AFS-13-308-E

Exemption No. 10856

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

FEDEX EXPRESS Regulatory Docket No. FAA-2013-0312

 

for an exemption from § 121.359(k)

of Title 14, Code of 

Federal Regulations 

 

GRANT OF EXEMPTION

 By letter dated March 28, 2013, Mr. Ted McFann, Manager, Avionics Department, FedEx 

Express (FedEx), 3131 Democrat Road, Memphis, TN 38118, petitioned the Federal 

Aviation Administration (FAA) on behalf of FedEx for an exemption from § 121.359(k) of 

Title 14, Code of Federal Regulations (14 CFR). This exemption, if granted, would allow 

FedEx to operate 12 Boeing 757-200 aircraft without complying with the cockpit voice 

recorder (CVR) requirement to record digital datalink communication messages.

The petitioner requests relief from the following regulation:

Section 121.359(k) prescribes that all airplanes required by part 121 to have a CVR and a 

flight data recorder (FDR), that install datalink communication equipment on or after 

December 6, 2010, must record all datalink messages as required by the certification rule 

applicable to the airplane.

The petitioner supports its request with the following information:

The petitioner states that FedEx operates 12 B757-200 airplanes in Europe. FedEx operates 

under European Commission rules. Rule No. 29/2009, Article 3/2, requires that beginning 

February 5, 2015, aircraft operating in designated European airspace be equipped with certain

air traffic control (ATC) datalink communication equipment. The European system 

architecture, known as the Aeronautical Telecommunications Network (ATN), provides an 
2

exception to the required datalink communication equipment for aircraft equipped with Future 

Air Navigation System (FANS) 1/A datalink equipment, provided that the aircraft are FANS 

equipped prior to January 1, 2014.

While not specifically stated, the petitioner wants to equip its aircraft with FANS 1/A+ to 

take advantage of the European exception that requires installation before January 1, 2014. 

However, the U.S. regulation cited previously prevents them from installing FANS 1/A+ until 

the aircraft can also record the datalink communications generated by that equipment. 

Although the recording equipment is available, no instructions for modifying the aircraft to 

record FANS 1/A+ have been approved. FedEx is waiting for Boeing to provide an FAAapproved service bulletin for the recording equipment. 

FedEx states that the FANS 1/A+ equipment installation on its fleet of B757-200 model 

airplanes is certified by Boeing, and the associated service bulletin and software are readily 

available. FedEx proposes to modify its 12 B757-200 airplanes with FANS 1/A+ datalink 

communications system before the European Commission’s compliance date of 

January 1, 2014. If FedEx installs this equipment upgrade but is unable to fully install the 

datalink recording capacity, FedEx states that it will not be in compliance with the datalink 

recording requirement in 14 CFR 121.359(k) and requests this exemption until the proper 

installation instructions are available. .

FedEx states that Boeing’s projected release date for the service bulletin will not leave 

sufficient time to modify its 12 B757-200 airplanes before the January 1, 2014 European 

deadline. FedEx requests an exemption to § 121.359(k) in order to allow it to stagger the 

installation of the equipment during scheduled maintenance visits until January 1, 2016.

FedEx states that the subject B757 airplanes would have installed the same datalink 

communications equipment as is currently installed on the remainder of its domestic B757 

fleet. These aircraft had the FANS 1/A system installed prior to the US datalink recording 

requirement that was effective December 6, 2010, and thus are not subject to the recording 

requirement. 

The petitioner states that granting this exemption is in the public interest. If relief is

not granted, FedEx would be forced to ground all B757-200 airplanes operating in Europe

after January 1, 2014 because of the § 121.359(k) recording requirement. The petitioner 

states that local, state, and national economies would be affected as a result of the disruption 

in the flow of time sensitive shipments.

 A summary of the petition was published in the Federal Register on May 20, 2013

(78 FR 29429). No comments were received.

The FAA's analysis is as follows:

The FAA understands that FedEx is caught in between two regulatory systems in 

trying to upgrade its European B757-200 fleet. If it takes advantage of the European 
3

exception, its airplanes will be out of compliance with the U.S. requirements. If the FAA 

does not grant this exemption, then FedEx will be unable to use the subject airplanes in 

European airspace.

The FAA finds that delaying the introduction of FANS 1/A+ capability on FedEx’s

B757-200 airplanes represents a delay of the integration of safety-related equipment with no 

concurrent safety benefit. FedEx has already committed to upgrading the airplanes by 

installing the datalink recording equipment, and seeks only additional time to do so. The 

FAA notes that Boeing is continuing the engineering, testing, and certification work to 

finalize an FAA-approved service bulletin for recording digital datalink communication 

messages on B757-200 airplanes by November 2013. Following receipt of the service 

bulletin, FedEx will modify its 12 B757-200 airplanes in accordance with the datalink 

recording service bulletin during scheduled maintenance activities.

The FAA agrees that installation of FANS 1/A+ will cause these 12 airplanes to have 

an equivalent level of safety as FedEx’s existing domestic B757 fleet. The FAA has 

determined that FedEx is capable of incorporating the design changes to record datalink 

communication messages no later than 18 months after receipt of the approved service 

bulletin; the service bulletin is expect to be approved by November 30, 2013.

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. §§ 40113 and 44701 delegated to 

me by the Administrator, FedEx Express is granted an exemption from 14 CFR § 121.359(k)

to the extent necessary to allow its 12 B757s to operate subject to the conditions and 

limitations listed below.

Conditions and Limitations 

1. This exemption only applies to the following Boeing 757-200 aircraft while 

registered to and operated by FedEx:

Registration Serial # Line #

N901FD 27122 525

N903FD 27124 540

N912FD 24260 204

N913FD 24017 162

N915FD 24120 174

N916FD 24137 178

N917FD 24291 215

N918FD 24290 212

N919FD 24636 259

N920FD 24289 209

N922FD 24293 220
4

N923FD 26266 514

2. This exemption covers only the recordation of the approved datalink 

communication message set as required by 14 CFR § 121.359(k).

3. A copy of this exemption must be retained in each airplane’s flight manual until all 

airplanes identified in this exemption have incorporated the datalink recording 

system changes.

4. In the event of an accident or incident after which FedEx is required to submit its 

flight data recorder (FDR) and CVR data to the National Transportation Safety 

Board (NTSB) pursuant to 14 CFR §§ 121.344(i) and 121.359(h), FedEx must 

provide a copy of this exemption to the NTSB along with the FDR and CVR.

5. Within 90 days of receipt of the approved B757-200 datalink recording service 

bulletin, FedEx must provide to its principal avionics inspector a schedule for the 

completion of the installations for each affected airplane before the expiration date 

of this exemption.

6. FedEx must provide a copy of this exemption and the modification schedule to its 

Certificate Management Office.

This exemption terminates when the equipment installations and aircraft modifications 

necessary to bring the subject airplanes into compliance with 14 CFR § 121.359(k) described 

above or May 31, 2015, unless sooner superseded or rescinded.

Issued in Washington, DC, on August 30, 2013.

/s/

Michael J. Zenkovich

Acting Deputy Director, Flight Standards Service