AFS-10-409-E Exemption No. 10179

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

SEABORNE VIRGIN ISLANDS, INC.

D.B.A. SEABORNE AIRLINES Regulatory Docket No. FAA-2010-0947 for an exemption from part 121, Appendix K, Paragraph 5 of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated September 20, 2010, Mr. Omer ErSelcuk, President and Chief Executive Officer, Seaborne Virgin Islands, Inc. d.b.a. Seaborne Airlines (Seaborne Airlines), 1210 Watergut, Christiansted, Virgin Islands, 00820, petitioned the Federal Aviation Administration (FAA) on behalf of Seaborne Airlines for an exemption from part 121, Appendix K, Paragraph 5(a) of Title 14, Code of Federal Regulations (14 CFR). Seaborne Airlines petitioned for exemption from certain aircraft performance requirements in part 121, Appendix K, Paragraph 5(a) that are effective on and after December 20, 2010, that pertain to the operations of Seaborne Airlines DHC-6-300 wheel-equipped airplanes.

On December 2, 2010, Seaborne Airlines submitted supplemental information requesting an extension of the December 20, 2010 compliance date.

The petitioner requests relief from the following regulation:

Part 121, Appendix K, Paragraph 5 states in pertinent part:

Final Airplane Performance Operating Limitations.

a. Through an amended type certification progr am or a supplemental type certification program, each airplane described in paragraph 1.a and 1.b.ii of this appendix must be shown to comply with the commuter category performance requirements specified in2

this appendix, which are included in part 23 of this chapter. Each new revision to a current airplane performance operating limitation for an airplane that is or has been demonstrated to comply, must also be approved by the Administrator. An airplane approved to the requirements of section 1.( b) of SFAR No. 41 of 14 CFR part 21, as described in paragraph 1.a.iv of this appendix, and that has been demonstrated to comply with the additional requirements of section 4.(c) of SFAR No. 41 of 14 CFR part 21 and International Civil Aviation Organization Annex 8 (available from the FAA, 800 Independence Avenue SW., Washington, DC 20591), will be considered to be in compliance with the commuter category performance requirements.

b. Each turbopropeller powered airplane subject to this appendix must be demonstrated to comply with the airplane performance operating limitation requirements of this chapter specified as follows:

i. Section 23.45 Performance General.

ii. Section 23.51 Takeoff.

iii. Section 23.53 Takeoff speeds.

iv. Section 23.55 Accelerate stop distance.

v. Section 23.57 Takeoff path.

vi. Section 23.59 Takeoff distance and takeoff run.

vii. Section 23.61 Takeoff flight path.

viii. Section 23.65 Climb: All engines operating.

ix. Section 23.67 Climb: one engine inoperative.

x. Section 23.75 Landing.

xi. Section 23.77 Balked landing.

xii. Sections 23.1581 through 23.1589 Airplane flight manual and approved

manual material.

The petitioner supports its request with the following information:

Seaborne Airlines states that it holds air carrier certificate number S9BA675J. It has operation specifications authorizing it to conduct domestic, flag, and supplemental operations in the islands of the Caribbean. Seaborne Airlines primarily provides passenger services to Puerto Rico and the Virgin Islands using DeHavilland DHC-6- 300 (DHC-6-300) aircraft.3

Seaborne Airlines states that the provisions of part 121, Appendix K, require that, after December 20, 2010, the DHC-6-300 aircraft operated by Seaborne Airlines show compliance with the commuter category performance requirements specified in Appendix K. This appendix states that this compliance must be demonstrated by either an amended type certification program or a supplemental type certification program. Seaborne Airlines is requesting relief from the restriction specified by the statement “Through an amended type certification program or supplemental type certification program.”

Seaborne Airlines states that it is asking that it be able to demonstrate compliance with the commuter category performance requirements of this appendix by using Supplemental 37 to the DHC-6-300 Aircraft Flight Manual, dated June 25, 2010. This supplement was prepared by the manufacturer and approved by Transport Canada on June 25, 2010.

Seaborne Airlines believes that the requirement to demonstrate compliance through an amended type certification program or a supplemental type certification program should have also included the option to use data provided by the manufacturer as supplements to the AFM. The petitioner believes that the FAA’s language in this provision was based on the FAA’s understanding at the time the Commuter Operations and General Certification and Operations Requirements Final Rule (60 FR 65832) that no manufacturer had developed performance data that would meet the specified

criteria.

Seaborne Airlines states that it is not requesting relief from any performance requirement of part 121 but is requesting that the FAA recognize Supplemental 37 as an approved method to demonstration compliance. Since this supplement was prepared by the manufacturer and approved by Transport Canada, Seaborne Airlines believes that the data is as accurate as could be obtained from any other source. Seaborne Airlines believes that the same or possibly greater level of safety would exist by granting the use of the manufacturer’s supplemental data to meet performance requirements.

Seaborne Airlines states that if it is unable to use the manufacturer’s data to show compliance, it will be forced to conduct operations in accordance with regulatory requirements with lesser safety standards after December. Seaborne Airlines states that if it is unable to absorb the financial impact of this restriction, many of its passengers would be forced to fly on “9 or less” piston powered or single engine aircraft to some of the island destinations they currently serve. Seaborne Airlines carriers approximately 85 percent of the local pa ssenger traffic between St. Croix and St.

Thomas.4

Seaborne Airlines states that it believes the FAA spoke to the above concern in Commuter Operations and General Certifi cation and Operations Requirements final rule by stating that some carriers:

“might replace their equipment with airplane configured for fewer than 10 passengers. This airplane group is not covered by this rulemaking and has a higher accident rate than the 10-19 passenger airplanes. Therefore, an unintended effect of this rule could be an increase in the accident rate.” (60 FR 65857).

Seaborne Airlines states that in addition to this unintended consequence, two unforeseen situations occurred well after this rule was adopted; first, that the 15 year compliance period contained in the rule would:

“...allow operators sufficient time to plan for the replacement of these airplanes without incurring an enormous economic loss. It also will allow manufacturers time to develop better substitutes for these airplanes.” (60 FR 65893).

Seaborne Airlines states that it is not aware of any replacement aircraft that is now available that will replace the DHC-6-300 in the market that it serves.

Secondly, Seaborne Airlines states that there was an assumption that:

“...the average market values for the pre-SFAR 41C airplanes are $500,000 for the (DHC-6) Twin Otter...” and that “... these airplanes will incur a reduction in market value of $56,000 ($20,000 present value).” (60 FR 65905).

Seaborne Airlines states that that presumption proved to be substantially inaccurate in

the current market value of a DHC-6 Twin Otter is between two and a half million

dollars to three million dollars based on condition and maintenance status. Seaborne Airlines states that in addition to the acquisition cost, its direct hourly operating cost is $650 per hour. Seaborne Airlines contends that it is economically impossible for it to serve the public and maintain current 121 safety levels by operating this aircraft in a “9 or less” seating configuration.

Seaborne Airlines states that its role in the U.S. Virgin Islands and Puerto Rico is one of extreme importance economically and politically. The petitioner states that without its frequent and convenient flights operating safely under part 121, many aspects of this strategically vital part of the US would come to a halt. Seaborne Airlines believes that granting this exemption which provides passengers with continued access to turbopropeller powered twin engine aircraft is in the public interest.

A summary of the petition was published in the Federal Register on November 19, 2010 (75 FR 70965). No comments were received.5

The FAA's analysis is as follows:

The FAA has reviewed the petitioner’s supporting information and has not yet determined whether these airplanes can meet the final airplane performance operating limitations in part 121, Appendix K, Paragraph 5(a) by the December 20, 2010 compliance date. This is due to the time needed for the FAA’s New York Aircraft Certification Office and the Canadian Civil Aviation Authority to determine if the aircraft in question will be able to meet the aircraft certification requirements. Therefore, the FAA will grant an exemption to extend the compliance date in § 121.173(b)(2) and part 121, Appendix K to April 30, 2011, before which time the FAA will review any additional information provided by Seaborne Airlines.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption 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, Seaborne Virgin Islands, Inc. d.b.a. Seaborne Airlines is granted an exemption from 14 CFR § 121.173(b) to the extent necessary to allow Seaborne to continue conducting its operations under the applicable requirements of 14 CFR part 121.

This exemption terminates on April 30, 2011, unless sooner superseded or rescinded.

Issued in Washington, DC, on December 16, 2010.

/s/

John M. Allen Director, Flight Standards Service .