IFR Operations at Locations Without Weather Reporting, 35820-35823 [2019-15840]
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35820
Federal Register / Vol. 84, No. 143 / Thursday, July 25, 2019 / Rules and Regulations
Issued in Fort Worth, Texas, on July 18,
2019.
John Witucki,
Acting Manager, Operations Support Group,
ATO Central Service Center.
[FR Doc. 2019–15758 Filed 7–24–19; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 135
[Docket No.: FAA–2019–0564; Amendment
No. 135–141]
RIN 2120–AK94
IFR Operations at Locations Without
Weather Reporting
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
The FAA is amending a
regulation to allow helicopter air
ambulance (HAA) operators to conduct
instrument flight rules departure and
approach procedures at airports and
heliports that do not have an approved
weather reporting source. This rule
applies to HAA aircraft without
functioning severe weather detection
equipment (airborne radar or lightning
strike detection equipment), to permit
instrument flight rules departure and
approach procedures when the pilot in
command reasonably determines that
the operation will not encounter severe
weather at the destination, the alternate
destination, or along the route of flight.
This amended rule also updates
requirements to address the
discontinuance of area forecasts and
certain requirements concerning HAA
departure procedures.
DATES: This final rule is effective August
26, 2019.
ADDRESSES: For information on where to
obtain copies of rulemaking documents
and other information related to this
final rule, see ‘‘How To Obtain
Additional Information’’ in the
SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT: For
technical questions concerning this
action, contact Tom Luipersbeck, Air
Transportation Division, 135 Air Carrier
Operations Branch, AFS–250, Federal
Aviation Administration, 800
Independence Avenue SW, Washington,
DC 20591; telephone 202–267–8166;
email: Thomas.A.Luipersbeck@faa.gov.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
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I. Executive Summary
This rule finalizes the notice of
proposed rulemaking entitled IFR
Operations at Locations Without
Weather Reporting (the NPRM).1 The
NPRM proposed permitting HAA
departure and approach procedures
conducted under instrument flight rules
(IFR) when helicopters do not have
functional severe weather detection
equipment and when the airport or
heliport at which the departure or
approach will occur does not have an
approved weather reporting source. The
proposed regulatory text specified that
such procedures could only occur when
the pilot in command does not expect
to encounter severe weather at the
destination, the alternate destination, or
along the route of flight. The NPRM
further proposed updates to address the
transition from Area Forecasts that the
National Weather Service (NWS)
currently provides to equivalent
information from weather reports,
forecasts, or any combination thereof. In
addition, the NPRM proposed amending
the term ‘‘the published Obstacle
Departure Procedure’’ to ‘‘a published
departure procedure.’’ This rule
finalizes all amendments the NPRM
included, with no modifications.
II. Background
A. Authority for This Rulemaking
The FAA’s authority to issue rules on
aviation safety is codified in Title 49 of
the United States Code. The FAA
promulgates this rule under the general
authority described in 49 U.S.C. 106,
which includes a detailed description of
the agency’s authority. Section 106(f)
establishes that the Administrator may
promulgate and revise regulations as are
necessary to carry out the FAA’s
functions. Furthermore, § 44701(a)
requires the Administrator to promote
safe flight of civil aircraft in air
commerce by prescribing regulations
and setting minimum standards for
other practices, methods and procedures
necessary for safety in air commerce and
national security. Moreover, § 44730
addresses HAA operations and
authorizes the Administrator to engage
in rulemaking to ensure safety of part
135 certificate holders that engage in
such operations.
B. Comments in Response to Proposed
Rule
The FAA received five comments in
response to the NPRM, all of which
support the proposed amendment to
remove the requirement for severe
weather detection equipment in 14 CFR
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FR 15332 (Apr. 10, 2018).
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135.611(b). The commenters generally
agreed with the FAA that the
amendment will encourage pilots to fly
under IFR, which is safer than flights
operated under visual flight rules (VFR),
for flights conducted under marginal
VFR conditions. One comment from an
individual suggested the FAA consider
further changes, such as requiring
utilization of ‘‘lower altitude airway
structures’’ and modifications to rules
concerning operations in icing
conditions. The FAA appreciates the
suggestions, but finds that such
amendments to the final rule would be
outside the scope of the proposal.
The Air Medical Operators
Association (AMOA) requested the FAA
clarify in the final rule that the use of
the term ‘‘airport’’ in § 135.611 includes
heliports. The FAA agrees that the term
‘‘airport,’’ as defined in 14 CFR 1.1 and
as used throughout the FAA’s
regulations, means an area of land or
water that is used or intended to be used
for the landing and takeoff of aircraft.
This definition is broad, and includes
heliports.
Additionally, AMOA supported the
proposed amendment to remove the
word ‘‘obstacle’’ from the term ‘‘obstacle
departure procedure’’ in § 135.611(a)(3).
The FAA agrees with AMOA that
updating the term to ‘‘departure
procedure’’ is necessary in order to
permit the use of other departure
procedures. For example, operators may
conduct a diverse departure procedure
or standard instrument departure
procedure that the FAA has deemed safe
and appropriate based on ensured
obstacle clearance and flyability.
No commenters addressed the FAA’s
proposal to update the text of
§ 135.611(a)(1) to address the transition
from Area Forecasts that the NWS
currently provides to equivalent
information from weather reports,
forecasts, or any combination of such
sources.
C. Exemption History
Since the FAA established the
requirement for HAA operators to use
helicopters equipped with functioning
severe weather detection equipment, the
FAA has received ten petitions for
exemption from the requirement.2 These
HAA operators established in their
petitions that an exemption would not
adversely affect safety because they
would not conduct operations in
accordance with the exemption if they
expected to encounter severe weather
2 The FAA issued the final rule that set forth the
requirement of § 135.611(b) on July 28, 2014. 79 FR
43622. Any certificate holder that seeks exemption
from such a requirement may submit a petition for
exemption pursuant to 14 CFR 11.81.
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Federal Register / Vol. 84, No. 143 / Thursday, July 25, 2019 / Rules and Regulations
conditions along their intended route of
flight.3 As a result, the FAA issued
exemptions to those HAA operators,
which allowed the safe conduct of IFR
departure and approach procedures at
airports that do not have an approved
weather reporting source and when the
helicopter used does not have severe
weather detection equipment (airborne
radar or lightning strike detection
equipment). Each grant of exemption is
valid for two years, unless sooner
superseded or rescinded by the FAA. As
a result, exemption holders need to seek
renewal of their exemptions on a
periodic basis.
III. Discussion of the Final Rule
A. Operations at Locations Without an
Approved Weather Reporting Source
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The FAA’s initial intent of requiring
severe weather detection equipment was
to help the pilot ascertain the weather
in the aircraft’s vicinity.4 The FAA then
determined requiring such equipment,
which includes radar or lightning strike
detection equipment, would reduce the
chances of a pilot inadvertently
encountering instrument meteorological
conditions (IMC). As noted in the
NPRM, the FAA has since determined
this requirement is overly broad,
because it applies even in circumstances
in which the pilot does not reasonably
expect to encounter severe weather
along the route or at the destination.
Training, preflight evaluation of
weather data, and risk analysis
procedures all ensure pilots are
adequately skilled in reasonably
determining whether severe weather
might exist at the destination, the
alternate destination, or along the route
of flight. The requisite training that
pilots undergo on meteorology ensures
pilots have practical knowledge of
weather phenomena, including the
principles of frontal systems, icing, fog,
thunderstorms, and meteorology
hazards applicable to the certificate
holder’s areas of operation. Further,
pilots who conduct HAA operations
receive training on adverse weather
avoidance practices and weather
planning. This training, together with
the pre-flight risk analysis required in
§ 135.617, ensures pilots in command
3 See the following FAA grants of petitions for
exemption: Docket Nos. FAA–2016–5575, FAA–
2016–5028, FAA–2016–2254, FAA–2015–3934,
FAA–2015–3854, FAA–2015–3740, FAA–2015–
2696, FAA–2015–2694, FAA–2015–1868, and
FAA–2015–1867. These exemptions are accessible
at www.regulations.gov.
4 Air Ambulance and Commercial Helicopter
Operations, Part 91 Helicopter Operations, and Part
135 Aircraft Operations; Safety Initiatives and
Miscellaneous Amendments, 75 FR 62640, 62650
(Oct. 12, 2010).
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will reasonably ascertain if severe
weather may exist along the route of a
flight or at the destination airport.
Moreover, pilots in command conduct
risk analyses prior to each flight, which
include determining whether another
HAA operator has rejected a similar
flight request based on the presence of
any severe weather or dangerous
meteorological phenomena. Overall, the
pilot in command will use the
knowledge and skills he or she
maintains pursuant to the provisions of
subpart L of part 135 in determining the
likelihood of encountering severe
weather. These requirements obviate the
need for severe weather detection
equipment when he or she does not
reasonably expect to encounter severe
weather.
As the FAA explained in the NPRM,
§ 135.611(b) inadvertently restricted
HAA operations conducted when no
severe weather is present at the airport
or along the route.5 Therefore, the FAA
anticipates this amendment will
increase the number of IFR operations
because the IFR infrastructure would be
available to more operators. Such an
increase in the frequency of IFR
operations will minimize operations
under VFR while in marginal visual
meteorological conditions, and thereby
increase safety.
The FAA emphasizes, however, that if
a reasonable expectation of severe
weather exists prior to or during the
flight, at the destination, the alternate
destination, or along the route of flight,
the helicopter must be equipped with
functioning severe weather detection
equipment. In the absence of such
equipment, the pilot in command must
decline the flight, as appropriate.
B. Area Forecasts
The FAA, in coordination with the
NWS, expects to discontinue Area
Forecasts, currently used as flight
planning and pilot weather briefing aids
and transition to digital and graphical
alternatives already being produced by
NWS.6 While the Area Forecast met
aviation weather information needs for
FR at 15333.
Weather Product Change: Transition of
Select Area Forecasts (FAs) to Digital and Graphical
Alternatives, 79 FR 35211 (June 19, 2014). In the
Notice, the FAA recommended that NWS transition
six area forecasts (FA) covering separate
geographical areas of the contiguous United States
and one area forecast covering Hawaii to digital and
graphical alternatives already being produced by
NWS. The following FAs affected by this transition
include FAUS41 (BOS), FAUS42 (MIA), FAUS43
(CHI), FAUS44 (DFW), FAUS45 (SLC), and FAUS46
(SFO). See Information for Operators 17013,
Retirement of the NWS FA for the Contiguous
United States (Aug. 28, 2017), available at https://
www.faa.gov/other_visit/aviation_industry/airline_
operators/airline_safety/info/all_infos/.
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many years, today the NWS provides
equivalent information through a
number of other reliable alternatives.7
NWS is currently engaged in
transitioning Area Forecasts, which
pilots currently use for flight planning
and weather briefing aids, to digital and
graphical alternatives. In order to
address this upcoming transition, this
rulemaking updates the wording of
§ 135.611(a)(1) from ‘‘area forecast’’ to
‘‘weather reports, forecasts, or any
combination of them.’’
C. Departure Procedures
This rule also updates requirements
in § 135.611 regarding HAA departure
procedures (DP) to include additional
types of DP that are currently acceptable
for use. A DP is necessary when a pilot
in command intends to depart from an
airport in weather conditions less than
VFR. Several types of DPs, however,
exist in addition to an ‘‘obstacle
departure procedure’’ cited in the
current regulation. For example, pilots
in command may use a diverse DP or
standard instrument DP. Based on an
evaluation of the potential departure
procedures, the FAA has determined
that any of these DPs may be
appropriate and safe, based on ensured
obstacle clearance and flyability.
Overall, removing the word ‘‘obstacle’’
permits additional types of DPs, such as
departures from an airport in weather
conditions that are less than VFR.
While this rule increases flexibility, it
does not decrease the level of safety of
HAA departures. The pilot in command
remains responsible for using such an
alternate procedure only after
determining it is appropriate for the
location of departure. Accordingly, the
FAA amends the wording in
§ 135.611(a)(3) from ‘‘the published
Obstacle Departure Procedure’’ to ‘‘a
published departure procedure.’’
IV. Regulatory Notices and Analyses
A. Regulatory Evaluation
Changes to Federal regulations must
undergo several economic analyses.
First, Executive Order 12866 and
Executive Order 13563 direct 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 requires agencies to analyze the
economic impact of regulatory changes
on small entities. Third, the Trade
Agreements Act of 1979 prohibits
agencies from setting standards that
create unnecessary obstacles to the
7 See
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25JYR1
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foreign commerce of the United States.
In developing U.S. standards, the 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 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).
The FAA determined this rule would
result in cost savings with no reduction
in safety and no additional costs. This
rule removes unnecessary limits on
certain HAA operations. These limits
effectively reduced the number of HAA
operations without improving aviation
safety.8 In the U.S., there are 65
authorized HAA certificate holders
utilizing 1,208 approved air ambulance
helicopters that may receive regulatory
relief from this rule by allowing certain
HAA operations that were previously
restricted. In addition, the FAA has
granted exemptions to HAA operators
who asked for relief from these
limitations. This rule would also
provide savings by avoiding the need to
petition and issue exemptions.
The FAA received five comments in
response to the NPRM, all of which
support the amendment to remove the
requirement for severe weather
detection equipment in § 135.611(b). As
previously discussed, the commenters
agreed with the FAA that the
amendment will encourage pilots to fly
under IFR, which is safer than flights
operated under VFR, for flights
conducted under marginal VFR
conditions. The FAA did not receive
comments on the Regulatory Evaluation
in the NPRM. This rule finalizes all
amendments the NPRM included, with
no modifications.
The FAA was able to quantify a small
savings to HAA operators and the FAA
from avoided administrative costs
associated with processing future
petitions for exemptions. As presented
in the NPRM, the FAA estimates the
avoided administrative costs of
submitting and reviewing a petition of
exemption, including a renewal, to be
about $1,500/exemption for both HAA
operators and the FAA based on
information from the FAA’s Flight
Standards Service. The FAA estimates
8 There is a high degree of data uncertainty
regarding the number of HAA operations affected
by this rule. The FAA did not identify data to
quantify the potential benefits and savings from
removing limitations on HAA Operations.
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this rule will avoid five exemptions,
including renewals, per year.9 This
amounts to $7,500 of savings to HAA
operators and the FAA per year. Over a
five-year period, the total present value
savings from avoided administrative
costs associated with petitions is about
$34,000 at a three percent discount rate
or about $31,000 at a seven percent
discount rate.
As previously discussed, this rule will
also result in qualitative safety benefits
by increasing the number of IFR
operations because the IFR
infrastructure would be available and
used by more operators. Increasing the
frequency of IFR operations would
minimize operations under VFR while
in marginal visual meteorological
conditions, and thereby increase
aviation safety.
The FAA has determined this final
rule provides small cost savings and
improved safety benefits and is not a
‘‘significant regulatory action’’ as
defined in section 3(f) of Executive
Order 12866.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act of
1980, Public Law 96–354, 94 Stat. 1164
(Sept. 19, 1980) (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.’’ Id. section 2(b). The
Regulatory Flexibility Act covers a wide
range of small entities, including small
businesses, not-for-profit organizations,
and small governmental jurisdictions.
Agencies must perform a review to
determine whether a rule will have a
significant economic impact on a
substantial number of small entities. If
the agency determines that it will, the
agency must prepare a regulatory
flexibility analysis as described in the
RFA. However, if an agency does not
expect a rule to have a significant
economic impact on a substantial
number of small entities, section 605(b)
of the RFA provides that the head of the
agency may so certify and a regulatory
flexibility analysis is not required. The
certification must include a statement
providing the factual basis for this
9 From 2015 to 2016, the FAA granted ten
petitions for exemption to HAA operators; about
five such exemptions per year require renewal. As
previously discussed, each grant of exemption is
valid for two years, unless sooner superseded or
rescinded by the FAA. As a result, current
exemption holders need to seek renewal of their
exemptions on a periodic basis.
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determination, and the reasoning should
be clear.
As this final rule removes an
unnecessary limitation on the operation
of HAAs without reducing aviation
safety, it will relieve HAA operators and
the FAA the costs associated with future
petitions. This rule will have a positive
impact on affected small entities. Any
such impact, however, will not be
significant. Therefore, the head of the
agency certifies the FAA does not
expect this rule to have a significant
economic impact on a substantial
number of small entities.
C. International Trade Impact
Assessment
The Trade Agreements Act of 1979,
Public Law 96–39, 93 Stat. 144 (July 26,
1979), as amended by the Uruguay
Round Agreements Act, Public Law
103–465, 108 Stat. 4809 (Dec. 8, 1994),
prohibits Federal agencies from
establishing standards or engaging in
related activities that create unnecessary
obstacles to the foreign commerce of the
United States. Pursuant to these Acts,
the establishment of standards is not
considered an unnecessary obstacle to
the foreign commerce of the United
States, so long as the standard has a
legitimate domestic objective, such as
the protection of safety, and does not
operate in a manner that excludes
imports that meet this objective. The
statute also requires consideration of
international standards and, where
appropriate, that they be the basis for
U.S. standards. The FAA has assessed
the potential effect of this rule and
determined that the rule will have the
same impact on international and
domestic flights and is a safety rule.
Accordingly, the FAA has determined
this final rule is consistent with the
Trade Agreements Act.
D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates
Reform Act of 1995, Public Law 104–4,
109 Stat. 64 (Mar. 22, 1995), 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 $155
million in lieu of $100 million. This
rule does not contain such a mandate;
therefore, the requirements of Title II of
the Act do not apply.
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E. Paperwork Reduction Act
The Paperwork Reduction Act of
1995, Public Law 104–13, 109 Stat. 163
(May 22, 1995), requires the FAA
consider the impact of any information
collection burdens imposed on the
public. 44 U.S.C. 3507(d). The FAA has
determined that there would be no new
requirement for information collection
associated with this rule.
F. 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 this rule does not
contravene any ICAO Standards and
Recommended Practices.
G. Environmental Analysis
FAA Order 1050.1F 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.10 The FAA has
determined this rulemaking action
qualifies for the categorical exclusion
identified in paragraph 5–6.6 and
involves no extraordinary
circumstances.
V. Executive Order Determinations
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A. Executive Order 13132, Federalism
The FAA has analyzed this rule under
the principles and criteria of Executive
Order 13132, Federalism (Aug. 4, 1999).
The agency has determined this action
would 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. Therefore,
this rule will not have federalism
implications.
B. Executive Order 13211, Regulations
That Significantly Affect Energy Supply
Distribution, or Use
The FAA analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations that
Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The
agency has determined that this rule
would not be a ‘‘significant energy
10 U.S. Department of Transportation, FAA,
Environmental Impacts: Policies and Procedures
(July 16, 2015), available at https://www.faa.gov/
documentLibrary/media/Order/FAA_Order_1050_
1F.pdf.
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action’’ under the executive order and
would not be likely to have a significant
adverse effect on the supply,
distribution, or use of energy.
C. Executive Order 13609, International
Cooperation
Executive Order 13609, Promoting
International Regulatory Cooperation
(May 1, 2012), promotes international
regulatory cooperation to meet shared
challenges involving health, safety,
labor, security, environmental, and
other issues and to reduce, eliminate, or
prevent unnecessary differences in
regulatory requirements. The FAA has
analyzed this action under the policies
and agency responsibilities of Executive
Order 13609, and has determined that
this action will have no effect on
international regulatory cooperation.
D. Executive Order 13771, Reducing
Regulation and Controlling Regulatory
Costs
This final rule is a deregulatory action
under Executive Order 13771, Reducing
Regulation and Controlling Regulatory
Costs (Jan. 30, 2017). Details on the cost
savings of this rule are in the Regulatory
Evaluation section, as previously noted.
VI. Additional Information
An electronic copy of rulemaking
documents may be obtained from the
internet by—
1. Searching the Federal eRulemaking
Portal (https://www.regulations.gov);
2. Visiting the FAA’s Regulations and
Policies web page at https://www.faa
.gov/regulations_policies or
3. Accessing the Government Printing
Office’s web page at https://www.gpo
.gov/fdsys/.
Copies may also be obtained by
sending a request to the Federal
Aviation Administration, Office of
Rulemaking, ARM–1, 800 Independence
Avenue SW, Washington, DC 20591, or
by calling (202) 267–9677. Commenters
must identify the docket or notice
number of this rulemaking.
All documents the FAA considered in
developing this rule, including
economic analyses and technical
reports, may be accessed from the
internet through the Federal
eRulemaking Portal referenced in item
(1) above.
List of Subjects in 14 CFR Part 135
Air transportation, Aircraft, and
Aviation safety.
The Amendment
In consideration of the foregoing, the
FAA amends chapter I of title 14, Code
of Federal Regulations as follows:
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35823
PART 135—OPERATING
REQUIREMENTS: COMMUTER AND
ON DEMAND OPERATIONS AND
RULES GOVERNING PERSONS ON
BOARD SUCH AIRCRAFT
1. The authority citation for part 135
continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g), 40113,
41706, 44701–44702, 44705, 44709, 44711–
44713, 44715–44717, 44722, 44730, 45101–
45105; Pub. L. 112–95, 126 Stat. 58.
2. Amend § 135.611 by revising
paragraphs (a)(1) and (3) and (b) to read
as follows:
■
§ 135.611 IFR operations at locations
without weather reporting.
(a) * * *
(1) The certificate holder must obtain
a weather report from a weather
reporting facility operated by the NWS,
a source approved by the NWS, or a
source approved by the FAA, that is
located within 15 nautical miles of the
airport. If a weather report is not
available, the certificate holder may
obtain weather reports, forecasts, or any
combination of them from the NWS, a
source approved by the NWS, or a
source approved by the FAA, for
information regarding the weather
observed in the vicinity of the airport;
*
*
*
*
*
(3) In Class G airspace, IFR departures
with visual transitions are authorized
only after the pilot in command
determines that the weather conditions
at the departure point are at or above
takeoff minimums depicted in a
published departure procedure or VFR
minimum ceilings and visibilities in
accordance with § 135.609.
*
*
*
*
*
(b) Each helicopter air ambulance
operated under this section must be
equipped with functioning severe
weather detection equipment, unless the
pilot in command reasonably
determines severe weather will not be
encountered at the destination, the
alternate destination, or along the route
of flight.
*
*
*
*
*
Issued under authority provided by 49
U.S.C. 106(f), 44701(a), and 44730 in
Washington, DC, on July 17, 2019.
Daniel K. Elwell,
Acting FAA Administrator.
[FR Doc. 2019–15840 Filed 7–24–19; 8:45 am]
BILLING CODE 4910–13–P
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Agencies
[Federal Register Volume 84, Number 143 (Thursday, July 25, 2019)]
[Rules and Regulations]
[Pages 35820-35823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15840]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 135
[Docket No.: FAA-2019-0564; Amendment No. 135-141]
RIN 2120-AK94
IFR Operations at Locations Without Weather Reporting
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: The FAA is amending a regulation to allow helicopter air
ambulance (HAA) operators to conduct instrument flight rules departure
and approach procedures at airports and heliports that do not have an
approved weather reporting source. This rule applies to HAA aircraft
without functioning severe weather detection equipment (airborne radar
or lightning strike detection equipment), to permit instrument flight
rules departure and approach procedures when the pilot in command
reasonably determines that the operation will not encounter severe
weather at the destination, the alternate destination, or along the
route of flight. This amended rule also updates requirements to address
the discontinuance of area forecasts and certain requirements
concerning HAA departure procedures.
DATES: This final rule is effective August 26, 2019.
ADDRESSES: For information on where to obtain copies of rulemaking
documents and other information related to this final rule, see ``How
To Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this action, contact Tom Luipersbeck, Air Transportation Division, 135
Air Carrier Operations Branch, AFS-250, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591;
telephone 202-267-8166; email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This rule finalizes the notice of proposed rulemaking entitled IFR
Operations at Locations Without Weather Reporting (the NPRM).\1\ The
NPRM proposed permitting HAA departure and approach procedures
conducted under instrument flight rules (IFR) when helicopters do not
have functional severe weather detection equipment and when the airport
or heliport at which the departure or approach will occur does not have
an approved weather reporting source. The proposed regulatory text
specified that such procedures could only occur when the pilot in
command does not expect to encounter severe weather at the destination,
the alternate destination, or along the route of flight. The NPRM
further proposed updates to address the transition from Area Forecasts
that the National Weather Service (NWS) currently provides to
equivalent information from weather reports, forecasts, or any
combination thereof. In addition, the NPRM proposed amending the term
``the published Obstacle Departure Procedure'' to ``a published
departure procedure.'' This rule finalizes all amendments the NPRM
included, with no modifications.
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\1\ 83 FR 15332 (Apr. 10, 2018).
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II. Background
A. Authority for This Rulemaking
The FAA's authority to issue rules on aviation safety is codified
in Title 49 of the United States Code. The FAA promulgates this rule
under the general authority described in 49 U.S.C. 106, which includes
a detailed description of the agency's authority. Section 106(f)
establishes that the Administrator may promulgate and revise
regulations as are necessary to carry out the FAA's functions.
Furthermore, Sec. 44701(a) requires the Administrator to promote safe
flight of civil aircraft in air commerce by prescribing regulations and
setting minimum standards for other practices, methods and procedures
necessary for safety in air commerce and national security. Moreover,
Sec. 44730 addresses HAA operations and authorizes the Administrator
to engage in rulemaking to ensure safety of part 135 certificate
holders that engage in such operations.
B. Comments in Response to Proposed Rule
The FAA received five comments in response to the NPRM, all of
which support the proposed amendment to remove the requirement for
severe weather detection equipment in 14 CFR 135.611(b). The commenters
generally agreed with the FAA that the amendment will encourage pilots
to fly under IFR, which is safer than flights operated under visual
flight rules (VFR), for flights conducted under marginal VFR
conditions. One comment from an individual suggested the FAA consider
further changes, such as requiring utilization of ``lower altitude
airway structures'' and modifications to rules concerning operations in
icing conditions. The FAA appreciates the suggestions, but finds that
such amendments to the final rule would be outside the scope of the
proposal.
The Air Medical Operators Association (AMOA) requested the FAA
clarify in the final rule that the use of the term ``airport'' in Sec.
135.611 includes heliports. The FAA agrees that the term ``airport,''
as defined in 14 CFR 1.1 and as used throughout the FAA's regulations,
means an area of land or water that is used or intended to be used for
the landing and takeoff of aircraft. This definition is broad, and
includes heliports.
Additionally, AMOA supported the proposed amendment to remove the
word ``obstacle'' from the term ``obstacle departure procedure'' in
Sec. 135.611(a)(3). The FAA agrees with AMOA that updating the term to
``departure procedure'' is necessary in order to permit the use of
other departure procedures. For example, operators may conduct a
diverse departure procedure or standard instrument departure procedure
that the FAA has deemed safe and appropriate based on ensured obstacle
clearance and flyability.
No commenters addressed the FAA's proposal to update the text of
Sec. 135.611(a)(1) to address the transition from Area Forecasts that
the NWS currently provides to equivalent information from weather
reports, forecasts, or any combination of such sources.
C. Exemption History
Since the FAA established the requirement for HAA operators to use
helicopters equipped with functioning severe weather detection
equipment, the FAA has received ten petitions for exemption from the
requirement.\2\ These HAA operators established in their petitions that
an exemption would not adversely affect safety because they would not
conduct operations in accordance with the exemption if they expected to
encounter severe weather
[[Page 35821]]
conditions along their intended route of flight.\3\ As a result, the
FAA issued exemptions to those HAA operators, which allowed the safe
conduct of IFR departure and approach procedures at airports that do
not have an approved weather reporting source and when the helicopter
used does not have severe weather detection equipment (airborne radar
or lightning strike detection equipment). Each grant of exemption is
valid for two years, unless sooner superseded or rescinded by the FAA.
As a result, exemption holders need to seek renewal of their exemptions
on a periodic basis.
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\2\ The FAA issued the final rule that set forth the requirement
of Sec. 135.611(b) on July 28, 2014. 79 FR 43622. Any certificate
holder that seeks exemption from such a requirement may submit a
petition for exemption pursuant to 14 CFR 11.81.
\3\ See the following FAA grants of petitions for exemption:
Docket Nos. FAA-2016-5575, FAA-2016-5028, FAA-2016-2254, FAA-2015-
3934, FAA-2015-3854, FAA-2015-3740, FAA-2015-2696, FAA-2015-2694,
FAA-2015-1868, and FAA-2015-1867. These exemptions are accessible at
www.regulations.gov.
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III. Discussion of the Final Rule
A. Operations at Locations Without an Approved Weather Reporting Source
The FAA's initial intent of requiring severe weather detection
equipment was to help the pilot ascertain the weather in the aircraft's
vicinity.\4\ The FAA then determined requiring such equipment, which
includes radar or lightning strike detection equipment, would reduce
the chances of a pilot inadvertently encountering instrument
meteorological conditions (IMC). As noted in the NPRM, the FAA has
since determined this requirement is overly broad, because it applies
even in circumstances in which the pilot does not reasonably expect to
encounter severe weather along the route or at the destination.
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\4\ Air Ambulance and Commercial Helicopter Operations, Part 91
Helicopter Operations, and Part 135 Aircraft Operations; Safety
Initiatives and Miscellaneous Amendments, 75 FR 62640, 62650 (Oct.
12, 2010).
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Training, preflight evaluation of weather data, and risk analysis
procedures all ensure pilots are adequately skilled in reasonably
determining whether severe weather might exist at the destination, the
alternate destination, or along the route of flight. The requisite
training that pilots undergo on meteorology ensures pilots have
practical knowledge of weather phenomena, including the principles of
frontal systems, icing, fog, thunderstorms, and meteorology hazards
applicable to the certificate holder's areas of operation. Further,
pilots who conduct HAA operations receive training on adverse weather
avoidance practices and weather planning. This training, together with
the pre-flight risk analysis required in Sec. 135.617, ensures pilots
in command will reasonably ascertain if severe weather may exist along
the route of a flight or at the destination airport. Moreover, pilots
in command conduct risk analyses prior to each flight, which include
determining whether another HAA operator has rejected a similar flight
request based on the presence of any severe weather or dangerous
meteorological phenomena. Overall, the pilot in command will use the
knowledge and skills he or she maintains pursuant to the provisions of
subpart L of part 135 in determining the likelihood of encountering
severe weather. These requirements obviate the need for severe weather
detection equipment when he or she does not reasonably expect to
encounter severe weather.
As the FAA explained in the NPRM, Sec. 135.611(b) inadvertently
restricted HAA operations conducted when no severe weather is present
at the airport or along the route.\5\ Therefore, the FAA anticipates
this amendment will increase the number of IFR operations because the
IFR infrastructure would be available to more operators. Such an
increase in the frequency of IFR operations will minimize operations
under VFR while in marginal visual meteorological conditions, and
thereby increase safety.
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\5\ 83 FR at 15333.
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The FAA emphasizes, however, that if a reasonable expectation of
severe weather exists prior to or during the flight, at the
destination, the alternate destination, or along the route of flight,
the helicopter must be equipped with functioning severe weather
detection equipment. In the absence of such equipment, the pilot in
command must decline the flight, as appropriate.
B. Area Forecasts
The FAA, in coordination with the NWS, expects to discontinue Area
Forecasts, currently used as flight planning and pilot weather briefing
aids and transition to digital and graphical alternatives already being
produced by NWS.\6\ While the Area Forecast met aviation weather
information needs for many years, today the NWS provides equivalent
information through a number of other reliable alternatives.\7\ NWS is
currently engaged in transitioning Area Forecasts, which pilots
currently use for flight planning and weather briefing aids, to digital
and graphical alternatives. In order to address this upcoming
transition, this rulemaking updates the wording of Sec. 135.611(a)(1)
from ``area forecast'' to ``weather reports, forecasts, or any
combination of them.''
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\6\ Aviation Weather Product Change: Transition of Select Area
Forecasts (FAs) to Digital and Graphical Alternatives, 79 FR 35211
(June 19, 2014). In the Notice, the FAA recommended that NWS
transition six area forecasts (FA) covering separate geographical
areas of the contiguous United States and one area forecast covering
Hawaii to digital and graphical alternatives already being produced
by NWS. The following FAs affected by this transition include FAUS41
(BOS), FAUS42 (MIA), FAUS43 (CHI), FAUS44 (DFW), FAUS45 (SLC), and
FAUS46 (SFO). See Information for Operators 17013, Retirement of the
NWS FA for the Contiguous United States (Aug. 28, 2017), available
at https://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/.
\7\ See id.
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C. Departure Procedures
This rule also updates requirements in Sec. 135.611 regarding HAA
departure procedures (DP) to include additional types of DP that are
currently acceptable for use. A DP is necessary when a pilot in command
intends to depart from an airport in weather conditions less than VFR.
Several types of DPs, however, exist in addition to an ``obstacle
departure procedure'' cited in the current regulation. For example,
pilots in command may use a diverse DP or standard instrument DP. Based
on an evaluation of the potential departure procedures, the FAA has
determined that any of these DPs may be appropriate and safe, based on
ensured obstacle clearance and flyability. Overall, removing the word
``obstacle'' permits additional types of DPs, such as departures from
an airport in weather conditions that are less than VFR.
While this rule increases flexibility, it does not decrease the
level of safety of HAA departures. The pilot in command remains
responsible for using such an alternate procedure only after
determining it is appropriate for the location of departure.
Accordingly, the FAA amends the wording in Sec. 135.611(a)(3) from
``the published Obstacle Departure Procedure'' to ``a published
departure procedure.''
IV. Regulatory Notices and Analyses
A. Regulatory Evaluation
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 and Executive Order 13563 direct
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
requires agencies to analyze the economic impact of regulatory changes
on small entities. Third, the Trade Agreements Act of 1979 prohibits
agencies from setting standards that create unnecessary obstacles to
the
[[Page 35822]]
foreign commerce of the United States. In developing U.S. standards,
the 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 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).
The FAA determined this rule would result in cost savings with no
reduction in safety and no additional costs. This rule removes
unnecessary limits on certain HAA operations. These limits effectively
reduced the number of HAA operations without improving aviation
safety.\8\ In the U.S., there are 65 authorized HAA certificate holders
utilizing 1,208 approved air ambulance helicopters that may receive
regulatory relief from this rule by allowing certain HAA operations
that were previously restricted. In addition, the FAA has granted
exemptions to HAA operators who asked for relief from these
limitations. This rule would also provide savings by avoiding the need
to petition and issue exemptions.
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\8\ There is a high degree of data uncertainty regarding the
number of HAA operations affected by this rule. The FAA did not
identify data to quantify the potential benefits and savings from
removing limitations on HAA Operations.
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The FAA received five comments in response to the NPRM, all of
which support the amendment to remove the requirement for severe
weather detection equipment in Sec. 135.611(b). As previously
discussed, the commenters agreed with the FAA that the amendment will
encourage pilots to fly under IFR, which is safer than flights operated
under VFR, for flights conducted under marginal VFR conditions. The FAA
did not receive comments on the Regulatory Evaluation in the NPRM. This
rule finalizes all amendments the NPRM included, with no modifications.
The FAA was able to quantify a small savings to HAA operators and
the FAA from avoided administrative costs associated with processing
future petitions for exemptions. As presented in the NPRM, the FAA
estimates the avoided administrative costs of submitting and reviewing
a petition of exemption, including a renewal, to be about $1,500/
exemption for both HAA operators and the FAA based on information from
the FAA's Flight Standards Service. The FAA estimates this rule will
avoid five exemptions, including renewals, per year.\9\ This amounts to
$7,500 of savings to HAA operators and the FAA per year. Over a five-
year period, the total present value savings from avoided
administrative costs associated with petitions is about $34,000 at a
three percent discount rate or about $31,000 at a seven percent
discount rate.
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\9\ From 2015 to 2016, the FAA granted ten petitions for
exemption to HAA operators; about five such exemptions per year
require renewal. As previously discussed, each grant of exemption is
valid for two years, unless sooner superseded or rescinded by the
FAA. As a result, current exemption holders need to seek renewal of
their exemptions on a periodic basis.
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As previously discussed, this rule will also result in qualitative
safety benefits by increasing the number of IFR operations because the
IFR infrastructure would be available and used by more operators.
Increasing the frequency of IFR operations would minimize operations
under VFR while in marginal visual meteorological conditions, and
thereby increase aviation safety.
The FAA has determined this final rule provides small cost savings
and improved safety benefits and is not a ``significant regulatory
action'' as defined in section 3(f) of Executive Order 12866.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980, Public Law 96-354, 94 Stat.
1164 (Sept. 19, 1980) (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.''
Id. section 2(b). The Regulatory Flexibility Act covers a wide range of
small entities, including small businesses, not-for-profit
organizations, and small governmental jurisdictions. Agencies must
perform a review to determine whether a rule will have a significant
economic impact on a substantial number of small entities. If the
agency determines that it will, the agency must prepare a regulatory
flexibility analysis as described in the RFA. However, if an agency
does not expect a rule to have a significant economic impact on a
substantial number of small entities, section 605(b) of the RFA
provides that the head of the agency may so certify and a regulatory
flexibility analysis is not required. The certification must include a
statement providing the factual basis for this determination, and the
reasoning should be clear.
As this final rule removes an unnecessary limitation on the
operation of HAAs without reducing aviation safety, it will relieve HAA
operators and the FAA the costs associated with future petitions. This
rule will have a positive impact on affected small entities. Any such
impact, however, will not be significant. Therefore, the head of the
agency certifies the FAA does not expect this rule to have a
significant economic impact on a substantial number of small entities.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979, Public Law 96-39, 93 Stat. 144
(July 26, 1979), as amended by the Uruguay Round Agreements Act, Public
Law 103-465, 108 Stat. 4809 (Dec. 8, 1994), prohibits Federal agencies
from establishing standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards. The FAA has
assessed the potential effect of this rule and determined that the rule
will have the same impact on international and domestic flights and is
a safety rule. Accordingly, the FAA has determined this final rule is
consistent with the Trade Agreements Act.
D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995, Public Law
104-4, 109 Stat. 64 (Mar. 22, 1995), 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 $155 million in lieu of $100 million. This rule does not contain
such a mandate; therefore, the requirements of Title II of the Act do
not apply.
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E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat.
163 (May 22, 1995), requires the FAA consider the impact of any
information collection burdens imposed on the public. 44 U.S.C.
3507(d). The FAA has determined that there would be no new requirement
for information collection associated with this rule.
F. 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 this rule does not contravene any ICAO Standards and
Recommended Practices.
G. Environmental Analysis
FAA Order 1050.1F 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.\10\ The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 5-6.6 and involves no extraordinary
circumstances.
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\10\ U.S. Department of Transportation, FAA, Environmental
Impacts: Policies and Procedures (July 16, 2015), available at
https://www.faa.gov/documentLibrary/media/Order/FAA_Order_1050_1F.pdf.
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V. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this rule under the principles and criteria of
Executive Order 13132, Federalism (Aug. 4, 1999). The agency has
determined this action would 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. Therefore, this rule will not have
federalism implications.
B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply Distribution, or Use
The FAA analyzed this rule under Executive Order 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The agency has determined that
this rule would not be a ``significant energy action'' under the
executive order and would not be likely to have a significant adverse
effect on the supply, distribution, or use of energy.
C. Executive Order 13609, International Cooperation
Executive Order 13609, Promoting International Regulatory
Cooperation (May 1, 2012), promotes international regulatory
cooperation to meet shared challenges involving health, safety, labor,
security, environmental, and other issues and to reduce, eliminate, or
prevent unnecessary differences in regulatory requirements. The FAA has
analyzed this action under the policies and agency responsibilities of
Executive Order 13609, and has determined that this action will have no
effect on international regulatory cooperation.
D. Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs
This final rule is a deregulatory action under Executive Order
13771, Reducing Regulation and Controlling Regulatory Costs (Jan. 30,
2017). Details on the cost savings of this rule are in the Regulatory
Evaluation section, as previously noted.
VI. Additional Information
An electronic copy of rulemaking documents may be obtained from the
internet by--
1. Searching the Federal eRulemaking Portal (https://www.regulations.gov);
2. Visiting the FAA's Regulations and Policies web page at https://www.faa .gov/regulations_policies or
3. Accessing the Government Printing Office's web page at https://www.gpo .gov/fdsys/.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.
Commenters must identify the docket or notice number of this
rulemaking.
All documents the FAA considered in developing this rule, including
economic analyses and technical reports, may be accessed from the
internet through the Federal eRulemaking Portal referenced in item (1)
above.
List of Subjects in 14 CFR Part 135
Air transportation, Aircraft, and Aviation safety.
The Amendment
In consideration of the foregoing, the FAA amends chapter I of
title 14, Code of Federal Regulations as follows:
PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON DEMAND OPERATIONS
AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT
0
1. The authority citation for part 135 continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 40113, 41706, 44701-44702,
44705, 44709, 44711-44713, 44715-44717, 44722, 44730, 45101-45105;
Pub. L. 112-95, 126 Stat. 58.
0
2. Amend Sec. 135.611 by revising paragraphs (a)(1) and (3) and (b) to
read as follows:
Sec. 135.611 IFR operations at locations without weather reporting.
(a) * * *
(1) The certificate holder must obtain a weather report from a
weather reporting facility operated by the NWS, a source approved by
the NWS, or a source approved by the FAA, that is located within 15
nautical miles of the airport. If a weather report is not available,
the certificate holder may obtain weather reports, forecasts, or any
combination of them from the NWS, a source approved by the NWS, or a
source approved by the FAA, for information regarding the weather
observed in the vicinity of the airport;
* * * * *
(3) In Class G airspace, IFR departures with visual transitions are
authorized only after the pilot in command determines that the weather
conditions at the departure point are at or above takeoff minimums
depicted in a published departure procedure or VFR minimum ceilings and
visibilities in accordance with Sec. 135.609.
* * * * *
(b) Each helicopter air ambulance operated under this section must
be equipped with functioning severe weather detection equipment, unless
the pilot in command reasonably determines severe weather will not be
encountered at the destination, the alternate destination, or along the
route of flight.
* * * * *
Issued under authority provided by 49 U.S.C. 106(f), 44701(a),
and 44730 in Washington, DC, on July 17, 2019.
Daniel K. Elwell,
Acting FAA Administrator.
[FR Doc. 2019-15840 Filed 7-24-19; 8:45 am]
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