
[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Rules and Regulations]
[Pages 16239-16240]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6712]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91 and 119


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

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Policy statement.

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SUMMARY: This document announces a temporary moratorium on new 
requests, or changes to exemptions from certain sections of Title 14, 
Code of Federal Regulations (14 CFR) for the purpose of carrying 
passengers for compensation or hire on Living History Flight 
Experiences (LHFE). It explains the history of these exemptions and the 
reason for the temporary moratorium.

DATES: This moratorium becomes effective on March 23, 2011.

FOR FURTHER INFORMATION CONTACT: Raymond Stinchcomb, General Aviation 
and Commercial Division, General Aviation Operations Branch (AFS-830), 
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. 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 and experimental 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. Thus, 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 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 flight in these aircraft.
    A 2004 policy explicitly limited the scope of LHFE exemptions to 
WWII or earlier vintage airplanes. The reasons enumerated in the 
statement addressed both public interest (e.g. the unique opportunity 
to experience flight in a B-17 or B-24 while such aircraft can still be 
safely maintained) and public safety (i.e. older and slower multiengine 
airplanes allow time for appropriate corrective measures in the event 
of an in-flight emergency and such crews must meet FAA qualifications 
and training requirements). The FAA stated that the agency did not 
believe it prudent to grant exemptions from the FAA regulations to 
operators of supersonic jets.
    In response to numerous requests to expand the scope of the 
exemptions, the FAA requested comments on a proposed policy in 2006, 
and subsequently published a new policy on October 9, 2007 (72 FR 
57196).
    The 2007 policy statement agreed to consider any request for 
exemption for passenger-carrying flights in non-standard category 
aircraft, especially former military turbine-engine-powered aircraft, 
on a case-by-case basis. For petitioners intending to operate 
experimental exhibition, surplus foreign or domestic aircraft, and/or 
turbojet or turbine-powered aircraft, it stated that the FAA would 
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 before approving a LHFE exemption. Other criteria 
included passenger/crew egress, emergency egress systems such as 
ejection seats, documentation or statistical make and model operational 
history, historical significance of the particular aircraft, 
maintenance history, operational failure modes, and aging aircraft 
factors. The 2007 policy also observed that some of the aircraft in 
question are complex in nature, requiring special skills to operate 
safely, and that military equipment such as ejection seat systems can 
pose additional risk to aircraft occupants, ground personnel, and non-
participating bystanders on the ground.
    Also in the 2007 statement, the FAA cautioned that those requesting 
an exemption from a particular standard or set of standards must 
demonstrate that (1) 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) adequate 
measures

[[Page 16240]]

(including all conditions and limitations stipulated in the exemption) 
will be taken to ensure safety. The FAA further stated that 
``operations authorized under these exemptions are specifically not air 
tour, sightseeing, or air carrier operations'' and that the agency ``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.''
    Consistent with the 2007 policy statement, the FAA has accommodated 
several industry requests to allow operation of more modern-day 
military jet aircraft (e.g., the McDonnell Douglas F-4 Phantom and the 
McDonnell-Douglas A-4 Skyhawk) under the LHFE policy. To ensure safety, 
there are over 45 conditions and limitations the exemption holder must 
comply with in order to operate under the provisions of the exemption. 
The FAA has found, however, that operators have sometimes 
misinterpreted these conditions and limitations as permitting 
operations that the FAA did not contemplate or intend.

FAA Policy

    The evolution of LHFE operations in the private sector, along with 
availability of newer and more capable former military aircraft, has 
raised public safety and public policy concerns that the FAA needs to 
assess. Accordingly, the FAA is placing a moratorium on the issuance of 
any new LHFE exemptions, including addition of new aircraft to current 
exemptions. Current LHFE exemption holders can continue to operate 
under their current exemption. If the exemption is due to expire during 
the moratorium, the FAA will accept and process petitions to extend 
current exemptions in accordance with the established regulatory 
exemption process. If a change is required (i.e. removal of an 
aircraft) the FAA will accept these changes in accordance with the 
regulatory processes. Additionally, during the moratorium, as 
petitioners request extensions to their LHFE exemption, the FAA will 
add the following clarifying limitations to all LHFE exemptions to 
ensure consistent application of current LHFE policy: 1. Passengers are 
prohibited from manipulating the aircraft flight controls when the 
aircraft is operated under the LHFE exemption, and 2. No aerobatics may 
be performed in the aircraft while operating under the LHFE exemption. 
Finally, the FAA will begin its evaluation of the current LHFE 
exemption policies and practices, to include evaluation of safety to 
the paying members of the public who have an expectation of aircraft 
safety and who may not understand the inherent risks associated with 
such flight. The FAA expects to publish a new proposed LHFE policy for 
comment on or before September 30, 2012.

    Issued in Washington, DC, on March 15, 2011.
John W. McGraw,
Acting Director, Flight Standards Service.
[FR Doc. 2011-6712 Filed 3-22-11; 8:45 am]
BILLING CODE 4910-13-P


