[Federal Register Volume 66, Number 109 (Wednesday, June 6, 2001)]
[Rules and Regulations]
[Pages 30310-30311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14176]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91, 121, 125 and 135


Exemptions and Exceptions for Flight Data Recorder Requirements

AGENCY: Federal Aviation Administration, DOT.

ACTION: Statement of policy.

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SUMMARY: This document identifies the current FAA policies regarding 
requests for exemption or exception from the operating rules governing 
the use of flight data recorders in either fixed-wing aircraft or 
rotorcraft. The final compliance date for the 1997 rule changes and 
policy changes adopted in 1997 is August 20, 2001. The Federal Aviation 
Administration (FAA) is publishing this document to provide guidance to 
operators that have applied or expect to apply for an exemption or 
exception from the flight data recorder requirements of any operating 
part.

FOR FURTHER INFORMATION CONTACT: Mr. Howard Swancy, Special Assistant 
to the Director (AFS-3), Flight Standards Service, FAA, 800 
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
8237.

SUPPLEMENTARY INFORMATION:

Background

    In 1997, the Federal Aviation Administration promulgated new 
operational regulations for flight data recorders (FDRs) (62 FR 38362, 
July 17, 1997). At that time, the agency also withdrew a previous 
information bulletin that stated policy regarding earlier FDR 
regulations.
    Following the publication of the rule and policy statement, the FAA 
began to receive requests for exemption from the regulations. The FAA 
uses the term exemption to refer to temporary relief from a regulation 
as granted to a specific petitioner. The FAA is currently reviewing all 
requests and exemptions in effect regarding FDRs to determine whether 
they will be made permanent, rescinded, or allowed to expire in the 
final compliance date, August 20 of this year.
    When the 1997 rule was promulgated, the FAA included in 
Sec. 121.344(l)(2), Sec. 121.344a(f), Sec. 125.226(l)(2), and 
Sec. 135.152(k) those aircraft models that the FAA found were too old, 
too few, and too expensive to upgrade and still be economically viable 
to operate. These aircraft were excepted from the FDR requirements and 
have permanent relief from compliance with the FDR regulations of the 
applicable section. The FAA indicated that if operators found that 
additional aircraft models should be considered for permanent 
exception, a petition for rulemaking that included full support for the 
exception request should be submitted. Since that time, there have been 
a considerable number of requests filed.
    Following this paragraph is a list of the minimum information 
necessary to be submitted for each aircraft model requesting an 
exception. Petitioners that already have submitted petitions should 
review this list and consider supplementing their petitions if they 
have not previously provided the necessary information. The FAA will 
consider any information submitted and determine whether more 
information is necessary for the agency to make a decision whether it 
is appropriate to propose exception status for a particular aircraft 
model. Petitioners are cautioned that exception status should not be 
considered automatic when information is submitted, nor should any 
grant of a temporary exemption from the FDR requirements while an 
exception request is pending be used to presume that permanent 
exception status will be granted. This applies to exemptions already 
issued that expire after August 20, 2001, as well. The FAA anticipates 
that some aircraft models that have been granted exemptions may not 
qualify for exception status, and will have to be modified to fully 
comply with the applicable regulations.
     Is this model currently in production?
     What other models are currently in production (or not in 
production) that are similar to this model?
     If this model is not currently in production, is there 
another model that is similar in a way that would facilitate this 
model's adaptability for FDR retrofit?
     How many aircraft of this model were produced by the 
manufacturer? How many of similar models?
     How many are still in operation in the United States? How 
many worldwide?
     Does a supplemental type certificate (STC) exist to 
retrofit this model (or a similar model) with the required flight data 
recorder equipment?
     If no STC exists, what is the expected detailed cost to 
develop a digital flight data recorder (DFDR) STC for this model? 
Provide the source of your estimates, including a person who the FAA 
may contact for verification. Estimates that do not include support 
from a person or organization qualified to make the estimate will not 
be accepted.
     What is the expected cost of STC installation per 
aircraft? Provide a source of information as discussed above.
     What is the estimated downtime per aircraft to install the 
required equipment? Provide a source for your information as discussed 
above.
     Operator estimate of cost of aircraft downtime per week 
for retrofit.
     Costs may be estimated as a range but must be noted as to 
how the range was established.
     Other information specific to an individual petition for 
rulemaking may be requested by the agency based on the circumstances 
presented.

Although only one complete petition for exception need be submitted for 
each model aircraft, operators are advised not to rely on the 
submissions of other operators that are seeking relief for the same or 
similar model aircraft. The FAA will accept materials from petitioners 
jointly, but will not assemble material from separate petitions to make 
a complete case for a particular aircraft model.
    Petitioners should also be precise as to what requirements they are 
seeking relief from. No petitioner may expect that exemption or 
exception status will allow them to remove operational FDR equipment. 
For example, if an airplane meets the current FDR regulations but 
petitions for relief from the upgrades required by the 1997 rules, only 
upgrade relief will be considered. The current regulations must 
continue to be met, and all installed equipment must continue to be 
used and maintained according to the regulations. Further, these 
aircraft should not be presumed to be expected from future changes to 
the regulations.
    Those submitting petitions for rulemaking to seek exception to the 
FDR requirements should submit the required information to the 
following: (1) For paper submissions, send the original signed copy of 
your petition for rulemaking to U.S. Department of Transportation, 
Docket Management System, 400 7th Street, SW., Room PL 401, Washington, 
DC 20591-0001; or (2) For electronic submissions, submit your petition 
to FAA through the Internet using the Docket Management System web site 
at this Internet address: http://dms.dot.gov/.

[[Page 30311]]

Recent Concerns

    Since the time petitioners first requested that other aircraft be 
excepted from the applicable FDR regulations, the FAA has learned of at 
least two circumstances that will affect the way exception requests are 
analyzed. First, after the initial exemptions were granted, the FAA was 
informed that operators of exempted aircraft actively sought out more 
aircraft of these models from overseas and brought them into the United 
States. Those operators already held exemptions from the FDR 
regulations for those models, and therefore, believed that those models 
should be included in their original exemptions. This situation weakens 
the argument for exception status in at least two ways. First, the 
greater number of aircraft allows the cost of retrofit to be spread 
across additional aircraft, reducing the per-aircraft retrofit cost. 
Second, it lessens any public interest argument an operator may have by 
increasing the number of aircraft allowed to operate without FDRs. The 
presence of FDRs has been well established as being in the public 
interest and an important source of information on accidents and 
incidents.
    The FAA always intended exception status to be very limited. The 
agency was and remains concerned that older aircraft of which few are 
left operating under limited circumstances not be denied what use might 
be left in them. Large numbers of aircraft with considerable economic 
viability were never meant to be the subject of exception status. For 
this reason, the FAA will take into account all aircraft worldwide for 
any model submitted for exception status.
    The second circumstance concerns the practice of routinely adding 
and removing the same aircraft from the registries of the United States 
and other countries for benefit. The language added to Sec. 135.152 in 
1988 was specific in its intent of capturing all aircraft that were 
brought onto the U.S. register after October 11, 1991, primarily to 
stop the continued importation of older aircraft that would not need 
FDRs if the rule had instead used a date of manufacture. In 1997, that 
provision was expanded to include aircraft that were added to U.S. 
operations specifications (under foreign registry) after that date. 
Some of these aircraft were affected by the information bulletin that 
the agency withdrew in 1997; it was only after withdrawal that the FAA 
learned that several operators were using the information bulletin, 
combined with the practice of swapping airplanes between registries, to 
gain a benefit. The information bulletin presumed to grandfather any 
aircraft that had once been registered in the United States from the 
``brought on the U.S. register'' language of Sec. 135.152. Once that 
information bulletin was withdrawn as being in distinct conflict with 
the clear language and intent of the rule, the FAA indicated that all 
persons operating under it had 4 years to bring their aircraft into 
compliance. It was then that the FAA began to receive numerous requests 
for exception status. Operators are cautioned that all circumstances 
will be examined closely. Exception status will most likely not be 
proposed by the FAA when a significant number of any model is still 
operating. Nor does the fact that an aircraft model is no longer being 
manufactured automatically mean that exception status will be proposed.
    The FAA has been sensitized to the situation that has resulted in 
distinct benefits being gained by some operators in manipulating the 
status of their aircraft while the FDR regulations were in flux. The 
loss of this benefit will not be considered in deciding whether an 
aircraft model is appropriate for relief from the FDR requirements. 
This is especially true for aircraft models that have never been 
brought into compliance with the regulations promulgated in 1988.

Conclusion

    All operators are reminded that the compliance date for the 1997 
regulations to upgrade FDRs is August 20, 2001. Similarly, aircraft 
that were affected by the withdrawal of the Flight Standards 
Information Bulletin in 1997 had the same 4 years to upgrade their 
aircraft to meet Sec. 135.152. Given the considerable notice of these 
requirements provided by the final rule, the FAA does not intend to 
issue exemptions from that date except in the most limited, temporary 
circumstances, where fully justified. Request for exemption based on 
lack of installation data (i.e., no STC for their aircraft), parts 
availability, or generalized plans to retire aircraft will not be 
granted.

    Issued in Washington, DC on May 31, 2001.
Nicholas Sabatini,
Director, Flight Standards Service.
[FR Doc. 01-14176 Filed 6-1-01; 3:30 pm]
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