory Circular (AC) 103-7 as another indication of the FAA’s interpretation of this rule. AC 103-7 states specifically that, “[a]n ultralight cannot be operated under Part 103 if there is more than one occupant or if it has provisions for more than one occupant.” Based upon this information, the Board then concluded that “[t]here can be no rebuttal when respondent’s vehicle had two seats.”
