[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Rules and Regulations]
[Pages 16239-16240]
From the Federal Register Online via the Government Publishing 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]
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