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- E Exemption No. 10917

UNITED STATES OF AMERI CA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHI NGTON, DC 20591

In the matter of the petition of **Hawaiian Airlines, Inc. Regulatory Docket No.**  **FAA**

**- 2013** 

**- 076**  **8** for an exemption from §§ 121.359(k) and 91.609(j) of Title 14, Code of Federal Regulations

**DENIAL OF EXEMPTION**  By le tter dated August 23, 2013 , Mr. Daniel C. Smith , Principal E ngineer , Hawaiian Airlines, Inc. ( Hawaiian ) , P.O. Box 30008, Honolulu, Hawaii 96820 , petitioned the Federa l Aviation Administration (FAA) on behalf of Hawaiian for an exemption from § § 1 21

. 359 ( k) and 91.609(j) of Title 14, Code of Federal Regulations (14 CFR). This exemption, if granted, would allow Hawaiian to install and operate Controller

- Pilot Datalink Communications (CPDL C) on two Bo eing 767

- 332 aircraft without recording the datalink messa ges as required in the regulations. **The petitioner requests relief from the following regulation:** Section 91.609(j ) prescribes that all aircraft required by part 91 to have a cockpit voice recorder and a flight data recorder that install s datalink communication equipment on or after April 6, 2012 , must record all datalink messages as required b y the certification rule applicable to the airplane

. Section 121.359(k) prescribes that all aircraft required by part 121 to have a cockpit voice recorder and a flight data recorder , that install datalink communication equipment on or after December 6, 2010 , must record all datalink messages as required b y the certification rule applicable to the airplane

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**The petitioner supports its request wi th the following information:**  Hawaiian requests that the FAA grant a time limited exemption f rom the noted datalink recording requirements until the earlier of July 31, 2015 , or the retirement from Hawaiian Airlines of two Boeing 767

- 332 airplanes. Hawaiian states it seeks relief to allow the aircraft to participate in evaluation of Safety Services (Future Air Navigation Sy stem ( FANS 1/A) ) over the Swift Broadband (SBB) satellite communications medium ( FANS Over Satellite ( FOS )) b y installation and use of satellite communications (S ATCOM ) datalink equipment

. Since Hawaiian plans to retire the aircraft in less than two years, it states that the cost of meeting the datalink recording r equirement will preclude participation in the evaluations of FOS.
Hawaiian states that its aircraft are “uniquel y positioned” to participate in FOS evaluations because:
1. The airplanes had FANS Flight Management S ys tems (FMS) and features installed by Boeing service bulletins in 2006 and 2007. The airplanes are dat a link equipped, but do not have a SATCOM communication medium. 2. The airplanes activel y participated in the evaluation of FANS over HF (FOH) datalink. 3. All of Hawaiian’s B767 flight crews are experienced users of CPDLC and Automatic Dependent Surveillance

- Contract (ADS

- C) as it regularl y operates FANS

- equipped airplanes using FANS over Iridium (FOI) with FOH backup to the U.S. mainland, Australia and Asia. 4. Hawaiian’s senior pilots and management activel y contributed to the evaluations of both FOH and FOI. 5. The airplanes fl y routes which are not “excessively crowded” in the Oakland Flight In formation Region (FIR), which is very experienced with FANS evaluations. 6. Heav y maintenance visits of the airplanes in the August to October 2013 time period provide an earl y opportunity for SBB installation or partial provisions installation. 7. The SBB sy stem provides the potential for testing electronic flight bag applications using the standard Internet Protocol (IP) priorit y. The petitioner states this request is in the public interest because an exemption will directly support the F AA’s Performance Based Aviation Rulemaking Committee (ARC) Communications Working Group (CWG) i nitiative to develop a new d ata link sub

- network for use with NextGen

- oriented services such as CPDLC and ADS

- C

. Hawaiian claims e arly successful ev aluation of FOS will contribute to aviation industry safety through certification of a less expensive medium compared to Classic Aero SA TCOM and would likely have better throughput than FOI. Itclaims that a less expensive, higher capacity medium will encourage FANS equipage b y the industry.3

**The petitioner states public interest is further addressed because:** 
1. T he use of CPDL C and ADS

- C, collectivel y FANS 1/A, provides an increase in safet y because it reduces flight crew and ATC workload. 2. Datalink increases safet y because it provides mitigation through automation for large height deviations, gross navigation errors and out of conformance flight plans. 3. Use of datalink reduces the workload of air traffic controllers because of the direct communication and increased certainty of position reporting compared to voice communication. **The petitioner states that the exemption would not adversely af fect safety because:** 
1. The requested exemption is for a limited time ; 2. The airplanes currently use FOH for Airline Operational Control (AOC) communications only , because FOH can impose extra work for ATC controllers due to slower speed of message delivery and separations requirements. FOS provides greater efficiency and, therefore, improved safety ; 3. No new message sets are introduced ; 4. All of Hawaiian’s 767s operate safel y without datalink recording due to “grandfathering” of their existing media under the r ule ; 5. FOS will facilitate work with controllers handling aircraft using other SATCOM media and HF voice communications ; 6. Improved AOC communications over SBB will facilitate deviations for weather and flight trajectories to save fuel ; 7. Good communications fac ilitate maintenance and reliability ; 8. Improved communications in the case of medical emergencies will be better handled by the voice component of SBB alongside faster data communications ; 9. The success of the FOS evaluation will pave the way for other operators to acquire FANS equipage in an affordable path, promoting NextGen efficiencies including fuel savings and reductions to carbon emissions

. The petitioner adds that this exemption reques t meets the FAA’ s standard for granting without publication in the Federal Register or public comment since it is substantially similar to prior exemptions granted (e.g. Exemption Nos. 10394, 1 0265) where the FAA found the request compliant with the recording requirements , except for the datalink communication recording requirement. The petitioner states that this exemption would not set new precedent and is in the public interest. The FAA has determined that good cause exists for waiving the requir ement for Federal Register publication because the exemption, if granted, would not set a precedent, and any delay in acting on this pe tition would be detrimental to Hawaiian Airlines

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**The FAA’ s analysis is as follows:**  While the petitioner makes a compel ling case for the installation and operation of FOS CPDL C, it fails to make an equall y compelling case of wh y it is in the public interest to do so without meeting recorder requirements , or how its proposal offers an equivalent level of safet y. Hawaiian states its primary reason for petitioning for exemption is because the cost of complying with datalink recording requirements would “preclude [its] participation in evaluations of (SSB)...” While p articipation in a voluntary evaluation program may produce results that ultimately prove beneficial , participation in such programs, even those sponsored by the FAA, does not warrant an exemption from the operating rules in order to participate. Hawaiian has shown only that it stands to benefit financially , which does not equate to participation being in th e public interest. Nor does the petition include any information suggesting that there are insufficient numbers of compliant aircraft available to participate in the evaluation. As part of the petiti oner ’ s contention that its proposal provides an equivalent level of safety, it states that “a ll of Hawaiian’s 767s operate safel y without datalink recording due to ‘grandfathering’ of their existing media under the rule.” The fact that an aircraft meets a previous standard is insufficient to support an exemption from to a later standard . The regulation is question does not grandfather any aircraft. It requires the addition of datalink recording capacity

on all aircraft that add datalink after December 6, 2010. While f light d ata and c ockpit v oice r ecorders do not provide an immediate safety benefit to the aircraft they

are installed on , they

are the sole means of capturing information about accidents or incidents . That information may directly contribute to immediate aircraft safety actions and improvements that may affect entire fleets of aircraft. Failing to record datalink messages may

not directly

affect the two subject Hawaiian 767s, but the inability to record may have a negative impact on safety of future flights should they be involved in an accident or incident. Indeed, the petitioner’s proposed use of the two aircraft in a CPDL C evaluation program highlights the very importance of recording datalink message sets rather than dismissing recordation as expensive and unnecessary

. The petition er states that Hawaiian seeks an exemption for a limited time. When the FAA grants time

- limited exemptions for equipment requirements, it is usually based in part on a petit ioner’s assertion that time is needed to complete an equipment installation or repair in order to compl y with regulations . Most commonly, this is done at the beginning of a compliance time for parts shortages, or when required equipment becomes inoperable for an extended time. This is also why such exemptions are granted without an opportunity for extension

. Such exemptions ty picall y require a commitment to an equipment upgrade to bring the airplane or s ys tem into compliance to prevent the exemption bein g used solel y to continue operation of a noncompliant aircraft before disposing of it. In the petitioner’s case, there is no intention of making the aircraft compliant with the recording requirement. In fact, the petitioner seeks onl y to accomplish a par tial upgrade the part from which it will benefit without the cost of recording capacity to limit the amount of investment it makes in the aircraft before it retires them, and do only what it needs to participate in the program Such an5

exemption would dir ectly contradict the intent of the regulation and the reasons exem ptions are granted, and would function as a permanent exemption based on the petitioner’s stated intent. **The FAA’s Decision:** In consideration of the foregoing, I find that this grant of exemption would not be in the public interest. The petitioner does not provide an appropriate basis for exemption, has not demonstrated that it is different from other regulated entities, and pr esent s an insufficient case for public interest in the operation of the subject airplane s in part 121 service. Therefore, pursuant to the authority

contained in 49 U.S.C. §§ 106(f), 40113 and 44701 , the petition of Hawaiian Airlines, Inc. fo r an exemption from 14 CFR §§ 121.359(k) and 91.609(j) is hereb y denied.

Issued in Washington, DC, on January 15, 2014

/s/ John Barbagallo Acting Deputy Director, Flight Standards Service

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