AIR-15-885-E

Exemption No. 12920

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

THE BOEING COMPANY Regulatory Docket No. FAA-2015-0615

 

for an exemption from §§ 21.35(a),

(b)(2) and (f)(2) 

of Title 14, Code of 

Federal Regulations 

GRANT OF EXEMPTION

By letter dated March 9, 2015, Mr. John A. Hamilton, Lead Administrator, Regulatory 

Administration, Commercial Airlines, The Boeing Company (Boeing), P.O. Box 3707 MC 

03-56, Seattle, WA 98124-2207 petitioned the Federal Aviation Administration (FAA) on 

behalf of Boeing for an exemption from §§ 21.35(a), (b)(2), and (f)(2) of Title 14, Code of 

Federal Regulations (14 CFR). The proposed exemption if granted, would provide Boeing 

relief from completing function and reliability (F&R) testing for the Model 767-2C prior to

the issuance of an amended type certificate (ATC) which would add that aircraft, a derivative 

of the 767-200ER and the commercial aircraft baseline for the United States Air Force 

(USAF) KC-46 aerial refueling tanker, to the Model 767 type certificate. The proposed 

exemption would allow Boeing to accumulate required flight test hours after issuance of the 

ATC that better represent the aircraft’s intended in-service aircraft configuration, capabilities, 

and operation. The testing would be required to be completed prior to the Model 767-2C 

being put into initial operational service. 

The petitioner requests relief from the following regulations:

Section 21.35(a) at Amendment 21-95 requires, in pertinent part, that each applicant for 

an aircraft type certificate make the tests listed in paragraph (b) of this section.

Section 21.35(b)(2) at Amendment 21-95 requires, in pertinent part, that the applicant

make all flight tests that the FAA finds necessary to determine whether there is 
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reasonable assurance that the aircraft, its components, and its equipment are reliable 

and function properly. 

Section 21.35(f)(2) at Amendment 21-95 requires, in pertinent part, that the flight tests 

prescribed in paragraph (b)(2) of this section include at least 150 hours of operation.

The petitioner supports its request with the following information:

The petitioner requests to defer completion of Boeing Model 767-2C F&R testing until 

after ATC approval of the 767-2C, but prior to the 767-2C being put into initial operational 

service. Boeing proposes to complete all required testing and incorporate any changes to the 

type design, required to comply with 14 CFR part 21 requirements, which the FAA deems 

necessary while all 767-2C aircraft remain under ownership and control of Boeing.

The 767-2C is being certified for use as a USAF KC-46 aerial refueling tanker (a 

public use aircraft), which will replace aging KC-10 and KC-135 tankers. The KC-46 tanker 

configuration is comprised of the ATC configuration (767-2C) as modified by a Supplemental

Type Certificate (STC). The STC configuration is additive and will not impact F&R testing as 

applicable to the ATC configuration.

This proposed relief will allow Boeing to more fully evaluate the end-state KC-46

tanker configuration (ATC plus STC) that will be operated by the USAF. The USAF requires

the conduct of extensive f1ight testing in the KC-46 configuration that is representative of 

tanker operations. These USAF flight test hours will be accumulated after FAA issuance of 

the ATC, but prior to initial entry of the aircraft into operational service. Boeing proposes to 

use these f1ight test hours to complete F&R test requirements rather than conduct redundant 

dedicated testing on the 767-2C configuration prior to issuance of the 767-2C ATC. 

Conducting redundant dedicated testing on the 767-2C ATC configuration would delay 

aircraft delivery to the USAF, increase costs to the U.S. government, and delay the

introduction of environmental improvements and increased operational capability. 

Accordingly, granting the petition would be in the public interest.

Boeing proposes a time limitation to be included in the Type Certification Data Sheet 

(TCDS) detailing the relief that would be provided by this exemption. The proposed limitation 

would state:

Time Limited Grant of Exemption §§ 21.35(a), (b)(2) and (f)(2), relief from the 

requirement that function and reliability testing be completed as a condition for 

obtaining an amended type certificate; Exemption No. XXXX, Month dd, yyyy (Relief 

expires March 31, 2017).

Boeing also proposes to add the following to the Additional Design Requirements and

Conditions (ADRC) of the Model 767 TCDS:
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14 CFR 21.35(a), (b)(2) and (f)(2) - Function and Reliability Testing. Boeing may not 

transfer any ownership interest in any model 767-2C aircraft, and any such aircraft 

may only be f1own by a Boeing pilot in command prior to the completion of that 

aircraft model's Function and Reliability testing to the satisfaction of the FAA in 

accordance with 14 CFR Section 21.35 and Exemption No. XXXX. Prior to any 

transfer of physical custody of any model 767-2C airplane not in compliance with 

Exemption No. XXXX to any entity other than Boeing, Boeing must remove the data 

plate from that airplane. Additionally, the FAA would revoke the amendment to the 

TCDS that added the 767-2C model to the TCDS of the model 767. The text of this 

paragraph may only be removed from the TCDS of the Model 767 after such Function 

and Reliability testing is completed to the satisfaction of the FAA.

All function and reliability testing per 14 CFR 21.35 will be performed during ATC 

certification flight testing or STC certification flight testing. During testing, the aircraft will be 

under Type Inspection Authorization as is routinely required for certification projects. Boeing 

will retain ownership, control, accountability and responsibility for the aircraft until successful 

completion of the function and reliability testing.

The petitioner notes that all Part 21 findings of compliance will be retained by the 

FAA and the FAA, at its discretion, may also rely on the US Government (USAF), and/or 

Boeing pilots to perform the FAA's function for testing. Additionally, Boeing will provide 

status reports to the FAA for all test flights involving function and reliability. Any 

issues/squawks identified in testing are proposed to be captured per Boeing Commercial 

Aircraft (BCA) standard processes. Issues are proposed to be tracked and resolved using the 

standard BCA Process Instructions to ensure closure and transparency.

A summary of the petition was published in the Federal Register on Wednesday, May 

20, 2015 (80 FR 29148). The comment period closed on June 9, 2015. No comments were 

received.

The FAA’s analysis is as follows:

The FAA finds that the extensive operational testing proposed to be conducted with 

the USAF and planned by Boeing on the Boeing Model 767-2C in the KC-46 (i.e., ATC plus 

STC) configuration that are representative of tanker operations, will meet or exceed the 

requirements in 14 CFR §§ 21.35(a), (b)(2), and (f)(2). This exemption would allow the 

issuance of the ATC prior to completion of F&R testing. However, the extensive operational 

testing must be completed prior to any Model 767-2C being put into initial operational service

with no transfer of ownership from Boeing prior to that time. Conducting F&R testing for the 

767-2C in the USAF KC-46 configuration during the STC certification flight testing will 

provide a more rigorous test environment than would be encountered on traditional civilian 

freighter missions and the testing will be more representative of the actual end-product’s 

operational environment. The FAA finds the F&R testing deferment has a minimal risk to the 
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public and will not adversely affect safety. The conditions and limitations proposed in the 

petition further mitigate the risks of deferring the completion of F&R testing.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption is in the public 

interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113 

and 44701, delegated to me by the Administrator, The Boeing Company, is granted an 

exemption from 14 CFR §§ 21.35(a), (b)(2) and (f)(2) to the extent necessary to allow Boeing 

to complete function and reliability (F&R) flight testing for the Model 767-2C after issuance

of an amended type certificate (ATC) which would add that aircraft to the Model 767 type 

certificate, subject to the conditions and limitations listed below.

Conditions and Limitations

1. All flight testing must be completed prior to the Model 767-2C being put into 

initial operational service.

2. All model 767-2C aircraft must be f1own with a Boeing pilot in command prior 

to the completion of that aircraft model's F&R testing.

3. The pilot-in-command of any flight operated under the provisions of this 

exemption must:

a. Be directly employed by Boeing, and

b. Occupy a flight crew station with access to the flight controls.

4. Boeing must be in full operational control of any aircraft operated under the 

provisions of this exemption.

5. The relief provided by this exemption is limited to permitting the F&R testing 

specified in 14 CFR § 21.35 to be completed after issuance of an ATC adding the 767-

2C to the 767 Type Certificate. It does not provide relief from other substantive 

requirements contained in 14 CFR § 21.35.

6. If ownership interest or physical custody of a Model 767-2C aircraft is transferred 

prior to completion of F&R testing, that aircraft’s identification plate must be removed 

and any amendment to the Model 767 TCDS that added that aircraft’s serial number to 

the 767-2C series of that TCDS is revoked.

7. Condition 2 must be recorded in the Model 767 TCDS as part of the 767-2C 

series Additional Design Requirements and Conditions section and may only be 

removed after F& R testing is completed.
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8. Boeing must submit a summary test results report to the FAA following each 

F&R test flight conducted without FAA observer personnel onboard. Each report must 

be submitted to the FAA Boeing Aviation Safety Oversight Office within two business 

days after completion of the test flight.

This exemption terminates on March 31, 2017, unless sooner superseded or rescinded.

Issued in Washington, D.C., on September 16, 2015.

//s//

Dorenda D. Baker 

Director, Aircraft Certification Service