### Exem ption No. 10491

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

In the matter of the petition of

BOEING COMMERCIAL Regulatory Docket No. FAA-2011-0342 AIRCRAFT

for an exemption from §§ 91.609(c)(1) and 91.609 (i)(3) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated March 30, 2011, Mr. Ron Hinde rberger, VP, Regulatory Adm inistration, Boeing Commercial Aircraft (Boeing), P. O. Box 3707, M/C 03-37, Seattle, Washington 98124-2207, petitioned the Federal Aviation Administration (FAA) on behalf of Boeing for an exemption from §§ 91.609(c)(1) and 91.609(i)(3) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Boeing to operate certain U.S.- registered aircraft that do not meet specific f light data recorder and cockpit voice recorder requirements on certain types of flights required to support production, delivery, and marketing.

The petitioner requests relief from the following regulation: Section 91.609(c)(1) prescribes, in pertinent part, digital flight data recorders (DFDR) that are capable of recording the data specified in 14 CFR part 91, Appendix E, Note 5 (increased data sampling rate for pitch control position for aircraft manufactured after April 6, 2012).

Section 91.609(i)(3) prescribes, in pertinent part, that all aircraft manufactured on or after April 6, 2012, have installed a cockpit voice recorder (CVR) that meets the requirements of 14 CFR §§ 25.1457(a)(6) (recordation of datalink communications) and 25.1457(d)(5) (10-minute independent power source).

AFS-11-253-E

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The petitioner supports its request with the following information: The petitioner requests an exemption that would allow certain model 737-NGs, model 767, and model 777 aircraft to operate with DFDRs and CVRs that do not meet the requirements of §§ 91.609 (c)(1) and (i)(3). If granted, an exemption would allow Boeing to conduct certain flights associated with the production and sale of new Boeing aircraft that will not be registered in the United States.

Model Type 737-NG -600/ -700/ -700C/ -800/ -900ER 767 -200/300/300F/400ER 777 -200/-200LR/-300/-300ER/Freighter

The petitioner states that for all 737-NGs, 767s, and 777s intended for U.S. registry or operation, it installs DFDR and CVR systems that comply with 14 CFR §§ 91.609(c)(1) and (i)(3).

The petitioner states that many non-U.S. entities have different operating and airworthiness requirements that do not include the equipment required by these U.S. regulations. Accordingly, purchasers of the subject airplanes that will not be registered in the United States are offered this equipment as an option and often choose not to install it.

Boeing states that before the delivery of any airplane, to a U.S. or foreign operator, it conducts several different types of flight operations to show compliance to 14 CFR, foreign regulatory requirements and/or to meet production needs. These are generally known as B1 and C1 flights, or as production acceptance flights. These flights are operated under temporary U.S. registration while under Boeing’s control, and must comply with the requirements of Part 91. Without relief from these regulations, Boeing would not be able to conduct these flights for aircraft manufactured after April 6, 2012, that are being delivered to non-U.S operators.

The petitioner provided examples of the flights conducted to support production. Boeing 737 aircraft manufactured in Renton, WA, are flown on an initial test flight known as the B1 flight. This flight originates at Renton Field (RNT) WA, and terminates at Boeing Field (BFI), in Seattle, WA. Boeing 767 and 777 aircraft are manufactured in Everett, WA. Their B1 flight originates and ends at Paine Field (PAE).

These operations, subject to part 91, are conducted in accordance with limitations associated with a Special Airworthiness Certificate, FAA form 8130-7, issued by the FAA. Aircraft conducting B1 flights are using Boeing’s “Dealer’s Aircraft Registration Certificate” in accordance with 14 CFR § 47.61.

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The flights from BFI and PAE are made in support of various production needs, including production certification tests, cust omer demonstrations, investigation of customer complaints, data acquisition, and publicity. Boeing states there are geographical restrictions associated with the operations of the aircraft, limiting operations to the Northwest Mountain Region and adjacent coastal waters. These aircraft have not been issued a FAA Sta ndard Certificate of Airworthiness (CofA).

Boeing states that typically, aircraft intended for foreign operators are delivered to the new owner in Seattle/Everett, WA at which point the FAA will issue an Export CofA. Occasionally, these aircraft will be flown to and delivered in a location other than Washington State before title transfers and the Export CofA is issued. These aircraft are flown as U.S.-registered aircraft under th e authority of a special flight permit (SFP) issued by the FAA’s Seattle Flight Standards District Office (FSDO).

Boeing also states that on occasion, it needs to ferry certain aircraft to a facility for maintenance, alteration or storage within the United States. These U.S.-registered aircraft are intended for later delivery to foreign entities but will not be registered in the United States after transfer. These aircraft will have been issued a FAA Standard CofA in Seattle or Everett, before flying to the other domestic locations. These flights are also authorized for operation under an SFP issued by the Seattle FSDO.

The petitioner states that if this exemption is not granted to conduct these various types of production flights, it will be required to install DFDR and CVR systems that are fully compliant with 14 CFR § 91.609 on every airplane and then uninstall the equipment after the flight tests to return them to their contracted configurations.

As an example, Boeing states that for a 737NG, it would need to install and uninstall, a CVR independent power supply and associated wiring to comply with 14 CFR § 25.1457(d)(5); these changes may require a separate certification effort.

The petitioner states that safety would not be affected. The aircraft are manufactured under the same manufacturing system that produces approximately 40 aircraft a month and is subject to FAA oversight. The petitioner states that its system ensures that newly manufactured aircraft can safely conduct their initial test flights. These aircraft are also maintained in accordance with the requirements of §§ 91.409(e) and (f)(3) and Boeing maintenance instructions. The pilot in command will hold an appropriate category class rating and jet aircraft type rating. The petitioner states that no persons will be carried on the flights unless that person is required for the purpose of the flight and that the aircraft will be operated in accordance with all other applicable air traffic and general operating rules of part 91.

The petitioner went on to explain many of the other regulatory requirements for operation and maintenance of these airplanes that will continue to be fulfilled in the

### 4 normal course of operation. The petitioner also noted that DFDRs and CVRs do not materially affect the operational safety of the airplane.

The petitioner states that a grant of this petition would be in the public interest because denial would significantly reduce its ability to operate aircraft in support of production, testing, and sales. A denial of this exemp tion would force Boeing to build new aircraft with features that the foreign operators do not want, nor are required to have, resulting in increased costs to produce, purchase, operate and maintain, and hindering Boeing’s ability to compete in the marketplace.

Although the petitioner requested that action on its petition not be delayed for publication in the Federal Register , the FAA found that the petition, if granted, would set a precedent. A summary of this petition was published in the Federal Register on May 2, 2011 (76 FR 24560). No comments were received.

The FAA’s analysis is as follows: The FAA recognizes a unique set of circumstances outlined by the petitioner. The FAA was unaware of these circumstances when it amended § 91.609 in 2008, since no comments were received regarding this issue when the rule was proposed.

The subject aircraft are being built to the specifications of a foreign purchaser and are not intended to have United States registration. As such, these aircraft do not need to meet the DFDR and CVR operational requirements that are applicable to U.S.- registered aircraft. Equipping these aircra ft with DFDR and CVR systems compliant with the requirements of § 91.609 would add significant cost and complexity to an aircraft. However, since Boeing conducts test and pre-delivery positioning flights under a temporary N-number registration, those operations are subject to part 91 CVR and DFDR recorder requirements, and to accomplish these operations an exemption is required. The FAA agrees with Boeing that under these unique circumstances, an exemption from these requirements is warranted.

Boeing provided the FAA with a list of airplanes by serial number that it anticipates will be delivered in 2012 under this exemption, approximately 300 airplanes. Granting a petition for exemption that applies to such a large and shifting number of airplanes, as well as the limited time under which each aircraft will operate, presents an equally unique situation for the FAA. To address the challenges that arise from these circumstances, this exemption requires Boeing to establish a strict process for controlled use of the exemption. This exemption may be used only for airplanes that are manufactured for sale to an operator that will register the airplane in a country that does not have the DFDR or CVR requirements described in this exemption (specifically, §§ 91.609(c)(1) (as regards Appendix E Note 5 DFDR data rate), and (i)(3) (as regards the recordation of datalink communications and the 10-minute independent power source for the CVR)), and on which the noted equipment is not installed. Boeing must submit the process for controlled application of the exemption

### 5 to its Certificate Management Office (CMO) to be reviewed and approved. The CMO will oversee the management of this exemption, including the continued addition and removal of airplanes eligible to use the exemption.

The FAA has determined that, with the conditions described in this letter, the effect on safety of granting this exemption would be minimal. For the small number of flights that would be conducted without DFDRs and CVRs that meet the specified requirements, the risk of accidents for which relevant data would otherwise be recorded is extremely low. Further, the cost of requiring full compliance with § 91.609 for these few flights would be unduly burdensome. It is in the public interest to conduct these limited production acceptance flights with equipment in the “as delivered” configuration to verify the system operational function for airplanes that will be exported to countries that have different DFDR and CVR equipment requirements.

The FAA’s Decision: In consideration of the foregoing, I find that a grant of exem ption is in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, Boeing is granted an exemption from 14 CFR §§ 91.609(c)(1) and 91.609(i)(3) to the extent necessary to allow Boeing to temporarily operate, using its dealer registration numbers, airplanes that are not to be registered in the United States, subject to the conditions and limitations listed below.

Conditions and Limitations:

1. On the date of this grant, this exemption applies only to the Boeing airplanes listed in Tables 1, 2, and 3, attached to this exemption, that do not meet the requirements specified in condition number 2, while registered to and operated by Boeing.

2. This exemption applies only to the following requirements of 14 CFR § 91.609:

a. Paragraph (c)(1), as it requires compliance with Appendix E, Note 5 on digital flight data recorder data rates for pitch control position; b. Paragraph (i)(3) as it requires recordation of installed datalink communications and a 10-minute independent power source for the Cockpit Voice Recorder.

3. No other requirements of § 91.609 may be added to condition number 2. Boeing must identify the noncompliances specified in condition number 2 on each aircraft listed in Tables 1, 2, and 3, attached to this exemption or later added. An airplane that lacks the equipment to meet one, two, or all three of the requirements listed in condition number 2 qualifies to use this exemption.

4. Boeing will develop a process to identify the aircraft to which this exemption applies. Such process will include a list of aircraft being operated under this exemption, the requirements of condition number 3 of this grant, and any other information found

### 6 necessary by Boeing’s CMO. The process and lists must be deemed acceptable to the CMO within 120 days of the date of this exemption. Following acceptance by the CMO, Boeing will be allowed to add or remove aircraft from the lists provided for compliance with this exemption.

5. A copy of this exemption must be carried with the aircraft during operation by Boeing.

6. In the event of an accident or incident that is reportable to the FAA or the National Transportation Safety Board, Boeing must provide a copy of this exemption, the data and documentation necessary to determine what is being recorded, and the data and documentation necessary to download and read out the DFDR and CVR of the affected airplane.

This exemption terminates on April 7, 2015

, unless sooner superseded or rescinded.

Issued in Washington, DC, on April 2, 2012.

/s/ Raymond Towles Acting Director, Flight Standards Service

### 7 Table 1 – Boeing 737 Airplanes

Line Variable No No Cust. Lessee 4004 YR175 BEJ 4005 YR282 COP 4008 YS302 MLI 4010 YS057 TCI QAN 4011 YF649 RYR 4012 YS155 XIA 4013 YR987 PGS 4014 YP202 BAC ZDZ 4015 YS702 ARE 4016 YR532 GEF SNU 4017 YF650 RYR 4018 YS032 GCF UKA 4020 YH614 THY 4021 YR932 TAV 4023 YR988 PGS 4024 YR140 CGP BRI 4025 YS221 AWW ROJ 4026 YR445 GIA 4028 YS104 SHG 4029 YS721 SHZ 4030 YR506 GEF TSF 4031 YR458 GUN 4033 YR283 COP 4034 YR658 CGP SKM 4035 YD419 BBJ LTY 4036 YR859 HNA 4037 YR252 NSB 4038 YH603 KAL 4041 YR953 THY 4042 YR092 BBB MAS 4044 YH615 THY 4046 YS303 MLI 4047 YR811 VOZ 4048 YL234 JAL 4049 YR315 BER 4051 YR538 GEF COP 4054 YS222 AWW ROJ 4055 YP014 BAC ZVD 4056 YH520 MLI 4057 YS501 HAZ KAL 4060 YR176 BEJ 4061 YS105 SHG 4062 YQ321 VLS JAL Line Variable No No Cust. Lessee 4063 YR860 HNA 4064 YR459 GUN 4065 YR316 BER 4067 YR253 NSB 4070 YR835 VOZ 4071 YS304 MLI 4074 YL235 JAL 4075 YR433 ETH 4076 YR460 GUN 4077 YS305 MLI 4080 YH604 KAL 4081 YR017 JXB 4082 YR954 THY 4083 YR539 GEF COP 4085 YR093 BBB MAS 4087 YQ502 WJI 4089 YR812 VOZ 4090 YR254 NSB 4091 YQ322 VLS JAL 4092 YS306 MLI 4094 YS371 CML 4095 YK999 EGP 4096 YR018 JXB 4097 YQ020 GEF CEA 4098 YH616 THY 4099 YP015 BAC ZVD 4101 YF871 VLS CEA 4102 YS106 SHG 4103 YN605 GUN 4104 YL236 JAL 4105 YR059 MAS 4107 YS722 SHZ 4109 YR836 LOM VOZ 4110 YH617 THY 4111 YR528 GEF JPL 4112 YS156 XIA 4114 YR661 CGP GOT 4115 YR861 HNA 4116 YS703 ARE 4117 YR177 BEJ 4118 YR317 BER 4119 YR841 VOZ 4120 YN606 GUN

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Line Variable No No Cust. Lessee 4121 YS157 XIA 4122 YL237 JAL 4123 YR842 VOZ 4124 YR619 GOT 4125 YS307 MLI 4127 YR529 GEF JPL 4128 YH521 MLI 4130 YG135 BBJ SST 4131 YR060 MAS 4132 YR843 VOZ 4133 YN553 CEA 4134 YH618 THY 4135 YS158 XIA 4136 YQ456 EGP 4137 YS271 AMX 4138 YR461 GUN 4139 YR530 GEF JPL 4140 YH522 MLI 4141 YP016 BAC ZVD 4144 YR662 CGP GOT 4145 YS107 SHG 4146 YS723 SHZ 4147 YR862 HNA 4148 YG136 BBJ MMK 4149 YR178 BEJ 4150 YS058 QAN 4151 YF068 ANA 4152 YQ323 VLS JAL 4153 YS159 XIA 4154 YR462 GUN 4156 YR844 VOZ 4157 YR255 NSB 4158 YS724 SHZ 4159 YR318 BER 4160 YR620 GOT 4161 YR256 NSB 4165 YR463 GUN 4166 YF651 RYR 4167 YR416 AWW ARG 4169 YF652 RYR 4170 YS551 ILF CEA 4171 YR863 HNA 4172 YR837 LOM VOZ 4173 YS166 XIA 4174 YF653 RYR Line Variable No No Cust. Lessee 4175 YS725 SHZ 4176 YH619 THY 4177 YQ021 GEF CEA 4178 YR464 GUN 4179 YR284 COP 4180 YS308 MLI 4181 YP203 BAC ZDZ 4184 YR319 BER 4185 YS272 AMX 4186 YR417 AWW ARG 4187 YS160 XIA 4189 YR540 GEF COP 4190 YF654 RYR 4191 YS552 ILF CEA 4192 YS059 QAN 4193 YS309 MLI 4194 YR845 VOZ 4196 YR257 NSB 4198 YS561 CEA 4199 YS060 QAN 4201 YR838 LOM VOZ 4202 YR179 BEJ 4203 YR663 CGP GOT 4204 YF655 RYR 4205 YS771 SIL JPL 4206 YS310 MLI 4207 YR465 GUN 4208 YR094 BBB MAS 4209 YR320 BER 4211 YF656 RYR 4213 YR180 BEJ 4214 YS502 HAZ KAL 4215 YS167 XIA 4216 YR019 JXB 4217 YR061 MAS 4219 YP017 BAC ZVD 4220 YF657 RYR 4221 YR285 COP 4222 YS273 AMX 4225 YS223 AWW ROJ 4226 YS311 MLI 4227 YF658 RYR 4228 YF069 ANA 4229 YS372 CML 4231 YR434 ETH

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Line Variable No No Cust. Lessee 4233 YR288 CGP COP 4234 YR258 NSB 4236 YH523 MLI 4237 YR095 BBB MAS 4238 YS312 MLI 4240 YF659 RYR 4241 YS591 HAZ CEA 4243 YR020 JXB 4244 YR466 GUN 4245 YS553 ILF CEA 4246 YR062 MAS 4248 YR621 GOT 4249 YF660 RYR 4250 YR435 ETH 4251 YR181 BEJ 4252 YS373 CML 4253 YS201 TUM BRI 4256 YP018 BAC ZVD 4257 YR096 BBB MAS 4258 YN554 CEA 4261 YF661 RYR 4262 YR182 BEJ 4264 YR321 BER 4265 YS726 SHZ 4266 YH524 MLI 4267 YR989 PGS 4268 YK493 CGP WJI 4270 YS772 SIL JPL 4271 YS108 SHG 4272 YR386 LUX 4274 YR467 GUN 4275 YR186 BEJ 4276 YR063 MAS 4277 YR021 JXB 4279 YS374 CML Line Variable No No Cust. Lessee 4280 YK696 GEF SAS 4281 YR322 BER 4282 YF070 ANA 4283 YR622 GOT 4284 YH525 MLI 4287 YR064 MAS 4288 YR990 PGS 4289 YR259 NSB 4291 YR623 GOT 4293 YQ503 WJI 4294 YP019 BAC ZVD 4295 YR260 NSB 4298 YR991 PGS 4299 YS202 TUM BRI 4300 YR468 GUN 4301 YN651 BEJ 4303 YF872 VLS CEA 4304 YR864 HNA 4305 YS704 ARE 4306 YS168 XIA 4307 YR469 GUN 4308 YH620 THY 4310 YR413 AWW SKM 4311 YS109 BBB SHG 4313 YQ203 SHA 4314 YS313 MLI 4316 YR261 CGP NSB 4317 YR065 MAS 4319 YR624 GOT 4320 YS314 MLI 4321 YK697 GEF SAS 4324 YR955 THY 4325 YG137 BBJ HYN 4327 YR533 GEF SNU 4328 YR323 BER 4329 YR625 GOT

### 10 Table 2 – Boeing 767 Airplanes

Line Variable No No Cust. 1027 VT551 AHY 1029 VT001 LAN 1030 VS977 AHY 1031 VT002 LAN 1032 VT552 AHY 1033 VT003 LAN 1034 VT004 LAN 1036 VT544 DHI 1037 VT005 LAN 1038 VT006 LAN 1039 VT545 DHI 1040 VT007 LAN 1041 VT546 DHI 1042 VT008 LAN 1043 VT009 LAN 1045 VT010 LAN



### Table 3 – Boeing 777 Airplanes

Line Variable No Cust. No.o. 1000 EAD WE193 1001 AFA WE251 1003 CAT WE237 1004 QTR WF114 1005 ANA WC591 1006 AUX WD117 1007 AFA WE252 1008 CAT WE238 1009 BEJ WE156 1010 EAD WE194 1012 CAT WE239 1013 AFA WE253 1014 EAD WE195 1016 ANA WC592 1017 BEJ WE157 1018 EAD WE196 1019 ETI WE261 Line Variable No Cust. No.o. 1020 KLM WD916 1021 EAD WE197 1022 PAL WD991 1023 KAL WD955 1024 EAD WE198 1025 SVA WE230 1026 KAL WF137 1027 AAR WC586 1028 EAD WE199 1029 KLM WD917 1030 SIL WE271 1031 EAD WE200 1032 BEJ WE158 1034 EAD WE201 1035 QTR WD888 1036 TPR WD940 1037 EAD WE202 Line Variable No Cust. No.o. 1039 EAD WE203 1040 CAT WE240 1042 TPR WD941 1043 GEF WF151 1044 EAD WE204 1045 BEJ WE159 1046 DUE WF035 1047 EAD WD923 1049 SIL WE272 1051 BEJ WE160 1052 TPR WD942 1054 GEF WF152 1055 EAD WD924 1056 PAL WD992 1058 EAD WD925 1059 TPR WD943 1060 EAD WF036 1061 SVA WE231