

[Federal Register: October 9, 2007 (Volume 72, Number 194)]
[Rules and Regulations]               
[Page 57196-57198]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09oc07-3]                         

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91, 119, 121, and 135

[Docket No. FAA-2006-24260]

 
Exemptions for Passenger Carrying Operations Conducted for 
Compensation and Hire in Other Than Standard Category Aircraft

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of policy statement.

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SUMMARY: This document identifies and provides guidance on the current 
FAA policies regarding requests for exemption from the rules governing 
the operation of aircraft for the purpose of carrying passengers on 
living history flights in return for compensation. Specifically, this 
document clarifies which aircraft are potentially eligible for an 
exemption and what type of information petitioners should submit to the 
FAA for proper consideration of relief from the applicable regulations.

DATES: This policy becomes effective on October 9, 2007.

FOR FURTHER INFORMATION CONTACT: General Aviation and Commercial 
Division, Certification and General Aviation Operations Branch (AFS-
810), Flight Standards Service, FAA, 800 Independence Avenue, SW., 
Washington, DC 20591; telephone (202) 267-8212.

SUPPLEMENTARY INFORMATION:

Background

    In 1996, the FAA granted an exemption from various requirements of 
part 91 and part 119 to an aviation museum/foundation allowing the 
exemption holder to operate a large, crew-served, piston-powered, 
multiengine, World War II (WWII) bomber carrying passengers for the 
purpose of preserving U.S. military aviation history. In return for 
donations, the contributors would receive a local flight in the 
restored bomber.
    The petitioner noted that WWII combat aircraft are unique in that 
only a limited number remain in flyable condition, and that number is 
declining with the passage of time. In addition, the petitioner noted 
replacement parts and the specific gasoline used by these airplanes 
will eventually be in short supply, and may substantially reduce the 
aircraft performance capability or require the airplanes to be 
grounded.
    The petitioner indicated that compensation would be collected to 
help cover expenses associated with maintaining and operating the WWII 
airplane. Without these contributions, the petitioner asserted that the 
cost of operating and maintaining the airplane would be prohibitive.
    The FAA determined that these airplanes were operated under a 
limited category airworthiness certificate. Without type certification 
under Title 14 Code of Federal Regulations (14 CFR) Sec.  21.27, they 
are not eligible for standard airworthiness certificates. The high cost 
of type certification under Sec.  21.27 makes this avenue impractical 
for operators providing living history flights. Comparable airplanes 
manufactured under a standard airworthiness certificate did not exist. 
As a result, the FAA determined that an exemption was an appropriate 
way to preserve aviation history and keep the airplanes operational. In 
granting the exemption, the FAA found that there was an overwhelming 
public interest in preserving U.S. aviation history, just as the 
preservation of historic buildings, historic landmarks, and historic 
neighborhoods have been determined to be in the public interest. While 
aviation history can be represented in static displays in museums, in 
the same way historic landmarks could be represented in a museum, the 
public has shown support for and a desire to have these historic 
aircraft maintained and operated to allow them to experience a flight.
    Since the issuance of that exemption, the FAA has received many 
exemption requests seeking the same or similar relief, even though the 
particular circumstances were different. These subsequent petitions 
raised significant concerns within the FAA and led it to reexamine and 
refine its criteria for issuing exemptions.
    For example, petitioners have requested exemptions to operate 
certain large turbojet-powered aircraft, which included a foreign-
manufactured and operated, surplus military turbojet aircraft. Some 
turbojet-powered aircraft (L-29, L-39, TS-11, Alfa Jet, etc.) remain in 
active military service or are readily available in the current 
international market. The availability of these aircraft is indicative 
of an increasing market and thus undermines any argument that this 
aircraft meets the public interest goal of preserving unique, 
historical aircraft. Additionally, the FAA was concerned that 
petitioners could not demonstrate that these aircraft had been 
adequately maintained. Unlike foreign manufactured military surplus 
aircraft, operators of U.S.-manufactured surplus military aircraft 
certificated in an airworthiness category (experimental, limited, and 
restricted category under Sec.  21.25(a)(2)) for which no common 
standards exist, were required to avoid potential safety issues through 
(1) the continued operation and maintenance requirements imposed on 
them, and (2) a requirement to provide adequate documentation of 
previous operational maintenance history.
    As a result of these requests, the FAA published a draft policy 
notice in the Federal Register on March 27, 2006 (71 FR 15087) (Docket 
number FAA-2006-24260) clarifying its position regarding the issuance 
of exemptions for passenger carrying operations conducted for 
compensation and hire in other than standard category aircraft. Two 
comments were forwarded to the docket for consideration. The first was 
submitted by individuals who serve as volunteers at the Wright B Flyer 
Museum. These individuals generally supported the proposal, but asked 
that it be expanded to include experimental amateur built aircraft, 
such as their Wright B Flyer replica. Item 1 below (under FAA Policy 
section) states, ``Aircraft holding any category of airworthiness 
certificate issued under 14 CFR part 21 may be considered for an 
exemption to provide living history flight experiences.'' This would 
include the Wright B Replica.
    The other comment, submitted by the Experimental Aircraft 
Association, addressed several issues. The first issue addressed 
typographical errors in the numbering sequence of the paragraphs that 
appeared in the draft notice. The errors were numbering errors and not 
missing information. They have been corrected. Second, EAA spoke to 
concerns regarding the revision of operating limitations. EAA states 
that the current wording of proposed paragraph 10 could lead to the 
possibility of revised operating limitations exceeding the scope of 
this proposed policy. This was not the

[[Page 57197]]

FAA's intention. Instead, the FAA simply wished to convey the 
possibility that any exemption may contain operational restrictions 
beyond what appears in the aircraft's operating limitations. The third 
recommends adding a paragraph to state that operators with existing 
exemptions may continue to conduct passenger-carrying operations per 
those conditions and limitations and that all requirements of this 
policy would be complied with at their next exemption renewal period. 
The addition is not necessary. Existing exemptions comply with the 
policy. Also, we must always reserve the right to revise any existing 
exemption and its conditions and limitations should a safety need 
arise.
    As a result of ongoing communication with the stakeholder 
community, the following establishes the FAA's policy regarding the 
issuance of exemptions for passenger-carrying operations conducted for 
compensation and hire in other than standard category aircraft.

FAA Policy

    The FAA recognizes the need for and seeks to promote an exposure to 
and appreciation of aviation history. By enabling non-profit 
organizations, identified as such by the U.S. Department of Treasury, 
to offer living history flights for compensation used to preserve and 
maintain these aircraft, the public will be assured access to this 
important part of history.
    The regulations in 14 CFR establish appropriate safety standards 
for aircraft operators and crewmembers. Therefore, an exemption from 
aviation safety regulations is not routinely granted if the proposed 
operation can be performed in full compliance with the rules. In 
addition, the FAA must be persuaded that operation of the affected 
aircraft will not pose an undue risk to the flying public or to 
bystanders. The use of former military turbine-engine powered aircraft, 
in particular, raises several concerns with respect to the type and 
quality of training available for the flightcrews and maintenance and 
inspection personnel. Some of the aircraft are complex in nature and 
some require special skills to operate safely. In addition, there is 
risk to aircraft occupants, ground personnel, and spectators when 
military equipment like ejection seat systems, which use armed, 
explosive pyrotechnic devices, are installed and operational.
    The FAA notes that in order to ensure that adequate consideration 
is given to petitioners intending to operate experimental exhibition, 
surplus foreign or domestic, turbojet or turbine-powered aircraft, the 
FAA will closely examine the proposed operation with respect to safety 
of flight, passenger safety considerations, and safety of the non-
participating public during the operational period and within the 
operational area. Passenger/flightcrew egress, emergency egress systems 
such as ejection seats, documentation or statistical make and model 
operational history, significance of the particular aircraft with 
respect to the operational history maintenance history, operational 
failure modes, and aging aircraft factors of individual aircraft will 
be taken into consideration in the analysis of an exemption request.
    The FAA will not automatically exclude any request for exemption 
for non-standard category aircraft from consideration unless the 
aircraft was acquired through an Act of Congress and Congress has 
specified that the aircraft may not be operated for compensation or 
hire.\1\ Rather, the FAA will evaluate each exemption request on a 
case-by-case basis. Those requesting an exemption from a particular 
standard or set of standards must demonstrate the following: (1) That 
there is an overriding public interest in providing a financial means 
for a non-profit organization to continue to preserve and operate these 
historic aircraft, and (2) that adequate measures will be taken to 
ensure safety.
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    \1\ In the event an exemption is mistakenly granted for such an 
aircraft, the exemption shall be void and the FAA may take 
enforcement action against the operator at any time.
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    In order to allow the FAA to thoroughly evaluate and provide 
consideration to each request, petitioners should allow at least 120 
days for processing and review of any exemption requests.
    The FAA will use the following criteria in deciding whether 
granting an exemption is in the public interest and does not compromise 
safety:
    1. Aircraft holding any category of airworthiness certificate 
issued under 14 CFR part 21 may be considered for an exemption to 
provide living history flight experiences.
    2. Exemptions will not be limited to a particular category of 
aircraft or based on a type of engine; fixed wing or rotorcraft may 
apply as well as piston or turbine powered aircraft.
    3. An aircraft that was not made by a U.S. manufacturer may be 
considered for an exemption if the operational and maintenance history 
is adequately documented.
    4. Aircraft with crew egress systems will be considered, provided 
that flightcrew, ground personnel, and passengers have completed a 
training program approved by the FAA. Passenger training programs must 
be at least as thorough as what is provided by the manufacturer or 
military service user when preparing an individual for a 
``familiarization'' flight.
    5. Aircraft of the same or similar make/model/series cannot be in 
current production or in significant commercial use for the carriage of 
passengers. Exceptions may be considered where a particular airframe 
has documented historical significance.
    6. All passenger seats and their installation must:
    a. Take into consideration passenger egress in the event of an 
emergency; and be FAA-approved if installed on type-certificated 
aircraft; or
    b. Meet the military seat and installation standards or equivalent 
standards in existence at the time the aircraft was manufactured as 
outlined in 14 CFR 21.27 if installed on experimental aircraft The 
Flight Standards District Office (FSDO) having oversight for that 
aircraft will then ensure the approved maintenance program is modified 
to incorporate the specific seat inspection procedures.
    7. Exemptions will be issued for the sole purpose of providing 
living history flights to promote aviation and preserve historic 
aircraft. The operations authorized under these exemptions are 
specifically not air tour, sightseeing, or air carrier operations. The 
FAA may stipulate conditions and limitations to the operation to 
preserve commonality and standardization.
    8. The FAA, in determining the public interest derived in any grant 
of exemption of this nature, will take into consideration the number of 
existing operational aircraft and petitioners available to provide the 
historic service to the public.
    9. The FAA must be provided with proof that the petitioner is a 
tax-exempt museum or foundation, recognized as such by the U.S. 
Department of Treasury, which uses the funds received from exhibitions 
to enable the continued display of the featured aircraft. The aircraft 
must be under the operational control of the petitioner.
    10. Applicants may be required to submit an operational history of 
the make/model/type aircraft, or justification with respect to aviation 
history in order for the FAA to determine the public interest basis for 
granting an exemption.
    11. If a petition for exemption is granted, the conditions and 
limitations may include revised operating limitations as part of the 
aircraft's airworthiness certificate. These operating limitations may 
be more

[[Page 57198]]

restrictive than those originally issued to the aircraft.
    12. Passengers must obtain a complete briefing prior to departure 
that adequately describes the differences between aircraft with a 
standard airworthiness certificate and aircraft holding either an 
experimental or limited airworthiness certificate (i.e., the FAA has 
not participated in or accepted the design standards, performance 
standards, handling qualities, or provided approval or operational 
acceptance of experimental aircraft, the adequacy of previous 
maintenance and inspection programs and accomplishment may be in doubt, 
that the aircraft may not comply with FAA passenger regulations and may 
be operated under separate maintenance standards). The briefing must 
also advise that the FAA considers flights in these aircraft to pose a 
greater public risk than similar activities conducted in standard 
category aircraft and has approved this exemption on the condition that 
the passengers taking this flight be apprised of the risks involved in 
flying in such aircraft and be properly trained in emergency exiting, 
including proper use of the ejection seat. Petitioners must prepare a 
``notice'' for signature by the potential passenger. While a notice 
does not absolve the operator of liability in the event of an accident, 
the document will provide proof that the passenger has been advised of 
the risks inherent in the type of operation to be conducted.
    13. Crew Qualification and Training.
    a. Pilots must possess a minimum of a commercial pilot certificate 
with instrument rating appropriate to the category and class of 
aircraft to be flown. They must also hold a type rating if required by 
the type of aircraft flown along with a current second class medical 
certificate.
    b. Initial and recurrent training must be performed to current ATP 
Practical Test Standards for aircraft requiring a special authorization 
or type rating to operate.
    c. An initial ground and flight-training program must be developed 
by the organization and completed by all pilots.
    d. Recurrent ground training must be developed and completed by all 
pilots on an annual cycle.
    e. An annual proficiency check must be conducted and if necessary, 
recurrent flight training will be required. A minimum activity level 
and satisfactory flight proficiency check may allow the requirement for 
recurrent flight training to be waived.
    f. The minimum flight experience required for each pilot position 
may be recommended by the petitioner but must be approved by the FAA.
    g. Pilots will maintain takeoff and landing currency in each make 
and model.
    h. A system for documenting and recording all crew qualifications, 
required training, checking and currency must be developed and 
maintained.
    i. All training and checking programs must be approved by the FAA.
    14. Maintenance/Inspection of Aircraft.
    a. The maintenance history of each individual aircraft must be 
provided.
    b. The petitioner must provide an FAA-approved maintenance/
inspection program that may be a program based on military and/or 
original manufacturer's manuals and must be in accordance with the type 
certification data sheet and the aircraft's operating limitations.
    c. All maintenance and inspections will be documented and recorded.
    d. Applicants may be required to submit an operational history of 
the make/model/type in order for the FAA to verify that the submitted 
maintenance/inspection program is adequate.
    15. All maintenance or operational incidents will be reported to 
the FSDO in whose district the organization's principal base of 
operations is located.
    16. Passenger Safety and Training.
    a. An FAA-approved passenger briefing must be conducted appropriate 
to the scope of operations. Passengers must be fully informed of the 
risks associated with the proposed rides, and that occupying a seat in 
these aircraft may subject the rider to a high level of risk. Some 
operations may require passenger-briefing cards.
    b. The passenger briefing must include emergency egress procedures 
and passenger seating and safety restraint systems.
    c. Passenger training equivalent to that provided for Department of 
Defense familiarization flights must be approved by the FAA and 
conducted for all flights involving any of the following:
    i. Ejection seats, if the aircraft is so equipped;
    ii. High altitude operations, if flight will be conducted above 
10,000 feet mean sea level (MSL);
    iii. Oxygen system, for flights above 10,000 feet MSL or if use of 
the system is required by type of operation.
    Petitioners who have not previously conducted operations of this 
type may be required to demonstrate their ability to safely perform the 
operations requested and to meet all operating and maintenance 
requirements. The extent of this demonstration will be dependent on the 
scope of the operation requested. Petitioners who have conducted this 
type of operation must provide a summary of their operating history.
    Additionally, all petitioners will be required to submit 
documentation sufficient to allow the FAA to determine the number of 
passenger seats to be utilized during compensated operations and the 
FAA approval status of those seats. Petitioners will also be required 
to provide the U.S. registration number and make/model/serial number of 
the aircraft to be used.
    Those submitting petitions for exemption or additional information 
should submit the required information to the following: (1) For paper 
submissions, send the original signed copy of your submission to the 
U.S. Department of Transportation, Docket Management System, 1200 New 
Jersey Avenue, SE., West Building Ground Floor, Room W12-140, 
Washington, DC 20590 or (2) for electronic submissions, submit your 
information to the FAA through the Internet using the Federal Docket 
Management System Web site at this Internet address: http://www.regulations.gov.
 Follow the online instructions for accessing the 

dockets. If you already have received a docket number, you must 
reference that docket number in your request.

    Issued in Washington, DC, on October 2, 2007.
James J. Ballough,
Director, Flight Standards Service.
 [FR Doc. E7-19846 Filed 10-5-07; 8:45 am]

BILLING CODE 4910-13-P
