[Federal Register Volume 76, Number 162 (Monday, August 22, 2011)]
[Rules and Regulations]
[Pages 52241-52249]
[FR Doc No: 2011-21247]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No.: FAA-2009-0675; Amendment No. 121-356]

RIN 2120-AJ43

Activation of Ice Protection

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action revises the operating rules for flight in icing
conditions. For certain airplanes certificated for flight in icing, the
new standards require either installation of ice detection equipment or
changes to the airplane flight manual to ensure timely activation of
the airframe ice protection system. This action is the result of
information gathered from icing accidents and incidents. It is intended
to increase the level of safety when airplanes fly in icing conditions.

DATES: This amendment becomes effective October 21, 2011.

FOR FURTHER INFORMATION CONTACT: For operational questions contact
Charles J. Enders, Air Carrier Operations Branch, AFS-220, Flight
Standards Service, Federal Aviation Administration, 800 Independence
Ave., SW., Washington, DC 20591; telephone<PHONE_NUMBER>; facsimile
(202) 267-5229; e-mail<EMAIL_ADDRESS>    For aircraft certification questions contact Robert Jones,
Propulsion/Mechanical Systems Branch, ANM-112, Transport Airplane
Directorate, Aircraft Certification Service, Federal Aviation
Administration, 1601 Lind Avenue, SW., Renton, WA 98057-3356; telephone
(425) 227-1234; facsimile<PHONE_NUMBER>; e-mail
<EMAIL_ADDRESS>    For legal questions contact Douglas Anderson, Office of Regional
Counsel, ANM-7, Federal Aviation Administration, 1601 Lind Ave., SW.,
Renton, Washington 98057-3356; telephone<PHONE_NUMBER>; facsimile
(425) 227-1007; e-mail<EMAIL_ADDRESS>
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. Subtitle I, Section 106 describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
    This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701. Under that section,
the FAA is charged with prescribing regulations promoting safe flight
of civil aircraft in air commerce by prescribing minimum standards
required in the interest of safety for the design and performance of
aircraft; regulations and minimum standards of safety for inspecting,
servicing, and overhauling aircraft; and regulations for other
practices, methods, and procedures the Administrator finds necessary
for safety in air commerce. This regulation is within the scope of that
authority because it prescribes new safety standards for the operation
of certain airplanes used in air carrier service.

I. Summary of the Final Action

    The FAA is creating new regulations in Title 14, Code of Federal
Regulations (14 CFR) part 121 (Operating Requirements: Domestic, Flag,
and Supplemental Operations) related to the operation of certain
transport category airplanes in icing conditions. To improve the safety
of these airplanes operating in icing conditions, the new regulations
require either installation of ice detection equipment and procedures
for its use, or changes to the airplane flight manual (AFM) to ensure
timely activation of the airframe ice protection system.
    The economic evaluation for the final rule shows that the benefits
exceed the costs for the nominal, seven, and three percent present
value rates. The estimated benefits are $27.2 million ($16.2 million
present value). The total estimated costs are $12.7 million ($6.7
million present value). The following table shows these results.
[GRAPHIC] [TIFF OMITTED] TR22AU11.051

II. Background

    On October 31, 1994, an accident involving an Avions de Transport
Regional ATR 72 series airplane occurred in icing conditions. This
prompted the FAA to initiate a review of aircraft safety in icing
conditions and determine what changes could be made to increase the
level of safety. In May 1996, we sponsored the International Conference
on Aircraft Inflight Icing, where icing specialists made
recommendations for increasing safety. We reviewed these
recommendations and developed a comprehensive, multi-year icing plan.
The FAA Inflight Aircraft Icing Plan, dated April 1997,\1\ described
various activities we were considering for improving aircraft safety in
icing conditions. In accordance with this plan, we tasked the Aviation
Rulemaking Advisory Committee (ARAC) to consider the need for ice
detectors or other means to give flightcrews early indication about
action required for ice accumulating on critical surfaces of the
airplane.\2\ The work was carried out by ARAC's Ice Protection
Harmonization Working Group (IPHWG). Its recommendations may be found
in the docket for this rulemaking (FAA-2009-0675).
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    \1\ FAA Inflight Aircraft Icing Plan, dated April 1997, is
available in the Docket.
    \2\ Published in the Federal Register on December 8, 1997 (62 FR
64621).
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A. Summary of the NPRM

    On November 23, 2009, the FAA published a notice of proposed
rulemaking (NPRM) based on ARAC's recommendations to the FAA (74 FR

61055). That NPRM proposed changes to the regulations for operators of
certain airplanes certificated for flight in icing conditions that are
operated under 14 CFR part 121. It proposed requirements for
installation of ice detection equipment and/or changes to the AFM to
ensure timely activation of the airframe ice protection system. The
comment period for that NPRM closed on February 22, 2010.

B. Definitions

    An appendix to the preamble of this rule gives definitions of the
terms used here.

C. Related Activity

    The FAA is currently engaged in rulemaking that would require
operators of airplanes to exit icing conditions for which the airplane
has not been certified. Supercooled large droplet icing conditions may
be an example of such conditions.

D. Summary of Comments

    The FAA received 56 comment documents in response to the NPRM. Some
commenters submitted multiple comments.
     Twenty-two commenters (Boeing, Airbus, the Regional
Airline Association (RAA), Air Line Pilots Association International
(ALPA), and 16 private citizens) expressed support for the proposal in
the NPRM.
     Twenty-nine private citizens offered general comments on
icing and ice protection that did not specifically address the proposal
in the NPRM. These commenters stated that the FAA had not done enough,
early enough, to solve the safety problems of flight in icing
conditions. Because these comments were beyond the scope of the NPRM's
proposal, we are not responding to them in this preamble.
     BAE Systems, XCEL Jet Management, the National
Transportation Safety Board (NTSB), and two private citizens provided
critical or non-supportive comments to the proposal in the NPRM.

III. Discussion of the Final Rule

    This final rule is identical to the rule proposed in the NPRM. Its
goal is to ensure that ice protection systems are activated in a timely
way. It does this by relieving the flightcrew of the need for judging
when to activate the ice protection system. It gives the flightcrew--
     Primary ice detectors that will alert them to icing,
     Specific visual cues to indicate icing, supplemented by
advisory ice detectors, or
     Specific air temperatures to check for which, in the
presence of visible moisture, will indicate conditions conducive to
icing and the need to follow icing procedures.
    This rule applies to airplanes operating under part 121 rules with
a certified maximum takeoff weight (MTOW) of less than 60,000 pounds.
It requires--
    a. A primary ice detection system and appropriate activation
equipment and procedures to ensure timely activation of the ice
protection system,
    b. An advisory ice detection system plus substantiated visual cues
and procedures to ensure timely activation and, if necessary, repeated
operation of the ice protection system, or
    c. If the airplane is not equipped to comply with either a or b
above, that flightcrews activate and continuously or cyclically operate
the ice protection system when in icing conditions during--
     The takeoff climb after second segment,
     En route climb,
     Holding,
     Maneuvering for approach and landing, and
     Any other operation at approach or holding airspeeds.
    Icing conditions will be indicated by a specific air temperature
and the presence of visible moisture. The flightcrew must operate the
ice protection at the first sign of ice accumulation for any other
phases of flight until after exiting the icing conditions. When the ice
protection system is activated, the flightcrew must also initiate any
additional procedures for operation in conditions conducive to icing
specified in the AFM or the manual required by Sec.  121.133. This
third option of the rule permits compliance without additional
equipment. It supports part 121 operations of existing airplanes that
are not equipped with ice detectors and new airplanes designed in
accordance with Sec.  25.1419(e)(3). However, if the AFM prohibits
these procedures, then compliance must be demonstrated with either of
the first two options.
    To eliminate any guesswork for the flightcrew in identifying icing
conditions, this rule defines icing conditions as the presence of
visible moisture in temperatures of 5[deg] C or less static air
temperature or 10[deg] C or less total air temperature, unless the AFM
defines it differently.
    The rule requires that ice protection procedures be established in
the AFM or the manual required by Sec.  121.133, and that they
address--
     Initial activation of the ice protection system,
     Operation of the ice protection system after initial
activation, and
     Deactivation of the ice protection system.
    These procedures must address whether, after initial activation,
the ice protection system must be operated continuously or cycled
automatically or manually. The rule also specifies that if an operator
elects to install an ice detection system, it must be approved through
an amended or supplemental type certificate in accordance with part 21.
    The FAA considers this rule to be a necessary increase in the
standard of safety because there have been accidents and incidents in
which the flightcrew did not start the airframe ice protection system
soon enough. In some cases, crews were completely unaware of ice
accumulation on the airframe. In other cases, they knew that ice was
accumulating, but thought it not significant enough to require
activating the ice protection system. This rule is meant to prevent
that from happening again by giving flightcrews a clear means of
knowing when to activate the airframe ice protection system. Following
are the comments requesting changes to the rule.

A. Training

    XCEL Jet Management commented that poor training and airmanship in
relation to operating in icing conditions were responsible for both the
Colgan Air \3\ and ATR accidents and that better pilot training was the
solution. An individual commenter suggested that improved and more
complete pilot training were the real solutions for reducing icing
accidents and suggested that pilots should obtain a license endorsement
for flight in icing. Neither of these commenters felt that this
additional operating rule was warranted.
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    \3\ The Colgan Air accident occurred on February 12, 2009, when
a Bombardier Model DHC-8-400 series airplane flying in icing
conditions crashed outside of Buffalo, NY, killing 50 people.
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    While icing conditions were present at the time of the Colgan
accident, the NTSB did not find that these conditions either caused or
contributed to the accident. Rather, the NTSB found that Colgan Air's
inadequate procedures for airspeed selection and management during
approaches in icing condition contributed to the accident. The Colgan
Air flightcrew was operating the ice protection system properly, and
the airplane stall occurred very close to the clean wing stall speed.
The Bombardier

Model DHC-8-400 series airplane that those pilots were flying has an
advisory ice detection system that helped them know when to activate
the ice protection system. Pilots may fail to activate an ice
protection system for any number of reasons that could include
inattention, a heavy workload that causes ice monitoring vigilance to
be reduced, or failure to detect the ice because of environmental
conditions. Additional training may not effectively address any of
those issues. Thus, we proposed a rule that will require either
actively alerting the pilot to icing conditions or causing the pilot to
activate the ice protection system when a certain temperature exists in
conditions of visible moisture. The exception to this would be during
the cruise phase, when activation of the ice protection system at the
first sign of icing will be required. This will ensure safe flight in
icing conditions independent of icing flight training. Therefore, the
proposed rule is not changed based on these comments.
    Note that many new training materials developed by National
Aeronautics and Space Administration (NASA) have been released in order
to ensure that pilots have access to information that will give them
the knowledge and skills to safely and strategically fly in icing
conditions.

B. Require Automatic Detection and Activation

    An individual commenter indicated that the ice protection system
should be turned on automatically but in a ``sequence that would allow
the crew to turn it off both before it activated and after it completed
a cycle.''
    We understand from this that the commenter thinks automatic
activation should be mandatory, but with features that allow the pilot
to intercede. While automatic activation has advantages, we have not
determined it should be mandatory. The FAA does not dictate design of
aircraft systems. Instead we provide performance-based rules. We
believe it should be up to the operator/applicant to choose the best
design for its aircraft. Under this approach, an automatic activation
design would be acceptable. Examples of other safe and acceptable
options include--
     Primary ice detection with manual ice protection system
activation,
     Advisory ice detection and pilot monitoring with manual
ice protection system activation, and
     Manual ice protection system activation based on
temperature and visible moisture for non-cruise flight phases, as well
as manual ice protection system activation during cruise at the first
sign of icing.
    We have not changed the rule based on this comment.

C. Does the rule include withdrawn airworthiness directives (ADs)?

    BAE stated that it is not clear whether the rule applies to
airplanes for which previously proposed ADs were withdrawn. It is the
FAA's intent that this new rule will apply to all airplanes with a
certified MTOW less than 60,000 pounds, whether or not original ADs
requiring ice protection system activation at the first sign of icing
have been withdrawn. As discussed in the NPRM, the purpose of the ADs
was to require that the ice protection system be activated at the first
sign of icing. This assumes the flightcrew detects the icing. The fact
that we concluded there was no need to prevent delayed activation on
certain airplanes, and therefore withdrew those ADs, is irrelevant to
the purpose of this rule. The purpose of this rulemaking is to ensure
detection and activation or, if operating without an ice detection
system, timely activation in non-cruise flight. The FAA also finds
that, for airplanes not equipped with ice detectors, it is acceptable
to activate the ice protection system at the first sign of icing for
any phase not identified in Sec.  121.321(a)(3)(i) (for example,
cruise).

D. Existing Procedures Are Safe Enough

    BAE stated that original certification of their airplanes for
flight in icing was based on the most adverse accretions determined
from Appendix C to part 25, and that the procedures established during
this certification, including activation after accumulating one-half
inch of ice on the airframe, do not result in an unsafe condition.
    We agree that following the established procedures does not result
in an unsafe condition, as long as the flightcrew detects the icing and
activates the ice protection system in accordance with those
procedures. But several accidents and incidents have occurred because
of failure to activate the ice protection system in a timely fashion.
In some of those cases, critical ice formed before the crew activated
the ice protection system. Other cases have occurred when, for any
number of reasons, there was a delay in activating the ice protection
system. This rule is intended to ensure timely detection of icing on
the airframe and activation of the ice protection system. It helps
ensure that ice protection system activation procedures are followed.
Therefore, the proposed rule is not changed based on this comment.

E. Residual and Intercycle Ice

    BAE suggested that the larger ice accretions assessed during
certification might be safer than ice accumulated when operating the
ice protection system in conditions conducive to icing, at the first
sign of icing, and at regular intervals thereafter. BAE also expressed
concern that aircraft handling qualities and performance have not been
demonstrated with these new procedures. BAE does not recommend
acceptance of this rule in its current form unless we can provide
further justification for its adoption.
    We believe there is ample justification for this rule. In the
initial stages of the IPHWG's examination of the problems of flight in
icing, there was great concern about activating boot ice protection
systems at the first sign of icing because of a phenomenon known as ice
bridging.\4\ We infer this is the reason BAE suggested larger ice
accretions may be safer than those that would be formed under this
rule. No one has reported ice bridging nor has it been seen during
testing on modern deicing boots. Classical ice bridging was associated
with older designs that had slow inflation and deflation rates; on the
order of ten seconds. Modern systems, with their small-diameter
inflation chambers and high inflation rates, ensure that bridging is
not a concern. We also infer from this comment a concern that residual
and intercycle ice might be more critical than allowing a certain depth
of ice to accrete before ice protection system activation. This concern
is limited to booted ice protection systems.
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    \4\ Ice bridging is a phenomenon that may have occurred on some
obsolete de-icing boot systems. In theory, ice could form around the
outside of a fully inflated boot, forming a ``bridge,'' which then
could not be removed by subsequent inflation cycles of the boot.
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    Persistent ice accretions occur in icing conditions even when
pneumatic deicing boots are operating. Whether one-quarter or one-half
inch of ice is allowed to accumulate before activation, or the icing
boots are activated at the first sign of ice accumulation, or they are
activated at annunciation by an ice detector system and periodically
afterwards, residual and intercycle ice will exist. The procedure will
minimize residual and intercycle ice accretions because the ice will
shed when the minimum thickness or mass required for shedding is
reached. Adverse airplane flying qualities resulting from ice
accretions typically are affected by the thickness, shape, texture, and
location of the ice. The thickness of the residual and intercycle ice
resulting from this

procedure is less than what is typically allowed to accumulate before
deicing boot operation when the manufacturer has recommended delayed
activation.
    The FAA has written many ADs requiring airplane operators to
include in their AFM procedures to activate deicing boots at the first
sign of ice accumulation. The airplane models to which these ADs were
directed have many different wing and stabilizer design characteristics
and different deicing boot configurations. In addition, they represent
a large proportion of the airplane fleet that is equipped with
pneumatic deicing boots. We have not received any reports of these
airplanes suffering adverse effects of ice from early activation of the
deicing boots.
    In addition, a number of airplane models are equipped with deicing
boot systems with automatic operating modes. These systems
automatically cycle at specific time intervals after being initially
activated. Such automatic cycling has certainly resulted in operation
of the boots with less than the recommended thickness of ice accretion
originally included in the AFMs. We have received no reports indicating
any adverse effects from use of the automatic mode. Boot ice protection
systems operated early and often to remove ice, including intercycle
and residual ice, have performed safely and effectively. We have not
changed the rule based on this comment.

F. Additional Certification Will Be Necessary

    BAE noted that crews operating under Sec.  121.321(a)(3) (without
ice detectors) need to activate the ice protection system in conditions
conducive to icing irrespective of whether ice is actually accreting.
For aircraft that do not have an automatic mode to cycle the ice
protection system, the continuous manual cycling of the system would
result in an increased workload for the flightcrew. Section
121.321(d)(iv) requires that, for airplanes without automatic cycling
modes, procedures will be needed for a specific time interval for
repeated cycling of the ice protection system. BAE said that validation
of this procedure could require further icing certification testing,
and that this issue had not been raised in the NPRM.
    With respect to increasing workload, currently pilots have to
monitor for ice. Sometimes in these conditions it may be difficult to
determine whether activation of the ice protection system is needed.
This final rule requires that, after initial activation of the ice
protection system, the pilot periodically activate the ice protection
system. To do this, the pilot only has to monitor time, not ice
accretion thickness. Therefore, we do not believe there will be any
significant increase in workload, and that the workload may decrease in
some circumstances.
    With respect to BAE's comment that validating ice protection system
cycling procedures and the potential for icing certification testing
was not raised in the NPRM, every airplane that uses a manual deicing
system has established procedures for its operation until the airplane
has exited icing conditions. Models with periodic cycling procedures
should require no incremental certification testing because they
already have an approved periodic cycling procedure. For airplanes in
which flightcrews have in the past activated boots based on ice
accretion thickness, calculating a conservative cycling interval based
on Appendix C to part 25 is a relatively straightforward process. It
should not require flight testing. In addition, AC 121.321-X provides
guidance recommending that intervals should not exceed three minutes.
Thus, we do not believe that validation of this procedure should
require additional certification testing.

G. Include All Airplanes

    The NTSB expressed support for the proposed rule. However, the NTSB
stated that the rule should apply to all deicing-boot-equipped
airplanes currently in service. This would include airplanes weighing
more than 60,000 pounds. The NTSB also suggested that the Bombardier
Model DHC-8-400 series airplane (which has a MTOW of slightly more than
60,000 pounds and was involved in the Colgan Air accident) might have
been better protected if this rule had been applied to it.
    The FAA appreciates the NTSB's support for the proposed rule. We do
not believe, however, that it is necessary to expand the rule to cover
airplanes with higher weights. The IPHWG data and analysis showed that
only airplanes falling below the weight level in the rule have had
problems associated with delayed activation of the ice protection
system.
    As for the Bombardier Model DHC-8-400 series airplane, while icing
conditions were present at the time of the Colgan accident, the NTSB
did not find that these conditions either caused or contributed to the
accident. Rather, the NTSB found that Colgan Air's inadequate
procedures for airspeed selection and management during approaches in
icing condition contributed to the accident. In fact, the accident
airplane had an ice detector and would have been in compliance with
this rule through the majority of its flight profile. Therefore,
increasing the maximum applicable weight to capture the Bombardier
Model DHC-8-400 series airplane would have very little, if any, safety
benefit. Increasing the rule's weight applicability to encompass other
airplanes of this size and larger is not justified by available data.
We have not changed the rule as a result of this comment.
    Another reason the NTSB suggested that the rule should encompass
heavier airplanes is that it believes such procedures would also help
protect these airplanes in conditions that fall outside of Appendix C
to part 25. This rule does not address conditions outside of Appendix
C. In supercooled large droplet (SLD) conditions (which are not
included in Appendix C), ice may form aft of the ice protection system
equipment. To suggest that this rule may help address the SLD issue is
not correct. The most significant item to consider, however, is that
data show that these heavier airplanes have not had any safety problems
associated with delayed activation of the ice protection system.
Therefore, the rule is not changed as a result of this comment.

H. Include Parts 91 and 135 Operations

    The NTSB supported applying the proposed rule to airplanes operated
under part 121, but stated that a similar rule should also be levied on
all airplanes operated under 14 CFR parts 91 and 135. The NTSB stated
that on parts 91 and 135 airplanes with ADs directing flightcrews to
activate the ice protection system at the first sign of icing, it can
be difficult for crews to identify icing on the airplanes. The NTSB
noted that a Circuit City Citation Model 560 series airplane involved
in an icing accident was operated under part 91 and had an AD for
activation of deicing boots at the first sign of icing, which had been
withdrawn. This left the flightcrew to observe a prescribed amount of
ice before activation. The NTSB believed that similar accidents may
occur if parts 91 and 135 airplanes are not included in this rule.
    We considered including parts 91 and 135 operations during
deliberations of the IPHWG and during drafting of the NPRM. We
determined, however, that the increased flexibility afforded by
unscheduled operations (the types of operations governed by parts 91
and 135), coupled with appropriate direction on when pilots should
activate the ice protection systems (usually at the first sign of icing
or in conditions of visible moisture and specific temperatures),
provides an adequate

level of safety for ice protection system activation. Pilots flying
scheduled operations, on the other hand, may not have the flexibility
to avoid flying into weather that would otherwise be avoided. This rule
ensures that part 121 operators of applicable airplanes will be
directed to operate the ice protection systems appropriately.
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. According to the 1995
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid Office of Management and Budget (OMB) control number.
    This final rule will impose the following new information
collection requirements. As required by the Paperwork Reduction Act of
1995 (44 U.S.C. 3507(d)), the FAA has submitted these proposed
information collection amendments to OMB for its review.
    This final rule requires--
    a. A primary ice detection system and appropriate activation
equipment and procedures to ensure timely activation of the ice
protection system,
    b. An advisory ice detection system plus substantiated visual cues
and procedures to ensure timely activation and, if necessary, repeated
operation of the ice protection system, or
    c. If the airplane is not equipped to comply with either a or b
above, that flightcrews activate and continuously or cyclically operate
the ice protection system when in icing conditions during--
     The takeoff climb after second segment,
     En route climb,
     Holding,
     Maneuvering for approach and landing, and
     Any other operation at approach or holding airspeeds.
    This rule may require operators to revise their airplane flight
manuals or the manual required by Sec.  121.133. Adding these new
procedures may require the addition of a page or two to those manuals.
This is classified as a record keeping item and no data will be
collected.
    We have received no comments about the recordkeeping burden of this
rule. The OMB control number for this information collection will be
published in the Federal Register after the Office of Management and
Budget approves it.
International Compatibility
    In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
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.

IV. 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 Agreements 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 final rule. Readers seeking
greater detail should 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 final
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) has been designated as a
``significant regulatory action'' by the Office of Management and
Budget, and is therefore ``significant'' under 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.

Total Benefits and Costs of This Rule

    The estimated cost of this final rule is about $12.7 million in
nominal dollars ($6.7 million in seven percent present value terms).
The estimated potential benefits of averting one accident and five
fatalities are about $22.1 million in nominal dollars ($11.4 million in
seven percent present value terms). Table 1 shows these results.
[GRAPHIC] [TIFF OMITTED] TR22AU11.052

Who is potentially affected by this rule?

    Operators of transport category airplanes with a certified MTOW
under 60,000 pounds operating under 14 CFR part 121.

Assumptions

    (1) The base year is 2010.
    (2) This final rule will be effective in 2011.
    (3) The compliance date of the rule is 24 months from the effective
date of the final rule.
    (4) The analysis period extends for 20 years from 2013 through
2032. We believe this analysis period captures nearly all of the
expected benefits and costs.
    (5) All monetary values are expressed in constant 2010 dollars. The
present value of the potential 10-year benefit stream was calculated by
discounting the monetary values using three and seven percent present
value rates over the 2013 to 2032 analysis period.
    (6) The value of an averted fatality is $6.0 million.\5\
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    \5\ ``Treatment of the Economic Value of a Statistical Life in
Departmental Analysis,'' March 18, 2009, U.S. Department of
Transportation Memorandum.
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    (7) The FAA used a $104.99 hourly rate for a mechanic/technician
working for an airplane manufacturer or modifier and an $86.48 hourly
rate for an engineer working for an airplane manufacturer or modifier.
These hourly rates include overhead costs.\6\
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    \6\ Department of Labor, Bureau of Labor Statistics.
Occupational Employment and Wages.
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Benefits of This Rule

    The benefits of this final rule consist of the value of averted
fatalities, airplane loss, and investigation cost from avoiding
accidents involving transport category airplanes with a certified MTOW
under 60,000 pounds operating under 14 CFR part 121. We estimate that
one accident and five fatalities could potentially be avoided, over the
analysis period, by adopting the final rule. The value of an averted
fatality is assumed to be $6.0 million. A series of Airworthiness
Directives (ADs) were issued for airplanes with pneumatic de-icing
boots to activate the systems at the first sign of ice accretion. Due
to the similarity of requirements between the ADs and this proposal, we
accounted for the effects of the ADs by reducing the estimated
benefits. Over the analysis period, the potential benefits of the final
rule will be $22.1 million in nominal dollars ($11.4 million in seven
percent present value terms).

Estimated Costs of This Rule

    We estimate the total cost of the final rule, over the analysis
period, to be about $12.7 million in nominal dollars using airplane
compliance costs developed by the IPHWG. The seven percent present
value cost of this final rule over the analysis period is about $6.7
million. We estimate the initial costs for a new certification program
for operating the deicing boots based on visible moisture and
temperature are about $400,000. We estimate the operating and training
costs are about $12.3 million.

Alternatives Considered

Alternative One
    Maintain the status quo: Simply maintaining the status quo for
flight in icing procedures would not be a practice that is responsive
to NTSB recommendations and the FAA Inflight Aircraft Icing Plan. The
FAA has rejected this alternative because the final rule will enhance
passenger safety and prevent ice-related accidents for airplanes with a
certified MTOW less than 60,000 pounds. As it stands, the final rule is
the reasoned result of the FAA Administrator carrying out the FAA
Inflight Aircraft Icing Plan.
Alternative Two
    Issue more ADs requiring a means to know when to activate the icing
protection system: The FAA has already issued ADs to address activation
of icing protection systems. An evaluation of accidents and incidents
led to the conclusion that the ADs do not provide adequate assurance
that the flightcrew will be made aware of when to activate the icing
protection system. Because this problem is not unique to particular
airplane designs, but exists for all airplanes susceptible to the icing
hazards described previously, it is appropriate to address this problem
through an operational rule, rather than by ADs.
Alternative Three
    Issue new standards: The third alternative is this final rule. The
FAA's judgment is that this is the most viable option because the final
rule will increase the safety of the flying public by reducing icing-
related accidents in the future in the least costly way.

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.
    The FAA has determined that this final rule will not have a
significant economic impact on a substantial number of small entities.
The FAA made the same determination in the NPRM. There were no comments
regarding small entities for the NPRM.
    The following briefly describes the history leading up to this
rulemaking and the methodology used to determine that this final rule
will not have a significant economic impact on a substantial number of
small entities.
    On October 31, 1994, at 1559 Central Standard Time, an Avions de
Transport Regional model ATR 72, operated by Simmons Airlines,
Incorporated, and doing business as American Eagle flight 4184, crashed
during a rapid descent after an uncommanded roll excursion. The FAA,
Aerospatiale, the French Direction G[eacute]n[eacute]rale de l'Aviation
Civile, Bureau Enquete Accident, NASA, NTSB, and others conducted an
extensive investigation of this accident.
    This accident and the investigation prompted the FAA to initiate a
review of aircraft inflight icing safety and determine changes that
could be made to increase the level of safety. The final rule is
responsive to NTSB recommendation A-07-14. The final rule is also one
of the items listed in the FAA Inflight Aircraft Icing Plan, dated
April 1997. The Inflight Aircraft Icing Plan details the FAA's plans
for improving the safety of airplanes when they are operated in icing
conditions.
    This final rule specifically applies to part 121 operators of
airplanes that have a certified MTOW of less than 60,000 pounds. We
have determined which small entities could be affected by associating
airplanes with a certified MTOW of less than 60,000 pounds with part
121 operators. For this section of the analysis, only those operators
meeting the above criteria that have

1,500 or fewer employees are considered.
    To estimate the number of affected airplanes, the FAA analyzed the
current active fleet of airplanes, a forecast of airplanes affected by
the final rule entering the fleet, and a forecast of the retired
affected airplanes exiting the fleet during the analysis period.
    A list of all U.S. operated civilian airplanes operating under part
121 was generated by the FAA Flight Standards Service. Each airplane
group was matched with its current (as of May 2010) MTOW and average
age through the use of the OAG FleetPCTM database. All
airplanes with a MTOW greater than 60,000 pounds were eliminated.
    Using industry sources, the FAA determined which airplanes
currently had primary or advisory icing detection systems. Airplanes
equipped with either a primary or advisory ice detection system are in
compliance, and this final rule will impose no costs to operators of
those airplanes. All turbojets affected by this proposal are in
compliance because those airplanes are equipped with either a
certificated primary or advisory ice detection systems.
    The FAA used the OAG FleetPCTM database and determined
that turboprops are retired from U.S. certificated service at an
average age (mean) of 25.9 years. Thus, we assume that each of the
small operators' airplanes is retired when their airplanes reach the
average retirement age of 25.9 years.
    Using information provided by the World Aviation Directory, SEC
filings, and the Internet, scheduled and non-scheduled commercial
operators that are subsidiary businesses of larger businesses were
eliminated from the database. An example of a subsidiary business is
Continental Express, Inc., which is a subsidiary of Continental
Airlines. Using information provided by the U.S. Department of
Transportation Form 41 filings, the World Aviation Directory Winter
2009, and the Internet, all businesses with more than 1,500 employees
were eliminated. The FAA obtained company revenue from the remaining
businesses. Following this approach, five small entities operate
airplanes that will be affected by this proposal.
    The FAA estimated the cost of compliance per airplane and
multiplied this cost by the total fleet of affected airplanes per
operator, over the analysis period, to obtain the total compliance cost
for each small entity. The non-recurring costs, for updating the
airplane flight manual for each major airplane group, were distributed
equally among the airplanes in each major airplane group. These non-
recurring costs occurred in year four of the analysis period. Note that
the more airplanes in a major airplane group, the less expensive, per
airplane, the non-recurring costs are to the operators of those
airplanes. In addition to the airplane flight manual cost, the
additional incremental recurring costs include boot maintenance,
replacement and installation labor. These recurring costs started in
2013 and continued either until the airplane retired or through the end
of the analysis period.
    The degree to which small air operator entities can ``afford'' the
cost of compliance is determined by the availability of financial
resources. The initial implementation costs of the final rule may be
financed, paid for using existing company assets, or borrowed. A proxy
for the firm's ability to afford the cost of compliance is the ratio of
the total annualized cost of the final rule as a percentage of annual
revenue. No small business operator potentially affected by this final
rule incurred costs greater than one percent of its annual revenue. On
that basis, we believe firms can afford the compliance costs of this
final rule. We used a similar metric for the initial regulatory
flexibility analysis and received no comments. Table 2 shows the
economic impact on the small entity air operators affected by this
final rule.
[GRAPHIC] [TIFF OMITTED] TR22AU11.053

    Therefore as the FAA Administrator, I certify that this 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 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 the proposed standards are necessary for aviation
safety and 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
(in 1995 dollars) 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 $143.1 million in lieu of $100
million. This final rule does not contain such a mandate; therefore,
the requirements of Title II of the Act do not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. We have 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.

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. We did not receive any
comments, and we have determined, based on the administrative record of
this rulemaking, that there is no need to make any regulatory
distinctions applicable to intrastate aviation in Alaska.

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 and involves no extraordinary
circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or
Use

    The FAA has 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 the executive order because,
while it is considered a ``significant regulatory action'' under DOT's
Regulatory Policies and Procedures, it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy.

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.
    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<PHONE_NUMBER>. Make
sure to identify the notice, amendment, 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.

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/.

Appendix--Definition of Terms Used in This Rule

    For purposes of this final rule, the following definitions are
applicable. Note that some of these definitions are common to those
used in the preamble to the final rule for Sec.  25.1419 Ice
protection, and that rule's accompanying guidance material.
    a. Advisory ice detection system--A system that advises the
flightcrew of the presence of ice accretion or icing conditions.
Both primary ice detection systems and advisory ice detection
systems can either direct the pilot to manually activate the ice
protection system or provide a signal that automatically activates
the ice protection system. However, because it has lower reliability
than a primary system, an advisory ice detection system can only be
used in conjunction with other means (most commonly, visual
observation by the flightcrew) to determine the need for, or timing
of, activating the anti-icing or deicing system. With an advisory
ice detection system, the flightcrew is responsible for monitoring
icing conditions or ice accretion as defined in the airplane flight
manual (AFM), typically using total air temperature and visible
moisture criteria or visible ice accretion. With an advisory ice
detection system, the flightcrew is responsible for activating the
anti-icing or deicing system(s).
    b. Airframe icing--Ice accretion on the airplane, except for on
the propulsion system.
    c. Anti-icing--Prevention of ice accretions on a protected
surface, either by:
     Evaporating the impinging water, or
     Allowing the impinging water to run back and off the
protected surface or freeze on non-critical areas.
    d. Automatic cycling mode--A mode of operation of the airframe
de-icing system that provides repetitive cycles of the system
without the need for the pilot to select each cycle. This is
generally done with a timer, and there may be more than one timing
mode.
    e. Conditions conducive to airframe icing--Visible moisture at
or below a static air temperature of 5[deg]C or total air
temperature of 10[deg]C, unless otherwise substantiated.
    f. Deicing--The removal or the process of removal of an ice
accretion after it has formed on a surface.

    g. Ice protection system (IPS)--A system that protects certain
critical aircraft parts from ice accretion. To be an approved
system, it must satisfy the requirements of Sec.  23.1419 or Sec.
25.1419 and other applicable requirements.
    h. Primary ice detection system--A detection system used to
determine when the IPS must be activated. This system announces the
presence of ice accretion or icing conditions, and it may also
provide information to other aircraft systems. A primary automatic
system automatically activates the anti-icing or deicing IPS. A
primary manual system requires the flightcrew to activate the anti-
icing or deicing IPS upon indication from the primary ice detection
system.
    i. Reference surface--The observed surface used as a reference
for the presence of ice on the monitored surface. The reference
surface may be observed directly or indirectly. Ice must occur on
the reference surface before--or at the same time as--it appears on
the monitored surface. Examples of reference surfaces include
windshield wiper blades or bolts, windshield posts, ice evidence
probes, the propeller spinner, and the surface of ice detectors. The
reference surface may also be the monitored surface.
    j. Static air temperature--The air temperature that would be
measured by a temperature sensor that is not in motion in relation
to that air. This temperature is also referred to in other documents
as ``outside air temperature,'' ``true outside temperature,'' or
``ambient temperature.''
    k. Total air temperature--The static air temperature plus the
rise in temperature due to the air being brought to rest relative to
the airplane.
    l. Visual cues--Ice accretion on a reference surface that the
flightcrew observes. The visual cue is used to detect the first sign
of airframe ice accretion.

List of Subjects in 14 CFR Part 121

    Aircraft, Air carriers, Aviation safety, Safety, Reporting and
recordkeeping requirements.

The Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends part 121 of title 14, Code of Federal Regulations
as follows:

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS

0
1. The authority citation for part 121 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904,
44912, 46105.

0
2. Revise Sec.  121.321 to read as follows:

Sec.  121.321  Operations in Icing.

    After October 21, 2013 no person may operate an airplane with a
certificated maximum takeoff weight less than 60,000 pounds in
conditions conducive to airframe icing unless it complies with this
section. As used in this section, the phrase ``conditions conducive to
airframe icing'' means visible moisture at or below a static air
temperature of 5[deg]C or a total air temperature of 10[deg]C, unless
the approved Airplane Flight Manual provides another definition.
    (a) When operating in conditions conducive to airframe icing,
compliance must be shown with paragraph (a)(1), or (2), or (3) of this
section.
    (1) The airplane must be equipped with a certificated primary
airframe ice detection system.
    (i) The airframe ice protection system must be activated
automatically, or manually by the flightcrew, when the primary ice
detection system indicates activation is necessary.
    (ii) When the airframe ice protection system is activated, any
other procedures in the Airplane Flight Manual for operating in icing
conditions must be initiated.
    (2) Visual cues of the first sign of ice formation anywhere on the
airplane and a certificated advisory airframe ice detection system must
be provided.
    (i) The airframe ice protection system must be activated when any
of the visual cues are observed or when the advisory airframe ice
detection system indicates activation is necessary; whichever occurs
first.
    (ii) When the airframe ice protection system is activated, any
other procedures in the Airplane Flight Manual for operating in icing
conditions must be initiated.
    (3) If the airplane is not equipped to comply with the provisions
of paragraph (a)(1) or (2) of this section, then the following apply:
    (i) When operating in conditions conducive to airframe icing, the
airframe ice protection system must be activated prior to, and operated
during, the following phases of flight:
    (A) Takeoff climb after second segment,
    (B) En route climb,
    (C) Go-around climb,
    (D) Holding,
    (E) Maneuvering for approach and landing, and
    (F) Any other operation at approach or holding airspeeds.
    (ii) During any other phase of flight, the airframe ice protection
system must be activated and operated at the first sign of ice
formation anywhere on the airplane, unless the Airplane Flight Manual
specifies that the airframe ice protection system should not be used or
provides other operational instructions.
    (iii) Any additional procedures for operation in conditions
conducive to icing specified in the Airplane Flight Manual or in the
manual required by Sec.  121.133 must be initiated.
    (b) If the procedures specified in paragraph (a)(3)(i) of this
section are specifically prohibited in the Airplane Flight Manual,
compliance must be shown with the requirements of paragraph (a)(1) or
(2) of this section.
    (c) Procedures necessary for safe operation of the airframe ice
protection system must be established and documented in:
    (1) The Airplane Flight Manual for airplanes that comply with Sec.
121.321(a)(1) or (2), or
    (2) The Airplane Flight Manual or in the manual required by Sec.
121.133 for airplanes that comply with Sec.  121.321(a)(3).
    (d) Procedures for operation of the airframe ice protection system
must include initial activation, operation after initial activation,
and deactivation. Procedures for operation after initial activation of
the ice protection system must address--
    (1) Continuous operation,
    (2) Automatic cycling,
    (3) Manual cycling if the airplane is equipped with an ice
detection system that alerts the flightcrew each time the ice
protection system must be cycled, or
    (4) Manual cycling based on a time interval if the airplane type is
not equipped with features necessary to implement (d)(i)-(iii) of this
section.
    (e) System installations used to comply with Sec.  121.321(a)(1) or
(2) must be approved through an amended or supplemental type
certificate in accordance with part 21 of this chapter.

    Issued in Washington, DC, on August 11, 2011.
J. Randolph Babbitt,
Administrator.
[FR Doc. 2011-21247 Filed 8-19-11; 8:45 am]
BILLING CODE 4910-13-P


FormRGuide. doc 5/ 23/ 05 Creosote Council III Post Office Box 160 Valencia, Pennsylvania 16059 Phone: 724 898 9663 e mail: davidawebb@ aol. com May 24, 2005 Re: Guidance for Reporting Creosote and Polycyclic Aromatic Compound Releases to Storm Water Dear Creosote Wood Treater:

Last year, as part of its biennial review of effluent guidelines, the U. S. EPA identified the wood preserving industry as a significant source of toxic pollutants discharged to storm water. One of the major sources, as reported on the SARA Section 313 Toxic Chemical Release Inventory ( TRI), is the storm water discharge of polycyclic aromatic compounds ( PACs) by creosote wood preserving facilities. Investigations revealed that the releases reported by the industry were not based on actual analyses for PACs. They were, instead, being estimated based on a published PAC percentage in creosote and the assumption that a surrogate analyte, such as Oil & Grease, could be used to provide a reliable estimate of concentrations of creosote. Industry representatives met with EPA to discuss the reported releases and the methods used to make the prior estimates.

Under the leadership of the Southern Pressure Treaters' Association ( SPTA) and Creosote Council, the industry undertook a study to determine the actual concentration of PACs in storm water at creosote wood preserving facilities. This study was presented to EPA, and the results of the study indicated that the previous estimates reported on the TRI reports were overstated by about one order of magnitude, or a factor of ten.

EPA encouraged the industry to correct its previous reports and to develop a more accurate and uniform protocol for estimating and reporting these releases in the future. Utilizing the data from the storm water sampling study, factors have been developed and are now available for use by the industry at this time. Although each industry member is responsible for its own data submissions, including any analyses and any factors it may rely on, the Creosote Council believes that use of the factors provided below, in place of the previous methods of estimation referenced above, will significantly improve the accuracy and reliability of creosote discharge calculations. The development of these factors has been discussed with EPA, but no formal approval has been sought nor is it expected. It is possible that these factors may be adjusted in the future based on additional data or suggestions that may be made by EPA.

It is extremely important that the industry provide the most precise and accurate estimate of releases possible. If the effluent guidelines for the wood preserving industry are selected for regulatory action, it is probable that discharge limits would be established that would require capture and treatment of all storm water. Since this could require the capture and treatment of millions of gallons of water in a typical storm event in many parts of the country, this borders on an operational impossibility. This highlights the importance of providing the Agency with consistent and accurate data.

The following approach for estimating releases of creosote and polycyclic aromatic compounds has been developed by knowledgeable industry representatives based on the data contained in the storm water study. This guidance is based on using Oil & Grease ( O& G) or Total Organic Carbon ( TOC) analytical results as the basis for estimating creosote and PAC concentrations in storm water. In particular, O& G is a parameter that is almost universally required to be monitored in storm water permits issued to creosote wood preserving facilities. It is important that the analytical method and the laboratory used are capable of obtaining a reasonably low detection limit. Typically, a detection limit of 5 parts per million ( ppm) or less can be achieved for O& G.

Based on the results of the storm water study, the concentration of PACs in storm water is no more than 0.72% of the O& G value, or no more than 0.30% of the TOC value. These results may be used to estimate concentrations of PACs in storm water by applying the factor of 0.72% to a measured O& G concentration, or a factor of 0.30% to a measured TOC concentration. Although there is some TRI guidance which indicates that if all of the storm water analyses in a reporting year are below the method detection limit it is acceptable to report zero for that parameter, Creosote Council is aware that a preferred approach among members of our industry to estimate releases is to use a concentration value equal to one half the detection limit for those analyses reporting the concentration as non detected.

Since the surrogate analytes of O& G and TOC will include many organics not associated with creosote, the prior use of these parameters as estimates of creosote has resulted in the overestimation of creosote releases to storm water. Given that there is no recognized analytical method for quantifying creosote in aqueous samples, an engineering estimate must be made based on the data available. The product chemistry of creosote provided by the American Wood Preservers Institute indicates that PACs represent a little less than 10% of the composition of creosote. Therefore, on a product chemistry basis, an estimated creosote release would be expected to be about 10 times the PAC release. However, to account for some variability in constituent solubilities and the possibly changing chemical makeup of rainfall runoff that has contacted treated products based on the time period since the material was treated, Creosote Council is aware that a preferred approach among members of our industry is the conservative use of a factor of 20, applied to the PAC estimate, for the calculation of estimated creosote FormRGuide. doc 5/ 23/ 05 concentrations. This results in a factor of 14.4% ( 20 x 0.72) to be applied to the O& G result, or 6.0% ( 20 x 0.3) to be applied to a TOC result, to estimate creosote concentrations. Once again, many of our industry members prefer the use of one half the detection limit for all non detect values.

This guidance is being provided at this time to enable facilities that may wish to do so to apply this guidance in completion of their TRI reports for reporting year 2004, which are due on July 1, 2005. Creosote Council will be providing additional guidance this summer regarding the amendment of prior year reports in order to correct the existing TRI database. This needs to be done so that EPA has a clear public record to support its determination regarding its prioritization of industries for regulatory action under its effluent guidelines program.

If you have any technical questions regarding the guidance contained in this document, please contact Martin Rollins of H. M. Rollins Company, Inc., who assisted Creosote Council and SPTA in this effort. He can be reached at ( 228) 832 1738, or by email at martinrollins@ hmrollins. com.

If you have any comments or suggestions on this guidance, please let me know.

Sincerely,

David A. Webb Administrative Director Creosote Council III cc: Mr. Lawrence S. Ebner, Esq. Creosote Council III Members


[Federal Register: September 30, 2005 (Volume 70, Number 189)]
[Notices]
[Page 57339-57340]
[DOCID:fr30se05-159]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52501; File No. SR-BSE-2005-30]

Self-Regulatory Organizations; Boston Stock Exchange, Inc.; Order
Approving a Proposed Rule Change and Amendment No. 2 Thereto Relating
to the Removal of Unreliable Quotes From the Exchange's Determination
of the National Best Bid or Offer

September 23, 2005.

I. Introduction

    On July 27, 2005, the Boston Stock Exchange, Inc. (``BSE''), filed
with the Securities and Exchange Commission (``Commission'') a proposed
rule change pursuant to Section 19(b)(1) of the Securities Exchange Act
of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ to adopt a rule
relating to the removal of unreliable quotes from the determination of
the national best bid or offer (``NBBO''). The BSE filed Amendment No.
1 to the proposed rule change on August 5, 2005 and withdrew Amendment
No. 1 on August 12, 2005. The BSE filed Amendment No. 2 to the proposed
rule change on August 12, 2005.\3\
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 2 added clarifying language and corrected
typographical and technical errors.
---------------------------------------------------------------------------

    The proposed rule change, as amended, was published for comment in
the Federal Register on August 24, 2005.\4\ The Commission received one
comment letter on the proposal.\5\ This order approves the proposed
rule change, as amended.
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 52296 (August 18,
2005), 70 FR 49689.
    \5\ See letter from Matthew Hinerfeld, Managing Director and
Deputy General Counsel, Citadel Investment Group, L.L.C., on behalf
of Citadel Derivatives Group LLC, to Jonathan G. Katz, Secretary,
Commission, dated August 26, 2005 (``Citadel Letter'').
---------------------------------------------------------------------------

II. Description of the Proposed Rule Change

    Pursuant to obligations to avoid trade-throughs under the Plan for
the Purpose of Creating and Operating an Intermarket Option Linkage
(``Linkage Plan''),\6\ the Boston Options Exchange (``BOX''), in
general, filters certain orders to either trade on BOX, if the best BOX
price is at the NBBO or, if the best BOX price is not at the NBBO, to
access the best price for such orders through the intermarket option
linkage (``Linkage'').\7\
---------------------------------------------------------------------------

    \6\ On July 28, 2000, the Commission approved a national market
system plan for the purpose of creating and operating an intermarket
option linkage proposed by the American Stock Exchange LLC, the
Chicago Board Options Exchange, Incorporated, and the International
Securities Exchange, Inc. See Securities Exchange Act Release No.
43086 (July 28, 2000), 65 FR 48023 (August 4, 2000). Subsequently,
upon separate requests by the Philadelphia Stock Exchange, Inc., the
Pacific Exchange, Inc., and the BSE, the Commission issued orders to
permit these exchanges to participate in the Linkage Plan. See
Securities Exchange Act Release Nos. 43573 (November 16, 2000), 65
FR 70851 (November 28, 2000); 43574 (November 16, 2000), 65 FR 70850
(November 28, 2000); and 49198 (February 5, 2004), 69 FR 7029
(February 12, 2004).
    \7\ See subsection (i) of Section 1 of Chapter XII of the BOX
Rules.
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    The BSE is proposing to add subsection (e) of Section 3 of Chapter
XII of the BOX Rules to add provisions for declaring an away market's
quotes in a particular class of options unreliable and to thereby
exclude such quotes from BOX's NBBO determination when an away market:
(i) Is disconnected from Linkage; (ii) disseminates non-firm quotes; or
(iii) has other confirmed quoting problems. The BSE proposes to exclude
unreliable quotes from BOX's NBBO determination, thereby including in
BOX's NBBO determination only quotes that are reliable and accessible
to investors. The BSE seeks only to exclude an away market's unreliable
quotes in a particular option class from BOX's NBBO determination for
the time that such quotes remain unreliable.

III. Comment Summary

    As noted above, the Commission received one comment letter on the
proposal.\8\ The commenter supported the proposal and recommended that
the Commission approve it. However, the commenter suggested that the
BSE modify its proposal to allow the BOX to determine that an away
market is disconnected from Linkage without having to get confirmation
from the away market that the away market is disconnected. The
commenter cited ``the need for immediate action'' as the basis for
suggesting that the BSE amend its proposal to allow the BOX to make its
determination that a market is disconnected from Linkage without first
obtaining confirmation from the away market.\9\
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    \8\ See supra note 5.
    \9\ The Citadel Letter also addressed File No. SR-Amex-2005-066,
a proposal to allow the American Stock Exchange LLC (``Amex'') to
exclude an away market's quotes from the Amex's determination of the
NBBO when such away market is disconnected from Linkage. The
commenter strongly supported Amex's proposal. In addition, the
commenter urged the Commission to address issues related to non-firm
quotes that are outside the scope of these proposed rule changes.
---------------------------------------------------------------------------

IV. Discussion

    After careful consideration, the Commission finds that the proposed
rule change is consistent with the requirements of Section 6 of the Act
\10\ and the rules and regulations thereunder applicable to a national
securities exchange.\11\ In particular, the Commission finds that the
proposed rule change is consistent with Section 6(b)(5) of the Act,\12\
which requires, among other things, that the rules of an exchange be
designed to promote just and equitable principles of trade, to remove
impediments to and perfect the mechanism of a free and open market and
a national market system, and, in general, to protect investors and the
public interest. The Commission believes that it is appropriate for BOX
to remove an away market's disseminated quotes from BOX's determination
of the NBBO when such quotes are unreliable. The Commission further
believes that the proposed rule change establishes reasonable
procedures to determine the unreliability of an away market's quotes
and to notify promptly the affected away market, and establishes an
appropriate standard for determining when to resume inclusion of the

affected away market's quotes in BOX's NBBO.
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    \10\ 15 U.S.C. 78f.
    \11\ In approving this proposal, the Commission has considered
the proposed rule's impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
    \12\ 15 U.S.C. 78f(b)(5).
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    The Commission has considered the comments made in the Citadel
Letter. The Commission recognizes that the provision in the proposed
rule change requiring BOX to contact an away market to confirm that its
quotes are unreliable (except in circumstances in which the BOX Market
Operations Center received a message from OPRA, the OLA Administrator,
or the relevant away market) differs slightly from the rules adopted by
the other options exchanges. Nonetheless, the Commission believes that
the proposed provision is consistent with the Act.

V. Conclusion

    For the foregoing reasons, the Commission finds that the proposed
rule change, as amended, is consistent with the requirements of the Act
and the rules and regulations thereunder.
    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\13\ that the proposed rule change (SR-BSE-2005-30) as amended, is
approved.
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    \13\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Jonathan G. Katz,
Secretary.
 [FR Doc. E5-5328 Filed 9-29-05; 8:45 am]

BILLING CODE 8010-01-P


                                  Chapter 12
                                 Miscellaneous
Contents
12.1       GENERAL SUPPORT	2
12.2       GENERAL OPPOSITION	2
12.3       REQUESTS FOR EXTENSION	2
12.4       OTHER DOCUMENTS SUBMITTED	2

12.1       GENERAL SUPPORT
Comment 12.1-1: Multiple commenters generally supported the proposed standards for modified and reconstructed electric utility generating units (0080, 0082, 0083, 0084, 0086, 0088, 0096, 0104, 0123, 0129, 0133, 0134, and 0137).
Response 12.1-1: The EPA acknowledges the commenters' support for this rule.
12.2       GENERAL OPPOSITION
Comment 12.2-1: Multiple commenters generally opposed the proposed standards for modified and reconstructed electric utility generating units (0058, 0059, 0065, 0066, 0067, 0068, 0069, 0070, 0071, 0073, 0074, 0076, 0077, 0078, 0081, 0085, 0087, 0090, 0091, 0093, 0094, 0095, 0097, 0098, 0099, 0100, 0101, 0102, 0103, 0105, 0106, 0107, 0108, 0109, 0110, 0111, 0112, 0113, 0116, 0117, 0118, 0120, 0121, 0122, 0124, 0125, 0126, 0127, 0128, 0130, 0131, 0132, 0135, 0139, 0140, 0141, 0142, 0205, and 0246).
Response 12.2-1: The EPA acknowledges the commenters' general opposition to the proposed rule. Our responses to specific comments from organizations opposing the rule are provided throughout this document.
12.3       REQUESTS FOR EXTENSION
Comment 12.3-1: Multiple commenters requested an extension of the comment period (0079, 0089, 0092, 0119, 0136, and 0251).
Response 12.3-1: The proposal date for this rule was June 18[th], 2014. In the proposal, the comment deadline was set to October 16, 2014. The EPA felt that this 120 day comment period was adequate for addressing comments to this rule and did not grant commenters an extension.
12.4       OTHER DOCUMENTS SUBMITTED
Comment 12.4-1: Commenter 0225 attached a report, "Thermal Efficiency of Gas-Fired Generation in California: 2014 Update."
Commenter 0247 attached a technical bulletin titled "Greenhouse Gas and Fossil Fuel Reduction Benefits or Using Biomass Manufacturing Residuals for Energy Production in Forest Products Facilities."
Commenter 0282 attached the following files:
   1. Article on "Persistent growth of CO2 emissions and implications for reaching climate targets"
   2. Article on "Assessing 'Dangerous Climate Change': Required Reduction of Carbon Emissions to Protect Young People, Future Generations, and Nature"
   3. Article on "Carbon debt and carbon sequestration parity in forest bioenergy production"
   4. Air Construction Permit Application for Florida Crushed Stone Company
   5. Intergovernmental Panel on Climate Change, Climate Change 2013 Article
   6. The Emissions Gap Report 2013 by UNEP
   7. Article on "Assessing 'Dangerous Climate Change': Required Reduction of Carbon Emissions to Protect Young People, Future Generations and Nature"
   8. Energy Related Carbon Dioxide Emissions by Sector and Source, United States
   9. Excel Spreadsheet on Energy-Related Carbon Dioxide Emissions by Sector and Source
   10. Energy-Related Carbon Dioxide Emissions by Sector and Source, United States
   11. Excel Spreadsheet on Energy-Related Carbon Dioxide Emissions by Sector and Source, United States
   12. USEPA 5-13 Base Case Study Emissions Projections
   13. Excel Spreadsheet on EPA 5-13 Base Case - State Emissions Projections
   14. Memorandum from the Office of Air Quality Planning and Standards of the USEPA
   15. 2011 GTW Combined Cycle Specs
   16. Excel Spreadsheet on 2011 GTW Combined Cycle Specs
   17. Clean Air Task Force Presentation on Technical Options for Lowering Carbon Emissions from Power Plants.
   18. "Birth Outcomes and Maternal Residential Proximity to Natural Gas Development in Rural Colorado"
   19. "Hydraulic Fracturing and Water Stress"
   20. Center for Biological Diversity Comments on the Environmental Impact Report Pursuant to Senate Bill 4
   21. NETL report on Improving Domestic Energy Security and Lowering CO2 Emissions with "Next Generation" CO2-Enhanced Oil Recovery.
   22. ICF International Article on "Integrating Variable Renewable Electric Power Generators and the Natural Gas Infrastructure"
   23. California ISA "Fast Facts"
   24. California ISA presentation "Building a Sustainable Energy Future
   25. Clean Coalition Rens-Integr-Power
   26. US EPA IPM Run Results for the EPA 5-13 Base Case
   27. Excel Spreadsheet of  U.S. EPA IPM Run Results for the EPA 5-13 Base Case
   28. Golder Associates Memo "Application for a Minor Source Air Construction Permit Florida Crushed Stone Company"
   29. GCB Bioenergy Article "Carbon debt and carbon sequestration parity in forest bioenergy production
   30. GCB Bioenergy Article "Large-Scale bioenergy from additional harvest of forest biomass is neither sustainable nor greenhouse gas neutral"
   31. Environmental Science Technology article "Forest Bioenergy or Forest Carbon? Assessing Trade-offs in Greenhouse gas mitigation with Wood-Based Fuels"
   32. GCB Bioenergy Article "Indirect Carbon Dioxide Emissions from Producing Bioenergy from Forest Harvest Residues."
   33. DOE/EIA Annual Energy Outlook for 2013
   34. GCB Bioenergy Article "The outcome is in the assumptions: analyzing the effects on atmospheric CO2 levels of increased use of bioenergy from forest biomass"
   35. USEPA SAB review of EPA's accounting framework for Biogenic CO2 Emissions from Stationary Sources
   36. Article "Fixing a Critical Climate Accounting Error"
   37. Environmental Science Technology Article: "Forest Bioenergy or Forest Carbon? Assessing Trade-offs in Greenhouse Gas Mitigation with Wood-Based Fuels"
   38. GCB Bioenergy Article "Indirect Carbon Dioxide Emissions from Producing Bioenergy from Forest Harvest Residues"
   39. DOI "Integrating tipping points into climate impact assessments"
   40. GCB Article: "Large-scale bioenergy from additional harvest of forest biomass is neither sustainable nor greenhouse gas neutral"
   41. The Journal of Economic Literature article "The Structure Of Economic Modeling of The Potential Impacts of Climate Change: Grafting Gross Underestimation of Risk Onto Already Narrow Science Models"
   42. GCB Bioenergy: "The outcome is in the assumptions: analyzing the effects on atmospheric CO2 levels of increased use of bioenergy from forest biomass"
   43. The UNEP Emissions Gap report for 2013
   44. USEPA SAB Review of EPA's Accounting Framework for Biogenic CO2 from stationary sources.
Response 12.4-1: The EPA acknowledges receipt of the documents submitted by the commenters and thanks the commenters for providing copies of this information.
Comment 12.4-2: Multiple commenters (0131, 0152, 0170, 0171, 0181, 0192, 0193, 0201, 0214, 0225, 0237, 0244, 0260, 0262, and 0282) attached comments submitted in response to the January 2014 EGU NSPS proposal.
Response 12.4-2: The EPA acknowledges receipt of copies of comments submitted in response to the January 8, 2014 NSPS proposal. These comments are addressed in this document, as applicable, in the preamble to the final rule, and in the response-to-comments document for the new source standards.