Exemption No. 10186

UNITED STATES OF 4MERICA

DEPARTMENT OF TRANSPORTATION ,

FEDERAL AVIA TION ADMINISTRATION

RENTON, WASHINGTON 98057-3356

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In the matter of the petition of

The Boeing Company

for an exemption from § 26.35 of Title 14,

Code of Federal Regulations

Regulatory Docket No. FAA-20IO-0905

GRANT OF EXEMiTiON

By letter 7-7EI W-RlCIO-071, dated September 1, 2010, Mr. Robert I. Carlson, AEW&C

Certification Manager, The Boeing Company, 20403 68:1hAvenue South, 18-26 Building

1sl Floor MC: 84-08, Kent, Washington, 98.032, petitio~ed the Federal Aviation Administration

(FAA) for an exemption from § 26.35 of Title 14, Code of Federal Regulations (14 CFR). This

exemption is requested for Boeing Model 737~700 airpl~nes converted to Airborne Early

Warning & Control (AEW&C) military airplanes in accprdance with Supplemental Type

Certificate (STC) ST01999SE. Part 26, subpart D, requirements are related to airplane fuel tank

flanunability.

The petitioner requests relief from the following regtdation:

Section 26.35 Changes to type certificates affLting fuel tank flammability, which

requires flammability exposure analyses, assessrhents to determine if critical design

configuration control limitations are compromisbd, and the development of design

changes and service instructions.

The petitioner supports its request with the following.

The following information is quoted from The Boeing Company's petition with minor revisions

for clarity. The complete petition may be found in the Department of Transportation's Federal

Document Management System, Docket No. FAA~20 I0-0905.

Extent of Relief Requested (14 CFR 11.81(e)): I

The relief requested extends across new installa~ons associated with the AEW&C

modifications as documented in STC ST01999SE and relief from the entire content of

14 CFR 26.35.
Why This Exemption Would Benefit the Public Interest (14 CFR 11.81(d)):

Granting this exemption will benefit the public interest by freeing up valuable FAA

resources no longer required to evaluate and approve any enhanced instructions for

continued airworthiness, as weU as design modifications and associated compliance data

submittals to support these rule changes, particularly when no operators will be required

to incorporate them.

Why This Exemption Would Not Adversely Affect Public Safety (14 CFR 11.81(e)):

Public safety will not be adversely affected because the Model 737-700 AEW&C is a

military airplane that will not be operated for commercial passenger transportation or

compensation for hire. Further, it is cost prohibitive to reconfigure an airplane for such

use after it has been converted to an AEW&C military airplane, making it higWy unlikely

to ever be operated under part 121, 125, or 129.

Summary for Publication in the Federal Register (14 eFR II.8Iill);

The petitioner seeks exemption from the requirements of 14 CFR 26.35 for Model

737-700 airplanes that have incorporated the AEW&C modification, on the basis that

these airplanes are not subjected to an operational rule that would require an update of

their maintenance programs. These airplanes arb not currently operated commercially

within or outside the United States, and they arelnot expected to be in the future.

Federal Register publication

A summary of the petition was published in the Federal Register on November 24, 2010

(75 FR 71793). No comments were received regarding the exemption request.

The FAA's analysis

The FAA has developed criteria to consider when deciding whether to grant or deny a design

approval holder's (DAH) petition for exemption from part 26 requirements. These criteria were

meant as a general guide to making decisions about sudh requests and were not developed for

any specific request. The FAA uses these criteria as a ~tarting point for making its decision.

However, other factors may also be considered before ~ final decision is made on any particular

exemption request.

The criteria are illustrated in the table that follows.

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The determination of whether an airplane is operating under part 121, 125, or 129 (N-registered)

is based on whether that particular aiIplane is listed on an air carrier's Operations Specifications.

The rationaJe behind the criteria contained in the table above is this: The rule requires DAHs to

develop data for use by operators. If there are no operators for a particular airplane who are

required by the rules to use such data, it would be a poor use of resources for the DAH to

develop it. Therefore, it would benefit both the DAH ahd the public as a whole to spend

resources on more important safety issues rather than on developing data that will not be used.

In addition, granting such an exemption would not adversely affect safety because there are no

airplanes that would be required to incorporate the data, nor is it likely that there will be any in

the future.

The FAA has reviewed The Boeing Company's request and has determined that granting this

exemption would not have an adverse effect on public safety and would be in the public interest

based on the following information:

The FAA notes that Boeing Model 737-700 airplanes modified in accordance with

STC ST01999SE have been heavily modified to convert them to AEW &C airplanes for military

use, and that they are not used for commercial passenger transportation or compensation for hire.

The petitioner also slated that the Model 737-700 AEW&C military airplane has been specially

designed and configured for military operations under exclusive authority of the military

airworthiness authority of the customer's country. Upon delivery, each airplane is removed from

the FAA registry. No airplanes are operating, or expected to operate in the future, under

parts 121, 125, or 129. The FAA finds that, since Model 737-700 AEW&C military airplane is

used only in military applications, there is no FAA operating requirement to install the

flammability reduction means or to keep it operational if already installed.

As a result, Boeing Model 737-700 airplanes converted to AEW&C military airplanes in

accordance with STC ST01999SE meet the baseline exemption criteria for part 26. There are 110

other factors to be considered regarding The Boeing Company's petition for exemption.

Additional information

This exemption grants relief to The Boeing Company from having to meet the airworthiness

requirements of § 26.35. This exemption docs not grant relief from the related operational

requirements contained in §§ 121.1117, 125.509, and 129.117. Should a person choose to

operate a Model 737-700 AEW&C military airplane under part 121, 125, or 129 beyond the

operational compliance deadlines as stated in §§ 121.1117, 125.509, and 129.117, that person

will be required to comply with those operational requirements.

In addition, this exemption does not provide any relief from part 25 requirements determined to

be applicable when developing a certification basis in accordance with § 21.101.

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The FAA'5 decision

In consideration of the foregoing, I find that a grant of~xemPtion 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, The Boeing Company is hereby ~ranted an exemption from § 26.35 for

STC STO1999SE. The limitations and conditions section of STC STO1999SE must list this

exemption and state that:

• compliance with § 26.35 has not been demonstrated, and

• §§ 121.1117, 125.509, and 129.117 require that a Flammability Impact Mitigation Means

be installed by the compliance times specified in those regulations, if required by § 26.35.

Issued in Renton, Washington, on

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~-SUZanneMasterson

Acting Manager, Transport Airplane Directorate

Aircraft Certification Service

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