Exemption No. 9718

UNITED STATES OF AMERICA\
DEPARTMENT OF TRANSPORTATION\
FEDERAL AVIATION ADMINISTRATION\
WASHINGTON, DC 20591

In the matter of the petition of

**MICHELIN NORTH AMERICA** **Regulatory Docket No. FAA-2007-0353**

for an exemption from § 91.609(c)

of Title 14, Code of

Federal Regulations

# DENIAL OF EXEMPTION

By letter dated December 3, 2007, Mr. Eldon Anderson, Aviation
Maintenance Manager, Michelin North America (Michelin), 2100 GSP Drive,
Hangar #4, Greer, South Carolina 29651, petitioned the Federal Aviation
Administration (FAA) on behalf of Michelin for an exemption from
§ 91.609(c) of Title 14, Code of Federal Regulations (14 CFR). The
proposed exemption, if granted, would allow Michelin to operate its
Hawker 850XP aircraft with 10 passenger seats without a flight data
recorder.

**The petitioner requests relief from the following regulation:**

> Section 91.609(c) prescribes, in pertinent part, that:
>
> No person may operate a U.S. civil registered, multiengine,
> turbine-powered airplane or rotorcraft having a passenger seating
> configuration, excluding any pilot seats of 10 or more that has been
> manufactured after October 11, 1991, unless it is equipped with one or
> more approved flight data recorders that utilize a digital method of
> recording and storing data and a method of readily retrieving that
> data from the storage medium, that are capable of recording the data
> specified in appendix E to this part, for an airplane, or appendix F
> to this part, for a rotorcraft, of this part within the range,
> accuracy, and recording interval specified, and that are capable of
> retaining no less than 8 hours of aircraft operation.

**The petitioner supports its request with the following information:**

> Michelin states it has safely operated Hawkers for 14 years without
> incident. The pilots, according to the company's operations manual,
> must always fly with an instrument flight rules flight plan. An
> operational cockpit voice recorder is active and recording all aspects
> of the flight. The aircraft only operates in domestic U.S., Canadian,
> and Mexican airspace and only with approved company personnel or
> guests on board. Therefore, every trip is closely controlled and
> monitored, making a flight data recorder of little additional value
> for the expense incurred.
>
> Where the Hawker 850XP is typically configured for eight or nine
> passengers, adding an approved belt potty seat in its aircraft has
> invoked the requirement for a flight data recorder.
>
> The petitioner states the supplemental type certificate under which
> the flight data recorder was installed in its aircraft requires an
> excessive and costly amount of continuous maintenance in comparison to
> approved installations of like equipment on other aircraft. That cost
> is estimated to be approximately \$147,095 a year for each aircraft.
>
> Michelin believes the addition of a flight data recorder in compliance
> with § 91.609(c) is placing a burden which far exceeds the benefits to
> its operation. In addition, the petitioner believes that an exemption
> to that regulation for its aircraft is both reasonable and
> uncompromising to safety.

A summary of the petition was published in the [Federal
Register]{.underline} on December 28, 2007 (72 FR 73964). No comments
were received.

**The FAA\'s analysis is as follows:**

> The FAA has considered fully the petitioner's request and finds that a
> grant of exemption would not be in the public interest and would not
> provide a level of safety equivalent to the current regulations.
>
> Michelin states that, because of adding a potty seat, the seating
> capacity of its aircraft, minus pilot and copilot, equals 10, thereby
> invoking § 91.609(c). That regulation requires the installation of a
> flight data recorder when a multiengine turbine-equipped aircraft has
> 10 or more passenger seats installed. Michelin further states that
> such required installation would entail additional maintenance costs
> of \$147,095 a year for each aircraft, \$135,000 of which would be due
> to lost revenue and replacement charter while the aircraft was down
> for service.
>
> Flight data recorders have been installed on certain aircraft since
> the late 1950s. Estimating the benefits of flight data recorders is
> difficult because a recorder is an investigative tool. Unlike other
> airborne safety devices, the absence of a flight data recorder cannot
> be considered the cause of or a contributing factor to an accident
> involving that airplane. Therefore, the benefits of flight data
> recorders can only be measured in abstract terms. That is, how the
> recorder\'s contribution to determining the cause of one accident can
> lead to corrective measures to prevent other similar accidents, or, in
> other words, preventing the opportunity cost of lost information.  
>
> It is not possible to accurately predict the number of accidents that
> would have occurred had these corrective actions (as a result of
> information gained from flight data recorders) not been
> taken.  However, accident investigations cited in regulatory
> evaluations demonstrate how flight data recorders have been effective
> in determining an aircraft structural, mechanical, or systems failure.
> This information has led directly to corrective actions such as
> aircraft modifications or changes in operating procedures that can
> prevent future accidents.  
>
> The sophistication of these devices has increased many times over the
> years. On
>
> June 30, 1988, the FAA issued Amendment Nos. 23-35, 25-65, 27-22,
> 29-25, 91-204, 121-197, 125-10, and 135-26 ([53 FR
> 26134](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DocName=53FR26134&FindType=Y)),
> requiring advanced digital flight data recorders to be installed in a
> broad range of airplanes and rotorcraft operated by air carriers and
> commuter airlines, as well as in selected aircraft operated in general
> aviation. Compliance was required by October 11, 1991.
>
> Compliance with these new rules entailed added costs to the operators.
> On
>
> September 27, 1989, the National Business Aircraft Association (NBAA)
> petitioned for an exemption from [§ 91.609
> (c)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=14CFRS91.609&FindType=L&ReferencePositionType=T&ReferencePosition=SP_4b24000003ba5)
> and
> [(d)(2)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=14CFRS91.609&FindType=L&ReferencePositionType=T&ReferencePosition=SP_4be3000003be5)
> (formerly § 91.35 (c) and (d)(2)) to permit its members, under certain
> conditions, to operate under the provisions of
>
> [§
> 91.609(a)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=14CFRS91.609&FindType=L&ReferencePositionType=T&ReferencePosition=SP_8b3b0000958a4)
> (formerly § 91.35(a)). The petition requested that NBAA members be
> permitted to operate those U.S.-registered multiengined
> turbine-powered civil airplanes and rotorcraft that are required to
> have flight data recorders while the aircraft\'s flight data recorder
> is removed temporarily for inspection, repair, modification, or
> replacement.
>
> On January 23, 1990, Gulfstream Aerospace Corporation also petitioned
> the FAA to amend the requirements of [§
> 91.609](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=14CFRS91.609&FindType=L).
> Its petition requested that, subject to certain conditions, operators
> that do not hold an air carrier or commercial operator certificate be
> allowed to operate under the provisions of
> [§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=14CFRS91.609&FindType=L&ReferencePositionType=T&ReferencePosition=SP_8b3b0000958a4)
> [91.609(a)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=14CFRS91.609&FindType=L&ReferencePositionType=T&ReferencePosition=SP_8b3b0000958a4)
> with a flight data recorder temporarily removed for inspection,
> repair, modification, or replacement.
>
> The FAA recognized that part 91 operators normally have only one or
> two aircraft. Therefore, if a flight data recorder becomes inoperative
> on a part 91 operator\'s aircraft, it may result in the aircraft being
> grounded for an indefinite period of time. Part 91 operators normally
> have only one maintenance base, whereas air carriers and commercial
> operators normally have many maintenance bases at which its flight
> data recorders may be repaired or replaced. Air carriers\' and
> commercial operators\' maintenance bases normally have a ready supply
> of spare parts for repairing or replacing flight data recorders. Air
> carriers and commercial operators normally have a larger fleet of
> aircraft in which the flight data recorders can be moved from one
> aircraft to another. The FAA determined that the grounding of part 91
> aircraft was not necessary and the possible operational and financial
> burden on these operators was unacceptable.
>
> The FAA determined that this issue should be resolved with a rule
> change. Consequently, on October 4, 1991, the FAA issued a rule on
> flight data recorders
>
> ([56 FR
> 51618](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=184736&DocName=UU(I64C9FF902E-E111DAA715A-5CD0856D60A)&FindType=l&ReferencePositionType=S&ReferencePosition=51618))
> that provided similar relief to part 91 operators as was already
> provided to holders of air carrier and commercial operator
> certificates. This rule provided relief to allow part 91 operators to
> operate for 15 days with the flight data recorder inoperative or
> removed for repair.
>
> This relief was designed to address the kind of financial difficulty
> that Michelin suggests in its petition. Since Michelin can operate for
> up to 15 days with a flight data recorder removed for service, it
> should be possible to schedule brief unit removal/install maintenance
> breaks during periods of reduced demand. Therefore, the suggested
> \$135,000 per year per aircraft cost due to lost revenue and
> replacement charter during servicing could likely be reduced
> significantly.
>
> The FAA realizes that installation and maintenance of a flight data
> recorder can nevertheless entail certain, potentially significant,
> costs. However, in the case of Michelin's Hawker 850XPs, the decision
> to increase the passenger capacity from 9 to 10, thus invoking §
> 91.609(c) and its attendant costs, was optional and not mandated.
>
> Since the aircraft in question are not held out to the public, there
> would be no clear public benefit to exemption from § 91.609(c).
> Permanent removal of the flight data recorder in an aircraft with 10
> or greater passenger seats, contrary to the regulation, would not meet
> an equivalent level of safety. Modifying the aircraft from 9 to 10
> seats was optional. Finally, there is existing regulatory relief from
> a significant portion of the estimated loss of revenue. For these
> reasons, the request for exemption from
>
> § 91.609(c) is denied.

# The FAA's Decision:

In consideration of the foregoing, I find that a grant of exemption
would not be in the public interest. Therefore, pursuant to the
authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by
the Administrator, the petition of Michelin North America for an
exemption from 14 CFR § 91.609(c) is hereby denied.

Issued in Washington, DC, on June 25, 2008.

/s/

John M. Allen

Acting Director, Flight Standards Service