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 Profe ssionals), 750 Lexington Avenue, 28 th 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-E2

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 Professiona ls 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 replaci ng 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 ma nufacturing 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 contribu tion 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.3

 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 business4

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 da te 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.5

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 .