[Federal Register Volume 74, Number 83 (Friday, May 1, 2009)]
[Rules and Regulations]
[Pages 20202-20205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10089]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91 and 135

[Docket No. FAA-2002-14002; Amendment Nos. 91-306 and 135-110]
RIN 2120-AJ46


Communication and Area Navigation Equipment (RNAV) Operations in 
Remote Locations and Mountainous Terrain

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

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SUMMARY: This final rule amends the regulations to allow the use of the 
published Obstacle Departure Procedures (ODP) or an alternative 
procedure or route assigned by Air Traffic Control (ATC). Also, this 
final rule amends the requirements to facilitate compliance and 
accurately reflect operating conditions in areas in which the terrain 
impedes communications. In August 2007, the FAA issued regulations 
relating to ODPs and Area Navigation equipment (RNAV). Among the 
amendments, the FAA prohibited Instrument Flight Rules (IFR) takeoffs 
from airports with published ODPs for the takeoff runway to be used 
unless the pilot uses the ODP for that runway. Following publication of 
the rule, the FAA determined that this requirement is unnecessarily 
restrictive because it prohibits pilots from using Standard Instrument 
Departure (SID) procedures and air traffic control (ATC) radar 
vectoring. The final rule also amended the communication and navigation 
equipment requirements for aircraft operations under Visual Flight 
Rules (VFR). The FAA determined that compliance with the new 
communications requirements may not be possible in remote locations and 
areas of mountainous terrain. This final rule is adopted without prior 
notice and public comment, but the public may comment prior to the 
effective date of the rule.

DATES: Effective Date--This amendment becomes effective June 30, 2009.
    Comments Due--Comments must be received by June 1, 2009.

ADDRESSES: You may send comments identified by Docket Number FAA-2002-
14002 using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30, U.S. 
Department of Transportation, 1200 New Jersey Avenue, SE., West 
Building Ground Floor, Room W12-140, Washington, DC 20590.
     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. 
For more information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.
    Privacy: We will post all comments we receive, without change, to 
http://www.regulations.gov, including any personal information you 
provide. Using the search function of our docket Web site, anyone can 
find and read the comments received into any of our dockets, including 
the name of the individual sending the comment (or signing the comment 
for an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477-78) or you may visit http://DocketsInfo.dot.gov.
    Docket: To read background documents or comments received, go to 
http://www.regulations.gov at any time or 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.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this final rule, contact Dennis Mills, Aviation Safety Inspector, Air 
Transportation Division, Fight Standards Service, AFS-220, Federal 
Aviation Administration, 800 Independence Avenue, SW., Washington, DC 
20591; telephone (202) 493-4901 facsimile (202) 267-5229, e-mail 
[email protected]. For legal questions concerning this final rule, 
contact Robert Hawks, General Attorney, Office of the Chief Counsel, 
Regulations Division, AGC-240, Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
7143, facsimile (202) 267-7971, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA is adopting this final rule without prior notice and public

[[Page 20203]]

comment because an immediate action fulfills the FAA's regulatory 
intent and serves the public interest. 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 FAA also invites 
comments relating to the economic, environmental, energy, or federalism 
impacts that might result from adopting this final rule. The most 
helpful comments reference a specific portion of the rule, explain the 
reason for any recommended change, and include supporting data. To 
ensure the docket does not contain duplicate comments, please send only 
one copy of written comments, or, if filing comments electronically, 
please submit comments only once.
    All comments received will be filed in the docket, as well as, a 
report summarizing each substantial public contact with FAA personnel 
concerning this rulemaking. The FAA will consider all comments received 
on or before the closing date for comments. The FAA may amend the final 
rule in light of the comments received.

Authority for This Rulemaking

    The FAA's authority to issue rules on aviation safety is found in 
Title 49 of the United States Code. Subtitle I, Section 106 describes 
the authority of the FAA Administrator. Subtitle VII, Aviation 
Programs, describes in more detail the scope of the agency's authority.
    This rulemaking is promulgated under the authority described in 
Subtitle VII, Part A, Subpart III, Section 44701 ``General 
requirements.'' Under Section 44701, the FAA is charged with 
prescribing regulations and minimum standards for practices, methods, 
and procedures the Administrator finds necessary for safety in air 
commerce. This final rule promotes safety in air commerce by utilizing 
air traffic procedures that provide obstacle and terrain clearance, and 
by facilitating air navigation in remote locations and areas of 
mountainous terrain.
    Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 
U.S.C.) authorizes agencies to dispense with notice and comment 
procedures for rules when the agency for ``good cause'' finds that 
those procedures are ``impracticable, unnecessary, or contrary to the 
public interest.'' Under this section and upon finding good cause, an 
agency may issue a final rule without seeking comment prior to the 
rulemaking.
    The FAA finds that notice and comment procedures under the APA to 
this final rule are unnecessary and contrary to the public interest. 
Because operators cannot comply with the current rule as written, it is 
in the public interest to amend the rule without delay. Furthermore, 
the FAA solicits comments upon publication of this final rule.

Background

Discussion of the Final Rule

Changes to Sec.  91.175
    The Area Navigation and Miscellaneous Amendments Notice of Proposed 
Rulemaking (NPRM) proposed that published ODPs must be followed under 
IFR conditions to ensure adequate obstacle clearance (67 FR 77326, Dec. 
17, 2002). The proposal also provided that if an operation did not use 
an ODP, the operator may use an alternative procedure or route assigned 
by ATC. The final RNAV rule however did not include the alternative 
procedures and prohibited IFR takeoffs from airports with published 
obstacle departure procedures (ODPs) for the takeoff runway to be used 
unless the pilot uses the ODP for that runway.\1\ (72 FR 31662, June 7, 
2007). The final rule inadvertently omitted the exception for ATC-
assigned alternative routes. The rule without the proposed exception 
for ATC-assigned alternative routes is unnecessarily restrictive 
because it prohibits pilots from using Standard Instrument Departure 
(SID) procedures and ATC radar vectoring, which provide obstacle and 
terrain clearance comparable to an ODP.
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    \1\ Of the forty comments received in response to the proposed 
rule, four addressed portions of the amendments to section 91.175 
(Takeoff and landing under IFR). However, those comments related 
only to engine-out departure procedures and not to ODPs or other 
departure procedures under normal operating conditions.
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    Accordingly, this final rule corrects the omission and prescribes 
the use of an ODP or alternative procedure or route assigned by ATC in 
the circumstances set forth in Sec.  91.175(f). This final rule accords 
with the intent of the final rule to ensure adequate obstacle clearance 
and provides a comparable level of safety to the final rule while 
increasing operational flexibility.
Changes to Sec.  135.161
    The Area Navigation and Miscellaneous Amendments final rule amended 
Sec.  135.161 to require aircraft, operating under VFR over routes that 
can be navigated by pilotage, be equipped with equipment to, in 
relevant part, communicate with at least one appropriate station from 
any point on the route and receive meteorological information from any 
point en route.\2\ (72 FR 31662, June 7, 2007). Following publication 
of the final rule, the FAA determined that compliance with Sec.  
135.161(a)(1) and (a)(3) may be impossible in certain situations. Part 
135 air carriers sometimes operate in remote and mountainous areas of 
the National Airspace System (NAS). Because of the terrain or gaps in 
communication coverage in these areas, it may be impossible to 
communicate from some points along the route, and therefore part 135 
air carriers may be unable to comply with the current rule for reasons 
beyond their control.
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    \2\ Of the forty comments received in response to the proposed 
rule, none addressed the proposed changes to section 135.161 which 
is the subject of this rulemaking.
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    Because this final rule corrects a situation where compliance with 
the requirement for continuous communication in certain remote regions 
and mountainous terrain may be impossible, this final rule will make 
compliance possible by reflecting actual operating conditions and 
accords with the intent of the rule.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
the FAA to consider the impact of paperwork and other information 
collection burdens imposed on the public. The FAA has determined there 
is no current or new requirement for information collection associated 
with these amendments.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
determined there are no ICAO Standards and Recommended Practices that 
correspond to these regulations.

Regulatory Evaluation, Regulatory Flexibility Determination, 
International Trade Impact Assessment, and Unfunded Mandates Assessment

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs that each Federal agency 
propose or adopt a regulation only upon a reasoned determination that 
the benefits of the intended regulation justify its costs.

[[Page 20204]]

Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) 
requires agencies to analyze the economic impact of regulatory changes 
on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) 
prohibits agencies from setting standards that create unnecessary 
obstacles to the foreign commerce of the United States. In developing 
U.S. standards, this Trade Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4) requires agencies to prepare a written assessment of 
the costs, benefits, and other effects of proposed or final rules that 
include a Federal mandate likely to result in the expenditure, by 
State, local, or Tribal governments, in the aggregate, or by the 
private sector, of $100 million or more annually (adjusted for 
inflation with base year of 1995).
    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 allows 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:
    This final rule corrects an inadvertent omission of an exception 
allowing ATC-assigned alternative routes for takeoffs under IFR and an 
unintended requirement for continuous communication in certain remote 
regions and mountainous terrain for which compliance is impossible. The 
costs to part 121, 125, 129, and 135 operators resulting from these 
amendments are minimal because no subsequent actions are required, 
except that operators have the option of submitting comments for 30 
days following Federal Register publication.
    Accordingly, the FAA has determined that this 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.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation. To achieve this principle, agencies are required 
to solicit and consider flexible regulatory proposals and to explain 
the rationale for their actions to assure that such proposals are given 
serious consideration.'' The RFA covers a wide-range of small entities, 
including small businesses, not-for-profit organizations, and small 
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to 
have a significant economic impact on a substantial number of small 
entities, section 605(b) of the RFA provides the head of the agency may 
so certify and a regulatory flexibility analysis is not required. The 
certification must include a statement providing the factual basis for 
this determination, and the reasoning should be clear.
    This final rule corrects an inadvertent omission of an exception 
allowing ATC-assigned alternative routes for takeoffs under IFR and an 
unintended requirement for continuous communication in certain remote 
regions and mountainous terrain for which compliance is impossible. 
Although a substantial number of small entities are affected by this 
rule, the economic impact is insignificant because the rule does not 
include any added communication or equipment requirements.
    Therefore, as the Acting FAA Administrator, I certify that this 
rule will not have a significant economic impact on a substantial 
number of small entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing any 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 unnecessary obstacles to the foreign 
commerce of the United States, so long as the standards have a 
legitimate domestic objective, such as the protection of safety, and do 
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 
notes the purpose is to ensure the safety of the American public, and 
has assessed the effects of this rule to ensure it does not exclude 
imports that meet this objective. As a result this final rule will have 
only a domestic impact, and, therefore, will not create any unnecessary 
obstacles to the foreign commerce of the United States.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(adjusted annually for inflation with the base year 1995) in any one 
year by State, local, and Tribal governments, in the aggregate, or by 
the private sector; such a mandate is deemed to be a ``significant 
regulatory action.'' The level equivalent of $100 million in CY 1995, 
adjusted for inflation to CY 2007 levels by the Consumer Price Index 
for all Urban Consumers (CPI-U) as published by the Bureau of Labor 
Statistics, is $136.1 million.
    This final rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this final rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). The FAA determined that it is not 
a ``significant energy action'' under the executive order because it is 
not a ``significant regulatory action'' under Executive Order 12866. 
Also, it is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

Availability of Rulemaking Documents

    You may obtain an electronic copy of rulemaking documents using the 
Internet by:
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or
    3. Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/.
    You also may obtain a copy by sending a request to the Federal 
Aviation Administration, Office of

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Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, 
or by calling (202) 267-9680. Please identify the amendment number or 
docket number of this rulemaking.
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting or signing the comment (if submitted on behalf of an 
association, business, labor union, etc.). You may review DOT's 
complete Privacy Act statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://docketsinfo.dot.gov/.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires the FAA to comply with small entity requests for 
information or advice about compliance with statutes and regulations 
within its jurisdiction. If you are a small entity and you have a 
question about this document, you may contact your local FAA official, 
or the person listed under the FOR FURTHER INFORMATION CONTACT heading 
at the beginning of the preamble. You can find out more about SBREFA on 
the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects

14 CFR Part 91

    Agriculture, Air traffic control, Aircraft, Airmen, Airports, 
Aviation safety, Freight, Noise control, Reporting and recordkeeping 
requirements.

14 CFR Part 135

    Air taxis, Aircraft, Airmen, Aviation safety, Reporting and 
recordkeeping requirements.

The Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
amends Chapter I of Title 14, Code of Federal Regulations as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

0
1. The authority citation for part 91 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 
44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 
44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-
47531, articles 12 and 29 of the Convention on International Civil 
Aviation (61 Stat. 1180).


0
2. Revise Sec.  91.175(f)(3) to read as follows:


Sec.  91.175  Takeoff and landing under IFR.

* * * * *
    (f) * * *
    (3) Except as provided in paragraph (f)(4) of this section, no 
pilot may takeoff under IFR from a civil airport having published 
obstacle departure procedures (ODPs) under part 97 of this chapter for 
the takeoff runway to be used, unless the pilot uses such ODPs or an 
alternative procedure or route assigned by air traffic control.
* * * * *

PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON DEMAND OPERATIONS 
AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT

0
3. The authority citation for part 135 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 41706, 44113, 44701-44702, 44705, 
44709, 44711-44713, 44715-44717, 44722, 45101-41505.

0
4. In Sec.  135.161, revise paragraphs (a)(1) and (a)(3) to read as 
follows:


Sec.  135.161  Communication and navigation equipment for aircraft 
operations under VFR over routes navigated by pilotage.

    (a) * * *
    (1) Communicate with at least one appropriate station from any 
point on the route, except in remote locations and areas of mountainous 
terrain where geographical constraints make such communication 
impossible.
* * * * *
    (3) Receive meteorological information from any point en route, 
except in remote locations and areas of mountainous terrain where 
geographical constraints make such communication impossible.
* * * * *

    Issued in Washington, DC, on March 16, 2009.
Lynne A. Osmus,
Acting Administrator.
[FR Doc. E9-10089 Filed 4-30-09; 8:45 am]
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