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HOME I ABOUT I CONSUMER INFORMATION I REGULATIONS I ARCHIVE DATABASE I LICENSING I PARASAIL EQUIPMENT I INSURANCE I INVESTIGATIVE REPORTS I CONTACT
© Copyright 1998 - 2011 Parasail Safety Council - All rights reserved
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We do not sell or share your information with anyone. We only collect information like your name, email address, mailing address, and phone number, so we can provide the services described on this website. We may use your email address if you send us feedback, comments, or questions you have sent us via email. We may ask you to participate in a member survey about the parasail industry or this website. You do not have to respond. We may occasionally give away promotional products, prizes, awards or coupons and will use your email address to inform you.
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The Parasail Safety Council carefully reviewed the FAA Memorandum dated Nov 2009, (see attachment) because of the impact it appeared to have on the commercial parasail industry and concluded that the opinion and conclusions at best, do not apply to the sport as practiced today and at worst present a fundamentally flawed interpretation of 14 CFR part 101 on several points raising into question whether (14) CFR part 101 even applies to commercial parasailing thus rendering current Certificates of Waivers issued to parasail operators not applicable.
BACKGROUND
Following a near midair collision between an aircraft and a parasail and the ensuing threat of a lawsuit, the FAA was compelled to state its case as to why and to what extent it regulated parasailing by issuing the ‘kite memorandum’.
KITE VS. AIRCRAFT
Without finding that a parasail fell within an existing FAA definition, the FAA knew that it would have jurisdiction without regulation of parasailing; an unacceptable outcome for them. The November 2009 memorandum begins by presenting the reader with two choices; parasail’s are either defined as an aircraft or a kite. The assumption by the author is that without being defined as one or the other would result in the conclusion that no regulations apply. Without addressing any other possibilities, they conclude that ‘free flight’ rather than the conveyance of a person was the ‘line between an aircraft and a kite.’ In the ensuing paragraph the author makes a fundamental flaw in their explanation when they wrote in part, ‘…a parasail, as defined from this interpretation, is not an aircraft because it is not used or intended for flight because it is held aloft resulting only from its tether to a surface vehicle.’ It is the Safety Council's belief that the author intended to say ‘it is not used or intended for ‘free flight’ otherwise their argument and the remainder of the memorandum fails. As to this error we gave the FAA a pass.
The author avoids drawing parallels between a parasail and a parachute despite the overwhelming similarities. In fact an untethered parasail is a parachute. The Safety Council believes that this abbreviated analysis of classifying a parasail as a kite represents a grave error and a disservice to the commercial parasail industry on behalf of the FAA. Even if a parasail is later determined after extensive analysis to be a ‘kite’ for the purposes of 14 CFR part 101, which the Safety Council has both strong evidence and arguments to the contrary, the FAA intentionally sidesteps the second important question.
IS A MANNED PARASAIL A KITE AS ENVISIONED UNDER (14) CFR PART 101- Subpart B, MOORED BALLOONS AND KITES?
Once the FAA concluded that a parasail is a kite they took the liberty of embracing the totality of 14 CFR Part 101 as being applicable; a convenient but unwarranted conclusion and the third flaw in the memorandum. Because the FAA’s existing regulations do not address the very important issue of manned parasails, the author did what any good lawyer would do, they avoided it. It is sufficiently obvious that the author purposely and conveniently overlooked the critical distinction between manned vs. unmanned devices despite numerous sections of 14 CFR including part §101 address the matter in detail. Why didn’t the FAA discuss the issue of ‘manned’ parasails? Because if they had they would not have been able to come to the conclusion they were determined to reach; that CFR 14 part 101 rules apply to parasail’s. The FAA knew they had to avoid the discussion. In law they call the process of ‘determining an outcome you want and then only presenting the arguments to support it’ as ‘legal gymnastics’. The ‘kite memorandum’ is an example of that process.
MANNED vs. UNMANNED
The Safety Council does not avoid the manned vs. unmanned device analysis and reveals the FAA's critical errors.
There are extensive FAA regulations regarding manned devices because the FAA understands that placing a person into the airspace involves substantial risk of harm and death to the passenger(s). Does 14 CFR part §101.1 distinguish between manned and unmanned devices? The Safety Counsel found that all three Subparts of §101, B, C and D are clear in that they apply only to unmanned devices.
Subpart C, Amateur Rockets §101.21 reads in part a) this subpart applies to operating unmanned rockets. Subpart D, Unmanned Free Balloons §101.31 reads in part a) this subpart applies to the operation of ‘unmanned’ free balloons. While Subpart B, Moored Balloons and Kites is not as explicit it is no less clear of the drafter’s intent. The regulators at the time the section was written didn’t envision moored balloons or kites in this section to be ‘manned’. Section §101.19 makes their intention very clear when they wrote ‘No person may operate a moored balloon unless it has a device that will automatically and rapidly deflate the balloon if it escapes from its moorings.’ This is NOT the language you use if you were considering ‘manned’ flight. It makes it abundantly clear that the regulators never envisioned the balloon to be ‘manned’ or they would not have required that the balloon be automatically deflated because had it been manned the occupants could have performed that task. Neither would they require that the balloon be rapidly deflated, insinuating a rapid and dangerous descent.; the same is equally true for kites. In fact had the drafters deemed a rogue kite as an equal threat to other aircraft and the means of automatically destroying the escaped kite had been available at the time the regulation was written they would have included identical language for kites. They most likely anticipated unmoored kites falling harmlessly to earth. Are there ‘manned’ moored balloons? Yes. Are there ‘manned’ moored kites, according to the FAA there are, but the Safety Council concludes that §101 does not appear to regulate either of them.
AIRWORTHINES MISSING IN (14) CFR Part 101
How else do we know that §101 does not apply to manned flight?. Because §101 doesn’t say anything about airworthiness. The FAA is excellent at reducing risk. They accomplish this by establishing extensive airworthiness standards on ALL devices that are manned. §101 is conspicuously missing any airworthiness discussion. Ask yourself was this by mistake? Of course not, it was because this section only applied to unmanned devices therefore no airworthiness regulations were needed. The FAA would not have blundered by not having airworthiness discussed had manned devices been regulated in this section. The only logical conclusion of not having airworthiness included in §101 is that the Subparts apply only to ‘unmanned’ devices.
(14) CFR Part 101 MAY NOT APPLY TO COMMERCIAL PARASAILING
The foregoing arguments as well as others not included in this brief discussion lead to a single rational conclusion that 14 CFR part 101 was never intended to apply to ‘manned’ parasail’s and that the FAA’s author was fully aware of this discrepancy prior to writing the ‘kite memorandum’ and therefore chose to intentionally avoid the issues making the Memorandum dated November 09, 2009 fundamentally flawed and should be rescinded.
The foregoing analysis places all parties on notice of the flaws in the ‘kite memorandum’ and its conclusions. The Safety Counsel calls into question the FAA”s logic in issuing Certificates of Waivers for commercial parasailing operations and brings into question their underlying validity. They in fact may only be applicable to unmanned parasail’s flying below 500’. Until the confusion that the FAA has caused is cleared up, reliance on the Certificates of Waivers may be a risky conclusion.
In response, the Safety Council will tender a formal petition to correct the flaws in the FAA’s regulations by distinguishing manned parasails as being unique devices and deserving of its own Section or Subpart with specific rules and regulations.
We believe that this will curtail the further confusion, and at the same time protect the FAA from being named as a third party defendant in the next parasail fatality case as we foresee commercial parasail operators who have been issued a certificate of waiver to §101 claim as their defense that they were in compliance with the FAA regulations of parasailing despite overwhelming evidence to the contrary.
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< CLICK - RETURN TO NEWS AND COMMENTARY
The Parasail Safety Council carefully reviewed the FAA Memorandum dated Nov 2009, (see attachment) because of the impact it appeared to have on the commercial parasail industry and concluded that the opinion and conclusions at best, do not apply to the sport as practiced today and at worst present a fundamentally flawed interpretation of 14 CFR part 101 on several points raising into question whether (14) CFR part 101 even applies to commercial parasailing thus rendering current Certificates of Waivers issued to parasail operators not applicable.
BACKGROUND
Following a near midair collision between an aircraft and a parasail and the ensuing threat of a lawsuit, the FAA was compelled to state its case as to why and to what extent it regulated parasailing by issuing the ‘kite memorandum’.
KITE VS. AIRCRAFT
Without finding that a parasail fell within an existing FAA definition, the FAA knew that it would have jurisdiction without regulation of parasailing; an unacceptable outcome for them. The November 2009 memorandum begins by presenting the reader with two choices; parasail’s are either defined as an aircraft or a kite. The assumption by the author is that without being defined as one or the other would result in the conclusion that no regulations apply. Without addressing any other possibilities, they conclude that ‘free flight’ rather than the conveyance of a person was the ‘line between an aircraft and a kite.’ In the ensuing paragraph the author makes a fundamental flaw in their explanation when they wrote in part, ‘…a parasail, as defined from this interpretation, is not an aircraft because it is not used or intended for flight because it is held aloft resulting only from its tether to a surface vehicle.’ It is the Safety Council's belief that the author intended to say ‘it is not used or intended for ‘free flight’ otherwise their argument and the remainder of the memorandum fails. As to this error we gave the FAA a pass.
The author avoids drawing parallels between a parasail and a parachute despite the overwhelming similarities. In fact an untethered parasail is a parachute. The Safety Council believes that this abbreviated analysis of classifying a parasail as a kite represents a grave error and a disservice to the commercial parasail industry on behalf of the FAA. Even if a parasail is later determined after extensive analysis to be a ‘kite’ for the purposes of 14 CFR part 101, which the Safety Council has both strong evidence and arguments to the contrary, the FAA intentionally sidesteps the second important question.
IS A MANNED PARASAIL A KITE AS ENVISIONED UNDER (14) CFR PART 101- Subpart B, MOORED BALLOONS AND KITES?
Once the FAA concluded that a parasail is a kite they took the liberty of embracing the totality of 14 CFR Part 101 as being applicable; a convenient but unwarranted conclusion and the third flaw in the memorandum. Because the FAA’s existing regulations do not address the very important issue of manned parasails, the author did what any good lawyer would do, they avoided it. It is sufficiently obvious that the author purposely and conveniently overlooked the critical distinction between manned vs. unmanned devices despite numerous sections of 14 CFR including part §101 address the matter in detail. Why didn’t the FAA discuss the issue of ‘manned’ parasails? Because if they had they would not have been able to come to the conclusion they were determined to reach; that CFR 14 part 101 rules apply to parasail’s. The FAA knew they had to avoid the discussion. In law they call the process of ‘determining an outcome you want and then only presenting the arguments to support it’ as ‘legal gymnastics’. The ‘kite memorandum’ is an example of that process.
MANNED vs. UNMANNED
The Safety Council does not avoid the manned vs. unmanned device analysis and reveals the FAA's critical errors.
There are extensive FAA regulations regarding manned devices because the FAA understands that placing a person into the airspace involves substantial risk of harm and death to the passenger(s). Does 14 CFR part §101.1 distinguish between manned and unmanned devices? The Safety Counsel found that all three Subparts of §101, B, C and D are clear in that they apply only to unmanned devices.
Subpart C, Amateur Rockets §101.21 reads in part a) this subpart applies to operating unmanned rockets. Subpart D, Unmanned Free Balloons §101.31 reads in part a) this subpart applies to the operation of ‘unmanned’ free balloons. While Subpart B, Moored Balloons and Kites is not as explicit it is no less clear of the drafter’s intent. The regulators at the time the section was written didn’t envision moored balloons or kites in this section to be ‘manned’. Section §101.19 makes their intention very clear when they wrote ‘No person may operate a moored balloon unless it has a device that will automatically and rapidly deflate the balloon if it escapes from its moorings.’ This is NOT the language you use if you were considering ‘manned’ flight. It makes it abundantly clear that the regulators never envisioned the balloon to be ‘manned’ or they would not have required that the balloon be automatically deflated because had it been manned the occupants could have performed that task. Neither would they require that the balloon be rapidly deflated, insinuating a rapid and dangerous descent.; the same is equally true for kites. In fact had the drafters deemed a rogue kite as an equal threat to other aircraft and the means of automatically destroying the escaped kite had been available at the time the regulation was written they would have included identical language for kites. They most likely anticipated unmoored kites falling harmlessly to earth. Are there ‘manned’ moored balloons? Yes. Are there ‘manned’ moored kites, according to the FAA there are, but the Safety Council concludes that §101 does not appear to regulate either of them.
AIRWORTHINES MISSING IN (14) CFR Part 101
How else do we know that §101 does not apply to manned flight?. Because §101 doesn’t say anything about airworthiness. The FAA is excellent at reducing risk. They accomplish this by establishing extensive airworthiness standards on ALL devices that are manned. §101 is conspicuously missing any airworthiness discussion. Ask yourself was this by mistake? Of course not, it was because this section only applied to unmanned devices therefore no airworthiness regulations were needed. The FAA would not have blundered by not having airworthiness discussed had manned devices been regulated in this section. The only logical conclusion of not having airworthiness included in §101 is that the Subparts apply only to ‘unmanned’ devices.
(14) CFR Part 101 MAY NOT APPLY TO COMMERCIAL PARASAILING
The foregoing arguments as well as others not included in this brief discussion lead to a single rational conclusion that 14 CFR part 101 was never intended to apply to ‘manned’ parasail’s and that the FAA’s author was fully aware of this discrepancy prior to writing the ‘kite memorandum’ and therefore chose to intentionally avoid the issues making the Memorandum dated November 09, 2009 fundamentally flawed and should be rescinded.
The foregoing analysis places all parties on notice of the flaws in the ‘kite memorandum’ and its conclusions. The Safety Counsel calls into question the FAA”s logic in issuing Certificates of Waivers for commercial parasailing operations and brings into question their underlying validity. They in fact may only be applicable to unmanned parasail’s flying below 500’. Until the confusion that the FAA has caused is cleared up, reliance on the Certificates of Waivers may be a risky conclusion.
In response, the Safety Council will tender a formal petition to correct the flaws in the FAA’s regulations by distinguishing manned parasails as being unique devices and deserving of its own Section or Subpart with specific rules and regulations.
We believe that this will curtail the further confusion, and at the same time protect the FAA from being named as a third party defendant in the next parasail fatality case as we foresee commercial parasail operators who have been issued a certificate of waiver to §101 claim as their defense that they were in compliance with the FAA regulations of parasailing despite overwhelming evidence to the contrary.
___________________________________________________________________________
< CLICK - RETURN TO NEWS AND COMMENTARY
