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[Federal Register Volume 79, Number 144 (Monday, July 28, 2014)]
[Rules and Regulations]
[Pages 43619-43622]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17729]

[[Page 43619]]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 135

[Docket No.: FAA-2014-0502; Amdt. No. 135-131]
RIN 2120-AK49

Departing IFR/VFR When Weather Reporting Is Not Available

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Direct final rule; request for comments.

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SUMMARY: This action will permit the pilot in command of a helicopter 
air ambulance to assess the weather at a departure point where current 
weather observations are not available and allow the pilot to depart if 
the observed ceiling and visibility is greater than certain weather 
minimums. This action will allow a pilot to utilize the minimum takeoff 
visibilities depicted in a published obstacle departure procedure, or 
in the absence of such a procedure, when the pilot observed ceiling and 
visibility is greater than the minimum ceiling and visibility 
limitations required by specific helicopter air ambulance rules. This 
change to the current regulation will permit helicopter air ambulance 
flights to enter the National Airspace System under Instrument Flight 
Rules when visibilities and ceilings are below Visual Flight Rules, 
thus increasing the safety of the flight.

DATES: Effective April 22, 2015.
    Submit comments on or before September 26, 2014. If we receive an 
adverse comment or notice of intent to file an adverse comment, we will 
advise the public by publishing a document in the Federal Register 
withdrawing the direct final rule before the effective date of the 
final rule.

ADDRESSES: You may send comments identified by docket number FAA-2010-
0982 using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room 
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at 202-493-2251.
    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments 
from the public to better inform its rulemaking process. DOT posts 
these comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.
    Docket: Background documents or comments received may be read at 
http://www.regulations.gov at any time. Follow the online instructions 
for accessing the docket or Docket Operations in Room W12-140 of the 
West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, 
DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this action, contact Andrew C. Pierce, Air Transportation Division, 135 
Air Carrier Operations Branch, AFS-250, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591; 
telephone 202-267-8238; email andy.pierce@faa.gov.
    For legal questions concerning this action, contact Nancy Sanchez, 
AGC-220, Federal Aviation Administration, 800 Independence Avenue SW., 
Washington, DC 20591; telephone 202-267-7280 (office); email 
nancy.sanchez@faa.gov.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules on aviation safety is found in 
Title 49 of the United States Code. This rulemaking is promulgated 
under the general authority described in 49 U.S.C. 106(f) and 44701(a), 
and the specific authority set forth in section 306, Safety of Air 
Ambulance Operations, of the FAA Modernization and Reform Act of 2012 
(Pub. L. 112-95), which is now codified at 49 U.S.C. 44730.

The Direct Final Rule Procedure

    The FAA is adopting this direct final rule without prior notice and 
prior public comment as a direct final rule because this rule is not 
controversial, is not expected to result in the receipt of an adverse 
comment, and a notice of proposed rulemaking is not necessary. This 
change to the regulation provides greater opportunity for Helicopter 
Air Ambulance (HAA) operations to enter the National Airspace System 
(NAS) under Instrument Flight Rules (IFR) than previously permitted. 
Without this amendment, helicopter air ambulances will be unable to 
depart under IFR from landing sites lacking weather reporting, until 
Visual Flight Rules (VFR) appropriate to the class of airspace above 
prevail. The Regulatory Policies and Procedures of the Department of 
Transportation (DOT) (44 FR 1134; February 26, 1979) provide that to 
the maximum extent possible, operating administrations for the DOT 
should provide an opportunity for public comment on regulations issued 
without prior notice. Accordingly, the FAA invites interested persons 
to participate in this rulemaking by submitting written comments, data, 
or views. The agency also invites comments relating to the economic, 
environmental, energy, or federalism impacts that might result from 
adopting this final rule.
    A direct final rule will take effect on a specified date unless the 
FAA receives an adverse comment or notice of intent to file an adverse 
comment within the comment period. An adverse comment explains why a 
rule would be inappropriate, or would be ineffective or unacceptable 
without a change. It may challenge the rule's underlying premise or 
approach. Under the direct final rule process, we do not consider the 
following types of comments to be adverse:
    (1) A comment recommending another rule change, in addition to the 
change in the direct final rule at issue. We consider the comment 
adverse, however, if the commenter states why the direct final rule 
would be ineffective without the change.
    (2) A frivolous or insubstantial comment.
    If we receive an adverse comment or notice of intent to file an 
adverse comment, we will advise the public by publishing a document in 
the Federal Register before the effective date of the final rule. This 
document may withdraw the direct final rule in whole or in part. If we 
withdraw a direct final rule because of an adverse comment, we may 
incorporate the commenter's recommendation into another direct final 
rule or may publish a notice of proposed rulemaking.
    If we do not receive an adverse comment or notice of intent to file 
an adverse comment, we will publish a confirmation document in the 
Federal Register, generally within 15 days after the comment period 
closes. The confirmation document tells the public the effective date 
of the rule.
    See the ``Additional Information'' section for information on how 
to comment on this direct final rule and

[[Page 43620]]

how the FAA will handle comments received. The ``Additional 
Information'' section also contains related information about the 
docket, privacy, the handling of proprietary or confidential business 
information. In addition, there is information on obtaining copies of 
related rulemaking documents.

I. Overview of the Direct Final Rule

    This direct final rule will permit the pilot in command of a 
helicopter air ambulance to assess the weather at a departure point 
where current weather observations are not available and to depart if 
the pilot's observed ceiling and visibility is greater than certain 
weather minimums. Applicable weather minimums include minimums found in 
a published Obstacle Departure Procedure (ODP), or in the absence of 
such a procedure, when the pilot observed ceiling and visibility is 
greater than the minimum ceiling and visibility limitations required by 
specific HAA rules. This change to the current regulation will permit 
helicopter air ambulance flights to enter the NAS under IFR when 
visibilities and ceilings are below VFR based on pilot weather 
observations, thus increasing the safety of the flight. Without this 
action, helicopter air ambulances will be unable to depart under IFR 
from landing sites lacking weather reporting, until VFR appropriate to 
the class of airspace above prevail.

II. Discussion of the Direct Final Rule

A. Background

    On February 21, 2014, the FAA published a final rule on Helicopter 
Air Ambulance, Commercial Helicopter, and Part 91 Helicopter 
Operations. 79 FR 9932 (Feb. 21, 2014). It contained a new provision, 
Sec.  135.611, that allows HAA operators to conduct IFR operations at 
airports and heliports without a weather reporting facility if they can 
obtain weather reports from an approved weather reporting facility 
located within 15 nautical miles of the destination landing area and 
meet other pilot and equipment requirements.

B. Statement of the Problem

    The recently published final rule did not provide a means for HAA 
flights with IFR clearances to depart from airports not served with 
current weather observation reports. The current language in the rule 
would not allow a pilot to utilize the minimum takeoff visibilities 
depicted in published ODP when these are available. As a result, IFR 
capable departing flights are not able to gain direct access into the 
IFR system when weather conditions are worse than the Class G VFR 
minimums published in Sec.  135.609, but are better than or equal to 
the published ODP takeoff minimums when the ODP depicts a ``proceed 
visually'' transition to the Initial Departure Fix (IDF).
    The departing flight must be on an IFR Air Traffic Control (ATC) 
Clearance, which in accordance with the published ODP, contains takeoff 
minimums, and has a ``proceed visually'' segment between the takeoff 
location and the initial departure fix. When an ODP is not available or 
is not contained in the clearance, or the ODP depicts a ``proceed VFR'' 
segment instead of a ``proceed visually'' segment, the minimum 
visibility and ceiling reverts to that which is appropriate for the 
class of airspace involved. This revision to the rule text recognizes 
the improved safety margins and technologies available with ODPs and is 
consistent with the original intent of the rule, which is to encourage 
safe entry into the IFR System.

III. 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 (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, the Trade Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4) requires agencies to prepare a written assessment of 
the costs, benefits, and other effects of proposed or final rules that 
include a Federal mandate likely to result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more annually (adjusted for inflation with 
base year of 1995). This portion of the preamble summarizes the FAA's 
analysis of the economic impacts of this final rule.
    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected cost impact is so minimal that a proposed or final rule 
does not warrant a full evaluation, this order permits that a statement 
to that effect and the basis for it to be included in the preamble if a 
full regulatory evaluation of the cost and benefits is not prepared. 
Such a determination has been made for this final rule. The reasoning 
for this determination follows:
    The FAA is amending IFR operations at locations without weather 
reporting, in order to permit the pilot in command of a helicopter air 
ambulance to assess the weather at a departure point where current 
weather observations are not available and allow the pilot to depart if 
the observed ceiling and visibility is greater than certain weather 
minimums. This change to the regulation provides greater opportunity 
for HAA operations to enter the NAS under IFR than previously 
permitted. Without this action, helicopter air ambulances will be 
unable to depart under IFR from landing sites lacking weather 
reporting, until VFR minimums appropriate to the class of airspace 
above prevail.
    This requirement will increase the use of IFR flight by HAA 
operators, which will result in more aircraft operating in a positively 
controlled environment and within the existing infrastructure resulting 
in unquantified net benefit gains, and a full regulatory evaluation was 
not prepared
    The FAA has, therefore, determined that this direct final rule is 
not a ``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866, and is not ``significant'' as defined in DOT's 
Regulatory Policies and Procedures.

B. 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

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the agency determines that it will, the agency must prepare a 
regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to 
have a significant economic impact on a substantial number of small 
entities, section 605(b) of the RFA provides that the head of the 
agency may so certify and a regulatory flexibility analysis is not 
required. The certification must include a statement providing the 
factual basis for this determination, and the reasoning should be 
clear.
    This direct final rule does not impose any additional costs on 
helicopter air ambulance operators. Therefore, as provided in section 
605(b), the head of the FAA certifies that this rulemaking will not 
result in a significant economic impact on a substantial number of 
small entities.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards. The FAA has 
assessed the potential effect of this direct final rule and determined 
that it will have only a domestic impact and therefore no effect on 
international trade.

D. 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 $151 million in lieu of $100 
million. This direct final rule does not contain such a mandate; 
therefore, the requirements of Title II of the Act do not apply.

E. International Compatibility and Cooperation

    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 proposed regulations.
    Executive Order 13609, Promoting International Regulatory 
Cooperation, 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 would have 
no effect on international regulatory cooperation.

F. 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.

IV. Executive Order Determinations

A. Executive Order 13132, Federalism

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

B. Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

    The FAA analyzed this final rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). The agency has determined that it 
is not a ``significant energy action'' under the executive order and it 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

VI. Additional Information

A. Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The agency 
also invites comments relating to the economic, environmental, energy, 
or federalism impacts that might result from adopting the rulemaking 
action in this document. The most helpful comments reference a specific 
portion of the rulemaking action, explain the reason for any 
recommended change, and include supporting data. To ensure the docket 
does not contain duplicate comments, commenters should send only one 
copy of written comments, or if comments are filed electronically, 
commenters should submit only one time.
    The FAA will file in the docket all comments it receives, as well 
as a report summarizing each substantive public contact with FAA 
personnel concerning this rulemaking. Before acting on this rulemaking 
action, the FAA will consider all comments it receives on or before the 
closing date for comments. The FAA will consider comments filed after 
the comment period has closed if it is possible to do so without 
incurring expense or delay. The agency may change this rulemaking 
action in light of the comments it receives.

B. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from 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.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) 267-9680. 
Commenters must identify the docket or amendment number of this 
rulemaking.
    All documents the FAA considered in developing this rulemaking 
action, including economic analyses and technical reports, may be 
accessed from the Internet through the Federal eRulemaking Portal 
referenced in item (1) above.

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List of Subjects in 14 CFR Part 135

    Air transportation, Aircraft, and Aviation safety.

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration 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), 41706, 40113, 44701-44702, 
44705, 44709, 44711-44713, 44715-44717, 44722, 44730, 45101-45105; 
Pub. L. 112-95, 126 Stat. 58 (49 U.S.C. 44730).

0
2. Revise Sec.  135.611(a)(3) to read as follows:

Sec.  135.611  IFR operations at locations without weather reporting.

    (a) * * *
    (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 the published Obstacle Departure Procedure or VFR minimum 
ceilings and visibilities in accordance with Sec.  135.609.
* * * * *

    Issued under authority provided by 49 U.S.C. 106(f), 44701(a), 
and 44730 in Washington, DC, on July 17, 2014.
Michael P. Huerta,
Administrator.
[FR Doc. 2014-17729 Filed 7-25-14; 8:45 am]
BILLING CODE 4910-13-P
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