Exem ption No. 10415

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

EVERGREEN HELICOPTERS, INC. Regulatory Docket No. FAA-2011-1059

for an exemption from §§ 91.609(c)(1) and 135.152(a) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated Septem ber 19, 2011, Mr. Bruce Currier, Vice President for Avionics and Engineering, Evergreen Helicopters, Inc. (Evergreen), 3850 Three Mile Lane, McMinnville, Oregon 97128, petitioned the Federal Aviation Admi nistration (FAA) on behalf of Evergreen for an exemption from §§ 91.609(c)(1) and 135.152(a) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemp tion, if granted, would allow Evergreen to operate one Eurocopter AS332L-1 Puma helicopter for 24 months before it installs the flight recorder equipment necessary to bring the aircraft into compliance with part 135.

The petitioner requests relief from the following regulations:

Section 91.609(c)(1) prescribes 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 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.

Section 135.152(a) prescribes that except as provided in paragraph (k) of this section, no person may operate under this part a multi-engine, turbine-engine powered airplane or rotorcraft having a passenger seati ng configuration, excluding any required

AFS-11-472-E2

crewmember seat, of 10 to 19 seats, that was either brought onto the, U.S. register after, or was registered outside the United States and added to the operators U.S. operations specifications after, October 11, 1991, unless it is equipped with one or more approved flight recorders that use a digital method of recording and storing data and a method of readily retrieving that data from the storage medium. The parameters specified in either appendix B or C of this part, as applicable must be recorded within the range, accuracy, resolution, and recording intervals as specified. The recorder shall retain no less than 25 hours of aircraft operation.

The petitioner supports its request with the following information:

The petitioner states that in June 2010, following acquisition of the aircraft, it embarked on a concerted effort to equip its AS332L-1 rotorcraft with the required flight data recorder (FDR) and cockpit voice recorder (CVR) equipment. The petitioner noted the aircraft is equipped with an FAA-approved CVR system in compliance with all current guidance and certification requirements while operating with limited operational capability.

The petitioner states the subject helicopter was not manufactured with the flight recorder equipment required for part 135 operation, and no available modifications exist to bring the helicopter into compliance with part 135.

The petitioner states that following the initial discussions with Eurocopter-France product support engineering in May of 2010, the installation of the FDR system appeared quite possible. However, by July 2010, the situation remained unchanged with protracted lead-times and non-availability of equipment.

The petitioner cites several certification, logistics, and technical issues as hindering its flight recorder equipment efforts.

The petitioner states that a grant of exemption would be in the public interest because this aircraft is one of the few owned by civil operators well experienced in a paramilitary tactical role and integrates easily with the U.S. command structure to provide requested services on behalf of U.S. forces so deployed. The petitioner also states that “[T]he U.S. command and its va rious contractors continue to press for accelerated delivery of this type of aircraft” in Afghanistan.

The petitioner states that this petition meets the equivalent level of safety and does not impair the operational safety of the basic aircraft. The aircraft remains fully equipped with a full instrument flight rules avionics and instrumentation suite and safe operation of the aircraft remains technically unimpaired and no flight manual performance data are compromised. The petitioner adds that in the event of an accident investigation, the aircraft is equipped with a fully operational three-channel TSO C-123 solid state CVR. This recorder is fully integrated into all audio and communications systems and any aural advisories which may be so generated. In addition, the aircraft is equipped with3

an Iridium satellite tracking device that provides a real-time update on basic aircraft flight profiles.

The petitioner states the affected aircraft must be into contractual service not later the approximately October 15, 2011, and operate under the requirements of 14 CFR part 135 operating rules.

The FAA has determined that good cause exists for waiving the requirement for Federal Register publication because the exemption, if granted, would not set a precedent, and any delay in acting on this petition would be detrimental to Evergreen.

The FAA’s analysis is as follows:

In July 2010, the petitioner requested the exact same relief for a single AS332L-1 helicopter, serial number 2201, citing unavailability of the equipment required for modification. The petitioner noted that acceptable equipment did not exist and was making inquiries on what was required to make the aircraft compliant. The relief was granted for one aircraft. In fact, the petition submitted here appears to be the identical petition with some of the numbers and dates changed and some not. In its statement on public interest, this petition refers to the helicopter serial number 2201 rather than the

current serial number 2179 aircraft. That error was noted but is not relevant to this

decision.

In each case, the petitioner has knowingly acquired noncompliant aircraft that were on foreign registry. In the present instance, Evergreen also knew that the required modifications are as uncertain as they were when it filed the first petition in 2010. The current petition indicates that there has been virtually no progress on the modifications required to bring these helicopters into compliance in the year since the first petition. At that time, Evergreen had requested that it be allowed to operate the aircraft for an unprecedented 6 years before bringing it into compliance because the aircraft was to be used in service in Afghanistan. That request was filed in July 2010 with a statement that Evergreen needed to bring the aircraft into service under contract in September 2010, considerably less than the 120 days required for consideration of an exemption.

Similarly, the current petition was filed on September 19, 2011, and indicates that the petitioner needs the aircraft to fulfill a contract requirement beginning October 15,

2011.

Most notably, the 2010 grant for that single helicopter contained the following statement by the FAA:

The petitioner is cautioned to heed its experience in acquiring retrofit equipment and not acquire any similar aircraft with the expectation that requests for exemption will be granted.4

Yet the petitioner cites the grant of that request as support for its present request for

another aircraft of the same model.

The petitioner has made a business decision to acquire noncompliant aircraft that were not of U.S. registry. The petitioner knows the aircraft cannot be brought into compliance in any timely fashion and continues to place the blame for delay on the foreign manufacturers rather than its own business choices. There is nothing to indicate any financial commitment by the petitioner to effectuate the modifications. Yet the petitioner has contractually bound itself to bring these aircraft into service for the U.S. military and has timed its requests to put the pressure on the FAA to allow expanded operation under Evergreen’s part 135 certificate. Evergreen was cautioned last year not to present more of these noncompliant aircraft and expect the FAA to grant exemptions. The current petition does nothing to distinguish this situation from the previous or in any way strengthen Evergreen’s arguments that it is committed to the modifications. Nor does the petition acknowledge the FAA’s previous statements.

Accordingly, we are unable to find that operation of noncompliant aircraft that Evergreen chooses to acquire to be in the public interest.

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exem ption 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 Evergreen Helicopters, Inc. for an exemption from 14 CFR §§ 91.609(c)(1) and 135.152(a) is hereby denied.

Issued in Washington, D.C., on December 21, 2011.

/s/

John S. Duncan Acting Director, Flight Standards

Service