[Federal Register: December 1, 2009 (Volume 74, Number 229)]
[Rules and Regulations]
[Page 62691-62697]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01de09-5]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 91, 125 and 135
[Docket No. FAA-2007-29281; Amendment Nos. 91-310, 125-58, 135-119]
RIN 2120-AJ09
Removal of Regulations Allowing for Polished Frost
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: The FAA is removing certain provisions in its regulations that
allow for operations with ``polished frost'' (i.e., frost polished to
make it smooth) on the wings and stabilizing and control surfaces of
aircraft. The rule is expected to increase safety by not allowing
operations with ``polished frost,'' which the FAA has determined
increases the risk of unsafe flight.
DATES: These amendments become effective February 1, 2010.
FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this final rule contact Nancy Lauck Claussen, Air Transportation
Division, AFS-200, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone: (202) 267-8166;
facsimile: (202) 267-5229, e-mail: nancy.l.claussen@faa.gov.
For legal questions concerning this final rule contact Dean
Griffith, Office of the Chief Counsel, AGC-220, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591;
telephone: (202) 267-3073; facsimile: (202) 267-7971; e-mail:
dean.griffith@faa.gov.
SUPPLEMENTARY INFORMATION:
Authority for This Rulemaking
The FAA's authority to issue rules on aviation safety is found in
Title 49 of the United States Code. This rulemaking is promulgated
under the authority described in 49 U.S.C. 44701(a)(5) which requires
the Administrator to promulgate regulations and minimum standards for
other practices, methods, and procedures necessary for safety in air
commerce and national security.
I. Background
A. Summary of the Notice of Proposed Rulemaking (NPRM)
The FAA published an NPRM in the Federal Register on May 8, 2008
(73 FR 26049). The NPRM proposed to remove language permitting pilots
to takeoff with polished frost adhering to the wings or stabilizing or
control surfaces from Sec. Sec. 91.527(a)(3), 125.221(a), and
135.227(a). The NPRM also proposed to restructure Sec. Sec. 91.527(b),
125.221(c), and 135.227(c) to clarify the provisions of those sections.
The comment period closed on August 6, 2008.
As discussed in the NPRM, the FAA has recognized that adverse
aerodynamic effects on lifting surfaces begin as soon as frost begins
to adhere to the surfaces. For example, the presence of frost may: (1)
Reduce a wing's maximum lift by 30 percent or more; (2) reduce the
angle of attack for maximum lift by several degrees; (3) increase drag
significantly; and (4) change unexpectedly the aircraft's handling
qualities and performance. The severity of these adverse aerodynamic
effects varies significantly depending on: (1) The thickness, density,
and location of the frost; (2) the degree of the surface roughness; and
(3) the location of the roughness relative to the surface leading edge
where significant variations may occur in the local airspeed and
surface air loads.
Although polishing frost is currently permitted under part 91
subpart F, and parts 125 and 135, current FAA guidance developed
subsequent to the implementation of those regulations cautions against
this practice. In Advisory Circular (AC) 135-17, the FAA recommends
that all wing frost be removed prior to takeoff, and states that if an
operator desires to polish the frost, the aircraft manufacturer's
recommended procedures should be followed. See AC 135-17, PILOT GUIDE
Small Aircraft Ground Deicing (Dec. 14, 1994). Additionally, the FAA
issued two Safety Alerts for Operators (SAFOs) regarding polishing
frost. SAFO 06002 advises that ``operators should avoid smooth or
polished frost on lift-generating surfaces as an acceptable preflight
condition.'' See SAFO 06002, Ground Deicing Practices for Turbine
Aircraft in Nonscheduled 14 CFR Part 135 Operations and in Part 91
(Mar. 29, 2006). SAFO 06014 states that the FAA cannot support the
practice of polishing frost ``unless an aircraft manufacturer developed
explicit, approved procedures for doing so,'' and pilots are trained in
those procedures. See SAFO 06014, Polished Frost (Oct. 6, 2006). The
FAA is not aware of any current aircraft manufacturer that has issued
recommended procedures for (1) polishing frost, or (2) conducting
operations with polished frost. This rulemaking codifies the FAA's
current guidance regarding this practice.
Operational concerns also support removing the provisions
permitting polishing frost from the regulations. The FAA has no data to
support practical guidance for determining how to polish frost on a
surface to make it acceptably smooth, other than completely removing
the frost and returning the aircraft's critical lifting surfaces to
uncontaminated smoothness. Moreover, there is no standard of acceptable
smoothness for polished frost provided in regulation, guidance, or by
manufacturers. Also, the FAA believes that in an operational
environment it is impossible to determine whether the polished frost
surface is uniformly, or symmetrically, smooth.
[[Page 62692]]
There are at least 12 \1\ known accidents in which individuals
attempted to smooth or polish frost, but the aircraft failed to
generate enough lift and crashed shortly after takeoff.\2\ The U.S.
National Transportation Safety Board (NTSB) has urged operators to
ensure that critical surfaces are free of contamination prior to take
off. NTSB, Safety Alert: Aircraft Ground Icing (2006). The United
Kingdom's Department for Transport, Air Accidents Investigation Branch,
recommended that the FAA remove the term polished frost from its
regulations following an accident at Birmingham, England. See Air
Accidents Investigation Branch, Department for Transport, Aircraft
Accident Report 5/2004 (2004), available at http://www.aaib.gov.uk/
sites/aaib/cms_resources/5-2004%20N90AG.pdf.
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\1\ The FAA identified 11 accidents in the NPRM. During
preparation of the final regulatory evaluation, the FAA identified
an additional accident relevant to this rulemaking.
\2\ Nine of the 12 accidents would not have been prevented by
this rule, since the aircraft were involved in part 91 (other than
subpart F) operations. Nevertheless, these accidents illustrate the
risk involved in flying with polished frost.
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The FAA has determined that an unsafe condition exists if all wing
surfaces, other than those under the wing in the area of the fuel
tanks,\3\ and other critical surfaces are not uniformly smooth upon
takeoff and is therefore removing references to ``polished frost'' from
the regulations. This final rule requires operators, when performing
operations under part 91 subpart F, part 125, or part 135, to remove
all frost from critical surfaces in order to achieve uncontaminated
surface smoothness.
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\3\ Takeoffs may be made with frost under the wing area of the
fuel tanks if authorized by the Administrator. See, e.g., 14 CFR
125.221(a)(2), 135.227(a)(2).
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In the NPRM, the FAA identified four alternatives to polishing
frost that operators may use to comply with this rule. Those
alternatives are: (1) Using wing covers to prevent frost accumulation
on wings, (2) waiting for frost to melt, (3) storing the aircraft in a
heated hangar, or (4) deicing the wing surface. The FAA identified the
use of wing covers to prevent frost accumulation on wing surfaces as
the lowest-cost alternative for complying with this rule.
B. Summary of the Final Rule
This final rule removes language from part 91 subpart F, and parts
125 and 135, which permits aircraft to takeoff with frost that has been
polished to make it smooth (``polished frost'') on critical surfaces.
Under the final rule, operators will be required to remove any frost
adhering to critical surfaces prior to takeoff. Additionally, the rule
restructures language in parts 91, 125, and 135 to clarify that
aircraft must have functioning deicing or anti-icing equipment to fly
under IFR into known or forecast light or moderate icing conditions, or
under VFR into known light or moderate icing conditions.
C. Summary of Comments
The FAA received 20 comments in response to the proposed rule. The
FAA received two comments from manufacturers (Boeing and Gulfstream);
three from industry associations (General Aviation Manufacturers
Association (GAMA), Air Line Pilots Association International (ALPA),
and the National Air Transportation Association (NATA)); and one from
the National Transportation Safety Board (NTSB). Additionally, two
operators submitted comments: Webster's Flying Service, which is
located in Alaska, and Centennial State Aviation, LLC. The FAA also
received twelve comments from individuals, including 3 located in
Alaska. Eleven of the commenters, including NTSB, GAMA, ALPA, NATA, and
Gulfstream generally favored the NPRM. Boeing, Centennial State
Aviation, LLC, Webster's Flying Service, and several individual
commenters raised concerns, which are discussed below.
II. Discussion of the Final Rule
The FAA is adopting the rule as proposed, with minor technical and
clarifying modifications. The FAA is restructuring 14 CFR 91.527(a),
125.221(a), and 135.227(a), and removing the words ``unless that frost
has been polished to make it smooth,'' as proposed.
The FAA is adopting the restructuring of 14 CFR 91.527(b),
125.221(c), and 135.227(c) as proposed in the NPRM with technical
changes. The FAA is making a minor modification to proposed Sec.
125.221(c)(1) to remove the words ``rotor blade.'' The reference to
rotor blades in that section is not necessary as part 125 applies only
to airplanes.
The FAA is adopting the proposed language of 14 CFR 91.527(b)(3),
125.221(c)(3), and 135.227(b)(3) in the final rule with a technical
correction. The correction clarifies that a transport category airplane
must meet the transport category airplane requirements for
certification for flight into icing conditions if it will be flown into
known or forecast light or moderate icing conditions. This
clarification is necessary to avoid any interpretation that would
permit flight of transport category airplanes without icing protection
into known or forecast light or moderate icing conditions. This aspect
of the final rule addresses a recommendation by the Part 125/135
Aviation Rulemaking Committee, as discussed in the NPRM. See 73 FR
26051.
The remainder of this section discusses comments received in
response to the NPRM and the FAA's response to those comments.
A. Exception for Takeoffs Made With Frost Under the Wing in the Area of
Fuel Tanks
Boeing recommended that in Sec. Sec. 91.527(a) and 121.629(b), the
FAA revise the proposed phrase ``except that takeoffs may be made with
frost under the wing in the area of the fuel tanks if authorized by the
FAA,'' to read ``as otherwise authorized by the Administrator or in
accordance with a manufacturer's recommendations.'' Boeing commented
that the FAA has found that a limited amount of frost is acceptable
(e.g., cold fuel frost), which does not necessarily relate only to the
wing, or even only to the under side of the wing. Further, Boeing noted
that the fuel tank area should not be the criterion for determining
whether such frost is acceptable because ``aerodynamic criticality may
or may not necessarily relate to the entire fuel tank area under the
wing.'' Boeing asserted that such a revision would ``ensure that
previous FAA approvals will not be `undermined' by interpretation of
the new language and would better provide for the ability to address
future designs.''
The FAA does not agree with Boeing's suggestion to add the words
``or in accordance with a manufacturer's recommendations'' to the
regulatory text. The authority to assess when such takeoffs should be
permitted should remain with the FAA. No changes were made to the final
rule in response to this comment.
B. Applicability to Part 121
Boeing suggested revising the heading of Sec. 91.527 to read
``Except for 14 CFR part 121 operations, Operating in icing
conditions.'' Boeing stated that this would eliminate confusion as to
what does or does not apply to air carriers, and would help air
carriers when conducting ferry, test, and other non-part 121 flights.
Part 121 does not permit operations with polished frost. See 14 CFR
121.629(b). This final rule will make part 91 subpart F, and parts 125,
and 135 operations consistent with part 121 with respect to its
prohibition on
[[Page 62693]]
operations with polished frost. Therefore, the FAA has determined that
making this change to the rule language is unnecessary.
C. Imposes Additional Burdens
The FAA received several comments pertaining to burdens that could
be caused by the proposed rule, including storage problems,
availability of hangars for defrosting, overbroad application of the
rule, costs associated with the rule, and that changes to the existing
rule are not necessary.
Centennial State Aviation, LLC asserted that some aircraft do not
have extra space to store wing covers during transport. As noted above,
the use of wing covers is only one of the alternatives to polishing
frost identified by the FAA. If a particular operator is unable to
transport wing covers, it can utilize one of the other methods of
removing frost from aircraft.
Webster's Flying Service commented that Alaskan operations should
be excepted from the proposed rule changes because there are times when
temperatures remain below freezing for long periods of time and hangar
facilities are not available to melt frost that has accumulated on
aircraft. Pursuant to current Sec. Sec. 91.527(a)(2), 125.221(a), and
135.227(a), no operator, including those located in Alaska, may take
off with snow or ice adhering to the wings or other control surfaces.
Thus, operators in Alaska, who must adhere to those regulations, should
currently have means to remove snow and ice from their aircraft. The
FAA notes that operators can use the same means to rid their aircraft
of frost that they use to rid their aircraft of snow and ice, or
utilize wing covers or deice the aircraft as an alternative to
polishing frost.
An individual commented that the FAA is burdening the entire
general aviation fleet to address a problem that is only an issue for
supercritical and high-wing loading aircraft. That commenter continued
that it should be the manufacturer's responsibility to prohibit
polishing frost if it negatively affects a particular aircraft model.
This rule does not impact the entire general aviation fleet. The
rule only removes references to polished frost from part 91 subpart F,
and parts 125 and 135. Further, the FAA is not aware of any
manufacturer that condones polishing frost on any of its aircraft.
Boeing suggested that the FAA should revise its Regulatory
Flexibility Determination regarding the cost of wing covers and develop
more realistic costs for occurrences such as difficulty installing wing
covers, possible need for additional personnel or specialized equipment
to assist in placing wing covers on airplanes, possible damage caused
by covers sticking to wings, and potential delays attributable to
installation or removal of the wing covers. Also, an individual from
Alaska interpreted the proposal to mean that aircraft hangars will be a
necessity for operations in wintertime, when wing covers offer
insufficient protection.
As stated above, other means of removing frost from an aircraft are
available. Operators may choose to wait for frost to melt, store their
aircraft in a heated hangar, or deice wing surfaces. Likewise, this
rule does not mandate removing frost from an aircraft in hangars.
Putting aircraft inside hangars is only one of four alternatives cited
in the NPRM.
A commenter suggested that the proposal should have been directed
to commercial aircraft only. In fact, this rule only affects operations
conducted under parts 125, 135, and 91 subpart F. Operations otherwise
conducted under part 91 are not affected by the rule.
Lastly, the FAA received several comments in response to the NPRM
stating that polishing frost is a safe practice and that the proposed
rule change was not necessary. As discussed in the NPRM and this
preamble, frost has an adverse aerodynamic effect on critical lifting
surfaces and the FAA has determined that polishing frost is an unsafe
practice.
The FAA made no changes to the proposed rule language after
considering these comments.
D. Rule Could Create Hazards
Six commenters expressed concern that implementation of the rule
would create hazards to operators, aircraft, and the environment as
follows. Two commenters, Centennial State Aviation, LLC, and an
individual, noted that examining the top of a T-tailed aircraft is
difficult. The individual was concerned that such an examination may
create safety issues for individuals examining the tail if there is ice
on the ramp. That commenter added that the top of a horizontal
stabilizer should not be considered a critical surface because it is
not a lift-producing surface.
Horizontal stabilizers are a critical surface on every aircraft,
and operators must examine them as part of the normal inspections of
their aircraft. Further, examining the wing of a high-wing airplane
requires the same effort as examining the top of a T-tailed aircraft.
Webster's Flying Service and Boeing raised concerns about damage
that could result from using wing covers. Webster's Flying Service
asserted that ``antennas, etc.'' could be damaged while putting on or
taking off wing covers and that wind blowing on covers could cause
aircraft damage. Boeing commented that wing covers may stick to wings
and cause damage. Webster's Flying Service also discussed that under
certain conditions, a sheen can form under the wing covers, but that
such a sheen would not require polishing and should be determined to be
acceptable.
As stated previously, the presence of polished frost on wings or
other critical surfaces could be detrimental to the flight
characteristics of an aircraft. The FAA recognizes that it may be
impractical for some operators to use wing covers. As stated in the
NPRM, there are at least three other alternatives to choose from. Those
alternatives include waiting for the frost to melt, storing the
aircraft in a heated hangar, or deicing the wing surface.
Webster's Flying Service expressed a concern that using deicing
fluids as an alternative to polishing frost could cause pollution in
lakes and streams. The FAA acknowledges that this rule may lead to an
increased use of deicing fluid if operators choose this alternative to
polishing frost. However, deicing is only one of the four methods
identified by the FAA that operators could use to remove frost from
critical surfaces. Further, several factors lead the FAA to believe
that wing covers will be the most broadly adopted alternative to
polishing frost. As discussed in the regulatory evaluation, wing covers
are the lowest-cost alternative to polishing frost available to
operators. Office of Aviation Policy and Plans, FAA, Final Regulatory
Evaluation: Removal of Regulations Allowing for Polished Frost on Wings
of Airplanes (2009). Also, from an operational standpoint, wing covers
are portable, enabling operators to use them at any location, from
well-equipped airports to remote landing strips, without the need to
consider the availability of deicing equipment or a hangar in which to
store the aircraft. Additionally, the majority of operators permitted
to polish frost are located in Alaska where it is not unusual to
operate at locations where deicing facilities may not be present.
Webster's Flying Service also asserted that a heating device could
pose a fire hazard, especially in cold, dry air where a static spark
can occur. This rule does not require operators to use heating devices.
In addition, the FAA recognizes that some manufacturers state that
their engines must be pre-heated before flight. The FAA notes that such
heating devices used for pre-heating an engine may present the same
risk noted by the commenter, and that if used appropriately, such risk
is minimal.
[[Page 62694]]
The FAA has not revised the proposed rule language based on these
comments.
E. Problem Could Be Addressed Through Pilot Training
Three individuals made comments related to pilot training. One
suggested training on hazardous pre-flight icing identification in lieu
of the proposed rule; another called for improved pilot training in
general in lieu of the proposed rule; and the third commented that the
FAA include in the rulemaking a means by which all pilots could become
educated as to the FAA's rationale for the change in the regulation.
The FAA has provided guidance on polished frost and operations with
ice, frost, and snow on aircraft. As discussed above, the FAA issued
SAFO 06002 and SAFO 06014, which advise against polishing frost. FAA
Advisory Circular 135-17, PILOT GUIDE Small Aircraft Ground Deicing
(Dec. 14, 1994), recommends that all wing frost be removed prior to
takeoff. Polished frost on critical aircraft surfaces poses a hazard
and the FAA has determined that removing the provisions permitting
polishing of frost is necessary for safe operations. The FAA has not
revised the rule language based on these comments.
F. Possible Delays to Emergency Medical Transport Flights
Centennial State Aviation, LLC, asserted that unless an operator
has the ability to polish frost, the practice of removing frost could
have a negative impact on the health of a patient on an aeromedical
transport flight because of delays resulting from putting on and
removing wing and tail covers. The commenter noted this is especially
difficult for a single pilot whose aircraft has a 14-foot tail.
The FAA does not condone operating an aircraft in unsafe
conditions. Further, the FAA notes that the act of polishing frost
could also delay a flight. Accordingly, the FAA has not made changes to
the proposed rule language based on this comment.
III. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. We have determined that there
is no current or new requirement for information collection associated
with this amendment.
IV. International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these regulations.
V. Regulatory Evaluation, Regulatory Flexibility Determination,
International Trade Impact Assessment, and Unfunded Mandates Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires
agencies to analyze the economic impact of regulatory changes on small
entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, this Trade Act requires agencies to consider international
standards and, where appropriate, that they be the basis of U.S.
standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4) requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation with base year of
1995). This portion of the preamble summarizes the FAA's analysis of
the economic impacts of this proposed rule. We suggest readers seeking
greater detail read the full regulatory evaluation, a copy of which we
have placed in the docket for this rulemaking.
In conducting these analyses, FAA has determined that this proposed
rule: (1) Has benefits that justify its costs; (2) is not an
economically ``significant regulatory action'' as defined in section
3(f) of Executive Order 12866; (3) is not ``significant'' as defined in
DOT's Regulatory Policies and Procedures; (4) will not have a
significant economic impact on a substantial number of small entities;
(5) will not create unnecessary obstacles to the foreign commerce of
the United States; and (6) will not impose an unfunded mandate on
state, local, or tribal governments, or on the private sector by
exceeding the threshold identified above. These analyses are summarized
below.
This final rule will remove any references in the Federal aviation
regulations that allow takeoffs in situations where frost is present on
wings, stabilizing surfaces, or control surfaces, when such frost has
been polished to make it smooth. The FAA believes these changes are
necessary to improve aviation safety.
For the ten-year period from 2009 to 2018, the total benefits from
this final rule are projected to be about $980,000 ($689,000
discounted). Of those, $925,000 ($650,000 discounted) will accrue to
Alaska, while the remaining $55,000 ($39,000 discounted) will accrue to
the mainland U.S. Costs will depend on which of four alternatives (wing
covers, storing the aircraft in a hangar, deicing the surface areas, or
waiting for the frost to melt) are selected by operators. The FAA
believes that using wing covers is the least costly alternative.
Assuming operators choose to use wing covers, over the ten-year period
from 2009 to 2018, costs will total roughly $164,000 ($130,000
discounted). Of these, $155,000 ($123,000 discounted) will accrue to
Alaska, and $9,500 ($7,500 discounted) will accrue to the mainland U.S.
Because benefits exceed costs for both Alaska and the mainland U.S.,
the FAA concludes the rule is cost-beneficial.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA covers a wide-range of small entities,
including small businesses, not-for-profit organizations, and small
governmental jurisdictions.
Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to
have a
[[Page 62695]]
significant economic impact on a substantial number of small entities,
section 605(b) of the RFA provides that the head of the agency may so
certify and a regulatory flexibility analysis is not required. The
certification must include a statement providing the factual basis for
this determination, and the reasoning should be clear.
This final rule will improve aviation safety by removing references
to the ``polished frost'' technique found in 14 CFR 91.527(a),
125.221(a), and 135.227(a). This rulemaking affects operators under
part 125, part 135, and those covered by subpart F of part 91 (which
includes all part 91 subpart K operations). There are 57 operators
operating 188 aircraft that will be affected by the rule. The FAA
recognizes that all of these operators are considered small entities
based on the following North American Industry Classification System
(NAICS) code classifications: Nonscheduled Chartered Passenger Air
Transportation--481211 (1500 employees or less); Nonscheduled Chartered
Freight Air Transportation--481212 (1500 employees or less); Other
Nonscheduled Air Transportation--481219 ($6.5 million or less in annual
receipts). See 13 CFR 121.201.
The FAA assumes that most operators will choose to buy and use wing
covers to comply with the final rule. The other alternatives (waiting
for the frost to melt, storing the aircraft in a heated hangar, or
deicing the aircraft) are more expensive than using wing covers. The
FAA estimates that operators will choose to buy wing covers at an
initial cost of $400, plus minimal additional fuel costs and, if
needed, an additional cost of $400 after five years to replace a worn
wing cover.
In Alaska, there are 21 operators with one aircraft apiece, and 30
operators operating the remaining 156 aircraft. In the mainland U.S.,
there are six operators operating 11 aircraft. The smallest operators
operate only one plane, and will incur a cost of approximately $99 per
year as a result of this rulemaking, a cost that the FAA does not
consider significant. The operator that will be most impacted by the
rule operates 16 affected aircraft, and will incur costs of
approximately $1,584 per year as a result of this rulemaking. This
operator has annual revenues of $5 million. The cost of this rulemaking
represents 0.03 percent of the gross revenues of that operator, and the
FAA does not consider that amount significant. Therefore, as the
Administrator of the FAA, I certify that this final rule will not have
a significant economic impact on a substantial number of small
entities.
International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards. The FAA has
assessed the potential effect of this final rule and determined that it
will have only a domestic impact and therefore will not create
unnecessary obstacles to the foreign commerce of the United States.
Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(adjusted annually for inflation with the base year 1995) in any one
year by State, local, and tribal governments, in the aggregate, or by
the private sector; such a mandate is deemed to be a ``significant
regulatory action.'' The FAA currently uses an inflation-adjusted value
of $136.1 million in lieu of $100 million. This final rule does not
contain such a mandate.
VI. Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action will not have a substantial direct effect on the States, or the
relationship between the Federal Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and, therefore, does not have federalism implications.
VII. Regulations Affecting Intrastate Aviation in Alaska
Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat.
3213) requires the FAA, when modifying its regulations in a manner
affecting intrastate aviation in Alaska, to consider the extent to
which Alaska is not served by transportation modes other than aviation,
and to establish appropriate regulatory distinctions. In the NPRM, we
requested comments on whether the proposed rule should apply
differently to intrastate operations in Alaska. The FAA received
comments from one operator, Webster's Flying Service, and three
individuals in Alaska, which are discussed in ``II. Discussion of the
Final Rule and Comments.'' The FAA has determined that while the
regulation will affect some operators in Alaska who polish frost on
their aircraft, there is no need to make any regulatory distinctions
applicable to intrastate aviation in Alaska because of the safety
benefit gained from completely removing frost from critical surfaces.
VIII. Environmental Analysis
FAA Order 1050.1E identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 312f. Additionally, the FAA reviewed
paragraph 304 of Order 1050.1E and determined that this rulemaking
involves no extraordinary circumstances.
IX. Regulations That Significantly Affect Energy Supply, Distribution,
or Use
The FAA analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). We have determined that it is not
a ``significant energy action'' under Executive Order 13211 because it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy. In addition, it is not a ``significant
regulatory action'' under Executive Order 12866 or DOT's Regulatory
Policies and Procedures.
X. Availability of Rulemaking Documents
You can get an electronic copy of rulemaking documents using the
Internet by--
1. Searching the Federal eRulemaking Portal (http://
www.regulations.gov);
2. Visiting the FAA's Regulations and Policies Web page at http://
www.faa.gov/regulations_policies/; or
3. Accessing the Government Printing Office's Web page at http://
www.gpoaccess.gov/fr/index.html.
[[Page 62696]]
You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the amendment number or docket number of this
rulemaking.
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://DocketsInfo.dot.gov.
XI. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. If you are a small entity and you have a question
regarding this document, you may contact your local FAA official, or
the person listed under the FOR FURTHER INFORMATION CONTACT heading at
the beginning of the preamble. You can find out more about SBREFA on
the Internet at http://www.faa.gov/regulations_policies/rulemaking/
sbre_act/.
List of Subjects
14 CFR Part 91
Aircraft, Airmen, Airports, Aviation safety, Freight.
14 CFR Part 125
Aircraft, Airmen, Airports, Aviation safety, Freight.
14 CFR Part 135
Air taxis, Aircraft, Airmen, Aviation safety.
XII. The Amendment
0
In consideration of the foregoing, the Federal Aviation Administration
amends chapter I of title 14, Code of Federal Regulations as follows:
PART 91--GENERAL OPERATING AND FLIGHT RULES
0
1. The authority citation for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101,
44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717,
44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-
47531, articles 12 and 29 of the Convention on International Civil
Aviation (61 Stat. 1180).
0
2. Amend Sec. 91.527 by revising paragraphs (a) and (b) to read as
follows:
Sec. 91.527 Operating in icing conditions.
(a) No pilot may take off an airplane that has frost, ice, or snow
adhering to any propeller, windshield, stabilizing or control surface;
to a powerplant installation; or to an airspeed, altimeter, rate of
climb, or flight attitude instrument system or wing, except that
takeoffs may be made with frost under the wing in the area of the fuel
tanks if authorized by the FAA.
(b) No pilot may fly under IFR into known or forecast light or
moderate icing conditions, or under VFR into known light or moderate
icing conditions, unless--
(1) The aircraft has functioning deicing or anti-icing equipment
protecting each rotor blade, propeller, windshield, wing, stabilizing
or control surface, and each airspeed, altimeter, rate of climb, or
flight attitude instrument system;
(2) The airplane has ice protection provisions that meet section 34
of Special Federal Aviation Regulation No. 23; or
(3) The airplane meets transport category airplane type
certification provisions, including the requirements for certification
for flight in icing conditions.
* * * * *
PART 125--CERTIFICATION AND OPERATIONS: AIRPLANES HAVING A SEATING
CAPACITY OF 20 OR MORE PASSENGERS OR A MAXIMUM PAYLOAD CAPACITY OF
6,000 POUNDS OR MORE; AND RULES GOVERNING PERSONS ON BOARD SUCH
AIRCRAFT
0
3. The authority citation for part 125 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44710-
44711, 44713, 44716-44717, 44722.
0
4. Amend Sec. 125.221 by revising paragraphs (a) and (c) to read as
follows:
Sec. 125.221 Icing conditions: Operating limitations.
(a) No pilot may take off an airplane that has frost, ice, or snow
adhering to any propeller, windshield, stabilizing or control surface;
to a powerplant installation; or to an airspeed, altimeter, rate of
climb, flight attitude instrument system, or wing, except that takeoffs
may be made with frost under the wing in the area of the fuel tanks if
authorized by the FAA.
* * * * *
(c) No pilot may fly under IFR into known or forecast light or
moderate icing conditions, or under VFR into known light or moderate
icing conditions, unless--
(1) The aircraft has functioning deicing or anti-icing equipment
protecting each propeller, windshield, wing, stabilizing or control
surface, and each airspeed, altimeter, rate of climb, or flight
attitude instrument system;
(2) The airplane has ice protection provisions that meet appendix C
of this part; or
(3) The airplane meets transport category airplane type
certification provisions, including the requirements for certification
for flight in icing conditions.
* * * * *
PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON DEMAND OPERATIONS
AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT
0
5. The authority citation for part 135 continues to read as follows:
Authority: 49 U.S.C. 106(g), 41706, 40113, 44701-44702, 44705,
44709, 44711-44713, 44715-44717, 44722, 45101-45105.
0
6. Amend Sec. 135.227 by revising paragraphs (a) and (c) to read as
follows:
Sec. 135.227 Icing conditions: Operating limitations.
(a) No pilot may take off an aircraft that has frost, ice, or snow
adhering to any rotor blade, propeller, windshield, stabilizing or
control surface; to a powerplant installation; or to an airspeed,
altimeter, rate of climb, flight attitude instrument system, or wing,
except that takeoffs may be made with frost under the wing in the area
of the fuel tanks if authorized by the FAA.
* * * * *
(c) No pilot may fly under IFR into known or forecast light or
moderate icing conditions or under VFR into known light or moderate
icing conditions, unless--
(1) The aircraft has functioning deicing or anti-icing equipment
protecting each rotor blade, propeller, windshield, wing, stabilizing
or control surface, and each airspeed, altimeter, rate of climb, or
flight attitude instrument system;
(2) The airplane has ice protection provisions that meet section 34
of appendix A of this part; or
(3) The airplane meets transport category airplane type
certification provisions, including the requirements for certification
for flight in icing conditions.
* * * * *
[[Page 62697]]
Issued in Washington, DC, on November 19, 2009.
J. Randolph Babbitt,
Administrator.
[FR Doc. E9-28431 Filed 11-30-09; 8:45 am]
BILLING CODE 4910-13-P