Exemption No. 10303

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION RENTON, WASHINGTON 98057-3356

In the matter of the petition of

BaySys Technologies

for an exemption from §§ 26.47 and 26.49 of Title 14, Code of Federal Regulations Regulatory Docket No. FAA-2011-0215

DENIAL OF EXEMPTION

By letter dated March 7, 2011, Mr. Nick Olms ted, of BaySys Technologies, 24233 Lankford Highway, Accomac, VA 23301, petitioned the Fede ral Aviation Administration (FAA) for an exemption from the requirements of Title 14, Code of Federal Regulations (14 CFR) 26.47 and 26.49. The requirements of §§ 26.47 and 26.49 are re lated to the development of damagetolerance data for alterations and repairs to alterations. This exemption is requested for supplemental type certificate (STC) ST5831NY-T installed on a private-use, Boeing Model B777-236 airplane, S/N 27108, registration number N 702BA. This airplane is configured for “private, not-for-hire use” and is not offered for public conveyance.
The petitioner requests relief from the following regulations:
Section 26.47, Holders of and applicants for a supplemental type certificate – Alterations and repairs to alterations , requires development of damage-tolerance data for alterations and repairs to alterations.
Section 26.49, Compliance Plan , requires development of a compliance plan documenting the design approval holder’s ( DAH’s) proposed method of compliance with § 26.47.
The petitioner supports its request with the following information:
This section quotes the relevant information from the petitioner’s request. The complete petition is available at the Department of Transporta tion’s Federal Docket Management System, on the Internet at http://regula tions.gov, in docket no. FAA-2011-0215.2 Reasons Why the Exemption Would Not Adversely Affect Public Safety
The airplane is not operated fo r hire, or offered for common ca rriage, nor is it likely to be in the future. The airplane will not, without a new STC and costly extensive work, be able to operate in a manner to support common carriage.
The applicable damage tolerance requiremen ts of 14 CFR 25.571 are being addressed in accordance with the submitted project specif ic certification plan for STC project ST5831NY-T.
Reason the Exemption Would Benefit the Public Interest
Granting this exemption will avoid a signifi cant negative impact on income that would have a negative impact on both the local and regional economies.
Approval of these exemptions will enable this Virginia company working on Transport Category Airplanes to effectively compete in this global market.
Stability and improved financial performance of this Virginia company gives greater job stability to workers employed, thereby providing a stabilizing influence to the greater regional and the larger US economy due to the increased consum er spending capacity associated with stable workers.
Improved financial performance of Virgin ia owned and operated corporations and increased workforce stability translates into continued and improved local, state, and federal tax revenues, which in turn add to the stability of the overall United States
economy. This project is work for an “offshore” clie nt, improving the United States’ balance of trade.
Since the passengers aboard these airplane s will not be revenue paying customers of commercial for-hire airlines, there can be no de gradation to airline passenger safety and therefore no detrimental impact the public at large.
If this exemption is to be granted it would represent significant cost savings, not only for the applicant, but also for the FAA. The sa vings for the FAA are realized by the reduced time and resources spent in the review a nd approval of the data related to the requirements for issuance of this STC. This allows the FAA to better expend time and resources on matters related to Part 26 airc raft that are being operated under 14 CFR 121 or 14 CFR 129.
Federal Register publication
The FAA waived the requirement for Federal Register publication and request for public comment because the petition for exemption will not se t a precedent, as it is similar to previously granted FAA Exemptions.
The FAA’s analysis
The FAA has developed criteria (see Table 1) to consider when deciding whether to grant or deny a DAH’s petition for exemption from part 26 requirements. These criteria were meant as a general guide to making decisions about such requ ests and were not developed for any specific3 request. The FAA uses these criteria as a starti ng point for making its decision. However, other factors may also be considered before a fina l decision is made on any particular exemption request.
Table 1: Criteria for Considering Elig ibility for Exemption from §§ 26.47 and 26.49

If the airworthiness authority for the state of design is And And And Then

1 The FAA No airplanes are operating under part 121 and it is unlikely that any will do so in the future 3 No airplanes are operating under part 129 (N-registered) and it is unlikely that any will do so in the future 3 No airplanes are being operated by a foreign air carrier and it is unlikely that any will do so in the future 3 The DAH may be eligible for an exemption

2 The FAA Airplanes are operating under part 121 but no airplanes will be operated under part 121 after the operational rule compliance date 1 and it is unlikely that any will return to such service in the future 3 Airplanes are operatingunder part 129 (Nregistered) but no airplanes will be operated under part 129 (N-registered) after the operational rule compliance date 1 and it is unlikely that any will return to such service in the future 3 Airplanes are being operated by a foreign air carrier but no airplanes will be operated by a foreign air carrier after the operational rule compliance date 1 and it is unlikely that any will return to such service in the future 3 The DAH may be eligible for an exemption

3 Not the FAA No airplanes are operating under part 121 and it is unlikely that any will do so in the future 3 No airplanes are operating under part 129 (N-registered) and it is unlikely that any will do so in the future 3 The DAH may be eligible for an exemption

4 Not the FAA Airplanes are operating under part 121 but no airplanes will be operated under part 121 after the operational rule compliance date 2 and it is unlikely that any will return to such service in the future 3 Airplanes are operatingunder part 129 (Nregistered) but no airplanes will be operated under part 129 (N-registered) after the operational rule compliance date 2 and it is unlikely that any will return to such service in the future 3 The DAH may be eligible for an exemption

1 The design approval holder must demonstrate that these airplanes will not be operating under part 121 or part 129, or operated by a foreign air carrier, after the operational rule compliance date by obtaining documentation of such from the current owners/operators of the airplanes.

2 The design approval holder must demonstrate that these airpla nes will not be operating under part 121 or part 129 after the operational rule compliance date by obtaining documentation of such from the current owners/operators of the airplanes.

3 Arguments for the likelihood of an airplane not entering into air carrier service in the future should center on the airplane’s age and/or current configuration.4 The determination of whether an airplane is operating under 14 CFR part 121 or part 129 is based on whether that particular airplane is listed on an air carri er’s Operations Specifications.

The rationale behind the criteria contained in the table above is this: The rule requires DAHs to develop data for use by operators. If a particular airplane has no operators who are required by the rules to use such data, it would be a poor use of resources for the DAH to develop that data. Therefore, it would benefit both the DAH 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 exemption would not adversely affect safe ty 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 is the airworthiness au thority for the state of desi gn for BaySys Technologies STC ST5831NY-T. The FAA has reviewed BaySys Tec hnologies’ request and has determined that the affected airplane is not opera ting under part 121 or part 129 (US -registered), and is not likely to be operated under these rules in the future. Th e operator of the affected airplane has provided written notification to BaySys Technologies stating that this airplane will not be operated for hire or common carriage in part 121 or part 129 operations.
The FAA project ST5831NY-T has not yet been approved. The damage-tolerance evaluation, and development of damage-tolerance-based inspections and procedures required by 14 CFR 26.47, are the same as those required by 14 CFR 25.571 (post Amendment 25-45). The Boeing Model 777-236 was originally certified to the requirements of § 25.571 at amendment level 25-72 (with the exception of § 25.571(e)(1), which is at amendment level 25-54). To maintain the original damage-tolerance certifi cation standard of the Boeing Model 777-236, and for the FAA to grant a design approval for ST 5831NY-T, BaySys Technologies must meet the applicable damage-tolerance requirements of § 25.571 at amendment level 25-72 (with the exception of § 25.571(e)(1) which will rema in at amendment level 25-54).
Therefore, BaySys Technologies requires no additional work, and likewise will endure no economic impact, to fully comply with the requirements of 14 CFR 26.47 and 26.49. The FAA concludes that granting this exem ption is not in the public intere st, and is not a benefit to the public as a whole.

Additional information
The Boeing Model 777-236 airplane is certified to the damage-tolerance requirements of 14 CFR 25.571, Damage-Tolerance and Fatigue Evaluation of Structure , and § 25.1529, Instructions for Continued Airworthines , as documented on Type Certificate Data Sheet T0000SE1. Supplemental-type-certifi cate holders and applicants are responsible for detail-design data associated with STCs installed on this ai rplane model, including damage-tolerance data and instructions for continued airw orthiness (ICA) as required (for the baseline STC and repairs developed by STC holders/applicants) to main tain the original certification basis.5 Denial of Exemption
In consideration of the foregoing, I find that a gran t of exemption is not in the public interest and provides no benefit to the public as a whole. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by th e Administrator, BaySys Technologies is hereby denied an exemption from 14 CFR 26.47 and 26.49 for STC ST5831NY-T.

Issued in Renton, Washington, on July 1, 2011.

/s/ Jeffrey E. Duven

Jeffrey E. Duven Acting Manager, Transpor t Airplane Directorate Aircraft Certification Service