OST-02-11470

OST-02-11470

Air-Serv., Inc.

OST-02-11470

February 4, 2002

Application for Exemption

Aircraft Size Limitation

Beginning this year, AirServ is scheduled to receive and place in service a fleet of newly-manufactured, specially-configured Embraer Model ERJ-135LR jet aircraft. AirServ presently anticipates that a "loaner" aircraft will be delivered in May 2002, with the first aircraft built specifically for AirServ and Indigo following in August. Typically, the ERJ-135, as operated by American Eagle, Continental Express and others, is delivered in a high-density regional airliner configuration with 37 passenger seats installed. With that configuration, Part 121 operations specifications are required.

Since August 2000, the great majority of AirServ's flights have been operated in public charter service on behalf of its sister company, Indigo, L.L.C. (Indigo), a public charter operator. These flights, as well as Air-Serv's occasional on-demand charter flights, have been operated under the carrier's FAR Part 135 operations specifications utilizing its fleet of eight-passenger Dassault Falcon 20 jet aircraft.

Counsel: Boros Garofalo, Aaro Goerlich, 202.822.9070

Air-Serv., Inc.

Order 02-2-17 OST-02-11470	Issued February 26, 2002 Served February 26, 2002	Order Reissuing Certificates	Exemption From the Aircraft Size Limitation
		Attachments: Certificates

AirServ, a small air carrier based in Chicago, holds interstate and foreign passenger charter certificates made effective by Orders 2000-8-10 and 2000-10-25, respectively. AirServ's certificates limit the carrier to operations with aircraft designed to have a maximum passenger seating capacity of no more than 30 seats. It currently operates a fleet of four eight-seat Dassault Falcon 20 aircraft under a Part 135 certificate issued by the Federal Aviation Administration (FAA). Since receiving certificate authority, the majority of AirServ's flights have been operated in public charter service on behalf of its sister company, Indigo, L.L.C., a public charter operator.

On February 4, 2002, AirServ filed an application for an exemption to allow it to deviate from the condition in its certificates in order to operate newly-manufactured, speciallyconfigured Embraer ERJ-135LR jet aircraft. Typically, the ERJ-135 is delivered in a highdensity regional airliner configuration with 37 passenger seats installed. With that configuration, AirServ would be required by the FAA to obtain a Part 121 certificate.

By contrast, the ERJ-135 built specifically for AirServ will be equipped with 18 first class seats--comprising all of the passenger seating--and a maximum payload capacity of less than 7,500 pounds. AirServ believes that it could operate the ERJ-135 under its current 30-seat certificate limitation. However, out of an abundance of caution and because the ERJ-135 airframe can accommodate as many as 37 passengers, AirServ requests an exemption from the certificate condition or, as an alternative, reissuance of its certificates keyed to a Part 135-versus-Part 121 delineation as the Department did in another recent case.

Because AirServ wants to operate aircraft designed to hold more than 30 seats, it cannot do so under the limitations imposed in its certificate. After receipt of AirServ's request, we contacted the FAA who has confirmed that the new aircraft can be operated in charter service under Part 135 as long as AirServ stays within the 18-seat configuration. As a result, we have decided to allow AirServ to operate the ERJ-135 as proposed. However, rather than grant the carrier's exemption request, we have decided to reissue AirServ's certificates to replace its current certificate condition with a provision authorizing AirServ to use any aircraft that can be operated under its Part 135 certificate, provided such aircraft also meet the definition of small aircraft pursuant to 14 CFR Part 298. That will allow the carrier additional flexibility if it wants to operate other such aircraft. Should AirServ subsequently desire to acquire and operate larger aircraft that would require certification from the FAA under Part 121, the carrier must first be determined fit for such operations.

By: Randall Bennett