Exemption No. 10489 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 20591 

 

In the matter of the petition of 

 

SEABORNE VIRGIN 

ISLANDS, INC. Regulatory Docket No. FAA-2012-0098

d.b.a. Seaborne Airlines 

 

for an exemption from § 121.359(i) 

of Title 14, Code of Federal 

Regulations 

 

DENIAL OF EXEMPTION 

 By letters dated January 26 and March 1, 2012, Mr. Omer ErSelcuk, President/Chief 

Executive Officer, Seaborne Virgin Islands Inc., d.b.a. Seaborne Airlines (Seaborne), 1210 

Watergut, Christiansted, VI 00820 petitioned the Federal Aviation Administration (FAA) on 

behalf of Seaborne for an exemption from § 121.359(i) of Title 14, Code of Federal 

Regulations (14 CFR). This exemption, if granted, would allow Seaborne the continued 

domestic operation of its three DeHavilland DHC-6 (Registration Nos. N251SA, N288SA and 

N562CP) airplanes until as late as October 5, 2013 without a cockpit voice recorder (CVR) 

that meets the requirements of 14 CFR § 121.359(i). 

The petitioner requests relief from the following regulation:

Section 121.359(i) requires that by April 7, 2012, all turbine engine-powered airplanes 

subject to this section that are manufactured before April 7, 2010, must have a CVR 

installed that “retains at least the last 2 hours of recorded information using a recorder 

that meets the standards of TSO–C123a, or later revision.” 

AFS-12-192-E 
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The petitioner supports its request with the following information: 

Seaborne holds Air Carrier Certificate Number S9BA675J, and has operations 

specifications authorizing it to conduct domestic, flag, and supplemental operations in 

the islands of the Caribbean. The petitioner stated that it leases three DeHavilland 

DHC-6 airplanes configured with 30-minute CVRs. Seaborne added that the owner of 

the DHC-6 airplanes refuses to upgrade or share the cost to upgrade the CVR to be 

compliant with 14 CFR § 121.359(i) because the airplanes comply with Part 135 

requirements in their current configuration. The petitioner states that it would have to 

make a substantial financial investment of over $23,200 per airplane to bring these 

airplanes into compliance with part 121 requirements. 

The petitioner states that the FAA rejected commenter requests to extend the 2-hour 

CVR compliance date in the final rule (Docket No. FAA-2005-20245). However, the 

FAA did recognize the possible need for a temporary operating exemption for 

individual airplanes. The petitioner stated that the FAA has granted similar 

exemptions to 14 CFR § 121.359 by citing exemption numbers 10304, 10352, and 

10394. 

Seaborne stated that it is prepared to comply with this required upgrade but it is 

concerned that the subject airplanes are not guaranteed to be available to Seaborne at 

the end of the lease period. If the petitioner committed to upgrade the CVR system, 

the petitioner stated that entire cost will be placed on Seaborne with no assurance of 

future benefit to Seaborne. Accordingly, the petitioner requested relief for the entire 

duration of each airplane’s lease contract. 

Seaborne requested an exemption, until December 15, 2012, October 15, 2012, and 

October 5, 2013 for the three DHC-6 airplanes with registration Nos. N251SA, 

N288SA, and N562CP, respectively. 

Additionally, Seaborne supported its request by stating the following: 

 The subject airplanes were certified as non-transport category under Civil Aviation 

Regulation 3, now 14 CFR part 23. 

 The subject airplanes are not pressurized and used for short flights of less than one 

hour at altitudes below 4,000 foot above ground level. 

 The subject airplanes’ passenger seating configuration is certified for 19 passengers or 

less with no flight attendant required for operation, therefore there is no cabin to 

cockpit flight crew communication to record. 

 Seaborne is the only part 121 air carrier operating DHC-6 airplanes and provides 

low-cost air travel in the San Juan and Virgin Islands markets. 

 Seaborne is the only air service between Charlotte Amalie, St. Thomas, VI and 

Christiansted, St. Croix, VI. 
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 Air Traffic Control tower services are available at all Seaborne wheel plane 

destinations. Also, approach control with radar monitoring services is available 

throughout Seaborne’s market area. 

 All of Seaborne’s scheduled flights are 47 minutes or less and 80 percent of these 

flights are less than 20 minutes resulting in 80 percent of Seaborne’s entire flights are 

recorded on the 30-minute CVR. 

 The CVR is used as a post incident investigation tool and the presence of a CVR in the 

airplane does not affect the operational safety capabilities of these airplanes. 

 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 Seaborne. 

The FAA’s analysis is as follows:

Cockpit voice recorders (CVRs) are required by regulation because they are 

recognized as an essential tool for investigating accidents and incidents. Although a 

CVR does not affect flight crew procedures, it is critical for later analysis of crew 

performance and the procedures used during an accident or incident. 

The FAA appreciates the challenges associated with upgrading a fleet of CAR-3 

airplanes. The FAA published a notice of proposed rulemaking that included this 

requirement on February 28, 2005. On March 7, 2008, the FAA issued a final rule 

that allowed four years for compliance with the 2-hour recording requirement of 

§ 121.359(i). The FAA considers this ample time for operators to certify and install 

the CVR equipment as well as amortize the costs associated with compliance. In this 

instance, the petitioner instead waited until three months before compliance is 

required to petition for exemption with no plan in place for compliance. Seaborne 

chose to act late and without a plan to upgrade the CVR systems. The decision to not 

upgrade the CVR equipment was, according to Seaborne’s petition, a business 

decision based on the unwillingness of the aircraft owner to pay for the upgrades. 

The FAA disagrees with the petitioner’s assertions that the FAA has granted operators 

relief from similar provisions. Seaborne’s request is similar in no regard to the 

referenced exemptions, which concerned the requirements of § 121.359(k), for 

datalink communication recording, and § 121.359(j)(4), for compliance with the CVR 

certification rules. In each of those instances, the petitioners were unable to perform 

datalink recording because of equipment and software certification issues experienced 

by the equipment manufacturer that made certified equipment unavailable, not 

because they made a business decision to not modify their aircraft with readily 

available equipment. 

The FAA also disagrees that Seaborne’s statements regarding the type of aircraft, the 

type of engines, the duration of operations, and the types of operations it conducts are 

relevant to a grant of exemption to a rule establishing the minimum recording time for 
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cockpit voice recorders. The need for 2-hour CVRs in part 121 operations was 

established in the preamble of the notice of proposed rulemaking and repeated in the 

preamble of the final rule. The two-hour CVR was deemed the appropriate minimum 

duration to capture those communications for use in accident or incident investigation 

regardless of the duration of an individual flight. 

Seaborne’s petition is clear that it has a business dispute with the lessor of its 

airplanes. It is equally clear that Seaborne never planned to bring the three subject 

DHC-6 airplanes into compliance by April 7, 2012. Nor has the petitioner included 

any plan for bringing the aircraft into compliance at any time after April 6, 2012. 

Accordingly, the FAA cannot conclude that the requested relief would be in the public 

interest. The petitioner made a business decision to lease the airplanes and a business 

decision not to comply with the regulation. The petitioner has not shown that its 

situation is any different from any other part 121 operator subject to the regulation, 

and its circumstances are entirely within its control. 

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 Seaborne Airlines for an 

exemption from 14 CFR § 121.359(i) is hereby denied. 

Issued in Washington, DC, on March 30, 2012. 

/s/ 

John W. McGraw 

Acting Director, Flight Standards 

 Service