Exemption No. 10579

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

LYNDEN AIR CARGO Regulatory Docket No. FAA-2012-0407

for an exemption from § 121.343(d) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated April 9, 2012, Mr. Craig L. Fabian, Regulatory Counsel for Lynden Air Cargo (LAC), 117 North Henry Street, Al exandria, Virginia 22314-2903, petitioned the

Federal Aviation Adm inistration (FAA) on behalf of LAC for an exemption from § 121.343(d) of Title 14, Code of Federal Regulations (14 CFR). This exemption, if granted, would allow one Lockheed L-382G airplane w ith serial number (s/n) 5225 manufactured after May 26, 1989, to operate complying with the flight data recorder (FDR) requirements listed in 14 CFR § 121.343(c) in lieu of § 121.343(d).

The petitioner requests relief from the following regulation:

Section 121.343(d) requires that no person may operate an airplane specified in paragraph (b) of this section that is manufactured after May 26, 1989, as well as airplanes specified in paragraph (a) of this section that have been type certificated after September 30, 1969, unless it is equipped with one or more approved flight recorders that utilize a digital method of recording and storing data and a method of readily retrieving that data from the storage medium. The following information must be able to be determined within the ranges, accuracies, and recording intervals specified in appendix B of this part: (1) Time; (2) Altitude; (3) Airspeed; (4) Vertical acceleration; (5) Heading;

AFS-12-319-E2

(6) Time of each radio transmission either to or from air traffic control; (7) Pitch attitude; (8) Roll attitude; (9) Longitudinal acceleration; (10) Pitch trim position; (11) Control column or pitch control surface position; (12) Control wheel or lateral control surface position; (13) Rudder pedal or yaw control surface position; (14) Thrust of each engine; (15) Position of each thrust reverser; (16) Trailing edge flap or cockpit flap control position; and (17) Leading edge flap or cockpit flap control position.

For the purpose of this section, manufactured means the point in time at which the airplane inspection acceptance records reflect that the airplane is complete and meets the FAA-approved type design data.

The petitioner supports its request with the following information:

The petitioner states that it operates a fleet of six L-382G airplanes and that the subject airplane with s/n 5225 was acquired to replace an airplane slated for retirement. The petitioner states that L-382G with s/n 5225 was manufactured after May 26, 1989 and was issued its original FAA certificate of airworthiness on August 1, 1991. The petitioner notes that the subject airplane was fitted with an FDR and related equipment to record the 17 parameters listed in § 121.343(d) and that none of the other L-382G airplanes operated by LAC are fitted with such equipment.

The petitioner states that the L-382G aircraft is called out in § 121.344(l), which states that it “need not comply with this section, but must continue to comply with applicable paragraphs of § 121.343.” The petitioner states that the cited language was added to § 121.344 after several years of LAC operating its L-382G fleet under an exemption to that rule. The petitioner acknowledges that the FAA intended to provide flexibility to the relatively few commercially operating L-382G airplanes. However, LAC expresses that its L-382G airplane with s/n 5225 is unintentionally impacted by the FDR requirement in § 121.343(d) due to its unusual “date of manufacture.”

If granted, relief from § 121.343(d) which requires recordation of 17 parameters listed in part 121, Appendix B, LAC states that it would comply with § 121.343(c) which requires recordation of 11 parameters listed in part 121, Appendix B. The petitioner states that the relief sought is to achieve FDR system commonality among its L-382G fleet. The petitioner adds that its goal is to fit the subject airplane within the existing LAC maintenance program which would remove the potential for human factors and administrative errors that relate to having a unique aircraft in the fleet of the same type.3

The petitioner states that granting this exemption is in the public interest and gives the following reasons:

 Lynden Air Cargo serves remote communities and projects by transporting essential food, service items, and equipment in Alaska where roads or waterways do not exist. In many cases, these essential goods cannot be transported in any other manner or by any other aircraft.

 Due to distinctive capabilities of the L-382G fleet, LAC aircraft operate in oil spill response efforts, disaster relief and other public interest activities (for example, transporting live whales between marine biology facilities).

 Lynden Air Cargo supports the U.S. military during critical campaigns and the ongoing war against terrorism.

 Lynden Air Cargo is an important provider of jobs in Alaska, and the cost savings realized by granting this request is a benefit to citizens of that state.

The petitioner states that granting this exemption does not adversely affect safety and gives the following reasons:

 The main difference between § 121.343(c) and § 121.343(d) is the recording of an additional 6 “channels” of information. The information obtained by monitoring six additional channels required by § 121.343(d) on a single airplane will not provide meaningful assistance in evaluati ng any potential incident or accident for the benefit of the flying public. Data collected for compliance with § 121.343(c) therefore provides an equivalent level of safety and fulfills the public safety

interest.

 This exemption would apply to a single airplane. Due to the limited number of L382G aircraft in operation, and the fact that its role is limited to all cargo service, often in distinctive heavy lift situations, there is no benefit in collecting the

additional data.

The petitioner adds that granting this exemption will not set a precedent and is not identical to any previous exemption. The petitioner states that any delayed action on this petition will result in significant additional costs to LAC.

In addition to domestic operation, the petitioner states that LAC provides support for the U.S. military around the world. The petitioner adds that it operates in remote international locations due to the distinct capabilities of its L-382G fleet. Also, LAC expresses that it is essential to have the ability to exercise the privileges of this exemption outside the U.S.

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 LAC.4

The FAA’s analysis is as follows:

The FAA disagrees with several of LAC’s assertions. First, as the petitioner notes, § 121.344(l) already provides relief from the 1997 FDR upgrades by allowing certain older aircraft to comply with the previous requirement applicable to the aircraft. The petitioner has requested that it be able to comply not with the older requirement for its aircraft based on the date of manufacture (17 parameters), but a lesser requirement for an even older aircraft (11 parameters). The petitioner’s sole argument is that it would be more convenient to maintain common equipment across its fleet. However, the petitioner knew the requirements for the airplane in question when it acquired the airplane, and made a business decision to acquire it anyway. The applicability of § 121.344(d) is not an “unintentional consequence” of the FDR regulations.

The FAA also disagrees with the petitioner’s statement that the information from the six additional parameters required for its airplane “will not provide meaningful assistance” following an incident or accident. The FAA and the National Transportation Safety Board have long agreed that the six additional parameters, which represent flight control surface input and flight control surface positions, are some of the most critical in post incident and accident investigations. The FAA does not agree that reducing the amount of data recorded would not impact the level of safety of the airplane, and its effect on data for the operating fleet of similar airplanes. It is not an appropriate request to reduce the amount of flight data recorded simply to ease the operational and maintenance requirements of the operator, when the operator chose to acquire an airplane whose FDR requirements have been in place for over 20 years. The petitioner has not given any reason why this airplane could not continue to operate in LAC’s fleet when properly equipped, nor a ny reason why it would be appropriate to grant a permanent operating exemption for something the airplane is capable of doing.

Finally, the FAA has never accepted the assertion that cargo airplanes are different for FDR purposes. The operating characteristics of the airplane – and the data recorded on an FDR – are the same whether carrying passengers or cargo. The FDR requirements in Part 121 have already been tailored to the capabilities of airplanes based on their date of manufacture, and provide regulatory re lief for older airplanes. Nothing in this petition demonstrates any unique circumstances of this operator compared to any other owner of an aircraft of its age.5

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 LAC for an exemption from 14 CFR § 121.343(d) is hereby denied.

Issued in Washington, D.C., on June 29, 2012.

/s/

John S. Duncan Deputy Director, Flight Standards

Service