Removal of Regulations Allowing for Polished Frost, 62691-62697 [E9-28431]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 74, Number 229 (Tuesday, December 1, 2009)]
[Rules and Regulations]
[Pages 62691-62697]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28431]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 https://www.aaib.gov.uk/sites/aaib/cms_resources/5-2004%20N90AG.pdf.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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 (https://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at https://www.faa.gov/regulations_policies/; or
    3. Accessing the Government Printing Office's Web page at https://www.gpoaccess.gov/fr/.

[[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 
https://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 https://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