[Federal Register Volume 77, Number 99 (Tuesday, May 22, 2012)]
[Proposed Rules]
[Pages 30238-30241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12383]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91, 119, 120, 121, 135, and 136

[Docket No. FAA-2012-0374 ]


Living History Flight Experience (LHFE)--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 public meeting.

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SUMMARY: The FAA is announcing public meetings to gather additional 
technical input on the subject of exemptions relating to the LHFE. 
Input gathered will aid in developing future FAA guidance for 
evaluating LHFE petitions for exemption. Prior to the public meetings, 
the FAA is seeking public comment on the guidance.

DATES: The public meetings will be held on June 26, 27, and 28, 2012, 
from 8:00 a.m. until 4:30 p.m. Note that the meetings may be adjourned 
early if scheduled speakers complete their presentations early. The 
deadline to submit a request to make an oral statement is June 18, 
2012. The written comment period will close on June 18, 2012.

ADDRESSES: The public meetings will be held in the FAA Headquarters 
building auditorium on the third floor, 800 Independence Ave. SW., 
Washington, DC 20591. Due to limited space, attendees are required to 
please reply (RSVP) to [email protected]. Seating will be on a first-
come-first-serve basis. If computer access is not possible, please RSVP 
via mail, fax or hand delivery via the methods listed directly below:
     Mail or Hand Delivery: RSVP to Flight Standards Service, 
General Aviation and Commercial Division, AFS-800, ATTN: LHFE (RSVP), 
800 Independence Ave. SW., Washington, DC 20591.
     Fax: RSVP to AFS-800, Attn: LHFE (RSVP) at 202-385-9597.
    Written comments (identified by docket number FAA-2012-0374) may be 
submitted using any of the following methods:
    [cir] Federal eRulemaking Portal: Go to http://www.regulations.gov 
and follow the instructions for sending comments electronically.
    [cir] Mail: Send comments to Docket Operations, M-30, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE., West Building 
Ground Floor, Room W12-140, Washington, DC 20590.
    [cir] Fax: Fax comments to Docket Operations at 202-493-2251.
    [cir] Hand Delivery: Docket Operations in Room W12-140 of the West 
Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.
    Written comments to the docket will receive the same consideration 
as statements made at the public meeting. For more information on the 
rulemaking process, see the SUPPLEMENTARY INFORMATION section of this 
document.
    Privacy: The FAA will post all comments it receives, without 
change, to http://www.regulations.gov, including any personal 
information provided by the commenter. Using the search function of the 
FAA's docket Web site, anyone can find and read the comments received 
into any of the agency's dockets, including the name of the individual 
sending the comment (or signing the comment for an association, 
business, labor union, etc.). DOT's complete Privacy Act Statement may 
be reviewed in the Federal Register published on April 11, 2000 (65 FR 
19477-19478) or at http://DocketsInfo.dot.gov.
    Docket: Background documents or comments received may be read at 
http://www.regulations.gov at any time or in Docket Operations in Room 
W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue 
SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Requests to present a statement at the 
public meetings and questions regarding the logistics of the meetings 
should be directed to Ms. Keira Jones, Office of Rulemaking (ARM-101), 
Federal Aviation Administration, 800 Independence Avenue SW., 
Washington, DC 20591; telephone (202) 267-4025, facsimile (202) 267-
5075.
    Technical questions should be directed to the General Aviation and 
Commercial Division, AFS-800, Federal Aviation Administration, 800 
Independence Avenue SW., Washington, DC 20591; telephone (202) 385-
9600, facsimile (202) 385-9597; email [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The FAA has historically found an overwhelming public interest in 
preserving United States (U.S.) aviation history, including former 
military aircraft transferred to private individuals or organizations 
for the purpose of restoring and flying these aircraft. The FAA has 
further determined that, with appropriate conditions and limitations 
imposed for public safety purposes, access to these aircraft can 
include allowing the public to experience flight. Because the 
regulations (14 CFR) do not otherwise allow such operations, the FAA 
established through its mid-1990s Living History Flight Experience 
(LHFE) policy that exemptions are an appropriate way to preserve 
aviation history and keep historic airplanes operational when 
comparable airplanes manufactured under a standard airworthiness 
certificate do not exist. The LHFE policy provided a way for the 
private owner/operators of historically significant, American-
manufactured large, crew-served, piston-powered, multi-engine, World 
War II bomber aircraft to conduct limited passenger carrying flights, 
for compensation, as a way to generate funds needed to maintain and 
preserve these historically significant aircraft for future 
generations.
    Because this policy generated a number of petitions for exemption, 
the FAA affirmed that the regulatory scheme adopted in 14 CFR 
establishes appropriate safety standards for aircraft operators and 
crewmembers. Those requesting an exemption from a particular standard 
or set of standards must demonstrate that: (1) The flight cannot be 
performed in full compliance with regulations, (2) there is an 
overriding public interest in conducting passenger flights on the 
aircraft, and (3) the measures to be taken establish an appropriate 
level of safety for the flight. Because of this, the FAA limited the 
scope of its nostalgia flight exemption to World War II (WWII) or 
earlier vintage airplanes (i.e., manufactured before December 31, 
1947). The reasoning behind this limitation addressed both public 
interest (e.g., the unique opportunity to experience flight in a B-

[[Page 30239]]

17 or B-24 while such aircraft can still be safely maintained) and 
public safety (e.g., older and slower multi-engine which airplanes 
allow time for appropriate corrective measures in the event of an in-
flight emergency, and crews must meet FAA qualification and training 
requirements). In addition, the FAA determined that it would not be 
prudent to grant exemptions from the FAA regulations to operators of 
supersonic jets because the speed of supersonic jets makes it likely 
that any in-flight emergency may result in serious injuries or 
fatalities. The recent crash of a supersonic jet at an air show that 
was piloted by two highly qualified and well-trained flight crewmembers 
clearly demonstrates the need to reevaluate LHFE.
    However, even after defining the guidelines for approving LHFE 
exemptions, the number of petitions for exemptions outside this scope--
e.g., for former military turbojet-powered aircraft such as the L-29, 
L-39, TS-11, Alfa Jet, and others that remain in active military 
service--led the FAA to issue further guidance in 2006 on Exemptions 
for Passenger-Carrying Operations Conducted for Compensation and Hire 
in Other Than Standard Category Aircraft (71 FR 15087). However, the 
FAA also noted that in expanding requests beyond the original intent, 
i.e., going from a passenger in a B-17 to manipulating the controls of 
a fighter jet to conducting simulated aerial combat fights in the 
interest of ``the historical experience,'' requires the agency to 
reevaluate its policy. The FAA noted that the clear market orientation 
of these requests undermines arguments of a public interest goal in 
preserving unique historical aircraft.
    Nevertheless, the 2006 policy 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, including consideration of non-American 
manufactured aircraft. However, some petitioners are now creating 
business models (as indicated above) that, if authorized by the FAA, 
would offer civilians an opportunity to conduct such aerial combat 
flights with hands-on flight experience in these aircraft. The FAA did 
not contemplate or intend operations of this nature when it originally 
developed the LHFE policy and, since issuance of the original policy 
and its subsequent revisions, additional issues (e.g., airworthiness 
and maintenance concerns) continue to emerge. Because of the high risks 
associated with the industry's expanded business model, the FAA has 
determined that a comprehensive evaluation of this policy is necessary 
and seeks public input.

Purpose of the Public Meetings

    The purpose of the public meetings is for the FAA to hear the 
public's views and obtain information relevant to the policy under 
consideration. The FAA will consider comments made at the public 
meetings (as well as comments submitted to the docket) before making a 
final decision on issuance of the policy.
    Persons wishing to attend this one-time meeting are required to 
register in advance. Your registration must detail whether you wish to 
make a statement during the public meeting. If you do wish to make a 
statement, your registration must indicate which of the following 
policy topics/questions you wish to speak about and what organization 
you represent. Due to limited space, attendees are required to reply 
(RSVP) to: [email protected]. If computer access is not possible, 
please RSVP via mail, fax or hand delivery via the methods listed above 
in the ADDRESSES section.
    In addition to the information sought during the public meeting, 
the FAA seeks information on the following questions. In order for the 
FAA to consider expansion of the policy, we must have sufficient data 
that provides an equivalent level of safety, address public interest, 
along with full background documentation. It is foreseen that 
additional limitations will be required for any expansion to the LHFE 
policy due to some additions that have been requested (i.e., replica, 
turbojet and supersonic aircraft), and not previous contemplated in the 
original LHFE policy. Again, the FAA requests that all comments be 
accompanied by full documentation.

General Policy

    (a) If changes are made to the LHFE policy that excludes certain 
aircraft which are currently allowed in an exemption, how should the 
FAA possibly grandfather such operations?
    (b) If LHFE is not limited to original factor built aircraft with 
operational history or if replica, reproduction, or look a like 
aircraft are to be considered under an expanded LHFE, what are the 
safety mitigations and limitations that should be considered and why.
    (c) Should the operational history of the model be considered? 
Should the civil and public/military accident rate be considered when 
reviewing petitions for LHFE?
    (d) Should the LHFE policy be limited to U.S. manufactured aircraft 
(as originally intended) with significant U.S. aviation history? If the 
FAA is to expand the scope of LHFE, the following issues must be 
addressed:
    i. The operational history of former U.S. military aircraft is 
accessible to the FAA while that of foreign aircraft may not be 
accessible.
    ii. The FAA has little or no information on the ``standard'' to 
which the non-U.S. aircraft were built.
    (e) Should the FAA exclude jets, turbojets and/or supersonic 
aircraft? If not, the following issues must be addressed:
    i. High performance aircraft increase the level of complexity for 
the operation of these aircraft.
    ii. High performance aircraft add an increased level of complexity 
to the maintenance of these aircraft.
    iii. The FAA must consider the higher level of risk brought on by 
the higher energy aircraft and ejection seats. What are the industry 
standards for the FAA to evaluate on the inherent risks?
    iv. Should the FAA permit turboprop powered aircraft to hold LHFE 
status?
    (f) Should the FAA permit single engine aircraft to hold LHFE 
status considering policy was originally developed based on the 
operation of large, multi-engine, crew served aircraft?
    (g) Should the FAA permit aircraft that were once operated by the 
military as single seat aircraft LHFE status if a second seat has been 
added? Does this configuration still meet the intent of LHFE?
    (h) The original concept of the exemptions was to permit the public 
to experience something that could not be experienced in a ``standard 
category'' aircraft. With that in mind, should the FAA permit LHFE in 
aircraft for which a standard category aircraft is available and where 
comparable experience can be obtained.
    (i) The original concept of the exemptions was to permit the public 
to experience something that could not be experienced in a ``standard'' 
aircraft. With that in mind, should the FAA permit LHFE in aircraft for 
which there is a standard version of the same? How do we phase out or 
grandfather those that were inadvertently included as LHFE?
    (j) Should the FAA establish an Organizational Delegation 
Authority-like process where an authorized industry entity evaluates an 
organization's request (training, certification, airworthiness, etc.) 
and makes recommends to the FAA.

[[Page 30240]]

Issuance, General

    (k) Older aircraft require a rather large commitment on the part of 
the operator. Sometimes it may be more than the operator realizes. 
Should the FAA require a ``fitness'' standard that considers the 
following?
    i. Can the operator operate the aircraft?
    1. How much experience is enough to demonstrate the operator has 
the ability to operate the specific type? Or should the FAA consider 
their ability to operate a similar aircraft?
    ii. Can the operator maintain the aircraft?
    1. Have they satisfactorily maintained this or a similar aircraft?
    (l) The FAA feels that an operator's compliance history should be 
considered. If the operator or its principals have a history of non-
compliance, should the FAA deny the petition?
    i. Should the FAA require a ``violation free'' time period? If so, 
how long should it be? What about non-aviation history (i.e., convicted 
felon)?
    (m) In part 119 operations, a new operator or one proposing to 
conduct operations with a significantly different aircraft may be asked 
to conduct proving or validation flights/testing to demonstrate their 
ability to conduct the operations proposed.
    i. How much proving or validation flights/testing should be 
required if the petitioner does not have experience with the specific 
aircraft?
    ii. How much proving or validation flight/testing should be 
required if the petitioner does not have experience with a similar 
aircraft?
    (n) How can the FAA determine ``Operational Control''? The 
exemptions are designed to permit not-for-profit organizations to 
support the continued operation of LHFE aircraft. Who owns the 
aircraft? Who operates the aircraft? Who is responsible for the 
operation of the aircraft? Who really benefits?
    (o) Should the FAA require that LHFE holders carry insurance?

Issuance, Limitations

    (p) Should passengers be permitted to occupy a crew seat/position 
considering the following current policy?
    i. The current LHFE policy states: ``No persons other than the 
assigned flight crew members may be permitted on the pilot station of 
the airplane during flight operations.''
    ii. The FAA has always interpreted this statement as prohibiting 
the passengers from manipulating the controls of a single pilot 
aircraft but several LHFE holders have complained that the FAA 
misapplied the meaning as applied to single pilot aircraft.
    (q) Formation flight is already prohibited by Sec.  91.111(b) but 
the FAA feels that ``air combat maneuvering'' at any distance creates 
an unacceptable level of risk (formation is popularly defined as flight 
within 500 feet). Considering this, should such flights be prohibited 
or severely restricted to ensure the safety of the aircraft occupants 
and persons and property on the ground?
    (r) Should the FAA prohibit or severely restrict aerobatics in LHFE 
aircraft considering the following?
    i. Older aircraft, mitigation of risk requires that the aircraft be 
operated ``gently.''
    ii. Aerobatic training and rides are available in properly 
certificated aircraft.
    iii. Pilot qualification. The FAA has no clear way to qualify or 
evaluate aerobatic qualifications. Is an ICAS ACE evaluation adequate?
    iv. If the FAA permits aerobatics, are the current weather minimums 
adequate (1500 ft ceiling and three miles visibility) or are they too 
low?
    v. Many of the aircraft manuals restrict aerobatics to much higher 
altitudes such as those listed in the P-47 aircraft.
    (s) Should the FAA limit, restrict, or prohibit low passes while 
conducting LHFE flights?
    (t) Should the FAA require approved seats for the pilots and 
passengers?
    (u) What emergency equipment should the FAA require on LHFE 
aircraft?
    (v) Should the FAA require operators to have evacuation plans and 
drills?
    (w) If the FAA allows ``high performance'' jets, should the 
operator be required to have arresting gear?
    i. If the FAA requires the availability of arresting gear, will the 
military approve?
    (x) Considering the following, should the FAA include flight 
training requirements in the LHFE exemption?
    i. Flight training is available via deviation for experimental 
aircraft.
    ii. Flight training is available in limited aircraft via exemption.
    (y) In addition to the LHFE exemption, should the FAA require the 
operator to obtain a 14 CFR 91 Sightseeing ride Letter of 
Authorization?
    (z) In nearly every flight operation where passengers are carried 
for compensation or hire, pilots are required to participate in a drug 
and alcohol testing program. Should the FAA require drug and alcohol 
training and testing for LHFE operators?

Weather Minimums

    (aa) Weather minimums.
    i. Should the weather minimums be raised for all LHFE flights or 
should the FAA require the pilot in command (PIC) of LHFE aircraft to 
be instrument rated and current?
    ii. Since Sec.  91.515 requires large aircraft to remain at least 
1,000 feet above ground level, and the minimum distance below clouds in 
class C, D, and E airspace is 500 feet, is a 1500 foot ceiling 
appropriate or should the FAA require more appropriate weather minimums 
for these aircraft?
    iii. If the FAA allows passengers to manipulate the controls of the 
LHFE aircraft, what should be the minimum weather?
    iv. If the FAA allows aerobatic flight in LHFE aircraft, what 
should be the minimum weather?

Pilot Qualification/Currency

    (bb) Pilot qualification/experience minimums.
    i. Is an unrestricted pilot qualification required?
    (cc) Pilot and crew training requirements.
    i. Are the current LHFE training requirements adequate?

Maintenance/Inspection

    (dd) Should the operator be required to demonstrate their ability 
to maintain the aircraft?
    (ee) Are the current LHFE maintenance and inspection requirements 
adequate?
    i. An experimental airworthiness certificate assumes a higher level 
of risk is acceptable for the pilot. However, is the higher level of 
risk acceptable for a paying passenger or should the FAA change the 
conditions and limitations, or the operating limitations, to mitigate 
the risks? If so, what should such changes look like?
    (ff) Should the FAA require that the interior and exterior 
entrances be marked as exit doors?
    i. Should the markings be in contrasting colors?
    ii. Should the markings have a minimum legibility requirement such 
as 36 inches?
    iii. Should the FAA require that the handles be marked in a 
contrasting color?
    (gg) Should aircraft that have been modified by the addition of a 
second seat be required to provide a means for the passenger to exit 
the aircraft without the pilot exiting first?
    (hh) Safety of the public is the FAA's primary goal. Since LHFE 
aircraft are all older aircraft, how should the FAA

[[Page 30241]]

determine which aircraft can be operated under LHFE? Some of the LHFE 
aircraft range from complete restorations (from the data plate up) to 
aircraft that have serious corrosion or other structural issues.
    i. How should the FAA identify which aircraft are eligible for LHFE 
status?
    ii. How does the FAA or operator ensure an equal level of safety?
    (ii) Should the FAA allow aircraft that previously held a standard 
certificate, but later ``decertified'' and now hold an experimental 
certificate, be allowed to operate under an LHFE exemption?
    i. Aircraft that no longer conform to their type certificate data 
sheet create an issue for the FAA since it can be difficult to 
determine an equal level of safety for a decertified aircraft. With 
this in mind, should such aircraft be allowed to operate under LHFE 
status?

Participation at the Public Meetings

    Commenters who wish to present oral statements at the June 26, 27, 
and 28, 2012, public meetings should submit requests to the FAA no 
later than June 18, 2012.
    Requests should be submitted as described in the FOR FURTHER 
INFORMATION CONTACT section of this document and should include a 
written summary of oral remarks to be presented and an estimate of time 
needed for the presentation. Preferably, please submit requests via 
email to: [email protected]. Requests received after the dates 
specified above will be scheduled if there is time available during the 
meetings; however, the speakers' names may not appear on the written 
agendas. To accommodate as many speakers as possible, the amount of 
time allocated to each speaker may be less than the amount of time 
requested to ensure various views can be heard. See ``Public Meeting 
Procedures'' below.
    The FAA may have available a projector and a computer capable of 
accommodating Word and PowerPoint presentations from a compact disk 
(CD) or USB memory device. Persons requiring any other kind of 
audiovisual equipment should notify the FAA when requesting to be 
placed on the agenda.
    Sign and oral interpretation can be made available at the meeting, 
as well as an assistive listening device, if requested 10 calendar days 
before the meeting.

Public Meeting Procedures

    A panel of representatives from the FAA and other government 
agencies will be present. An FAA representative will facilitate the 
meetings in accordance with the following procedures:
    (1) The meetings are designed to facilitate the public comment 
process. The meetings will be informal and non-adversarial. No 
individual will be subject to cross-examination by any other 
participant. Government representatives on the panel may ask questions 
to clarify statements and to ensure an accurate record. Any statement 
made during the meetings by a panel member should not be construed as 
an official position of the government.
    (2) There will be no admission fees or other charges to attend or 
to participate in the public meetings. The meetings will be open to all 
persons, subject to availability of space in the meeting room. The FAA 
will make every effort to accommodate all persons wishing to attend. 
The FAA asks that participants sign in between 7:30 and 8:00 a.m. on 
the days the meetings are being attended. The FAA will try to 
accommodate all speakers; however if available time does not allow 
this, speakers will be scheduled on a first-come-first-served basis. 
The FAA reserves the right to exclude some speakers, if necessary, to 
obtain balanced viewpoints. The meetings may adjourn early if scheduled 
speakers complete their statements in less time than is scheduled for 
the meetings.
    (3) The FAA will prepare agendas of speakers and presenters and 
make the agendas available at the meetings.
    (4) Speakers may be limited to 3-minute statements. If possible, 
the FAA will notify speakers if additional time is available.
    (5) The FAA will review and consider all material presented by 
participants at the public meetings. Position papers or materials 
presenting views or information related to the draft policy may be 
accepted at the discretion of the presiding officer and will be 
subsequently placed in the public docket. The FAA requests that 
presenters at the meetings provide at least 10 copies of all materials 
for distribution to the panel members. Presenters may provide other 
copies to the audience at their discretion.
    (6) Each person presenting comments is asked to submit data to 
support the comments. The FAA will protect from disclosure all 
proprietary data submitted in accordance with applicable laws.

    Issued in Washington, DC, on May 16, 2012.
John M. Allen,
Director, Flight Standards Service.
[FR Doc. 2012-12383 Filed 5-21-12; 8:45 am]
BILLING CODE 4910-13-P