[Federal Register Volume 71, Number 58 (Monday, March 27, 2006)]
[Proposed Rules]
[Pages 15087-15090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2915]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91 and 119

[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 draft policy statement.

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SUMMARY: This document identifies and provides guidance on the current 
FAA policies regarding requests for an 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. This policy does not apply to flight crew 
training or commercial space transportation issues.

DATES: Comments must be received on or before April 26, 2006.

ADDRESSES: You may send comments that do not include national security 
or sensitive security information identified by Docket Number FAA-2006-
24260 using any of the following methods:
     DOT Docket Web Site: Go to http://dms.dot.gov and follow 
the instructions for sending your comments electronically.
     Government-wide Rulemaking Web Site: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Fax: 1-202-493-2251.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For more information on the rulemaking process or instructions on 
submitting comments that include national security or sensitive 
security information, see the SUPPLEMENTARY INFORMATION section of this 
document.
    Privacy: Subject to review for national security or sensitive 
security information, we will post all comments we receive, without 
change, to http://dms.dot.gov, including any personal information you 
provide. For more information, see the Privacy Act discussion in the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: To read background documents or comments received, go to 
http://dms.dot.gov at any time or to Room PL-401 on the plaza level of 
the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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,

[[Page 15088]]

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. 
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 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.
    As with all exemptions, the FAA also recognized it was paramount 
that such operations not adversely affect safety. Therefore, the FAA 
required flight crewmembers to meet certain qualification and training 
requirements (for example, requirements for an FAA-approved training 
program and stringent pilot qualifications, comprehensive maintenance 
and inspection procedures and records, and in-flight maintenance and 
airworthiness failure reporting procedures.).
    The FAA granted the exemption and relieved the petitioner from the 
following regulations contained in Title 14, Code of Federal 
Regulations (14 CFR):
     Section 91.315, which states that no person may operate a 
limited category civil aircraft carrying persons or property for 
compensation or hire.
     Section 91.319(a), which states that no person may operate 
an aircraft with an experimental certificate for other than the purpose 
for which the certificate was issued, or for carrying persons or 
property for compensation or hire.
     Section 119.5(g), which states, in pertinent part, that no 
person may operate as a commercial operator without, or in violation 
of, an appropriate certificate and appropriate operations 
specifications.
     Section 119.21(a), which states, in pertinent part, that 
each person who conducts operations as a commercial operator engaged in 
intrastate common carriage of persons for compensation shall comply 
with the certification and operations specifications requirements in 
subpart C of part 119. Subpart C of part 119 describes certification, 
operations specifications, and other requirements for operations 
conducted under part 121 or part 135.
    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.
    In one case, petitioner requested relief to operate certain 
helicopters manufactured for U.S. Army operations in the Republic of 
Vietnam. These helicopters are similar in construction and design to a 
type-certificated product with a standard airworthiness certificate. 
The FAA generally does not issue exemptions from aviation safety 
regulations if the proposed operation can be performed in full 
compliance with the rules. However, the FAA reconsidered its position 
in this instance because the aircraft provided a unique, historical 
perspective due to the nature of its operations. The aircraft served in 
Viet Nam in the actual manner that they were flown in exhibition. 
Additionally, the particular make and model of aircraft have been on 
active service duty in the U.S. military longer than any other military 
helicopter and have carried more personnel and equipment into war zones 
and areas of conflict than any other aircraft. Thus, the FAA granted an 
exemption because of the aircraft's unique operating history.
    In another case, a petitioner requested an exemption to operate 
several single-seat, piston-powered WWII fighter aircraft that were 
certificated in the limited category. While the historical significance 
and combat history of the aircraft were appropriate to the original 
standard, those in civil use had been modified to a two-seat version. 
Single-seat aircraft converted to a two-seat configuration no longer 
met the same design criteria of the original aircraft, and would not 
generally be considered as representative of the actual aircraft used 
in combat operations.
    Another petitioner requested an exemption to operate certain large 
turbojet-powered aircraft, which included a foreign-manufactured and 
operated,\1\ 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 the petitioner 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.
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    \1\ Certification under Sec.  21.19(d) does not require the 
aircraft be manufactured in the United States. Rather a foreign-
manufactured aircraft operated by a branch of the U.S. Armed Forces 
would be treated the same as a U.S.-manufactured aircraft. However, 
foreign operations pose concerns over whether the aircraft, as 
designed, could have been certificated under Sec.  21.19(d) and 
whether the aircraft has been maintained in a manner sufficient to 
ensure the safety of the flying public and bystanders.
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FAA Policy

    This document provides clarification on the FAA's policy on issuing 
exemptions to only non-profit organizations for the purpose of 
providing flight experiences to promote aviation history and preserve 
historic aircraft.
    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 the 
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.

[[Page 15089]]

    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 turbine-engine powered aircraft, in particular, 
raises several concerns with respect to the type and quality of 
training available for the flight crews and maintenance and inspection 
personnel. Many of these aircraft are complex in nature and require 
special skills to operate safely. In addition, there is risk to 
passengers, ground personnel and spectators when ejection seat systems, 
utilizing 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/flight crew 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 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.\2\ 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 non-profit organizations to 
continue to preserve and operate these historic aircraft, and (2) the 
measures that will be taken to ensure safety will not be adversely 
affected.
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    \2\ 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 determining 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 to a particular type of engine; fixed wing or rotorcraft 
may apply as well as piston or turbine powered.
    3. Non-U.S. aircraft 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 flight crew, 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. Aircraft of the same or similar make/model/
series must not 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 (such as 
the aforementioned Vietnam-era helicopter).
    5. 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 
FSDO having oversight for that aircraft will then ensure the approved 
maintenance program is modified to incorporated the specific seat 
inspection procedures.
    6. 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 considerations and limitations to the operation to 
preserve commonality and standardization. The FAA, in determining the 
public interest derived in any grant of exemptions of this nature, will 
take into consideration the number of existing aircraft and petitioners 
available to provide the historic service to the public.
    7. The FAA must be provided with proof that the petitioner is a 
non-profit museum or foundation, recognized as such by the U.S. 
Department of the Treasury, which uses the funds received from 
exhibitions to enable the continued display of the featured aircraft. 
The aircraft must be operated exclusively by the petitioner.
    8. Flights must be non-stop and within 25 statute miles radius of 
the departure point. With concurrence of the local FSDO, special 
authorizations may be given to conduct flights up to a distance of 50 
statute miles from the departure airport in order to meet ATC airspace 
restrictions or security needs.
    9. 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.
    10. 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 restrictive than those originally issued to the aircraft.
    11. 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 shall 
also advise that the FAA considers flights in these aircraft to be 
inherently dangerous activities and has approved this exemption on the 
condition that the passengers taking this flight be properly trained in 
emergency exiting, including proper use of the ejection seat and 
apprised of the risks involved in flying in such aircraft. Petitioners 
must prepare a ``waiver'' for signature by the potential passenger. 
While a waiver

[[Page 15090]]

cannot 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. In 
addition, the signature will acknowledge the fact that the FAA has NOT 
made a determination that the aircraft is considered safe to carry 
passengers for compensation or hire.
    14. 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 is 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 or 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 petitioner will state the minimum flight experience required 
for each pilot position.
    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.
    15. 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.
    16. All maintenance or operational incidents will be reported to 
the Flight Standards District Office in whose district the 
organization's principal base of operations is located.
    17. 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 normal and emergency egress 
procedures, passenger seating, and overview of 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 MSL;
    iii. Oxygen system, for flights above 10,000 feet MSL or if use of 
the system is required by type of operation.
    Petitioners will 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.
    Petitioners who have submitted requests should review this draft 
policy statement and consider supplementing their petitions if they 
have not previously provided the necessary information. The FAA will 
consider any information submitted and determine whether more 
information is necessary to make a decision on whether it is 
appropriate to grant an exemption for a particular aircraft. The FAA 
anticipates that some aircraft models that have been granted exemptions 
may no longer qualify for future exemptions.
    Petitioners should be precise regarding the requirements from which 
they seek relief. In addition petitioners should provide copies of the 
airworthiness certificate, including a copy of the operating 
limitations issued for each aircraft that would be subject to the 
conditions and limitations of the proposed exemption. 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, 400 7th Street, SW., Room PL 
401, Washington, DC 20591-0001; or (2) for electronic submissions, 
submit your information to the FAA through the Internet using the 
Docket Management System Web site at this Internet address: http://dms.dot.gov/. If you already have received a docket number, you must 
reference that docket number in your request.
    The FAA is soliciting comments from the public regarding this draft 
policy statement. We will not consider any new requests for exemption 
from the date this proposed policy is published to the time at which 
all comments are received and adjudicated.

    Issued in Washington, DC on March 21, 2006.
James J. Ballough,
Director, Flight Standards Service.
[FR Doc. 06-2915 Filed 3-24-06; 8:45 am]
BILLING CODE 4910-13-M