[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]


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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 (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) 267-9677. 
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]
 BILLING CODE 4910-13-P