Exemption No. 10607 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 20591 

 

In the matter of the petition of 

 

DESIGN PROFESSIONALS, LLC Regulatory Docket No. FAA-2012-0480

 

for an exemption from § 135.152(j) 

and Part 135, Appendix F, of Title 14, 

Code of Federal Regulations 

 

DENIAL OF EXEMPTION 

 By letter dated April 23, 2012, Mr. Steven M. Cherniak, Chief Operating Officer, Design 

Professionals, LLC (Design Professionals), 750 Lexington Avenue, 28th Floor, New York, 

New York 10022, petitioned the Federal Aviation Administration (FAA) on behalf of Design 

Professionals for an exemption from § 135.152(j) and part 135, Appendix F, of Title 14, Code 

of Federal Regulations (14 CFR). This exemption, if granted, would allow Design 

Professionals to continue to operate its Bombardier Global Express BD700-1A10 XRS 

aircraft, Serial Number 9428, for two years without a digital flight data recorder (DFDR) that 

uses the sampling rates required by 14 CFR § 135.152(j) and Appendix F of part 135. 

The petitioner requests relief from the following regulation:

Section 135.152(j) prescribes that for all turbine-engine-powered airplanes with a seating 

configuration, excluding any required crewmember seat, of 10 to 30 passenger seats, that are 

manufactured after August 19, 2002, the parameters listed in paragraph (h)(1) through (h)(88) 

of that section must be recorded within the ranges, accuracies, resolutions, and recording 

intervals specified in Appendix F to that part. 

AFS-12-346-E 
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The petitioner supports its request with the following information:

Design Professionals requests a two-year time-limited exemption from the regulatory 

requirements for U.S. operators in § 135.152(j) for its Global Express BD700-1A10 XRS 

aircraft, serial number 9428. Design Professionals states that this airplane received a 

certificate of airworthiness on January 26, 2011, with an interior configuration having a 

maximum passenger seating capacity of 13. Because it is not economically or technically 

feasible to upgrade the existing avionics suite to comply with the requirement, the petitioner 

requests that it be granted an exemption to operate the aircraft under 14 CFR part 135 while 

recording certain flight data parameters at lower sampling rates than those required by the 

regulation for two years, or until the aircraft is removed from part 135 service and is replaced 

by a compliant aircraft. The petitioner requests that this relief for meeting the sampling rate 

requirements for the flight control surface inputs, positions, and forces listed in § 135.152(h), 

and Appendix F of part 135, specifically parameters 12a, 13a, 14a, 15, 16, 17, and 88. 

The petitioner notes that the original equipment manufacturer, Bombardier Aerospace, 

produces a replacement avionics suite, Global Vision Flight Deck (GVFD), that complies 

with the requirements of Appendix F, but the configuration of this aircraft precludes this 

upgrade. Design Professionals states that there is no economic or technically feasible solution 

available to retrofit the GVFD to this aircraft. Therefore, the petitioner is requesting that it be 

allowed to operate its aircraft for 24 months, after which it will be removed from part 135 

operations. Design Professionals plans on replacing the subject aircraft with one that is 

compliant with part 135. The petitioner adds that its aircraft is equipped with the Honeywell 

Primus 2000XP system and complies with the part 135 DFDR requirements for aircraft 

manufactured prior to December 6, 2010. 

The petitioner states that Bombardier stopped manufacturing aircraft with the older avionics 

package in February of 2011, less than 3 months after the implementation date for increased 

data recording rates in DFDR systems. Apart from these seven flight data parameter 

recording rates, the petitioner states that the airplane complies with all other applicable 

requirements introduced in this amendment. Design Professionals adds that the Honeywell 

Primus 2000XP system on the BD-700 cannot be further upgraded to meet current data rate 

recording requirements without major redesign and significant cost. 

The petitioner states that it recognizes the contribution of flight data recorders to accident and 

incident investigations, and ultimately to the safety of the design and operation of future 

aircraft. Design Professionals does not believe the time limited exemption would adversely 

affect airplane or passenger safety because the current equipment is able to record DFDR 

parameters at the recording rates required for older airplanes. If the two-year exemption is 

not granted, Design Professionals states that it does not have the ability to make full use of the 

earning potential of the asset as a charter aircraft. To further support its request, the petitioner 

provides the following statistics on the Global Express BD700-1 A 10 /11 fleet: 

 There are approximately 425 GX aircraft operating world wide. 

 Of these 425 GX aircraft, approximately 225 GX aircraft are on the U.S. registry. 
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 Of these 225 GX aircraft, approximately 10 percent (25 GX aircraft) operate under 

part 135 before amendment 135 - 121. 

 All new production aircraft incorporate the GVFD which is compliant with part 135 

amendment 135-121. 

 Only one aircraft pre-GVFD (serial number 9428 operating in the U.S.) is affected by 

the effectivity of amendment 135-121. 

The petitioner states there is no appreciable negative impact on operational safety by granting 

this exemption for one aircraft. The petitioner stated that there are “sufficient grounds” to 

support a 2-year exemption when considering the amount of time between the delivery of the 

aircraft in March 2012 and the proposed removal from service in May 2014. 

The petitioner adds that this exemption request meets the FAA’s standard for granting without 

publication in the Federal Register or public comment since it is substantially similar to prior 

exemptions granted (i.e., Exemption Nos. 10394 and 10265) where the FAA found the 

request compliant with the recording requirements, except for the datalink communication 

recording requirement. The petitioner states that this exemption would not set new precedent 

and is in the public interest. 

 The FAA has determined that good cause exists for waiving the requirement for 

Federal Register publication because any delay in acting on this petition would be detrimental 

to Design Professionals. 

The FAA’s analysis is as follows:

In February 2005, the FAA published a proposed rule to increase the sampling rates for 

certain DFDR parameters listed in Appendix F to part 135 (70 FR 9752, February 28, 2005). 

In March 2008, the FAA promulgated a final rule increasing the sampling rates; these rates 

apply to the petitioner’s aircraft under § 135.152(j) (73 FR 12542, March 7, 2008). 

Compliance with those regulations was required for aircraft manufactured after April 7, 2010; 

on April 5, 2010, that compliance date was extended for 8 months to December 6, 2010 to 

allow operators and aircraft manufacturers additional time to comply with the new increased 

sampling rate requirements. 

After making the decision to continue manufacture of nine of these aircraft after the 

compliance date, Bombardier sought an exemption on behalf of future operators of the 

airplanes. When that was denied, Bombardier petitioned for rulemaking to have the 

regulation changed for the nine airplanes to give them the advantage of operation under 

part 135. 

Design Professionals has one of these airplanes and now argues that an exemption is 

warranted so that it can “make full use of the earning potential of the asset as a charter 

aircraft.” In the circumstances presented here, Bombardier made a business decision to 

produce this airplane intended for operation under part 135 almost three months after the 

extended effective date for the regulations. Design Professionals then made a business 
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decision to acquire the aircraft although it was not compliant with the part 135 operations it 

planned to conduct. Design Professionals’ plan to operate the aircraft for two years and then 

replace it with a compliant aircraft, as it states, is dependent on the FAA granting the 

requested exemption for an aircraft manufactured out of compliance with the regulations. 

As was the case with the Bombardier requests, Design Professionals has not presented any 

evidence that it is different from any other part 135 operators such that exemption relief is 

appropriate. In both cases, the petitioners have sought relief for aircraft that were 

noncompliant at manufacture and for which compliance has never been proposed. Neither 

Bombardier nor Design Professionals sought relief while the aircraft was scheduled for 

modification to comply. Instead, they each argued that the avionics system was not 

upgradable, without regard to the choice made to manufacture the aircraft with the 

noncompliant, non-upgradable system installed. That the airplane is of less value as a part 91 

airplane and cannot be leased or sold to operate under part 135 is a condition that was under 

the total control of Bombardier at manufacture, and of Design Professionals when they 

decided to lease the airplane. 

Moreover, Design Professionals presented no information why an exemption for them alone 

would be in the public interest, which is required when requesting an exemption. Nor has 

Design Professionals shown why the airplane, as equipped, provides a level of safety 

equivalent to other aircraft with the same date of manufacture that comply with the DFDR 

requirements. Design Professionals states only that, as did Bombardier, that the aircraft 

complies with the previous requirement. The statistics presented in the petition concerning 

the number of airplanes manufactured and those operating in service in the United States have 

no bearing on the decision for Design Professionals’ request. The fact that no more of the 

airplanes are being produced is equally irrelevant. 

When the FAA denied Bombardier’s petition for rulemaking in March 2012, we agreed that it 

was unlikely we would grant an exemption to operators of the noncompliant airplanes, and 

that one of the reasons was that it would amount to a permanent exemption since no 

modification was expected. We stated that “[a]ny such request for exemption would be 

expected to incorporate a firm commitment to an equipment upgrade that brings the airplanes 

into full compliance with the regulation.” In this instance, Design Professionals has instead 

characterized its request as being for a “time-limited” exemption. In reality, the request by 

Design Professionals is for a permanent exemption since the petitioner does not have any 

intention of modifying the airplane to comply. The only time limit in the request appears to 

be the amount of time the petitioner wants to operate the airplane under part 135 in order to 

recoup its investment before it moves on to another aircraft. 

Design Professionals also cited two exemptions granted by the FAA, indicating that its 

petition is “substantially similar.” The referenced exemptions were for datalink recording, 

which has nothing to do with referenced DFDR parameters and are not at all similar to the 

request by the petitioner. 
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Nothing presented by Design Professionals in this petition warrants that an exemption be 

granted. The situation of the noncompliant airplanes was well known by the manufacturer 

when it produced them, and the petitioner when it chose to acquire them for operation. Both 

made business decisions that are not a proper basis for regulatory relief. 

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 Design Professionals, LLC 

for an exemption from 14 CFR § 135.152(j) and Appendix F of part 135 is hereby denied. 

Issued in Washington, DC, on August 24, 2012. 

/s/ 

Raymond Towles 

Acting Director, Flight Standards 

 Service .