UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 20591 

 

In the matter of the petition of 

 

BOMBARDIER AEROSPACE INC. Regulatory Docket No. FAA-2011-0693

 

for an exemption from Part 135 

of Title 14, Code of 

Federal Regulations 

 

DENIAL OF RULEMAKING 

 By letter dated June 22, 2011, Mr. David Waigh, New Rulemaking Coordinator, 

Bombardier Aerospace Inc. (Bombardier Aerospace), 400 chemin de la Cote-Verte West, 

Dorval, Quebec, Canada H4S 1Y9, petitioned the Federal Aviation Administration (FAA) on 

behalf of Bombardier Aerospace to amend part 135, Appendix F, footnote 18, of Title 14, 

Code of Federal Regulations (14 CFR). The proposed amendment, if granted, would revise 

specific digital flight data recorder (DFDR) parameter recording requirements in part 135, 

Appendix F, footnote 18, of Title 14, Code of Federal Regulations (14 CFR). 

The petitioner requests relief from the following regulation:

Part 135, Footnote 18 prescribes, in pertinent part, that for all aircraft manufactured on 

or after December 6, 2010, the seconds per sampling interval is 0.125. Each input 

must be recorded at this rate. Alternately sampling inputs (interleaving) to meet the 

sampling interval is prohibited. 

The petitioner supports its request with the following information:

Bombardier states that nine of its BD-700 aircraft are equipped with the Honeywell 

Primus 2000XP system and are compliant with part 135 DFDR requirements for 

aircraft manufactured prior to December 6, 2010. The petitioner further states that the 

manufacture of aircraft with this avionics package stopped in February of 2011, less 

than 3 months after the implementation date for increased data recording rates in 

AFS-11-365-P 
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DFDR systems under Amendment 135-121. Bombardier states that apart from these 

seven flight data parameter recording rates, all other applicable requirements 

introduced in Amendment 135-121, as well as those of Amendments 91-300 and 135-

113, were complied with in the nine affected aircraft. 

Bombardier asserts that, as implemented in the BD-700, this system cannot be further 

upgraded to meet current data rate recording requirements without an unwarranted, 

non-recurring expenditure exceeding $2.9 million, and recurring costs of almost 

$100,000 per aircraft with no direct impact on operational safety. The petitioner 

provided, as an appendix to its petition, an explanation of what it sees as technical 

obstacles to this upgrade. 

Bombardier states that it previously submitted comments identifying this specific 

issue on the implementation delay to the FAA’s notice of proposed rulemaking 

leading to Amendment 135-121. Further, Bombardier states it previously submitted a 

petition for rulemaking in 2009 on this same issue. The petitioner believes that while 

these proposals were rejected, two key issues were not addressed at the time of the 

latest final rule and could not be resolved within the 60-day window to petition for 

reconsideration: 

 The number of affected aircraft was unknown. Although it was estimated that 

15 aircraft would be affected, the Rockwell Collins Proline Fusion avionics 

suite was introduced after only 9 non-compliant aircraft were produced. 

 Certification of the Rockwell Collins Proline Fusion avionics suite had not yet 

been completed, lending uncertainty to any claims of the number of affected 

aircraft, and the overall impact of any exception made for the aircraft. With 

this system fully certified, Bombardier believes it can now state with certainty 

the number of aircraft affected by this petition. 

The petitioner asserts that in rejecting the petition of one operator, the FAA noted that 

“under its considerable experience with flight recorder system upgrades, promises of 

modifications rarely meet the original predictions.” Bombardier agrees that 

development programs often encounter unexpected delays. The petitioner asserts that 

the completion of this program and the establishment of known limits on the number 

of non-compliant aircraft are significant when determining the impact of a regulatory 

change. 

The petitioner states that while it is also possible to pursue relief from these 

requirements through operator petitions for exemption, the FAA has stated in the past 

that “exemptions are by their nature designed for relief for defined periods.” The 

petitioner does not foresee this relief being temporary owing to the impracticality of 

developing a compliant solution. Furthermore, the petitioner believes DFDR 

recording parameter requirements are unlikely to be dependent on the operator or its 
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operating procedures. The petitioner states a rulemaking change is the most 

appropriate avenue to address this situation. 

The petitioner believes strict application of the current requirements would 

significantly affect the resale value of these aircraft as they would be limited to part 91 

operations only. It asserts that while the FAA has previously stated that it “does not 

accept business opportunity as a basis for relief from safety regulations,” Bombardier 

does not agree with the premise that a non-compliant flight data recorder is a safety 

deficiency. It asserts that the decision of the FAA not to make this requirement 

retroactive for all part 135 aircraft would appear to be consistent with this position. 

The petitioner believes amending part 135 would not adversely affect the safety of the 

aircraft involved, as this change concerns the sampling rate of specific parameters and 

does not impact operational safety of the subject aircraft. 

Bombardier asserts that it nevertheless recognizes the contribution of flight data 

recorders to accident and incident investigations, and ultimately to the safety of the 

design and operation of future aircraft. However, it believes the cost to make this 

particular legacy DFDR system compliant with current regulations would be 

extremely high and disproportionate to the potential benefit. Bombardier believes this 

upgrade would apply to no more than nine aircraft in an operating fleet of 431 BD700s equipped with the same Honeywell avionics suite, or 2 percent of the fleet; and 

the benefits to aviation safety and the public interest would be negligible. Bombardier 

believes when considering that 10 to 15 percent of the BD-700 fleet has historically 

operated under part 135 at any given time, the benefits are reduced even further, at it 

would be extremely unlikely that more than two of these nine aircraft would be 

concurrently operating under part 135 and subject to these data rate requirements. 

The FAA’s analysis is as follows: 

The FAA considers the following factors, listed in 14 CFR Part 11, in deciding 

whether the requested rulemaking would be an appropriate use of resources. 

(1) The immediacy of the safety or security concerns you raise; 

(2) The priority of other issues the FAA must deal with; and 

(3) The resources we have available to address these issues 

It is neither in the public interest nor an effective use of agency resources to modify 

established regulations to benefit one manufacturer that chose to produce 

noncompliant airplanes. It is clear that Bombardier was continuing its original plan to 

produce the airplanes with the noncompliant systems as it waited for approval of a 

new system. If Bombardier miscalculated what the effective date of the requirement 

might be changed to, it is its responsibility to accept the risk of its own decisions and 

not seek particular relief from a regulation that affects the entire industry. 
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Bombardier has not identified a situation that the FAA finds is appropriate for 

rulemaking. The regulatory requirements at issue were first proposed in 2005 and 

adopted as a final rule in March 2008. Aircraft manufactured after April 7, 2010 were 

required to comply with these requirements. Between May and November 2009, 

several manufacturers, including Bombardier, petitioned the FAA requesting that 

compliance with the rule be delayed for varying reasons. The FAA implemented a 

rule change that extended the compliance date for the requirements at issue here to 

December 10, 2010. 

Bombardier argues that it did not know for sure how many airplanes would be affected 

by the original compliance date since it was awaiting the approval of an upgraded 

avionics suite by one of its suppliers. It states that while it thought it would be 15 

airplanes, the suite was “introduced after only 9 non-compliant airplanes were 

produced.” Now that the number is known, Bombardier requests the production of 

those nine non-compliant airplanes be forgiven by a permanent change to the 

regulation specifically and solely to benefit Bombardier. The petitioner argues that 

the cost of upgrading the flight recorder system can only be spread over the nine 

airplanes, making it cost prohibitive. 

Production of these aircraft with flight recorder system equipment that “cannot 

practically be made compliant” with the requirements was completely within the 

control of Bombardier. The continued production beyond the original compliance 

date and then beyond the extended compliance date, was a business decision. The fact 

that it will now cost more to make compliant the nine aircraft they chose to produce 

after the compliance date is a circumstance Bombardier brought on itself. The 

regulations do not unfairly burden Bombardier, nor is it in the public interest to 

modify regulations in order to increase the resale value of airplanes in order to allow 

them to operate under 14 CFR part 135 rather than part 91. 

The fact that Bombardier commented on the proposed rule extension but did not know 

how many of its aircraft would be affected is not relevant. The FAA did not set the 

initial compliance date nor the extension based on a head count of the number of 

airplanes yet to be produced by any manufacturer, but on the overall effect on the 

industry based on all of the comments received. 

The FAA agrees with the petitioner that requests for exemption for individual 

airplanes made by operators that purchase these aircraft are not likely to be granted. 

Such a request would require permanent exemption -- the equivalent of a rule change -

- that the FAA does not allow in time-limited operational exemptions. Any such 

request for exemption would be expected to incorporate a firm commitment to an 

equipment upgrade that brings the airplanes into full compliance with the regulation. 
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The FAA’s Decision: 

In consideration of the foregoing, I find that the proposed rulemaking would not be in the 

public interest and the initiation of rulemaking procedures for the purpose requested by 

Bombardier Aerospace is not justified. Therefore, in accordance with the rulemaking 

procedures of part 11 of Title 14, Code of Federal Regulations (14 CFR), the petition for 

rulemaking of Bombardier Aerospace to amend in part 135, Appendix F, footnote 18 is 

hereby denied. 

Issued in Washington, DC, on March 9, 2012. 

/s/ 

John M. Allen 

Director, Flight Standards Service