Exem ption No. 10329

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

In the matter of the petition of

Champlain Enterprises, Inc. Regulatory Docket No. FAA-2011-0620 d.b.a. CommutAir/United Express

for an exemption from § 121.344(e)

of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated June 8, 2011, Mr. Jam es Tello, Attorney for Champlain Enterprises, Inc. d.b.a. CommutAir/United Express (CommutAir), 1025 Connecticut Avenue, N.W., Suite 1000, Washington, D.C. 20006, petitioned the Federal Aviation Administration (FAA) on behalf of CommutAir for an exemption fr om § 121.344(e) of Title 14, Code of Federal Regulations (14 CFR). This exemption, if granted, would allow CommutAir, operating under contract with United Airlines, Inc., as United Express, the continued operations of two Bombardier Q300 (N839CA and N837CA) series ai rplanes for 18 months from the date of this letter without complying with 14 CFR § 121.344(e).

The petitioner requests relief from the following regulation:

Section 121.344(e) prescribes, in pertinent part, that all turbine-engine-powered transport category airplanes that are manufactured after August 18, 2000, must record parameters (a)(1) through (a)(57) as specified in Appendix M to part 121.

The petitioner supports its request with the following information:

The petitioner states it is an air carrier certificated by the FAA pursuant to part 119 and holds operations specifications issued pursuant to part 121 which permit domestic, flag, and supplemental operations.

AFS-11-110-E2

The petitioner states that it signed a contract to purchase two Bombardier Q300 airplanes from Tyrolean Airways earlier this year. The two airplanes were manufactured after August 18, 2000 (but before August 19, 2002), requiring that the airplanes comply with 14 CFR § 121.344(e) and record the 57 parameters of flight data listed in the regulations to operate in part 121 air carrier service. During a conformity inspection on its first airplane, the petitioner discovered that the airplane recorded only 31 parameters of data, all that were required for the European standard, and could not be readily upgraded to the 57-parameter requirement.

The petitioner notes that Bombardier never produced any Q300 airplanes intended for air carrier operation in the United States, and therefore, no 57-parameter installation was ever designed. There are 14 Dash 8 series 300 airplanes in operation in U.S. air carrier service, but the age of these airplanes only require that they have 34 parameters.

CommutAir indicates that it plans to upgrade the two airplanes it acquired to meet the 34-parameter requirement for older airplanes before operating them. The petitioner’s primary request for relief is to be able to operate the two airplanes in part 121 service under its contract with United Airlines with only the 34 parameters required for older airplanes.

The petition included a request for alternative relief if the primary request to operate with 34 parameters is denied. The petitioner will apply for a supplemental type certificate (STC) installation of a 57-parameter flight recorder for the two airplanes. This STC application and installation is expected to take 12 months and cost approximately $500,000. The petitioner considers this a “significant financial burden.” It requests that the two airplanes be able to operate in revenue service during the period that the STC is in development.

The petitioner states that during this period of service with 34 parameters, the airplanes will be operating with a flight recorder equivalent to that installed in the older Dash 8 series 300 airplanes operating in the United States. The petitioner acquired the two Q300 airplanes with the intent to operate them under contract with United Airlines, Inc., as United Express. The airplanes would be used to provide unsubsidized service in small to medium-sized cities throughout the upper Midwest and northeastern United States to United Express’s hubs. The petitioner states that the service performed by the two airplanes will replace flights on routes that otherwise would be uneconomical to serve using less fuel-efficient airplanes with similar seating capacity, thus affording the public in those market areas additional air transportation support for

their local businesses.

The petitioner requests that the FAA waive publication and comment on its petition, stating that “[g]ood cause is shown by this petition for such action because the delay that may result from publication would frustrate its purposes,” and that it would not set a precedent.3

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 could be detrimental to CommutAir.

The FAA’s analysis is as follows:

The FAA notes that the petitioner argues that the “history” of the flight recorder regulation upgrades indicates that the rules were not intended to force the retrofit of airplanes, the number of which is small and declining and such that any safety returns from expansion of the flight recorder systems would be minimal. What the petitioner fails to address is that those statements were made in 1996 for then-existent airplanes and that the airplanes for which it has petitioned here were built after 2000, several years after the upgrade rules for newly manufactured airplanes went into effect (1997). Accordingly, the argument that the cost of a retrofit is unjustified is without merit. The actual cost to CommutAir is considered by the FAA to be a business decision the petitioner made when it decided to acquire the noncompliant airplanes.

Further, the argument that an upgrade is somehow unfair because it would be required for “only two aircraft” is equally without merit since the presence of these two airplanes in the United States is completely of the petitioner’s own doing, appearing more than 10 years after the regulations went into effect. The petitioner actually admits that the airplanes were never intended by the manufacturer to operate in U.S. air carrier service, yet is now attempting to place the burden of compliance on the FAA and the flying public by asking that it be given permission to not comply with the same regulations to which its competitors are subject.

The petitioner’s reliance on previously granted exemptions as a basis for its own is also misplaced. The first exemptions cited were granted for airplanes that were designed to meet the August 18, 2000, regulatory requirements but failed to meet them for a short period of time because of manufacturing difficulties. Nothing about this situation is similar to the circumstances of that exemption. The cited exemption granted to Delta Air Lines was equally irrelevant, as that exemption was granted for a fully compliant system that experienced a malfunction of one parameter, the data from which could be discerned from other operational parameters while the digital flight data recorder system was being fixed.

The FAA does not grant permanent exemptions from operating requirements, so the petitioner’s primary request to operate the airplanes indefinitely with 34 parameters is denied. The petitioner presented no convincing arguments why such an operation is acceptable or why it is in a unique position to need such relief other than its own business decision to acquire noncompliant airplanes.

However, the FAA will allow the use of the two subject airplanes for up to 18 months from the date of this exemption under the following significant conditions. The airplanes will not be eligible to be added to CommutAir’s operations specifications4

until the airplanes record the 34 parameters required by § 121.344(d). Further, the airplanes may not be added to the operations specifications of CommutAir until the petitioner submits to its principal maintenance inspector (PMI) a copy of a signed contract committing CommutAir to the development of the STC described in its petition that would upgrade the airplanes to the required 57 parameters and a signed contract committing to the installation of the required equipment before the expiration of this petition. In no case will the FAA accept a contract that can be canceled at the will of either party. In the event that the contract is canceled for any reason, the petitioner fails to execute any of the contract terms, or the petitioner fails to submit notice of its interim progress toward compliance, this exemption will terminate immediately, and the airplanes will be removed from CommutAir’s operations specifications. The PMI may coordinate any documents presented pursuant to this exemption with the Avionics Maintenance Branch at FAA headquarters and the Office of the Chief Counsel before taking action to add the airplanes to CommutAir’s operations specifications.

The petitioner has requested 12 months to accomplish the installation of the required flight recorder parameters. The FAA is granting up to 18 months to allow for any difficulties with the STC or installation. Accordingly, the petitioner is on notice to plan accordingly since no extensions of this exemption will be considered regardless of the interruption of service that may be experienced. The petitioner is further on notice that the FAA will not consider extension of this exemption to any airplanes other than the two listed and that the acquisition of additional airplanes of this type will require full upgrade to the required flight data recorder system before being allowed to operate in

U.S. air carrier service.

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, Champlain Enterprises, Inc. d.b.a. CommutAir/United Express is granted an exemption from 14 CFR § 121.344(e) to the extent necessary to allow CommutAir to operate the two subject airplanes until they are retrofitted to meet the requirements of that section, subject to the conditions and limitations listed below.

Conditions and Limitations

1. This exem ption applies only to the following two airplanes:

Make Model Registration#

Bombardier DHC-8-311 N839CA

Bombardier DHC-8-311 N837CA5

2. This exemption applies only to the recordation of the parameters required by 14 CFR § 121.344(e) and listed in § 121.344(a)(35) through (a)(57) by the two subject airplanes.

3. Before either of the subject airplanes may be added to the operator’s operations specifications, the operator must show that the airplane to be added complies with 14 CFR § 121.344(d) by recording the 34 parameters required by that section in accordance with Appendix M to part 121.

4. Before either of the subject airplanes may be added to the operator’s operations specifications, the operator must submit to its PMI a firm contract for development of an STC to equip the subject airplanes with the 57 parameters of flight data required by 14 CFR § 121.344(e).

5. Before either of the subject airplanes may be added to the operator’s operations specifications, the operator must submit to its PMI a firm contract for installation of the equipment required to equip the airplanes with the 57 parameters of flight data required by 14 CFR §121.344(e) before the termination date of this exemption.

6. No later than January 15, 2012, the operator must submit to its PMI a letter outlining the progress made toward compliance with the installation of the flight recorder parameters required under § 121.344(e) and a firm schedule for installation of the equipment required to make both of the airplanes compliant before the termination date of this exemption.

7. The PMI may coordinate any submitted contracts or other documents with the Avionics Maintenance Branch (AFS-360) at FAA headquarters, which may, in

turn, coordinate the documents with the Office of the Chief Counsel before accepting them as a basis for addition of the airplanes to operations specifications or for their continued operation under this exemption.

8. Cancellation of either contract or other noncompliance with the terms of items 4 and 5 of these conditions and limitations, or failure to comply with item 6 of these conditions and limitations, will cause this exemption to terminate immediately, and the airplanes to be removed from the operator’s operations specifications.

9. No airplanes may be added to the list of affected airplanes listed in item 1, regardless of the date of acquisition.6

10. No extensions of this exemption will be considered regardless of any service impact claimed by the operator.

This exemption terminates the sooner of (1) the installation of the flight data recorder equipment required to comply with § 121.344(e), (2) noncompliance with items 4, 5, or 6 of the conditions and limitations listed above, or (3) 18 months after the date of issuance of the exemption

, unless sooner superseded or rescinded.

Issued in Washington, D.C., on August 15, 2011. .

/s/

John W. McGraw Acting Director, Flight Standards

Service