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For airspace within the 48 contiguous states and the District of Columbia:

  1. For aircraft originally certificated without engine-driven electrical systems (and not subsequently certified with such a system installed), and lacking ADS-B-out, does the FAA construe FAR 91.225 as imposing a general prohibition on flight in Class E airspace above 10,000' MSL (excluding airspace below 2500' AGL)??

  2. For aircraft originally certificated without engine-driven electrical systems (and not subsequently certified with such a system installed), and lacking ADS-B-out, does the FAA construe FAR 91.225 to prohibit flight above 10,000' MSL in Class E airspace that lies directly above the ceiling of Class B or Class C airspace?

For example, does the FAA construe FAR 91.225 to prohibit a glider without ADS-B-out from exceeding 10,000' MSL in Class E airspace, unless it is not above 2500' AGL?

If possible, please support your answer by referencing specific FAA materials, including information/educational materials and/or official interpretations from the Office of the Chief Counsel.

The current question is not about the significance of the phrase "without electrical systems" rather than "without engine-driven electrical systems" in FAR 91.225. This letter of interpretation from the FAA Office of the Chief Counsel clarifies that the references to aircraft "without electrical systems" in FAR 91.225 should be understood to instead read aircraft "without engine-driven electrical systems", and that the omission of the phrase "engine-driven" was in fact simply a mistake. (Update: this issue has now been corrected.)

The original motivation for this question was a (pre-2020) conversation at a glider club where some pilots stated that their understanding was that once FAR 91.225 went into effect, gliders without ADS-B-out would not be able to legally exceed 10,000' MSL, unless below 2500' AGL.

Some context on why FAR 91.255 is arguably ambiguous in relation to the specific questions asked here may be found in this related ASE answer: FAR 91.215 (b)(3)(ii)-- transponders- significance of "Below the altitude of the ceiling of a Class B or C airspace area... or below 10,000' MSL..."

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  • $\begingroup$ Link to letter of interpretation needs updating -- the current link is faa.gov/about/office_org/headquarters_offices/agc/… $\endgroup$ Commented Feb 12, 2023 at 18:41
  • $\begingroup$ Opening paragraphs would be more clear if said "...does the FAA construe FAR 91.225, and specifically d(3) in combination with e(2), as imposing (/to prohibit). Likewise final sentence-- "A full description of why FAR 91.255 (and specifically d(3) in combination with e(2) is ambiguous and might be interpreted as per either of the opening paragraphs above may be found in this related ASE answer... " $\endgroup$ Commented Feb 13, 2023 at 13:32

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The content in this FAA link indicates that the answer to both of our questions is "no":

Under the rule, ADS-B Out performance will be required to operate in:

  1. Class A, B, and C airspace.
  2. Class E airspace within the 48 contiguous states and the District of Columbia at and above 10,000 feet MSL, excluding the airspace at and below 2,500 feet above the surface.
  3. Class E airspace at and above 3,000 feet MSL over the Gulf of Mexico from the coastline of the United States out to 12 nautical miles.
  4. Around those airports identified in 14 CFR part 91, Appendix D.

The ADS-B Out rule does not apply in the airspace defined in items 2 and 4 above for any aircraft not originally certificated with an electrical system or that has not subsequently been certified with such a system installed, including balloons and gliders. For additional requirements for using the exception for item 4, please refer to CFR 91.225 section (d) for the requirements.

(italicization added)

Note however that this statement suffers from at least one obvious omission. It omits the airspace described in 91.225(d)(3)-- namely the airspace directly above a Class B or Class C ceiling, upward to 10,000'. With that in mind, it seems unwise to rely on this statement in relation to the second of the two questions above.

(As of Feb 24 2020, the quoted web page had last been updated on August 22, 2019. As of February 12 2023, the link is inoperative.)

Also, a 2019 Legal Interpretation from the Office of the Chief Counsel contains the following statements (second-to-last paragraph of page 2), which again indicate that the answer to both of our questions is "no":

Similarly, the FAA did not intend the operating condition in § 91.225( e)(2) to prohibit or limit § 91.225(e) aircraft from operating in the airspace identified in§ 91.225(d)(4). Rather, § 91.225(e)(2) applies solely to the airspace addressed in § 91.225(d)(2).

and

Therefore,§ 91.225(e)(2) also does not affect operations in the airspace specified in§ 91.225(d)(4).

A close look at the actual logic used to justify these statements suggests that it is rather defective. It seems that the FAA is issuing interpretations based on the effect they intended the rules to have, rather than the actual language of the regulations. Which can arguably be described as "just making it up as you go along". It would be have been better to make the effort to write clear language that actually delivered the intended meaning, rather than creating a linguistic and logical "train wreck" by importing language whose meaning was already unclear in an older regulation (FAR 91.215), into a new regulation (FAR 91.225) where its meaning and effect would be even more unclear, by virtue of the larger span of altitude affected by the relevant portions of the new regulation.

But this interpretation is beneficial to pilots of sailplanes, balloons, antique aircraft, etc. When FAR 91.225 was first introduced via a Notice of Proposed Rule-Making, it's surprising that these pilots, and especially their national organizations, didn't take note of the potential ramifications of the ambiguities in the regulations (and specifically in the language of 91.255(e)(2)) and intervene to bring about clearer language. After all, any given legal interpretation by the FAA can always be superseded by another one, so it's better to be able to rely on the actual language of the regulations.

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