[Federal Register Volume 77, Number 7 (Wednesday, January 11, 2012)]
[Rules and Regulations]
[Pages 1629-1632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-356]



[[Page 1629]]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 135

[Docket No.: FAA-2012-0007; Amdt. No. 135-126]
RIN 2120-AK02


Authorization To Use Lower Than Standard Takeoff, Approach and 
Landing Minimums at Military and Foreign Airports

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Direct final rule; request for comments.

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SUMMARY: This rulemaking would allow qualified operators to conduct 
lower than standard instrument flight rules (IFR) airport operations at 
military airports or outside the United States when authorized to do so 
by their operations specifications. This action is necessary because 
the current regulatory section limits certain operators to a takeoff 
minimum visibility of 1 mile, and a landing minimum visibility of \1/2\ 
mile when conducting IFR operations at those airports, even when the 
operator has demonstrated the ability to safely conduct operations in 
lower visibility. The intended effect of this final rule is to bring 
the identified regulatory section into alignment with other sections of 
the regulations that currently permit lower than standard IFR 
operations at domestic civilian, foreign, and military airports when 
authorized to do so.

DATES: Effective: February 27, 2012.
    Comments for inclusion in the Rules Docket must be received on or 
before February 10, 2012.

ADDRESSES: Commenting on this Direct Final Rule. You may send comments 
identified by docket number FAA-2012-0007 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: The FAA will post all comments it receives, without 
change, to http://www.regulations.gov, including any personal 
information the commenter provides. Using the search function of the 
docket Web site, anyone can find and read the electronic form of all 
comments received into any FAA docket, including the name of the 
individual sending the comment (or signing the comment for an 
association, business, labor union, etc.). DOT's complete Privacy Act 
Statement can be found in the Federal Register published on April 11, 
2000 (65 FR 19477-19478), as well as at http://www.Regulations.gov.
    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 go 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 action, contact Gregory French, Air Transportation Division, 135 
Air Carrier Operations Branch, AFS-250, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591; 
telephone (202) 267-4112; email [email protected].
    For legal questions concerning this action, contact Robert Frenzel, 
Office of the Chief Counsel, Operations Law Branch, (AGC-220), Federal 
Aviation Administration, 800 Independence Avenue SW., Washington, DC 
20591; telephone (202) 267-3073; email [email protected].

SUPPLEMENTARY INFORMATION: Later in this preamble under the Additional 
Information section, we discuss how you can comment on this direct 
final rule and how we will handle your comments. Included in this 
discussion is related information about the docket. We also discuss how 
you can get a copy of this direct final rule and any related rulemaking 
documents.

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 authority described in 49 U.S.C. 44701(a)(5), which requires 
the Administrator to promulgate regulations and minimum standards for 
other practices, methods, and procedures necessary for safety in air 
commerce and national security. This amendment to the regulation is 
within the scope of that authority because it prescribes an accepted 
method for ensuring the safe operation of aircraft at foreign and 
military airports when weather conditions are below standard minimums.

The Direct Final Rule Procedure

    The FAA is adopting this final rule without prior notice and prior 
public comment as a direct final rule with comments. The FAA does not 
believe prior notice and prior public comment is necessary in this rule 
change because it is relieving to all concerned parties. In addition, 
the FAA recently published a Petition for Exemption from Sec.  
135.225(f) for public comment (76 FR 22445) and received only three 
comments, all in favor of the petition.
    The Regulatory Policies and Procedures of the Department of 
Transportation (DOT) provide that to the maximum extent possible, 
operating administrations of the DOT should provide an opportunity for 
public comment on regulations issued without prior notice (44 FR 1134). 
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.
    Unless a written adverse or negative comment or a written notice of 
intent to submit an adverse or negative comment is received within the 
comment period, the regulation will become effective on the date 
specified above. After the close of the comment period, the FAA will 
publish a document in the Federal Register indicating that no adverse 
or negative comments were received and confirming the date on which the 
final rule will become effective. If the FAA does receive an adverse or 
negative comment within the comment period, or written notice of intent 
to submit such a comment, a document withdrawing the direct final rule 
will be published in the Federal Register, and a notice of proposed 
rulemaking may be published with a new comment period.
    See the ``Additional Information'' section for information on how 
to comment on this direct final rule and how the FAA will handle 
comments received. The ``Additional Information'' section also contains 
related information about the docket, privacy, and the handling of 
proprietary or confidential business information. In addition, there is 
information on obtaining copies of related rulemaking documents.

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I. Background

    The airport weather minimums that eventually evolved into Sec.  
135.225 started development prior to 1957 in Civil Air Regulation part 
60, Air Traffic Rules. Section 60.46, ``Instrument Approach 
Procedures,'' required the weather to be at least visual flight rules 
(VFR). The 1 mile and \1/2\ mile visibility requirements that now 
appear in Sec.  135.225 first appeared in the regulations in the early 
1960s. As aircraft, flight crewmember and avionics capabilities 
evolved, it became possible to safely conduct lower than standard 
takeoffs, approaches and landings.
    Qualified part 135 operators are allowed to conduct lower than 
standard IFR operations at domestic airports under Sec.  135.225(g), 
135.225(h) and 135.225(i)(3) when authorized to do so through the 
issuance of Operations Specification C079 (OpSpec C079). However, Sec.  
135.225(f) limits a part 135 operator to the standard visibility of 1 
mile for takeoffs and \1/2\ mile for approaches when conducting the 
same type of operations at military airports or outside the United 
States. There is no provision under Sec.  135.225(f) to allow lower 
than standard IFR operations through operations specifications.

II. Discussion of the Direct Final Rule

    While many part 135 operators fly turbojet airplanes worldwide, we 
realize that not all part 135 operators have met the requirements 
necessary to conduct lower than standard IFR operations authorized by 
OpSpec C079. Therefore, we are amending Sec.  135.225(f) to allow for 
lower than standard IFR operations at military and foreign airports 
only for those part 135 operators authorized through OpSpec C079. This 
action will align Sec.  135.225(f) with Sec.  135.225(g), 135.225(h) 
and 135.225(i)(3), which permit operators to conduct certain lower than 
standard IFR operations when authorized to do so through the issuance 
of operations specifications.
    By amending Sec.  135.225(f), the final rule would also align part 
135 regulations with similar provisions found in part 121 and part 91. 
For example, Sec.  121.651(f), uses the alternative language, ``Unless 
otherwise authorized in the certificate holder's operations 
specifications * * *'' to allow for the use of lower weather minimums 
than those prescribed by the appropriate foreign airport authority.
    Similarly, Sec.  91.175 allows for lower than standard takeoff, 
approach, and landing at foreign and military airports by specific 
authorization. Section Sec.  91.175(a), which concerns approaches, and 
Sec.  91.175(f)(1), which concerns takeoffs, include the language: 
``Unless otherwise authorized by the FAA''. Section 91.175(g) 
specifically concerns military airports and uses the language, ``Unless 
otherwise prescribed by the Administrator.''

A. Current Practice

    Based on the fact that an increasing number of consumers are 
relying on part 135 operators for their travel and shipping needs and 
that OpSpec C079 provides an equivalent level of safety, the FAA 
determined that it is in the public interest to grant exemptions from 
Sec.  135.225(f) to certificate holders who operate at military and 
foreign airports when those certificate holders have requested the 
exemption and otherwise meet all other regulatory requirements. To 
date, 22 grants of exemption from Sec.  135.225(f) have been issued 
with thirteen of them granted in 2011.
    As new aircraft replace the current fleet, more part 135 operators 
have the capability to perform at lower than standard takeoff, 
approach, and landing minimums. Therefore we have determined that it is 
unfair to continue to require the industry to bear the costs of the 
exemption process when an operations specification already exists that 
will allow the operations to be conducted safely.
    To allow the use of OpsSpec C079 for these operations, the FAA will 
incorporate a minor rule language change in Sec.  135.225(f) to add the 
phrase ``unless authorized by the certificate holder's operations 
specifications'' immediately before the words ``no pilot may * * *.''
    The FAA will then make changes to OpSpec C079 as appropriate to 
include authorized international airports with the listing of domestic 
airports. The language currently in Sec.  135.225(f) referencing 
military and foreign airports will otherwise remain unchanged since not 
all part 135 operators will choose to apply for, nor be able to 
demonstrate the requirements necessary for the issuance of OpSpec C079. 
Part 91 and part 121 regulations do not exclude the opportunity for a 
certificate holder to receive authorization to operate at lower than 
standard takeoff, approach, and landing minimums at military or foreign 
airports; therefore, they do not need to be changed.

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 direct 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 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 direct final rule.
    The reasoning for this determination follows. 14 CFR 135.225(f), 
IFR Takeoff, approach and landing minimums, provides guidance to pilots 
making an IFR takeoff or approach and landing at a military or foreign 
airport. Under Sec.  135.225(f), a part 135 operator may not conduct 
takeoffs, approaches and landings lower than the standard visibility of 
1 mile for takeoffs and \1/2\ mile for approaches. This direct final 
rule improves the efficiency of the current regulation by relieving 
operators of the burden of having to file repeated exemption requests 
to conduct operations that FAA has previously approved for their or 
other certificate holders' operations.
    Part 135 operators are authorized through Operations Specification 
C079 to conduct lower than standard IFR operations at U.S. domestic 
airports. Allowing these same operators to conduct similar operations 
at military and foreign airports would be cost

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beneficial. The net effect would be to eliminate the time, resources 
and documents required to apply for and process exemptions. As a 
result, the expected outcome will be a minimal impact with positive net 
benefits, 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 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.
    As noted above, the proposed changes to Sec.  135.225(f) are cost 
relieving because this direct final rule removes the burden of having 
to file exemptions for landings and takeoffs under low visibility. 
Therefore, as FAA Administrator, I certify that this rule will not have 
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 creates no 
obstacles to the foreign commerce of the United States.

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 $143.1 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. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. The FAA has determined that 
there is no new requirement for information collection associated with 
this direct final rule. Rather, the time and cost of preparing, filing 
and waiting for a decision for an exemption request to perform the 
operations is eliminated by the direct final 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 
reviewed the corresponding ICAO Standards and Recommended Practices and 
has identified no differences with these regulations. The direct final 
rule does not make changes to those portions of the regulations that 
require operators to follow international regulations where applicable.

G. 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, since it is directed at airport operations conducted 
at airports outside the United States or at military airports, 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. Rather, since this rule is relieving, 
and increases potential takeoff and landing options to the operator, 
the FAA believes that this rule may result in a net energy savings.

V. 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

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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.
    Proprietary or Confidential Business Information: Do not file 
proprietary or confidential business information in the docket. Such 
information must be sent or delivered directly to the person identified 
in the FOR FURTHER INFORMATION CONTACT section of this document, and 
marked as proprietary or confidential. If submitting information on a 
disk or CD-ROM, mark the outside of the disk or CD-ROM, and identify 
electronically within the disk or CD-ROM the specific information that 
is proprietary or confidential.
    Under 14 CFR 11.35(b), if the FAA is aware of proprietary 
information filed with a comment, the agency does not place it in the 
docket. It is held in a separate file to which the public does not have 
access, and the FAA places a note in the docket that it has received 
it. If the FAA receives a request to examine or copy this information, 
it treats it as any other request under the Freedom of Information Act 
(5 U.S.C. 552). The FAA processes such a request under Department of 
Transportation procedures found in 49 CFR part 7.

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.fdsys.gov.
    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.

List of Subjects in 14 CFR Part 135

    Aircraft, Airmen, Approach minimums, Authorizations, Aviation 
safety, Foreign airports, Landing minimums, Military airports, 
Reporting and recordkeeping requirements, Takeoff minimums.

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(g), 41706, 40113, 44701-44702, 44705, 
44709, 44711-44713, 44715-44717, 44722, 45101-45105.


0
2. Amend Sec.  135.225 by revising paragraph (f) introductory text to 
read as follows:


Sec.  135.225  IFR: Takeoff, approach and landing minimums.

* * * * *
    (f) Each pilot making an IFR takeoff or approach and landing at a 
military or foreign airport shall comply with applicable instrument 
approach procedures and weather minimums prescribed by the authority 
having jurisdiction over that airport. In addition, unless authorized 
by the certificate holder's operations specifications, no pilot may, at 
that airport--
* * * * *

    Issued in Washington, DC, on December 27, 2011.
Michael P. Huerta,
Acting Administrator.
[FR Doc. 2012-356 Filed 1-10-12; 8:45 am]
BILLING CODE 4910-13-P