AFS

- 15

- 079

- E Exemption No. 14074

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

TATONDUK OUTFITTERS, LTD.

d.b.a. EVERTS AIR CARGO Regulatory Docket No. FAA

- 2014

- 0087

for an exemption from § 121.321 of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated February 3, 2014, Mr. Robert W. Everts, President, Tatonduk Outfitters , Ltd.

d.b.a. Everts Air Cargo , 5525 Airport Industrial Road, Fairbanks, Alaska 99709, petitioned the Federal Aviation Administration (FAA) on behalf of Tatonduk Outfitters

, Ltd. d.b.a. Everts Air Cargo ( EAC ) for an exemption from § 121.321 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow EAC to operate the C

- 46 airplane identified on its operations specifications ( N54514 ) in icing conditions within the state of

Alaska.

The petitioner requests relief from the following regulation :
The petitioner requests relief from § 121.321 which applies to airplanes with a certificated maximum takeoff weight of less than 60,000 pounds used in part 121 operations . Those airplanes may not be operated in conditions that are conducive to airframe icing unless equipped with a certificated primary airframe ice detection system which is activated automatically or manually

, when activation is necessary (§ 121.321(a)(1) ) , or the airframe ice protection system would be activated when a n advisory airframe ice detection system or visual cue s (whichever occurs first) indicate it is necessary ( § 121.321(a) ( 2 ) )

.2

Alternatively, § 121.321(a)(3) allows airplanes that are not equipped in accordance with § 121.321(a)(1) or (2) to operate in icing conditions if the airframe ice protection system is activated prior to and is operated during specific phases of flight which

include:

(1) Takeoff climb after secon d segment ; (2) Enroute climb ; (3) Go

- around climb ; (4) Holding ; (5) Maneuvering for approach and landing ; and (6) Any operation at approach or holding airspeeds

.

Section 121.321(a)(3) also requires the airframe ice protection system to be activated and operated during any other phase of flight at the first sign of ice formation anywhere on the airplane, unless the Airplane Flight Manual (AFM) specifies that it

shou ld not be used or provides other operational instructions.

The remaining requirements in § 121.321 identify procedures required for operating

the airframe ice protection system ( § 121.321(c) and (d) ) and approvals for

installations of airframe ice detecti on systems ( § 121.321(e) )

.

The petitioner supports its request with the following information:

The p etitioner uses a C

- 46 airplane to conduct all

- cargo, supplemental, operations

within Alaska and states that its C

- 46 was type

- certificated in 1940 under the provisions of Civil Air Regulation ( CAR ) 3A2. The petitioner contends that, because

the C

- 46 is an older aircraft with limit ed commercial usage, there is little likelihood of the successful development, certificati on, and production of either a p rimary a irframe

d etection s ystem or an a dvisory a irframe d etection s ystem for this aircraft within a

foreseeable timeframe or within practical economic constraints. As such, the C

- 46 cannot comply with either §§ 121.321(a)( 1) or (a)(2). Further, the petitioner asserts that were it to operate the C

- 46 in accordance with § 121.321(a)(3), that operation would be contrary to the Everts Air Cargo Operating Manual which specifically prohibits continuous de

- icing while in flight, a nd contrary to § 121.321 (a)(3)(ii)

, which restricts operations contrary to the AFM

.

As the petitioner’s C

- 46 cannot curren tl y comply with all of the de

- icing requirements

in § 121.321, the p etitioner has been instructed by the Denali C ertificate M anagement
O ffice to terminate all p art 121 operations in its C

- 46 during known icing conditions. The petitioner states that , under the circumstances, it is effectively prevented from conducting C

- 46 operations in Alaska during the winter months. As a result, the petitioner states it has experienced commercial harm and has had to restrict service to

isolated Alaskan communities that require necessities for sustenance and survival during the winter months.3

The petitioner asserts that its operation of its C

- 46 aircraft is consistent with the approved flight manual and that its procedures will assure t he highest level of safety

for its C

- 46 operations in icing conditions, providing for the safe operation of this aircraft type

. The petitioner highlights that it has effectively operated in extreme icing conditions for over 17 years without any incident or accident related to, or caused by, icing. The p etitioner further states,

T he following procedure [ s ] for C

- 46 operations provide s n ot only a level of safety equivalent to that provided by any of the three options permitted under § 121.321, but also the only means of compliance available to the petitioner

under the circumstances.

1. The aircraft shall be determined to be free o f ice and upper wing frost accumulation prior to flight.

2. The crew shall be vigilant for the accretion of ice, paying particular attention

to the unheated cockpit windshield structure.

3. During operations in conditions conducive to airframe icing, the flight crew shall follow the guidance provided in § 121.321(d)(3) [ sic ]

. 4. This deviation is limited to operations cond ucted within Alaska and is

consistent with the Approved Operating Manual f or this aircraft.

See Petition for Exemption at p. 3

.

The p etitioner states that it has used C

- 46 aircraft as the mainstay of its non

- scheduled cargo operations into remote areas of Alaska during the winter months. The petitioner

contends that t he lift capacity, durability, and functionality of the C

- 46

, in restricted

runw ay and weather co nditions

, make it a reliable, economic choice in these extreme

conditions. Further, the petitioner points out that there is currently no ice alert system

available for the C

- 46 and that there is no incentive for any aircraft manufacturer to create such a system because EAC conducts the only commercial operations using the

C

- 46 . Based upon these factors, the petitioner argues that the relief sought is narrowly

tailored to address the effects of § 121.321 on C

- 46 operations without degrad ing

p art 121 safety standards.

T he petitioner also contends that older aircraft, such as the C

- 46, were not thoroughly considered by FAA in the § 121.321 rulemaking and as such ha ve been inadvertently

included in a regulat ion for which there is no means of compliance. In support of this position, the petitioner first explain ed that the Activation of Ice Protection n o tice of

p roposed r ulemaking ( NPRM ) ( 74 FR 61055 ( November 23, 2009) ) incorrectly

asserted that

, after review of ice detector technology, the FAA and Ice Protection Harmonization Working Group (IPHWG) found that viable means of compliance with

the NPRM existed

. Th e petitioner contend s that w hile this may be true for aircraft4

certificated under p art s 23 or 25, it does not apply to certain older aircraft such as the

C

- 46. T herefore, by not addressing the capability for a ll aircraft to comply with this rule, the petitioner feels that the FAA has grounded those aircraft for which there is no

viable means of compliance, such as the C

- 46, for operations in icing conditions.

Additionally

, the petitioner states that A dvisory C ircular (AC) 121.321

- 1, publishe d nearly concurrently with the Activation of Ice Protection f inal r ule ( 76 FR 55241 ( August 22, 2011 ) ) addresses a means of compliance applicable only to p art s 23 and

25 aircraft with a maximum certificated take

- off weight less than 60,000 pounds

. The petitioner contends that this AC indicates that older aircraft, such as the C

- 46, were

included under a r egulation meant only for those more modern aircraft which had a viable means of comp liance. T he petitioner attributes this oversight to the fact that currently, a very limited number of CAR 3A2 certificated aircraft conduct commercial operations. Further, t he p etitioner asserts that by way of AC 121.321

- 1, FAA interpret s § 121.321 as not applying to vintage aircraft, such as the pe titioner's C

- 46.

The petitioner argues that the relief sought by this exemption would be consistent with this interpre tation.

The petitioner concludes that, b ased upon the apparent inadvertent in clusion of C

- 46

aircraft in § 121.321 , the only meaningful remedies would be to either amend the rule

to exclude the C

- 46 and other similar aircraft, or provide this requested exemption

relief. The petitioner contends that d ue to the pressing need for the C

- 46 services in

Alaska which are provided by the p etitioner during the winter months, the most

efficient and expeditious remedy would be to grant this petition on an expedited basis.

The petitioner points out that by the p reamble to the f inal r ule adding § 121.321 , it provides the following explanation for the FAA ’s deci sion to exclude operations

conducted under p art s 91 and 135 from the activation of airframe ice protection
systems requirements :

We considered including parts 91 and 135 operations during

deliber ations of the IPHWG and during drafting of the NPRM. W e determined, however, that the i ncreased flexibility afforded by

unsched uled operations (the types of operations governed by part

91 and part 135), coupled with appropriate direction on when pilots could activate ice protection systems (usually at the first sign of icing or in conditions of visible moisture and specific
temper atures) provides an adequate level of safety for ice protection system activation. Pilots flying scheduled operations,5

on the other hand, may not have the flexibility to avoid flying into

weather that would otherwise be avoided. 1

See Petition for Exemption at p. 4

.

The petitioner suggests that this preamble language demonstrates t he FAA determined that, for non

- scheduled operation s, the operational environment would allow flexibility in scheduling to preclude flights into icing, and t hat so long as the pilots administered

de

- icing procedures consistent with the a ircraft f light m anual, the flight crew could detect and prevent a hazardous accum ulation of ice in a manner not requiring the additional safeguards of § 121.321. The petitioner further suggests that inclusion of supplemental operations under § 121.321 is inconsistent with the stated purpose of § 121.321 and creates a regulatory scheme which is inherently arbitrary. The petitioner argues that i f there is no safety

- rel ated reason to apply the requirements of § 121.321 to p art 91 and part 135 non

- scheduled operations, then, it necessarily follows that, p art 121 non

- scheduled operations should be treated in the same manner

and excluded from § 121.321.

The petitioner argu es that t his point is particularly relevant to its request for relief

since it utilizes its C

- 46 aircraft onl y for supplemental intrastate flights. The petitioner highlights that it does not use its aircraft to perform scheduled operations. The petitioner asserts that , from an operational standpoint, its operations are identical to the type of operations which FAA addressed in the quoted preamble language and the

same argument for e xcluding such operations from § 121.321 apply equally to the

p etitioner as they do to p art s 91 and 135 operat ions

.

A summary of the petition was published in the Federal Register on November 3, 2014, (79 FR 65294). No comments were received

.

The FAA's analysis is as follows:

The FAA has fully considered the petitioner’s request and supporting information in

the petition for an exemption from § 121.321 for operations conducted by EAC with

C

- 46 aircraft

. In analyzing a petition for exemption the FAA carefully consider ed whether granting the petition would be in the public interest and whether it would adversely affect safety

.

On August 22, 2011, the FAA published the “ Activation of Ice Protection ” final rule, which created § 121.321 (76 FR 52241). The FAA implemented this rule to increase

t he standard of safety as a result of accidents and incidents in which the flight crew did

1 76 FR 55241

, 52244 (August 22, 2011)

.6

not start the airframe ice protection system soon enough. This rule is meant to prevent that from happening by giving flight crews a clear means of knowing when to activate

the airframe ice protection system. For certain airplanes certificated for flight in icing, § 121.321 require s either installation of ice detection equipment and procedures for its

use, or changes to the AFM to ensure timely activation of the air frame ice protection
system.

The C

- 46 identified on the petitioner’s operations specifications and operated by the petitioner is not equipped with a certificated primary airframe ice detection system

. Section 121.321(a)(3) allows airplanes that are not e quipped in accordance with § 121.321(a)(1) or (2) to operate in icing conditions if the airframe ice protection system is activated prior to and is operated during specific phases of flight and at the first sign of ice formation anywhere on the airplane, unless the AFM specifies that it should not be used or provides other operational instructions. The petitioner has expressed concern that operating the C

- 46 ice protection system in the manner required by § 121.321(a)(3) would be contrary to the C

- 46 flig ht manual, which the petitioner says prohibits continuous de

- icing during flight.

The FAA finds that the procedures used by the petitioner’s pilots to detect icing conditions and activate the ice protection system on its C

- 46 aircraft support a finding that safety will not be adversely affected by granting the petitioner an exemption from § 121.321 subject to the conditions and limitations identified below

. The C

- 46 design attributes and procedures in the C

- 46 man ual enable pilots of this aircraft to see and evaluate airframe and wing contaminants in a timely manner, which contributes to the pilots ’ aware ness of the need for ice protection system activation. The p etitioner’s C

46 crews detect airframe ice accumula tion by observing ice formation on the windshield, windshield wipers and wiper alcohol tube which have been found to be representative of airframe ice formation. Further, the agency has determined that w ing ice lights are installed on the Tatonduk C

- 46 an d, unlike modern swept

- wing air planes

, the illuminated aircraft wings are visible from the flight deck. These factors allow the

crew to identify wing contaminants

. As a result, the FAA notes that, for the purposes of this exemption, wing ice lights must remain installed and operable or the airplane

must be restricted to daytime

- on ly flight when conditions conducive to icing exist.

With regard to activation of the ice protection system, t he C

- 46 Operations Manual

includes the followi ng procedure that states, “Allow ice to build up to about 1/4 inch thickness then operate the deicers to break it off. Once the surfaces are cleared of ice

, turn the deicer off

, and let the ice form again. Do not allow an excessive accumulation

as the de icers may be unable to clear the ice. ” However, Information for Operators (InFO) 09007 ( May 5 , 2009 ) explained that pilots had been taught to wait until a

recommended thickness of ice builds up ( typically 1/4”

- 1/2”) before activating the

d e icing boots because early activation of the boots was th ought to result in ice bridging

and thus rendered the boots ineffective. Further ice protection system t ests found that7

modern boots (i.e. typical o f aircraft certified after 1960 whose boot tubes diameter are l ess than 1 3/4” and operating pressures are 15 pounds per square inch gauge ( psig ) or greater and whose boots have fast inflation/deflation rates ) should be activated

whenever the aircraft is in ice

- conducive conditions

. In addition, modern deicing boot systems automatically cycle the deicing boots to decrease the workload. For systems that do not cycle automatically, pilots were instructed to cycle the boots as necessary.

The FAA finds that, although the deice boots on Tatonduk’s C

- 46 were last replaced in 2003, they are not considered to be of modern design since they were manufactured to original specifications from blueprints under which the aircraft was type certif icated i n 1940

. Tat o nd u k’ s C

- 46 deice boots are 2 9/16 inches and 2 11/16 inches diameter , use 8 psig and an inflation/deflation rate of more than 11 seconds. Since they are not
considered a modern design

, as described in the previous paragraph

, any enhancement in safety afforded by activating the boots prior to the accumulation of 1/4 inch of ice

has not been documented

.

The FAA agrees with the petitioner that t he lift capacity, durability, and functionality

of the C

- 46 in restricted runway and weather conditions make it uniquely suited as a reliable, economic choice for delivering cargo to remote locations in Alaska’s extreme
conditions. While most modern transport aircraft tricycle landing gear preclude them from landing under the conditions which exist at these remote locations , t he C

- 46’s uniquely large main

- mounted tires and landing gear configuration make it ideally suited for such operations. Additionally, the petitioner has operated this aircraft since 1995 in the harsh winter environment in Alaska using these procedures t o detect airframe and wing contamination on its C

- 46 aircraft, devoid of any ice

- related

incidents or accidents.

The FAA finds that a grant of exemption in this specific case would be in the public interest because of the unique capabilities of the airplane to operate to remote Alaskan communities subject to the conditions presented by Alaska ’s weather and the short gravel runways at the airports in the communities the petitioner serves. The petitioner

state s that remote Alaskan communities rely upo n deliveries which include food and medical supplies necessary for their sustenance. The agency agrees that in many cases remote Alaskan communities not serviced by roads rely exclusively on aircraft for the delivery of the essential supplies described ab ove.

The agency recognizes that the prospect of the development of an airframe ice detection system is unlikely given the extremely limited and specialized use of this

aircraft in Alaska

.

Accordingly, t he FAA finds that unless the agency grants an exemption from § 121.321 for operations conducted by the petitioner with its C

- 46 , the aircraft would effectively be disallow ed for use during winter operations in Alaska which could have8

a substantial impact on the health and welfare of the communities it serves. Therefore, the FAA finds a grant of relief to be in the public interest.

In response to the petitioner’s arguments that the Activation of Ice Protection final rule should have treated supplemental operations in the same manner as part s 91 and 135

on

- demand operations, the agency disagrees with the assertion that all non

- scheduled operations are comparable. Supplemental operations are conducted under the rules of part 121, and are thus held to the highest level of safety

. Fina lly, t he petitioner emphasizes the fact that it uses its C

- 46 aircraft only in part 121 non

- scheduled, all

cargo supplemental operations. Although the type of operation (i.e. supplemental) is not determinative for purposes of this exemption, the FAA agree s that the petitioner does have greater flexibility in scheduling its flights that could reduce the pressure to operate when there are forecast severe icing conditions.

Advisory Circular ( AC ) 121.321

- 1 does not serve a s a basis for this exemption bu t in

t his instance the intent of the AC is to facilitate compliance. Paragraph 2 of that AC states: “This material is neither mandatory nor regulatory in nature and does not constitute a regulation. It describes acceptable means, but not the only means, for

de monstrating compliance with the applicable regulations.” The agency is not persuaded by an argument that omission of certain guidance material is indicative of

the intended applicability of the rule, particularly when the rule is clear on its face.

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exemption is in the public

interest. Therefore, pursuant to the authority contained in 49 U.S.C §§ 106(f), 40113

, and 44701, delegated to me by the Administrator, Tatonduk Outfitte rs, Ltd. d .b.a. Everts Air Cargo is granted an exemption from § 121 .321 to the extent necessary to

allow EAC to operate N54514, a C

- 46 airplane , in icing conditions within the state of

Alaska , subject to the conditions and limitations listed below.

Co nditions and Limitations:

1. This exemption applies only to the Curtiss Wright FLYTGR

- C

- 46

- D airplane with registration number N54514 and serial number 33285 and identified on EAC operations specifications

.

2. This exemption applies only to th e airplane identified in Condition and Limitation

No. 1 when it is equipped with wing deice boots manufactured to the aircraft’s original type

- certificated specifications and only when it is operated by EAC in all

cargo operations within the state of Alaska

.9

3. Prior t o serving as a pilot in operations described in Condition and Limitation

No

. 2

, each must complete annual EAC cold weather training which addresses critical surfaces ice detection, proper use of ice protection and the effect of ice on

C

- 46 aircraft performance.

4. EAC pilots s erving in operations described in Condition and Limitation No. 1 or preparing the airplane for a flight in an operation described in Condition and

Limitation No. 1 must adhere to applicable cold weather policies and proc edures as

delineated in the EAC C

- 46 Operating Manual, and the Curtiss Wright C

- 46 Airplane Flight Manual.

5. EAC is prohibited from operating into known or forecast severe icing conditions

when conducting operati o n s under this exemption

.

6. Wing lighting, app ropriate for ice detection

, must be operable if this aircraft is used during nighttime operation in meteorological conditions conducive to icing.

This exemption terminates on December 31 , 2017 u nless sooner superseded or rescinded.

Issued in Washington, DC, on

/s/

Jodi L. Bake r Acting Deputy Director, Flight Standards Service