AFS-13-034-E

Exemption No. 10917

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

Hawaiian Airlines, Inc. Regulatory Docket No. FAA-2013-0768 

for an exemption from §§ 121.359(k)

and 91.609(j) of Title 14, 

Code of Federal Regulations 

DENIAL OF EXEMPTION

 By letter dated August 23, 2013, Mr. Daniel C. Smith, Principal Engineer, Hawaiian 

Airlines, Inc. (Hawaiian), P.O. Box 30008, Honolulu, Hawaii 96820, petitioned the Federal

Aviation Administration (FAA) on behalf of Hawaiian for an exemption from §§ 121.359(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 

(CPDLC) on two Boeing 767-332 aircraft without recording the datalink messages 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 installs datalink communication equipment on or after 

April 6, 2012, must record all datalink messages as required by 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 by the certification rule 

applicable to the airplane.
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The petitioner supports its request with the following information:

Hawaiian requests that the FAA grant a time limited exemption from 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 System (FANS 1/A))

over the Swift Broadband (SBB) satellite communications medium (FANS Over Satellite 

(FOS)) by installation and use of satellite communications (SATCOM) datalink equipment. 

Since Hawaiian plans to retire the aircraft in less than two years, it states that the cost of 

meeting the datalink recording requirement will preclude participation in the evaluations of 

FOS. 

Hawaiian states that its aircraft are “uniquely positioned” to participate in FOS evaluations

because:

1. The airplanes had FANS Flight Management Systems (FMS) and features installed by

Boeing service bulletins in 2006 and 2007. The airplanes are datalink equipped, but 

do not have a SATCOM communication medium.

2. The airplanes actively 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 regularly 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 actively contributed to the evaluations of 

both FOH and FOI.

5. The airplanes fly routes which are not “excessively crowded” in the Oakland Flight 

Information Region (FIR), which is very experienced with FANS evaluations.

6. Heavy maintenance visits of the airplanes in the August to October 2013 time period 

provide an early opportunity for SBB installation or partial provisions installation.

7. The SBB system provides the potential for testing electronic flight bag applications 

using the standard Internet Protocol (IP) priority.

The petitioner states this request is in the public interest because an exemption will directly

support the FAA’s Performance Based Aviation Rulemaking Committee (ARC) 

Communications Working Group (CWG) initiative to develop a new datalink sub-network for 

use with NextGen-oriented services such as CPDLC and ADS-C. Hawaiian claims early

successful evaluation of FOS will contribute to aviation industry safety through certification 

of a less expensive medium compared to Classic Aero SATCOM and would likely have better 

throughput than FOI. It claims that a less expensive, higher capacity medium will encourage 

FANS equipage by the industry.
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The petitioner states public interest is further addressed because:

1. The use of CPDLC and ADS-C, collectively FANS 1/A, provides an increase in

safety because it reduces flight crew and ATC workload.

2. Datalink increases safety 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 affect 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 safely without datalink recording due to 

“grandfathering” of their existing media under the rule;

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 facilitate 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 request 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, 10265) 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 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 Hawaiian Airlines.
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The FAA’s analysis is as follows:

While the petitioner makes a compelling case for the installation and operation of FOS 

CPDLC, it fails to make an equally compelling case of why it is in the public interest to do so

without meeting recorder requirements, or how its proposal offers an equivalent level of 

safety. 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 participation 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 the 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 petitioner’s contention that its proposal provides an equivalent level of safety, it 

states that “all of Hawaiian’s 767s operate safely 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 flight data and cockpit voice recorders 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 CPDLC evaluation 

program highlights the very importance of recording datalink message sets rather than 

dismissing recordation as expensive and unnecessary.

The petitioner 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

petitioner’s assertion that time is needed to complete an equipment installation or repair in 

order to comply 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 typically require a commitment to an equipment upgrade to 

bring the airplane or system into compliance to prevent the exemption being used solely 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 only to accomplish a partial 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 an 
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exemption would directly contradict the intent of the regulation and the reasons exemptions 

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 presents an insufficient case 

for public interest in the operation of the subject airplanes 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. for an exemption from 14 CFR §§ 121.359(k) and 91.609(j) is hereby 

denied. 

Issued in Washington, DC, on January 15, 2014

/s/

John Barbagallo

Acting Deputy Director, Flight Standards Service

.