AFS-11-042-E Exemption No. 10177

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-2010-0970 for an exemption from part 121, Appendix K, Paragraph 5 of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated September 21, 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 fo r 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 float-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 wheel planes. In addition, Seaborne Airlines also conducts scheduled passenger operations using the float plane configuration between the United States (U.S.) Virgin Islands of St. Thomas, Charlotte Amalie Ha rbor and St. Croix, Christiansted Harbor. The petitioner contends that it has safely conducted scheduled passenger service in float planes for over 15 years.

Seaborne Airlines states that the provisions of part 121, Appendix K, require that, after December 20, 2010, the DeHavilland DHC-6-300 aircraft operated by Seaborne3

Airlines show compliance with the commuter category performance requirements through supplemental type certificate #S2CH, dated September 21, 2001, “Wipair Airplane Flight Manual Supplemental for Seaplane Operation” and the DeHavilland DHC-6-300 Aircraft Flight Manual, document number PSM 1-63-1A, dated June 30, 2005; document number PSM 1-63-1, dated November 16, 2005.

Seaborne states that the supplemental type certification program described above can show compliance with each part 23 performance requirement specified in part 121, Appendix K. The petitioner states that many of the certification specifications in part 23 cannot be applied to airplanes equipped with fixed floats and operated on water. Seaborne Airlines states that examples such as the certification requirement for performance charts that account for the effect s of runway slope/gradient and charts that contain penalties for standing water, slush or snow on the runway are not applicable.

Seaborne Airlines ask that the FAA accept the abovementioned documents that are FAA approved to show compliance with part 121, Appendix K, Paragraph 5(a). In addition, Seaborne Airlines requests to be exempted from the performance certification requirements that are not applicable to DHC-6 aircraft in the float plane configuration required by this regulation.

Seaborne Airlines contends that it is not requesting relief from any performance requirements such a maximum certificated we ight, runway length, takeoff speeds, etc.

Seaborne Airlines states that although float plane operations were briefly mentioned in the final rule: Commuter Operations and General Certification and Operations Requirements (60 FR 65832), no specific provisi ons for float plane certification were included in the rule. The petitioner states that in the rule a commenter stated “Because there is no cost-effective replacement aircraft available for float operations that offers the same capacity as the Otter (DHC-6 Twin Otter), replacing them is not an option.” Seaborne Airlines states the FAA response that followed offered the option to petition for exemption. As a result, Seaborne Airlines believes that its request for exemption is proper and consistent with the intent of this rule.

Seaborne Airlines believes a grant of exemption would provide an equivalent level of safety because it is not requesting relief from any performance requirement of part 23 or part 121. In addition, Seaborne Airlines has FAA approved data to demonstrate compliance with each applicable performance requirement imposed by part 23 and part 121.

Seaborne Airlines states if an exemption is not granted then it will be forced to conduct operations in accordance with regulatory requirements with lesser safety standards after December 20, 2010. Also, the petitioner asserts that it will be unable to absorb the financial impact of this restriction and th at many passengers would be forced to fly on significantly less safe 9 passengers or less pi ston powered or single engine aircraft over4

long reaches of open water. Seaborne Airlines states that it carries approximately 100 percent of all seaplane passenger traffic between St. Croix and St. Thomas.

Seaborne Airlines states that its seaplane operation between St. Thomas and St. Croix is one of extreme importance both economically and politically. The petitioner states that without its frequent and convenient air bridge operating safely under part 121, many aspects of this strategically vital part of the US would come to a halt. Therefore, Seaborne Airlines believes a grant of exemption would be 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.

The FAA's analysis is as follows:

The FAA has reviewed the petitioner’s supportive 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 certification requirements. Therefore, the FAA will grant an exemption to extend the compliance date in 14 CFR § 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 Airlines 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