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. Om er 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-E2

The petitioner supports its request with the following information:

Seaborne holds Air Carrier Certificat e 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.3

 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 stat ements 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 for4

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 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 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