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 Olmsted, of BaySys Technologies, 24233 Lankford 

Highway, Accomac, VA 23301, petitioned the Federal 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 related 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 N702BA. 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 Transportation’s Federal Docket Management System, on the 

Internet at http://regulations.gov, in docket no. FAA-2011-0215. 
2 

Reasons Why the Exemption Would Not Adversely Affect Public Safety 

The airplane is not operated for hire, or offered for common carriage, 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 requirements of 14 CFR 25.571 are being addressed in 

accordance with the submitted project specific certification plan for STC project 

ST5831NY-T. 

Reason the Exemption Would Benefit the Public Interest 

Granting this exemption will avoid a significant 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 consumer spending capacity 

associated with stable workers. 

Improved financial performance of Virginia 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” client, improving the United States’ balance of 

trade. 

Since the passengers aboard these airplanes will not be revenue paying customers of 

commercial for-hire airlines, there can be no degradation 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 savings for the FAA are realized by the reduced 

time and resources spent in the review and 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 aircraft 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 set 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 requests and were not developed for any specific 
3 

request. The FAA uses these criteria as a starting point for making its decision. However, other 

factors may also be considered before a final decision is made on any particular exemption 

request. 

Table 1: Criteria for Considering Eligibility 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 future3

No airplanes are 

operating under part 129 

(N-registered) and it is 

unlikely that any will do 

so in the future3

No airplanes are being 

operated by a foreign air 

carrier and it is unlikely 

that any will do so in the 

future3

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 date1

 and it is 

unlikely that any will 

return to such service in 

the future3

Airplanes are operating 

under part 129 (Nregistered) but no 

airplanes will be 

operated under part 129 

(N-registered) after the 

operational rule 

compliance date1

 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 date1 and it 

is unlikely that any will 

return to such service in 

the future3

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 future3

No airplanes are 

operating under part 129 

(N-registered) and it is 

unlikely that any will do 

so in the future3

 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 date2 and it is 

unlikely that any will 

return to such service in 

the future3

Airplanes are operating 

under 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 future3

 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 airplanes 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 carrier’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 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 is the airworthiness authority for the state of design for BaySys Technologies STC 

ST5831NY-T. The FAA has reviewed BaySys Technologies’ request and has determined that 

the affected airplane is not operating under part 121 or part 129 (US-registered), and is not likely 

to be operated under these rules in the future. The 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 certification standard of the Boeing Model 777-236, and 

for the FAA to grant a design approval for ST5831NY-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 remain 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 exemption is not in the public interest, 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-certificate holders and applicants are responsible for detail-design 

data associated with STCs installed on this airplane model, including damage-tolerance data and 

instructions for continued airworthiness (ICA) as required (for the baseline STC and repairs 

developed by STC holders/applicants) to maintain the original certification basis. 
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Denial of Exemption 

In consideration of the foregoing, I find that a grant 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 the 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, Transport Airplane Directorate 

Aircraft Certification Service