Exemption No. 10165

UNI~ED STATES OF AMERlCA

DEPARTMENT OF TRANSPORTATION

FE~~~~~:' V~:~%~~~~~~~~~~~O

I

I

In the matter of the petition of

Airbus

for an exemption from §§ 26.33(d), (e),

(t), and (h) ofTitle 14, Code ofFedbral

Regulations I

Regulatory Docket No. FAA-2010-0765

PARTIAL GRANT OF EXEMPTION

8y submission to the Department offTranspOltation's Federal Docket Management

System (FDMS) dated July 28, 201 q, Mr. Yves Regis, Head of Product Integrity, Airbus

SAS, 835-0A 7, I Rond-polnt Maurice Bellante, 31707 Blagnac Cedex, France,

petitioned the Federal Aviation Adniinistration (FAA) for an exemption from the

requirements of Title 14, Code ofF~deral Regulations (14 CFR) 26.33(d), (e), (f), and

(h). Tlus exemption is requcsted forlAirbus A340 passenger-carrying airplanes. These

models are identified on Type Certificate Data Sheet A43NM as A340, Models 211, 212,

213, 311, J 12, 313, 541 and 642. Tlie Airbus A340 Models 542 and 643 were includcd in

the exemption petition, although thelse models are not identified on the TCDS. Likewise,

these two models are not included iJ this exemption.

The petitioner requests relief fro, the following regulation: .. .

SectIOn 26.33(d), (e), (I), and (b), reqUlre the development of service lIlstntctlOns for

making design changes to rcduce th~ flanmmbiJity or mitigate the effects of an ignition of

fuel vapors and associated Instructidns for Continued Airworthiness for fuel tanks

determined to be highly flammable.IThis section also requires the development of

compliance plans for accomplishing these activities.

The petitioner supports its requesr with the following information:

This section quotes the relevant inf9rmation from the petitioner's request. The complete

petition is avaIlable at the Department of Transportation's Federal Docket Management

System, on the Internet, at http://wvf.regUlations.gOv, in docket no. FAA-20 10-0765.
The extent of the sought relief and the reason for seeking this relief.

Airbus plans to be ready to release the Service Instructions (or Service BulletinsSB) required by § 26.33(d) for the A340 aircraft models (A340-211, -212, -213,

-311, -312, -313, -541, -542, -642, -643) by December 31, 2011 (instead of

December 27, 2010 as required by § 26.33(d)). Consistent with the requirement of

§ 26.33(h)(3) Airbus plans 10 bave a draft of the SB available [two] months

earlier, i.e. at the end of October 2011. There will be one SB for the A340-

200/300 models and one SB for the A340-500/600 models since the Flammability

Reduction System designs are slightly different for these two families.

In addition, for the A340-541, -542, -642 and ~643 aircraft models, Airbus plans

to publish the AirworthinessiLimitation Section (ALS) of the Instructions for

Continued Airworthiness (lqA) required by § 26.33 (e) and (f) in the second half

of201 1, no later than December 31, 20 II. The exact date will depend on the date

of approval of the aircraft mbdification installing the fuel tank flammability

reduction system on this airdraft model (currently scheduled to take place in the

second halfof2011). I

These delays in compliance are sought since:

• there are currently no A340 aircraft operated under parts 121, 125 or 129

and,

• only second-hand aircraft could enter parts 121, 125 or 129 operations

before the end of December 2011. To the best Airbus current knowledge

of second-hand aircraft availability, only a very limited number of units

could therefore be added to the US registry before this datc.

The delays in compliance are therefore sought in order to optimize the resources

allocation and give the priority to the progress of the compliance work for the

overall Fuel Tank Flammability Reduction Rule (i.e., including the support to the

operators affected by the 14 CFR operational requirements) for the A320 family

and the A330-200 model. A+bUS bas a significant number of these aircraft under

parts 121, 125 and 129 operations and a few airlines have already placed orders

for flammability reduction system (FRS) retrofit (A320 family).

The reasons wby granting the request would be in the pnblic interest; that is,

how it would benefit the public as a whole.

As indicated above, granting the request will improve:

• the Airbus capability to meet the § 26.33 2010 compliance deadlines for

the models for which Airbus has a significant number of aircraft operated

under part 121, 125, and 129

• the Airbus capability, throughout 2011, to provide the necessary support to

thc US operators of these aircraft models in preparing, scheduling and

finally meeting the part 121, 125, and 129 retrofit requirements hence

benefiting the US public as a whole.

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The reasons why granting le exemption wonld not adversely affect safcty.

Granting this exemption would not adversely affect safety since it will not impair

,

Airbus' and potential future A340 operators' capability to meet the part 1.21, 125

and 129 retrofit dates. No A3!40 aircraft models are currently operated under parts

121,125 or 129 and, to the cvrrent Airbus knowledge, only a very limited number

of second·hand aircraft could be added to the US registry in the near future. On

this basis Airbus considers t~at delaying the publication of Service Instructions

for the A340 aircraft will notiimpair the capability of the potentially concerned

operators to meet the part 121, 125 and 129 retrofit dates.

The reason to exercise the Jrivileges ofthe requested exemption outside the

United States if needed. I

To the best of Airbus knowledge, no N-registered airplanes affected by this rule

are operated outside the Unit~d States. There is therefore no need to exercise the

privileges of the requested eJemption outside the United States.

Federal Register publication

A summary of the petition was publi'shed in the Federal Register on September 10,2010

[75 FR 175]. One comment was rec~ived. The commenter suggests that the petition be

rejected, adding that: I·

"A..irBus publjshed a plan to be in compliance with this CFR as currently in effect.

Deviation from the requirembnts ofCFR Title 14, Part 26.33 establishes an

undesirable precedent which Imay be followed by other aircraft manufactures. It

represents an enabling oflesser project management perfonnance, which is

undesirable in aviation. It beks the question about the effectiveness of AirBus

management and the cascadirtg negative impact on the public served. Entry of

,

A340 aircraft into FAR 121/125/129 service is uncontrolled and potential fuel

tank fIre exists without compliance the cunent CFR Title 14, Part 26.33

regulation." I

The FAA has decided to grant the exemption for the reasons described in the following

anaylsis.

The FAA's analysis

The FAA has developed criteria to c~onsider when deciding whether to grant or deny a

design approval holder's (DAB's) p~tition for exemption from 14 CFR part 26

requirements. These criteria were mbant as a general guide to making decisions about

such requests and were not developdd for any specific request. The FAA uses these

criteria as a starting point for makin~ its decision. However, other factors may also be

considered before a final dec.ision is Imade on any particular exemption request.

The criteria are described in the following table.

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Table 1: Criteria for Considering E~igibility for Exemption from § 26.33

If the

I

airworthiness

authority for And And And And Then

the state of

design Is

The FA-A No airplanes are No airp;~anes

, are No airplanes are No airplanes arc The DAH

operating under part operat)~g under operating under being operated by a may be

121 and it is unlikely part 125 and it is part 129 (N- foreign air earri(:r eligible for an

thai any wilt do so in unlike1~ that any registered) and it is and it is unlikely exemplion

the futureJ

will dOrO in the unlikely that any that any will do so

future' win do so in the in the future)

future'

The FAA Airplanes arc AirplaJes are Airplanes are Airplanes are being The DAH

operating under part opcrati*g under operating under operated by a lTIaybe

121 but no airplanes part 125 but no part 129 (N- foreign air carrier eligible for an

wi II be operated airplanbs will be registered) bUI no but no airplanes exemption ,

under part 121 after operate? under airplanes will be will be operated by

the operational-ru.le part 125 after the operated under part a foreign air carrier

compliance date I and

,

operational-rule 129 (N-registered) after the

il is unlikely that any compli~nce datel

after the operational-rule

wilt rclurn to such and it d unlikely operational-rule compliance datel

service in the future3that an} will compliance date] and it is unlikely

return t6 such and it is unlikely that any will return

servicelin the that any will return to such service in

future' to such service in the future3

the future)

I

Not the FAA No airphmcs are No airplanes

, are No airplanes arc The DAH

operating under part operatl~g under operating under may be

121 and il is unlikely part 125 and it is part ]29 (N- eligible for an

that any will do so in unlikelY that any registered) and it is exemption

the future' will d~ISOin the unlikely that any

future' will do so in the

future'

Not the FAA Airplanes arc Airplan1es are Airplanes are The DAH

operating under part operatl~g' under operating under may be

121 but no airplanes part 125 but no part 129 (N- eligible for an

will be oper:lted airplants will be registered) but no exemptIOn ,

lll1der part 121 after operatej:l under airplanes will be

the opennional-rule part 125 after the operated under part

campI iuncc date" and operatibnal-rule 129 (N-registered)

it is unlikely Ihat allY compli~llce date' after the

will return to sueh and it i~ unlikely operalional-rule

service in the fulure3

that any will compliance datc<

return tp such and it is unlikely

service1in the that any will return

future' 1 to such service in

the futureJ

IThe design-approval holder must demonstrate that!these airplanes will not be operating under part 121, 115, or 129, or

operated by a foreign air carrier, atler the operational-rule compliance date by obtaining documentation of such from the

current owners/operators of the airplanes. 1

2 The (ksign-approvul holder must demonstrate that these airplanes will not be operating under part 121, 125, or 129 aA:erthe

operational-rule compliance date by obtaining docurentation of such from the current owners/operators of the airplanes.

) Arguments for the 1ikel ihood of an airplane not enlering into air-carrier serviCe in the future should center on the airplane's

uge and/or current eonfiouration.

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The determination of whether an airplane is operating under 14 CFR part 12], 125 or 129

is based on whether that particular airplane is listed on an air carrier's Operations

Specifications. l

The rationa1c behind the criteria con ained in the table above is this: The rule requires

DAHs to develop data for use by opbrators. Ifno operators for a particular airplane are

required by the rules to use such dat¥, it would be a poor use of resources for the DAB to

develop the data. Therefore, It benefits both the DAJ-I and 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 ekemption would not adversely affect safety because

none of the airplanes would be requited to incorporate the data, nor is it likely that there

will be any in the future. I

The FAA has reviewed Airbus' request and detem1ined that granting this time-limited

exemption would not have an adverJe effect on public safety and would be in the public ,

interest. Regarding the criteria in Table I, the FAA is not the airvvorthiness authority for

the state of design for Airbus A340 $elies airplanes and no A340 senes airplanes meeting

the applicability criteria of 14 CFR :t6.33(a) currently operate under 14 CFR parts 121,

125 or 129 (U.S. registered only). Although it is not w1like1y that any A340 series

airplanes meeting the applicability cbteria of 14 CFR 26.33(a) will enter into new

operations under 14 CFR parts 121, I] 25 or 129 (U.S. registered only), it is unlikely that

any will do so before December 31, FOIl. Therefore FAA considers this criterion to be

met within the timeline of the proposed extension. In the unlikely event an operator does

desire to operate one of these airplaJes in these operating parts, 14 CFR 121.1117,

125.509 and 129.117 require that a design change to the airplane's center fuel tank, if

required by § 26.33, be installed that either reduces its flanm1ability to the level required

by]4 CFR 26.33(c)(1)(i) or provide~ a means to mitigate the effects of an ignition of fuel

vapors to the level required by § 26.B3(c)(2). No other factors require consideration

,

regarding Airbus' petition for a time-limited exemption.

The FAA agrees that granting this ti~e-limited exemption would not adversely affect

safety for the reasons listed in the Airbus petition. Although the FAA does not agree with

the reasons for public benefit listed in the Airbus petition, the FAA did detennine that it

would not benefit the public for Airbus to spend resources developing data that will not

be used before December 3], 2011 ~ince no A340 series airplanes currently operate under

14 CFR parts 121, 125 or 129 and itlis unlikely that any A340 series airplanes will enter

new operations under parts 121, 125 or 129 before December 31,2011.

Additional information

This time-limited exemption grants relief to Airbus with an extension of the required

compliance date of December 27, 2([110,per 14 CFR 26.33(d), (e) and (£), to December

31, 2011. It also grants rehefto Air1:lus for submitting a draft of all compliance items ,

required by § 26.33(d), (e) and (£) \~ith an extension of the required compliance date of

not less than 60 days before the compliance times specified in § 26.33(d), (e) and (f)

(October 27, 2010), per § 26.33(h)Ci), to October 3],2011. This time-limjted exemption ,

does not srrant relieffi·om the related operational requirements contained in 14 CFR

121.1117, 125.509, or 129.117. shobld a person choose to operate an Airbus A340

Model 21 I, 212, 213, 311, 312, 313\ 541 or 642 airplane under part 121, 125 or 129

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beyond the operational compliance qeadlines as stated in §§ 121.1117, 125.509, or

129.117, that person will be required to comply with those operational requirements.

The FAA's decision

In consideration oftlle foregoing, I find that a grant of a time-limited exemption to

Airbus is in the public interest. Ther¢fore, pursuant to the authority contained in 49

U.S.c. §§ 40113 and 44701, delegattd to me by the Administrator, Airbus is hereby

granted a time-limited exemption [rrim, 14 CFR 26.33(d), (e) and (f) to extend the

compliance date of December 27, 2010 to December 31, 2011 for Airbus A340 Model

211, 212, 213, 311, 312, 313, 541 arid 642 airplanes. Airbus additionally is hereby ,

granted a time~limited exemption frqrn 14 CFR 26.33(h)(3) to extend the compliance date

of October 27, 2010 to October 31,2011 for Airbus A340 Model 211, 2] 2,213,311,

3]2,313,541 and 642 airplanes.

Issued in Renton, Washington, on NOV 2 2 2010

Ali Bahrami

Manager, Transport Airplane Directorate

Aircraft Certification Service

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