[Federal Register Volume 80, Number 139 (Tuesday, July 21, 2015)]
[Rules and Regulations]
[Pages 43012-43015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17966]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91 and 119

[Docket No. FAA-FAA-2015-0517]


Policy Regarding Living History Flight Experience 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: With this document, the Federal Aviation Administration (FAA) 
cancels all previous agency policies pertaining to the carriage of 
passengers for compensation on Living History Flight Experience (LHFE) 
flights. This policy statement announces the end of FAA moratorium on 
new petitions for exemption, or amendments 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 LHFE 
Flights.

DATES: The moratorium will end on July 21, 2015.

FOR FURTHER INFORMATION CONTACT: General Aviation and Commercial 
Division, General Aviation Operations Branch (AFS-830), Flight 
Standards Service, FAA, 800 Independence Avenue SW., Washington, DC 
20591; telephone (202) 267-1100; [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The FAA has historically found the preservation of U.S. aviation 
history to be in the public interest, including preservation of certain 
former military

[[Page 43013]]

aircraft transferred to private individuals or organizations for the 
purpose of restoring and operating these aircraft. In 1996, the FAA 
received exemption requests from not-for-profit organizations to permit 
the carriage of persons for compensation in both Limited and 
Experimental category, former-military, historically-significant 
aircraft. These requests offered to provide a short in-flight 
experience to these aircraft in exchange for compensation, leading to 
the term Nostalgia Flights, then later Living History Flight Experience 
(LHFE), and provided a means for private civilian owners to offset the 
considerable restoration, maintenance and operational costs. The FAA 
determined that, in certain cases, operators could conduct LHFE flights 
at an acceptable level of safety and in the public interest, in 
accordance with appropriate conditions and limitations.
    These original requests involved large, crew-served, piston-
powered, multi-engine World War II (WWII) vintage aircraft. In order to 
maintain safe operations of these aircraft, the FAA required flight 
crewmembers to meet certain qualifications and training requirements 
that included FAA-approved training, maintaining training records, and 
reporting procedures. As the public availability of purchase for former 
military aircraft increased, along with an increase in public interest 
for maintaining and operating these aircraft, so grew the requests for 
LHFE relief.
    In 2004, to address a range of new aircraft requests and clarify 
the FAA's position, the FAA published a notice of policy statement 
(FAA-2004-17648). The policy limited LHFE relief to slower, piston-
powered, multi-engine airplanes of WWII or earlier vintage, citing the 
unique opportunity to experience flight in aircraft such as the B-17 
Flying Fortress and B-24 Liberator which could still be operated 
safely, considering limited parts and specialty-fuel supplies. In 
addition, qualifying aircraft would have no similar standard 
airworthiness counterpart that could allow a similar experience without 
the need for regulatory relief. The FAA also determined supersonic jets 
would not be considered because their operational speeds made it likely 
that any in-flight emergency may result in serious injuries or 
fatalities. The policy detailed that, in permitting the carriage of 
passengers, flight crewmembers were required to meet more stringent 
pilot qualifications as well as training requirements that included an 
FAA-approved training program, maintenance of training records, and 
reporting procedures.
    In the years that followed, the FAA received petitions to operate a 
broad range of aircraft, including large turbojet-powered aircraft, 
foreign-manufactured aircraft and aircraft models that remained in 
military service, or were readily available in the open market. The 
petitions raised significant concerns within the FAA, and led to a 
reexamination and refinement of the criteria for issuing exemptions 
pertaining to LHFE flights.
    In 2007, after requesting and receiving public comment on the 
matter, the FAA published an updated policy statement (72 FR 57196) 
that provided consideration for any aircraft on a case-by-case basis, 
so long as the petitioner demonstrates 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, including all conditions and 
limitations stipulated in the exemption, will be taken to ensure 
safety. Additionally, the FAA refined and expanded its previous list of 
criteria, requiring numerous aircraft-operation components, including 
crew qualification and training, aircraft maintenance and inspection, 
passenger safety and training, safety of the non-participating public, 
as well as manufacturing criteria, and a petitioner's non-profit 
status. The FAA also included consideration for the number of existing 
operational aircraft and petitioners available to provide the historic 
service to the public.
    The evolution of LHFE operations in the private sector, along with 
the availability of newer and more capable former military aircraft, 
raised new public safety and public policy concerns. The FAA 
accommodated several requests to operate more modern military jet 
aircraft. Conditions and limitations for operations grew in number, and 
were, in some cases, misinterpreted as permitting operations that the 
FAA did not contemplate or intend. Examples included cases of 
passengers manipulating the aircraft flight controls to proposals of 
LHFE flights performing aerobatic maneuvers, simulating aerial combat 
in the interest of ``historical experience.''
    Consequently, in 2011, the FAA published a new policy statement 
announcing a moratorium on LHFE exemptions for new operators and the 
addition of aircraft to existing LHFE exemptions. The moratorium 
permitted existing exemption holders to continue operations, and to 
renew their exemptions, but stated that the FAA would add clarifying 
limitations to all LHFE petitions renewed or extended during that time.
    In June of 2012, the FAA held public meetings to gather additional 
technical input. Discussion addressed 35 questions posed by the FAA and 
included as part of the meeting notice. In addition to statements 
provided by the public meeting attendees, over 500 comments were 
received in the docket (Docket No. FAA-2012-0374) established for 
public input. The meeting was focused to address industry comments 
related to the LHFE policy notices of 2004 and 2007 and areas of 
concern based on safety recommendations, FAA internal discussions, and 
post 2007 developments. Small work groups were formed to discuss 
general policy, exemption issuance, limitations, weather minimums, 
pilot qualification and currency, and maintenance and inspection. The 
area of interest that generated the most discussion was regarding 
limitations placed on LHFE operations--specifically, passengers 
occupying crew seats or positions, aerobatics, and requirements for 
arresting gear for high performance jets. The largest general policy 
topic discussed was regarding whether the FAA planned on excluding 
turbojets or supersonic aircraft in the policy. The work groups also 
explored criteria for determining historical significance, replicas, 
operational control and responsible persons, manuals, compliance 
history, and training requirements.
    The majority of the 519 written comments were either in favor of 
keeping the existing exemption policy or expanding on its provisions. 
Fifty-nine (11%) comment submissions desired no changes to the current 
LHFE policy. Eight commenters provided detailed comments to each of the 
questions posed within the FAA's areas of interest. In regards to 
training, safety and operational control, a commenter stated his belief 
that the employees/pilots/crew of the aircraft for hire have annual 
training and that the aircraft should be on an FAA/manufacturer 
approved inspection program, and that this training and adherence to 
the required and recommended inspections/maintenance provides a 
reasonable level of government protection to the flying and non-flying 
public. Eight commenters suggested a more restrictive LHFE Exemption 
policy, and one commenter supported the use of drug testing for LHFE 
flight crews. One commenter suggested that good guidance already exists 
in the A008 Operations Specification of Part 135 certificate holders, 
and that much of

[[Page 43014]]

that guidance can be reasonably applied to LHFE. The FAA concurs and 
finds good reason to include certain elements found in part 135; 
specifically those related to operational control and document 
structure. 516 (99%) written comments expressed support for LHFE 
exemptions, while three (1%) were opposed.
    The FAA also held meetings with curators at the Smithsonian 
National Air and Space Museum and reviewed the United States General 
Accounting Office (GAO) report on Preserving DOD Aircraft Significant 
to Aviation History to understand how other organizations determine 
``historical significance'' as part of determining criteria to satisfy 
``public interest''.
    Also during the moratorium, two accidents involving LHFE operators 
occurred which led the FAA to further research and develop safety 
mitigations to operational and maintenance issues highlighted by the 
investigations. The need to develop a safety and risk management system 
as part of the new policy was evident, and supported by comments 
received. One such comment stated, in part that it is important to try 
and mitigate some of the risks and to inform the public about the risks 
of the activity.
    Therefore, based on FAA research, comments and transcripts of the 
public meeting, as well as an evaluation of public safety risks, the 
FAA finds good reason to publish a new policy. While the FAA is lifting 
the 2011 moratorium with this policy, we are also setting forth 
specific criteria that the FAA will use in considering any LHFE 
petition for exemption, or petition to extend or amend an existing 
exemption.

FAA Policy

    The FAA announces the end of the FAA-imposed moratorium on new 
petitions for exemption, or amendments to existing exemptions, from 
certain sections of 14 CFR for the purpose of carrying passengers for 
compensation or hire on LHFE flights. The FAA is also cancelling all 
previously issued LHFE policy statements. The FAA will now consider new 
petitions for exemption, or requests for extensions or amendments to 
current exemptions in accordance with the following criteria.

A. Aircraft Must Be ``Historically Significant''

    Each aircraft must be ``historically significant'' according to the 
following criteria:
    1. U.S. operated: The aircraft must meet a documented set of U.S. 
military standards for its airworthiness and operations in U.S. 
military service.
    2. Not in service: Aircraft currently operated by the U.S. military 
or in civilian service will not be considered. This exclusion includes 
variants of those aircraft.
    3. Fragile: The aircraft must be ``fragile.'' Accepted practices in 
the collection of aircraft include ``fragility'' as a factor that 
necessitates preservation. If there are hundreds of models of a 
particular aircraft still flying, that aircraft's existence would not 
be considered ``fragile.'' If, on the other hand, there are few 
remaining aircraft and the model could become ``extinct'' without 
preservation efforts, that aircraft would be considered ``fragile.'' 
Each aircraft request will be reviewed for ``fragility'' on a case-by-
case basis.
    4. Age: The original type design must be at least 50 years old. 
This requirement is consistent with the policy used by the National 
Register of Historical Places to determine historical significance 
(Reference: National Register Bulletin: Guidelines for Evaluating and 
Documenting Historic Aviation Properties. US Department of Interior, 
1998, p. 34-35).
    5. No Available Standard Category Aircraft: Aircraft for which a 
standard category civilian model is available will not be considered. 
(e.g., the T-28A achieved certification as a standard aircraft, while 
the other versions, T-28B/C, etc. were strictly military variants and 
not eligible for certification in the standard category).
    Replicas will not be considered. This element relates to the 
``integrity'' of the structure or object as defined by the National 
Register of Historical Places, as described in the GAO report on 
Aircraft Preservation (Reference: Aircraft Preservation: Preserving DOD 
Aircraft Significant to Aviation History, GAO/NSIAD-8-170BR, May 1988, 
Appendix III, p. 13).

B. Designation of a Responsible Person and Operational Control 
Structure

    The FAA will review each petition to identify a responsible party, 
and an operational control structure or chain of command within the 
manual system for pilots, maintenance, and support personnel. 
Consequently, each petition should designate a responsible person whom 
the FAA can contact for both operations and maintenance functions.

C. Safety & Risk Analysis

    The FAA will use Safety Risk Management (SRM) and Equal Level of 
Safety (ELoS) principles to guide its safety review in connection with 
any future LHFE exemption petition or request. This safety review will 
include, but will not be limited to, an analysis of whether hazards and 
risks have been identified and responded to through appropriate 
mitigating strategies. As such, each petitioner should be guided by the 
following criteria:
     An understanding and use of Safety Risk Management (SRM) 
principles.
     A plan to mitigate risks as they become known, or to 
correct an unsafe condition or practice. This includes, but is not 
limited to, risks in design, manufacturing, maintenance and operations.
     A detailed explanation of all supporting and historical 
safety-related data, such as: Maintenance history, airworthiness 
status, conformity to the Type Certificate Data Sheet (TCDS--for 
Limited category airworthiness certificates), operational failure 
modes, aging aircraft factors, and civilian and military accident 
rates. For example, the FAA will consider:
    [cir] Operator history, including accidents and incidents, 
regulatory compliance and FAA surveillance history.
    [cir] Maintenance records, including modifications.
    [cir] Training records.
    [cir] The aircraft's operational history, including the operator's 
proposed mitigation of known risks.
    [cir] Operating limitations to enhance safety, clarify, and 
remediate differences in like aircraft.
    [cir] The FAA will assess and, if necessary, require changes to 
passenger safety in terms of configuration, seats, crashworthiness, and 
emergency egress, etc.
     The operator should be able to demonstrate to the FAA, 
upon request, the passenger's ability to egress each aircraft in the 
event of an emergency in which the crewmember(s) is unable to assist.

D. Manual System

    LHFE operators should be able to demonstrate the existence of a 
manual system similar in terms of intent and scope of those in 14 CFR 
part 135. The FAA will evaluate the operator's manuals, including:
     Operations Manual (General Operations Manual-GOM).
     Pilot Training Manual and Qualifications.
     Maintenance and Line Support Training Manuals.
     Maintenance Manual (AIP) including, but not limited to:
    [cir] Review of previously approved AIPs as provided by 14 CFR 
91.415
    [cir] Maintenance training elements.
    [cir] Replacement plan for time-limited parts or development of an 
on-condition inspection program for such parts.

[[Page 43015]]

    [cir] Aging aircraft inspection program.
    [cir] Corrosion inspection program.
    [cir] Continued Operational Safety (COS).
     SMS Manual.

E. Other Considerations

    LHFE operations, as it applies to the passenger(s) experience, is 
limited to the sole purpose of being onboard the aircraft during 
flight. The FAA will not consider expanded operations such as flight 
training, aerobatics, and passenger manipulation of the flight 
controls.
    The FAA will always consider whether a request benefits the public 
as a whole and how the request would provide a level of safety at least 
equal to that provided by the rule in accordance with 14 CFR 11.81. 
Moreover, the FAA may impose additional conditions and limitations or 
deny petitions regardless of this policy statement to adequately 
mitigate safety concerns and risk factors as they become known.

Filing a Petition for Exemption or To Request an Amendment or Extension 
to an Existing Exemption

    To submit a petition for exemption or to request an amendment or 
extension to an existing exemption, all petitioners must follow the 
procedures set forth in part 11 of title 14 of the Code of Federal 
Regulations.

    Issued in Washington, DC, on July 10, 2015.
John S. Duncan,
Director, Flight Standards Service.
[FR Doc. 2015-17966 Filed 7-20-15; 8:45 am]
 BILLING CODE 4910-13-P