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 program 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 in 
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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. 
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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 passenger traffic between St. Croix and St. 

Thomas. 
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Seaborne Airlines states that it believes the FAA spoke to the above concern in 

Commuter Operations and General Certification 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. 
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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 .