AFS

- 13

- 308

- E Exemption No. 1085 6

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 § 1 21.359(k) of

Title 14, Code of Federal Regulation s (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 m essages.

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 E urope

. F edEx operates

under European Commission rule s. R ule 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 an2

exception to the required datalink communication equipment f or aircraft equipped with Fu ture 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 exc eption that requires installation before January 1, 2014.
However, t he U.S. regulation cited previously prevents them from inst a lling FANS 1/A+ until

the aircraft can also record the datalink communications generated by that equipment. Although the recor ding equipment is available, no instructions for modifying the aircraft to

rec ord FANS 1/A+ have been approved

. FedEx is waiting for Boeing to provide an FAA

approved service bulletin for the recording equipment.

FedEx states that the FANS 1/A+ equipme nt installation on its fleet of B757

- 200 model airplanes is certified by Boeing

, and the associated s ervice b ulletin 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 upgrad e but is unable to fully install the datalink recording capacity, FedEx states that it will not be in compliance with the datalink recording requi rement 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 airplan es before the J anuary 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 J anuary 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 F ANS 1/A s ystem installed prior to the US datalink r ecording requirement that was effective December 6, 2010 , and thus are not subject to the recording requirement

.

The p etitioner state s 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. 3 59(k) recording requirement. The p etitioner states that local, state , and national economies would be affected as a result of the disrupti on in the flow of time sensitive shipments.

A summary of the petition was published in the Federal Register on M ay 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 European3

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

- app roved 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 b ulletin 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 in corporating 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 o f 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 delegat ed 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 2204

N923FD 26266 514

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

communication mess age 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 Nati onal 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

bulle tin, FedEx must provide to its p rincipal a vionics i nspector a schedule for the completion of the installations for each affected airplane before the expiration date of this exemptio n

.

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

This exemption terminates w hen the equipment installations and aircraft modifications necessary to bring the subject ai rplanes into compliance with 14 CFR § 121.359(k) described

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

Iss ued in Washington, DC, on August 30, 2013

.

/s/

Michael J. Zenkovich Acting Deput y Director, Flight Standards Service