AFS-13-034-E

Exemption No. 10607A

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 Appendix F of Title 14, 

Code of Federal Regulations 

DENIAL OF PETITION FOR RECONSIDERATION

 By letter dated October 22, 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) for 

reconsideration of Denial of Exemption No. 10602 dated August 24, 2012. The proposed 

exemption, if granted, would allow Design Professionals to continue to operate its 

Bombardier Global Express BD700-1A10 aircraft without the digital flight data recorder

(DFDR) that uses the sampling rate 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 “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 (a)(1) through (a)(88) 

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

intervals specified in Appendix F of this part.”

The petitioner supports its request for reconsideration with the following information:

In its request, the petitioner asserted that the FAA:

• Made a factual error;

• Incorrectly applied law, regulations and precedent by characterizing the actions of the 

aircraft manufacturer and the petitioner as business decisions;
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• Incorrectly characterized the petitioners request as for a permanent exemption rather 

than time-limited;

• Provided no basis for its dismissal of analogous exemptions;

• Provided no basis for requiring modifications not contemplated by the regulation;

• Made an additional factual error regarding relief pending an aircraft modification.

 The FAA determined that good cause existed 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 Design Professionals.

The FAA’s analysis is as follows:

As historical reference, the DFDR regulation from which the petitioner seeks relief was 

proposed for part 135 aircraft in February 2005. Following full notice and comment 

rulemaking, the final rule was published on March 7, 2008, with a compliance date of 

April 7, 2010. Aircraft manufactured after April 7, 2010, were required (among several 

things) to meet the higher DFDR sampling rate from which relief is being sought. In late 

2009, several manufacturers petitioned the FAA to extend the compliance date for the rule up 

to an additional two years. On January 7, 2010, the FAA published a Notice of Proposed 

Rulemaking to extend the compliance date. On April 5, 2010, the FAA published a final rule 

extending the compliance date for some of the requirements. The compliance time for the 

DFDR sampling rate at issue was extended to December 6, 2010. Aircraft manufactured after 

December 6, 2010, would have to use the DFDR sampling rate that was required in the 2008 

rule. The petitioner’s aircraft was manufactured January 6, 2011.

A. FAA’s assessment of the petitioner’s actions

The petitioner contends that the FAA erred in characterizing its (and Bombardier’s) actions as 

a business decision, and that it took “all reasonable efforts” to ensure that its aircraft “was 

compliant with all applicable regulations.” The petitioner states that the “manufacturing 

process was a long one,” and although it expected that the aircraft would receive its certificate 

of airworthiness before the compliance date, the certificate was not granted until January 6, 

2011. The petitioner states that what occurred were not business decisions, but the 

manufacturer’s “good faith efforts” to develop a compliant avionics suite beginning in 2005. 

Further, the petitioner states that the delays associated with certification of a new avionics 

suite that led to the petitioner receiving a non-upgradeable suite “were outside of [the 

petitioner’s] control.” The petitioner states that the new recitation of Bombardier’s efforts in 

the current petition, including the “prohibitive time and cost required to design and certify a 

compliant program” for the aircraft, and the delay in certification of the new avionics suite, 

constitute new facts that support its request of reconsideration. The petitioner considers the 

new explanation of Bombardier’s efforts along with the “obstacles faced” regarding the 

upgrade of the avionics suite lead to the conclusion that “justifiable grounds exist to grant a 

time-limited exemption for Aircraft 9428.”
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The FAA disagrees that the petitioner’s submission contained any new facts. While it may 

have included more detail than previously presented to the FAA concerning the 

manufacturing process, the expanded explanation from Bombardier is essentially no different 

from that which Bombardier presented when it petitioned the FAA to change the rule for the 

nine aircraft it manufactured after the compliance date. The petitioner appears convinced that 

“best efforts” of a manufacturer are a basis for exemption to an operating rule, even though 

the manufacturer failed to meet a manufacturing compliance date that had already been 

extended by regulation following industry request. Bombardier had previously argued to the 

FAA that it was originally going to have 17 aircraft manufactured after the compliance date, 

but managed to reduce that number to nine after the compliance date was extended. 

Bombardier asserted it should get credit for this effort in the form of a regulatory change that 

gave the nine aircraft a pass on the enhanced sampling rate that was required for all aircraft 

operating under part 135. 

The FAA found then and confirms here that such action is a business decision on the part of 

the manufacturer to produce the airplanes with the older avionics suite. The FAA has no 

control over when a manufacturer institutes a design change, from the initial idea through to 

the time an airworthiness certificate is able to be issued. The FAA has no way to know when 

a manufacturer makes these decisions or plans its manufacturing, and will not change 

regulations based on after the fact explanations of process. Bombardier was subject to the 

same initial requirements -- and the same relief provided by the extended compliance date --

that were available to all manufacturers. It decided to complete the manufacture of the nine 

airplanes after the compliance date for part 135 operation, leaving the aircraft compliant with 

only part 91. The fact that the aircraft it produced are of less market value because they are 

not compliant with part 135 is the result of the choice to manufacture them with full 

knowledge of the regulation. If the petitioner’s expectation was that it would receive a 

part 135 compliant aircraft, that expectation remains a contractual issue existent between 

Bombardier and the petitioner, and has nothing to do with the FAA. Accordingly, the 

manufacture of the aircraft and the petitioner’s choice to purchase it are business decisions 

that do not affect the FAA’s adoption and enforcement of the regulation. There is no public 

interest in granting an exemption to an operator that may have a dispute with a manufacturer 

over what it purchased. 

B. Time-limited v. permanent exemption

The petitioner asserts that the FAA erred in characterizing its request as for a permanent 

exemption rather than a time –limited one. This characterization in turn resulted in a factual 

error and a misrepresentation of the regulation and of precedent. The petitioner states that it 

requested an exemption for a “24-month time-limited exemption,” noting that the FAA has 

granted similar exemptions for that length of time.

The petitioner is mistaken in its characterization of “time limited” as opposed to “permanent.” 

When the FAA grants time-limited exemptions for equipment requirements, it is usually done 

with a petitioner’s assurance that they need the time to complete an equipment installation or 

repair. Most commonly, this is done at the beginning of a compliance time for parts 
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shortages, or when required equipment becomes inoperable for an extended time. This is also 

why such exemptions, as the petitioner noted, are granted without an opportunity to extend. 

They also generally include some indication that the requesting party has committed by 

contract to an equipment upgrade. In the petitioner’s case, no mention was made of the 

petitioner making the subject aircraft compliant. It sought only to be given permission to 

operate without being compliant for two years. The fact that the request was not to operate 

‘forever’ does not make it time-limited. The limit applied for suggested only that the 

petitioner wanted to increase the revenue base of the aircraft as equipped, not that it was 

committed to making the subject aircraft compliant since both the petitioner and the 

manufacturer acknowledged that the aircraft cannot be upgraded.

This fact is underscored by the petitioner’s statement in the reconsideration that it and 

Bombardier “have agreed to replace the aircraft with [an upgraded aircraft] that is compliant 

with Part 135. Aircraft 9428 will be removed from service under part 135 and effectively 

prohibited from future operation by any other Part 135 operator.” This statement more than 

suggests that the requested exemption is for the sole benefit of the petitioner since the aircraft 

would, if granted, somehow ‘revert’ to non-135 operation non-compliant. It also reinforces

the finding that the noncompliant aircraft was a business decision, since it will be another 

business decision that cures the problem for the petitioner in procuring a different aircraft. 

The petitioner states that “[a]fter the exemption period, [it] would then operate an aircraft that 

is fully compliant with the current DFDR regulations under part 135,” and that in the interim, 

the exemption would provide “the most effective and expedient means to provide a compliant 

aircraft to Design Professionals.” The FAA does not grant exemptions to “provide compliant 

aircraft” between manufacturers and operators; compliant aircraft are required by regulation. 

Exemptions are meant for temporary relief while bringing aircraft into compliance, not for 

relief from business decisions that do not work out. 

C. Analogous Exemptions

The petitioner stated that the FAA erroneously concluded that the examples of exemptions 

provided by the petitioner as precedent were not relevant, stating that they were “suitable 

examples.” The FAA had found that the cited exemptions for datalink recordation were not 

similar to the petitioner’s request and were unrelated to DFDR parameters. The petitioner 

says they are, because although datalink recording is part of the cockpit voice recorder 

requirements not the DFDR, the equipment “serves similar purposes” in accident 

investigation, and that datalink recording was part of the same rulemaking as the DFDR 

requirements noted here. The petitioner cited the grant to Avianca Airlines for datalink and 

DFDR sampling upgrade for 18 months, saying its request is “no different.” 

The petitioner has ignored the basic premises of the Avianca decision. First, datalink 

recordation is part of the CVR system, and is required under a different regulation. The FAA 

granted several datalink exemptions when the requirement was first adopted because of a 

worldwide issue in providing compliant equipment. The agency recognized that several 

operators were faced with the inability to put new aircraft in service, and could not comply 

because of an unavailability of equipment. Second, the datalink recording capability is 
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unique in that datalink capacity is not required; only if it is voluntarily installed on aircraft 

does the recording requirement take effect. Since operators chose to have datalink equipment 

installed voluntarily, and thus upgraded the safety of the aircraft, the FAA did not penalize 

them for the delay in the installation of the recording equipment that needed only a software 

fix, as was the case for Avianca.

 

The Avianca exemption is nothing like the petitioner’s case. The DFDR equipment required 

for the petitioner to operate after December 2010 was neither tied to a voluntary system nor 

was it unknown technology. And again, the petitioner here was not requesting time to 

complete installation as was Avianca, but simply the opportunity to get an economic benefit 

from its noncompliant airplane before replacing it with a compliant airplane. The fact that the 

FAA found that the datalink situation required temporary relief was unrelated to the 

petitioner’s issue. There is no case to be made that equipment “serves similar purposes” as a 

basis for exemption. The grant to Avianca regarding its DFDR recording rates was for a 

committed aircraft upgrade, and Avianca was granted an exemption not to part 135 but to 

part 121. Avianca reported through Airbus that the required software to upgrade the 

recording rates had encountered a certification delay that would require the aircraft to be 

retrofitted, which was expected to take six months. The aircraft, an Airbus 320, represented 

an overall safety upgrade in the commercial carrier’s fleet and on balance was considered in 

the public interest to allow into service for the six months planned for the software upgrade to 

a voluntary system. By contrast, Bombardier built an aircraft that could not be upgraded to 

meet part 135. The delay in the certification of newer avionics may have affected its decision 

to build the subject aircraft as equipped, but once again that was Bombardier’s decision. 

D: Public Interest

The petitioner states that its exemption would be in the public interest. It states that since the 

aircraft complies with the previous DFDR requirements, “it is in the public interest to allow 

this newer, more fuel-efficient aircraft to operate for a limited time period until it can be 

replaced with an aircraft with [an upgraded avionics suit] that is compliant to Part 135.” The 

petitioner goes on to state that it is also in the public interest to grant the exemption “to 

remedy an arbitrary penalty against Design Professionals which did not control the 

manufacturing delays of its aircraft.” 

There was no arbitrary penalty levied against the petitioner or the manufacturer. As explained 

above, the genesis of the requirement dates to a proposed rule in 2005 that went through full 

notice and comment rulemaking. The final rule was published in 2008, with a 2010 

compliance date that was then extended, and still the manufacturer failed to meet the 

extension. The argument that the manufacturer “made every reasonable effort” has no 

bearing on public interest. The only entities that stand to gain from a grant of exemption are 

the manufacturer and the petitioner, which would be able to use the non-compliant aircraft in 

revenue service when no similarly situated 135 operator could use a contemporaneously 

manufactured non-compliant aircraft. The fact that this is a business matter between the 

manufacturer and the petitioner is once again reinforced by the petitioner’s statement that it is 

planning to replace the aircraft with a part 135 compliant aircraft “within two years, a time-
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frame that is dictated by the next available slot in the production of new [compliant] aircraft.” 

Aircraft availability to a particular operator is not a basis for exemption, nor is the number of 

aircraft that may already be operating under the previous requirement. “Just one more” is not 

a valid basis for allowing any individual operator the right to operate a noncompliant aircraft

when another is not, and it is distinctly not in the public interest. 

E: Modifications not required by the final rule

The petitioner states that the FAA misinterpreted its own regulation because the final rule 

requiring the upgraded DFDR did not intend to require extensive equipment modification.

The petitioner would be correct if the subject was an aircraft retrofit requirement, but it was 

not. It was promulgated as (and is enforced as) a requirement for newly manufactured 

airplanes. There is no dispute that the subject airplane was manufactured after the compliance 

date. The petitioner cannot now claim that the preamble to the rule supplies justification for 

exempting an aircraft that never met the primary intent of the rule as written. The FAA’s 

point in discussing the possibility of upgrade centered around the circumstances of relief that 

we have considered in other instances. It cannot now be used as a basis for relief from 

knowing noncompliance at manufacture.

F: Failure to seek relief when the aircraft was scheduled for modification

The petitioner cited one sentence from the FAA’s denial of its original petition. “Neither 

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

modification to comply.” The petitioner says this is “plainly wrong” since the aircraft was too 

far into the manufacturing process to change to a compliant part 135 DFDR. The petitioner 

has misunderstood the nature of the sentence and removed it from context. It was used 

following the comparison that neither Design Professionals nor Bombardier sought relief for 

an aircraft that would be upgraded, which is one of the primary bases the FAA uses to grant 

equipment relief. The FAA is well aware that the aircraft was not upgradeable and was 

comparing it to the instances cited by the petitioners in which an aircraft could be upgraded to 

compliance. The requirement in part 135 had been present since 2010 and was eventually 

extended an additional eight months, and was thus well known at the time Bombardier chose 

to continue the airplane’s manufacture. The FAA was merely drawing a distinction between 

this and other petitions; at no time did the FAA mean that there was a petition window that 

would have allowed a different outcome in this instance. When the FAA denied 

Bombardier’s petition for rulemaking in March 2012, we made particular note that we were 

unlikely to grant any exemptions to operators of the airplanes since it was clear that no 

modification could be expected. We reiterated that petitions for operating exemptions were 

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

into full compliance with the regulation.” Instead, the petitioner chose to claim impossibility 

of upgrade with a regulation that required not an upgrade, but a requirement at the time of 

manufacture. This argument was not acceptable when Bombardier petitioned the agency for 

relief, nor has it become more acceptable when the petitioner requested an operating 

exemption, nor in this request for reconsideration.
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The FAA notes that the petitioner did not compare its situation to exemption requests that the 

agency has denied as business decisions not in the public interest. Further, the petition for 

reconsideration makes only a general statement about the airplane meeting an equivalent level 

of safety. The argument that an airplane meeting a previous standard is thus equivalent to 

other compliant aircraft produced at the time of the manufacturing requirement changed is 

incorrect. 

The material from Bombardier submitted with the reconsideration merely confirms the FAA’s 

position that Bombardier’s original plan for manufacture of the subject aircraft fell short of 

the time required by the original regulation, and was in fact not even accomplished by the 

time of the extension. Bombardier manufactured nine aircraft after the extended compliance 

date, and then petitioned the FAA to exempt those nine aircraft permanently from the 

regulation. Bombardier’s petition was denied as a business decision to knowingly 

manufacture aircraft that could not meet Part 135 requirements well after the compliance date. 

Finally, neither Bombardier nor the petitioner has shown why this situation is unique. The 

existence of eight other similarly noncompliant airplanes leaves open the possibility that a 

grant of exemption in this case would be followed by eight more petitions for exemption for 

the remaining aircraft, none of which could be expected to satisfy the criteria for an 

exemption in the public interest.

The FAA’s Decision:

In consideration of the foregoing, I find that this grant of exemption would not be in the 

public interest and that the case presented on reconsideration does not warrant a change to the 

original conclusions. This request for reconsideration for an exemption from 14 CFR 

§135.152(j) is denied. The petitioner may have submitted additional detail about the 

manufacture process of its airplane, but nothing presented here changes the underlying fact 

that the petitioner has an issue with what the manufacturer provided to it. Such business 

matters are not an appropriate basis for exemption, present no basis for the petitioner 

demonstrating that it is different from other regulated entities, and present no case for public 

interest in the operation of the subject airplane in part 135 service. Therefore, pursuant to the 

authority contained in 49 U.S.C. §§ 40113 and 44701, reconsideration of the petition of 

Design Professionals, LLC for an exemption from 14 CFR § 135.152(j) and Appendix F is 

hereby denied. 

Issued in Washington, DC, on November 26, 2013.

/s/

Michael P. Huerta

Administrator