Amendment of the Prohibition Against Certain Flights in Specified Areas of the Simferopol and Dnipropetrovsk Flight Information Regions (FIRs) (UKFV and UKDV)
| Published date | 16 October 2020 |
| Citation | 85 FR 65678 |
| Record Number | 2020-22041 |
| Section | Rules and Regulations |
| Court | Federal Aviation Administration |
Federal Register, Volume 85 Issue 201 (Friday, October 16, 2020)
[Federal Register Volume 85, Number 201 (Friday, October 16, 2020)]
[Rules and Regulations]
[Pages 65678-65686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22041]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No.: FAA-2014-0225; Amdt. No. 91-331F]
RIN 2120-AL58
Amendment of the Prohibition Against Certain Flights in Specified
Areas of the Simferopol and Dnipropetrovsk Flight Information Regions
(FIRs) (UKFV and UKDV)
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This action amends and extends the Special Federal Aviation
Regulation (SFAR) prohibiting certain flights in the specified areas of
the Dnipropetrovsk Flight Information Region (FIR) (UKDV) by all: U.S.
air carriers; U.S. commercial operators; persons exercising the
privileges of an airman certificate issued by the FAA, except when such
persons are operating U.S.-registered aircraft for a foreign air
carrier; and operators of U.S.-registered civil aircraft, except when
the operator of such aircraft is a foreign air carrier. The FAA finds
this action necessary to address hazards to persons and aircraft
engaged in such flight operations. However, due to changed conditions
in Ukraine and the associated risks to U.S. civil aviation, this action
does not extend the prohibition against certain flights in the
specified areas of the Simferopol FIR (UKFV), which will expire on
October 27, 2020. This action extends the expiration date of the
prohibition against certain flights in the specified areas of the
Dnipropetrovsk FIR (UKDV) from October 27, 2020, to October 27, 2021.
Additionally, the FAA republishes the approval process and exemption
information for this SFAR, consistent with other recently published
flight prohibition SFARs, and makes minor administrative revisions.
DATES: This final rule is effective on October 27, 2020.
FOR FURTHER INFORMATION CONTACT: Stephen Moates, Air Transportation
Division, Flight Standards Service, Federal Aviation Administration,
800 Independence Avenue SW, Washington, DC 20591; telephone 202-267-
8166; email [email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This action amends and extends the prohibition against certain
flight
[[Page 65679]]
operations in the specified areas of the Dnipropetrovsk FIR (UKDV) by
all: U.S. air carriers; U.S. commercial operators; persons exercising
the privileges of an airman certificate issued by the FAA, except when
such persons are operating U.S.-registered aircraft for a foreign air
carrier; and operators of U.S.-registered civil aircraft, except when
the operator of such aircraft is a foreign air carrier. Specifically,
this amendment continues to prohibit all persons described in paragraph
(a) of SFAR No. 113, 14 CFR 91.1607, from conducting civil flight
operations in the specified areas of the Dnipropetrovsk FIR (UKDV)
until October 27, 2021, due to the hazards to civil aviation associated
with the ongoing violence, including potential for misidentification.
However, this amendment does not extend the prohibition against
certain flight operations in the specified areas of the Simferopol FIR
(UKFV), which will expire on October 27, 2020, due to changed
conditions in that airspace and the associated decrease in risk to U.S.
civil aviation. The FAA also republishes the approval process and
exemption information for this SFAR, consistent with other recently
published flight prohibition SFARs, and makes minor administrative
revisions.
II. Legal Authority and Good Cause
A. Legal Authority
The FAA is responsible for the safety of flight in the U.S. and for
the safety of U.S. civil operators, U.S.-registered civil aircraft, and
U.S.-certificated airmen throughout the world. Sections 106(f) and (g)
of title 49, U.S. Code (U.S.C.), subtitle I, establish the FAA
Administrator's authority to issue rules on aviation safety. Subtitle
VII of title 49, Aviation Programs, describes in more detail the scope
of the agency's authority. Section 40101(d)(1) provides that the
Administrator shall consider in the public interest, among other
matters, assigning, maintaining, and enhancing safety and security as
the highest priorities in air commerce. Section 40105(b)(1)(A) requires
the Administrator to exercise this authority consistently with the
obligations of the U.S. Government under international agreements.
The FAA is promulgating this rulemaking under the authority
described in 49 U.S.C. 44701, General requirements. Under that section,
the FAA is charged broadly with promoting safe flight of civil aircraft
in air commerce by prescribing, among other things, regulations and
minimum standards for practices, methods, and procedures the
Administrator finds necessary for safety in air commerce and national
security. This regulation is within the scope of the FAA's authority
because it continues to prohibit the persons described in paragraph (a)
of SFAR No. 113, Sec. 91.1607, from conducting flight operations in
the specified areas of the Dnipropetrovsk FIR (UKDV) due to the
continuing hazards to the safety of U.S. civil flight operations, as
described in the preamble to this final rule.
B. Good Cause for Immediate Adoption
Section 553(b)(3)(B) of title 5, U.S. Code, 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.'' Section 553(d) also
authorizes agencies to forgo the delay in the effective date of the
final rule for good cause found and published with the rule. In this
instance, the FAA finds good cause exists to forgo notice and comment
because notice and comment would be impracticable and contrary to the
public interest. In addition, it is contrary to the public interest to
allow any lapse of effectivity of the prohibition of U.S. civil flights
in the specified areas of the Dnipropetrovsk FIR (UKDV).
The risk environment for U.S. civil aviation in airspace managed by
other countries with respect to safety of flight is fluid because of
the risks posed by weapons capable of targeting, or otherwise
negatively affecting, U.S. civil aviation, as well as other hazards to
U.S. civil aviation associated with fighting, extremist and militant
activity, or heightened tensions. This fluidity and the need for the
FAA to rely upon classified information in assessing these risks make
issuing notice and seeking comments impracticable and contrary to the
public interest. With respect to the impracticability of notice and
comment procedures, the potential for rapid changes in the risks to
U.S. civil aviation significantly limits how far in advance of a new or
amended flight prohibition the FAA can usefully assess the risk
environment. Furthermore, to the extent these rules and any amendments
to them are based upon classified information, the FAA is not legally
permitted to share such information with the general public, who cannot
meaningfully comment on information to which they are not legally
allowed access.
Under these conditions, public interest considerations favor not
providing notice and seeking comment for this rule. While there is a
public interest in having an opportunity for the public to comment on
agency action, there is a greater public interest in having the FAA's
flight prohibitions, and any amendments thereto, reflect the agency's
current understanding of the risk environment for U.S. civil aviation.
This allows the FAA to protect the safety of U.S. operators' aircraft
and the lives of their passengers and crews without over-restricting
U.S. operators' routing options.
The FAA has determined extending the flight prohibition for U.S.
civil aviation operations in the specified areas of the Dnipropetrovsk
FIR (UKDV) is necessary due to continuing safety-of-flight hazards
associated with the ongoing violence, including a risk of
misidentification of civil aircraft. These hazards continue to present
an unacceptable level of risk to U.S. civil aviation operations in the
Dnipropetrovsk FIR (UKDV), as described in the preamble to this rule.
Accordingly, the FAA finds good cause exists to forgo notice and
comment and any delay in the effective date for this rule that might
allow the existing prohibition that applies to U.S civil flights in the
specified areas of the Dnipropetrovsk FIR (UKDV) to lapse.
III. Background
On April 25, 2014, the FAA published SFAR No. 113, Sec. 91.1607,
which prohibited certain flight operations in a portion of the
Simferopol FIR (UKFV) after the Russian Federation unlawfully seized
Crimea from Ukraine.\1\ At that time, the FAA was concerned about the
potential for civil aircraft to receive confusing and conflicting air
traffic control instructions from both Ukrainian and Russian air
traffic services providers while operating in the portion of the
Simferopol FIR (UKFV) covered by SFAR No. 113, Sec. 91.1607. In
addition, political and military tensions between Ukraine and the
Russian Federation remained high, and the FAA was concerned compliance
with air traffic control instructions issued by the authorities of one
country could result in a civil aircraft being misidentified and
intercepted, or
[[Page 65680]]
otherwise engaged, by air defense forces of the other country.
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\1\ Prohibition Against Certain Flights in the Simferopol (UKFV)
Flight Information Region (FIR) final rule, 79 FR 22862, April 25,
2014. As described in the 2014 final rule, the Russian Federation
had also issued a NOTAM purporting to establish unilaterally a new
FIR, effective April 3, 2014, in a significant portion of the
Simferopol FIR (UKFV). The affected airspace included sovereign
Ukrainian airspace over the Crimean Peninsula and the associated
Ukrainian territorial sea, as well as international airspace managed
by Ukraine over the Black Sea and the Sea of Azov under a regional
air navigation agreement approved by the Council of the
International Civil Aviation Organization (ICAO).
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In the months that followed, the violence and the associated risks
to civil aviation expanded to encompass the entirety of the Simferopol
and Dnipropetrovsk FIRs (UKFV and UKDV, respectively). In addition to a
series of attacks on fixed-wing and rotary-wing military aircraft
flying at lower altitudes, two aircraft operating at higher altitudes
were shot down over eastern Ukraine. The first, which occurred on July
14, 2014, involved a Ukrainian Antonov An-26 flying at 21,000 feet
southeast of Luhansk, Ukraine. The second involved Malaysia Airlines
Flight 17 (MH 17), which was flying over Ukraine at 33,000 feet just
west of the Russian border on July 17, 2014. All of the 298 passengers
and crew on board MH 17 perished. The FAA determined the use of weapons
capable of targeting and shooting down aircraft flying on civil air
routes at cruising altitudes posed a significantly dangerous threat to
civil aircraft flying in the Simferopol and Dnipropetrovsk FIRs (UKFV
and UKDV, respectively). On July 18, 2014, Universal Coordinated Time
(UTC), the FAA issued NOTAM FDC 4/2182, which prohibited U.S. civil
aviation operations in the entire Simferopol and Dnipropetrovsk FIRs
(UKFV and UKDV, respectively). The FAA subsequently incorporated the
expanded flight prohibition into SFAR No. 113, Sec. 91.1607, on
December 29, 2014.\2\
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\2\ Prohibition Against Certain Flights in the Simferopol (UKFV)
and Dnipropetrovsk (UKDV) Flight Information Regions (FIRs) final
rule, 79 FR 77857, December 29, 2014.
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In 2018, the FAA determined security and safety conditions had
sufficiently stabilized in certain regions of Ukraine for U.S. civil
aviation operations to resume safely.\3\ However, the FAA also
determined continuing hazards to U.S. civil aviation existed in the
specified areas of the Simferopol FIR (UKFV) and the Dnipropetrovsk FIR
(UKDV).\4\
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\3\ Amendment of the Prohibition Against Certain Flights in
Specified Areas of the Simferopol and Dnipropetrovsk Flight
Information Regions (FIRs) (UKFV and UKDV) final rule, 83 FR 52954,
October 19, 2018.
\4\ Id.
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A. Simferopol FIR (UKFV)
In the 2018 amendment, the FAA determined the government of Ukraine
had addressed the FAA's previous flight safety concerns regarding
conflicting air navigation service provider (ANSP) guidance for civil
aircraft operating on certain air routes over the Black Sea in the
Simferopol FIR (UKFV). In 2016, the government of Ukraine established,
via its aeronautical information publication (AIP), a prohibited area
over the Crimean Peninsula and the adjacent territorial sea. In
addition, the government of Ukraine issued flight advisories,
prohibitions and other instructions for the safe navigation of civil
aircraft, which it published via NOTAMs; reclassified Ukrainian
airspace in 2014; \5\ and had improved safety incident reporting
procedures to mitigate the risks associated with conflicting ANSP
guidance from the Russian Federation.
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\5\ The FAA notes that the State Aviation Administration of
Ukraine conducted and completed an airspace restructuring that went
into effect in the late 2014 timeframe. The new configuration
altered both the Simferopol FIR (UKFV) and Dnipropetrovsk FIR (UKDV)
altitude structures. To address the Ukraine airspace restructuring
and provide additional clarity, on July 22, 2016, the FAA published
a technical amendment to clarify the altitude and lateral boundaries
of the airspace in which SFAR No. 113, Sec. 91.1607, prohibited
U.S. civil aviation operations. Extension of the Prohibition Against
Certain Flights in the Simferopol (UKFV) and Dnipropetrovsk (UKDV)
Flight Information Regions final rule, technical amendment, 81 FR
47699, July 22, 2016.
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In the October 2018 final rule, the FAA also determined the
government of Ukraine had not mitigated the risks to civil aviation
safety in the remainder of the Simferopol FIR (UKFV), necessitating a
continuing, albeit more limited, flight prohibition for U.S. civil
aviation. An overwhelming military presence of Russian forces and
weapon capabilities remained on the Crimean Peninsula, creating a
continuing risk for misidentification of aircraft flying over the
Peninsula and in the airspace near the Peninsula. Additionally, the
Russian Federation continued to claim that it had established
unilaterally a new FIR that includes sovereign Ukrainian airspace over
the Crimean Peninsula and the associated Ukrainian territorial sea. The
claimed new FIR also includes international airspace over the Black Sea
and the Sea of Azov in which Ukraine is responsible for providing air
navigation services under regional air navigation agreements approved
by the Council of the International Civil Aviation Organization (ICAO)
and the European Region Aviation System Planning Group (EASPG) of the
ICAO European and North Atlantic (EUR/NAT) Regions. For those reasons
and their attendant risk to U.S. civil aviation operations, the FAA
continued to prohibit U.S. civil aviation operations in the Simferopol
FIR (UKFV) from the surface to unlimited, north and northeast of a line
drawn direct from SOBLO (431503N 362298E) to DOLOT (434214N 332819E),
direct to SOROK (440628N 324260E), then direct to OTPOL (452738N
313064E). The use of airway M747, which partially overlapped with the
new SFAR boundary, also remained prohibited.
B. Dnipropetrovsk FIR (UKDV)
In the October 2018 final rule, the FAA also determined an
inadvertent risk to civil aviation associated with the ongoing violence
continued to exist in the eastern portion of the Dnipropetrovsk FIR
(UKDV). This violence involved localized skirmishes and the potential
for larger scale fighting. The FAA was concerned this situation could
lead to certain air defense forces misidentifying or engaging civil
aviation.
In the October 2018 final rule, the FAA determined these threats
were concentrated in the eastern portion of the Dnipropetrovsk FIR
(UKDV) within the Russian-controlled area and in close proximity to the
line of contact that bordered that area. While the potential for
fluctuating levels of military engagement continued along the line of
contact in eastern portions of the Dnipropetrovsk FIR (UKDV), the
military situation had begun to stabilize, which reduced the risk of a
larger-scale conflict that might extend into the western portion of the
Dnipropetrovsk FIR (UKDV). The FAA determined these circumstances
indicated the level of risk to civil aviation in the western portion of
the Dnipropetrovsk FIR (UKDV) had diminished from the level of risk
that had existed when the FAA initially prohibited U.S. civil aviation
operations in the entire Dnipropetrovsk FIR (UKDV) in NOTAM FDC 4/2182.
As a result, the FAA amended its flight prohibition for the
Dnipropetrovsk FIR (UKDV) to allow U.S. civil aviation to resume flight
operations in the western portion of the Dnipropetrovsk FIR (UKDV) from
the surface to unlimited, west of a line drawn direct from ABDAR
(471802N 351732E) along airway M853 to NIKAD (485946N 355519E), then
along airway N604 to GOBUN (501806N 373824E). The October 2018 final
rule also provided an exception to permit takeoffs and landings at
Kharkiv International Airport (UKHH), Dnipropetrovsk International
Airport (UKDD), and Zaporizhzhia International Airport (UKDE).
IV. Discussion of the Final Rule
A. Simferopol FIR (UKFV)
The FAA has determined U.S. civil aviation operations may resume
safely in the specified areas of the Simferopol FIR (UKFV) when the
flight prohibition for that FIR contained in SFAR No. 113, Sec.
91.1607, expires on October 27, 2020. Although the FAA expects the
Russian
[[Page 65681]]
Federation will continue to assert illegitimate territorial claims and
maintain a competing ANSP for the foreseeable future, Ukraine has
demonstrated a sustained commitment to taking appropriate measures to
minimize the residual risks to flight safety in the Simferopol FIR
(UKFV) from these circumstances. Since the spring of 2016, Ukraine's
ANSP consistently has provided the FAA, as well as other countries,
with credible post-implementation monitoring reports on Ukraine's
implementation of the risk management measures outlined in its safety
case \6\ for international air routes over the Black Sea, including
incidents and mitigation measures. These post-implementation monitoring
reports indicate the number of incidents within well-defined categories
of identified hazards, with appropriate mitigation measures for the few
incidents that continue to occur. As a result of Ukraine's diligent
efforts, the number of reported safety-related incidents involving
civil air traffic associated with Russian aggression in Ukraine has
decreased to near zero over three and a half years of flight operations
on Black Sea air routes in the Simferopol FIR (UKFV).
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\6\ As defined by ICAO, a safety case is ``a document which
provides substantial evidence that the system to which it pertains
meets its safety objectives.'' See, e.g., International Civil
Aviation Organization Asia and Pacific Office, Guidance on Building
a Safety Case for Delivery of an ADS-B Separation Service, version
1.0 (Sept. 2011), available at https://www.icao.int/APAC/Documents/edocs/cns/APX.%20J%20-%20Guidance%20Material%20on%20Building%20Safety%20Case%20for%20ADS-B%20separation.pdf.
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Ukraine has also demonstrated a sustained commitment to taking
appropriate steps to protect civil aviation from the risk of
misidentification associated with the continuing substantial Russian
military presence and weapons capabilities on and in the vicinity of
the Crimean Peninsula. For example, Ukrainian authorities issue NOTAMs
to inform pilots of the locations of Russian military operational
areas, work to de-conflict military and civil air traffic in the
Simferopol FIR (UKFV), and have established a prohibited area over the
Crimean Peninsula and adjacent Ukrainian territorial waters.
Additionally, despite the Russian Federation's purported annexation
and its occupation of the Crimean Peninsula and continued deployment of
substantial military capabilities, the security situation in the
Simferopol FIR (UKFV) has stabilized. No reported clashes or incidents
demonstrating an inadvertent risk to U.S. civil aviation from
misidentification or miscalculation have occurred since the November
2018 Kerch Strait maritime incident.
Therefore, as a result of the significantly reduced risk to U.S.
civil aviation safety in the Simferopol FIR (UKFV), this rule does not
extend the prohibition on U.S. civil aviation operations in the
specified areas of the Simferopol FIR (UKFV), which will expire in
accordance with the existing SFAR on October 27, 2020.
B. Dnipropetrovsk FIR (UKDV)
The FAA has determined the situation in the specified areas of the
Dnipropetrovsk FIR (UKDV) continues to present an unacceptable level of
risk to U.S. civil aviation. An inadvertent risk to U.S. civil aviation
associated with the ongoing violence exists, involving localized
skirmishes and the potential for larger scale fighting in the eastern
portion of the Dnipropetrovsk FIR (UKDV), particularly near the line of
contact that borders the Russian-controlled area. The FAA remains
concerned these skirmishes and the risk for potential larger-scale
fighting could lead to the misidentification or engagement of civil
aviation by certain air defense forces. The various military and
militia elements in the region continue to have access to a variety of
anti-aircraft weapons systems, including man-portable air defense
systems, and possibly more advanced surface-to-air missile (SAM)
systems with the capability to engage aircraft at higher altitudes.
Despite the most recent ceasefire arrangement between Ukraine and
the Russian Federation, which went into effect in December 2019, recent
conflict-related air defense activity in eastern Ukraine highlights the
continuing inadvertent risk to U.S. civil aviation operations in the
eastern portion of the Dnipropetrovsk FIR (UKDV). On April 5, 2020,
Ukrainian forces shot down a Russian military unmanned aircraft flying
over the Donetsk region in the eastern portion of the Dnipropetrovsk
FIR (UKDV). On April 10, 2020, the Organization for Security and
Cooperation in Europe (OSCE) Special Monitoring Mission (SMM) to
Ukraine lost an unmanned aircraft to small arms fire. Russia-led forces
in eastern Ukraine regularly use SAMs, small-arms ground fire, and
Global Positioning System (GPS) jamming to target OSCE SMM unmanned
aircraft, including in the eastern portion of the Dnipropetrovsk FIR
(UKDV). In October 2019, a Ukrainian military official indicated in
public statements that Ukraine had lost numerous unmanned aircraft to
Russian GPS interference throughout the conflict, though the true
number of unmanned aircraft lost remains unconfirmed.
Although the situation has remained mostly stable since 2018,
skirmishes and attacks within the Dnipropetrovsk FIR (UKDV) and sub-
adjacent Ukrainian territory continue to occur with little or no
warning. For example, on April 18 and 19, 2020, Russia-led forces
conducted multiple mortar attacks in the Donbas region, which is
located in the eastern portion of the Dnipropetrovsk FIR (UKDV),
injuring several Ukrainian soldiers.
Therefore, as a result of the significant, continuing unacceptable
risk to the safety of U.S. civil aviation operations in the specified
areas of the Dnipropetrovsk FIR (UKDV), which remain unchanged, the FAA
extends the expiration date of SFAR No. 113, Sec. 91.1607, from
October 27, 2020, to October 27, 2021. The extension is limited to one
year, given the particularized limitations applicable in the different
portions of the Dnipropetrovsk FIR (UKDV) covered by the SFAR.
Further amendments to SFAR No. 113, Sec. 91.1607, might be
appropriate if the risk to civil aviation safety and security changes.
In this regard, the FAA will continue to monitor the situation and
evaluate the extent to which persons described in paragraph (a) of this
rule might be able to operate safely in the specified areas of the
Dnipropetrovsk FIR (UKDV).
The FAA also republishes the details concerning the approval and
exemption processes in Sections V and VI of this preamble, consistent
with other recently published flight prohibition SFARs, to enable
interested persons to refer to this final rule for comprehensive
information about requesting relief from the FAA from the provisions of
SFAR No. 113, Sec. 91.1607.
Lastly, the FAA makes minor administrative revisions to the
regulatory text. These revisions include an update to the applicability
paragraph of the regulatory text to make it consistent with other
recently published flight prohibition SFARs and a minor non-substantive
clarification of the SFAR boundary description for the specified areas
of the Dnipropetrovsk FIR (UKDV).
[[Page 65682]]
V. Approval Process Based on a Request From a Department, Agency, or
Instrumentality of the United States Government
A. Approval Process Based on an Authorization Request From a
Department, Agency, or Instrumentality of the United States Government
In some instances, U.S. Government departments, agencies, or
instrumentalities may need to engage U.S. civil aviation to support
their activities in the specified areas of the Dnipropetrovsk FIR
(UKDV) described in this rule. If a department, agency, or
instrumentality of the U.S. Government determines that it has a
critical need to engage any person described in paragraph (a) of SFAR
No. 113, Sec. 91.1607, including a U.S. air carrier or commercial
operator, to transport civilian or military passengers or cargo or
conduct other operations in the specified areas of the Dnipropetrovsk
FIR (UKDV), that department, agency, or instrumentality may request the
FAA to approve persons described in paragraph (a) of SFAR No. 113,
Sec. 91.1607, to conduct such operations.
The requesting department, agency, or instrumentality of the U.S.
Government must submit the request for approval to the FAA's Associate
Administrator for Aviation Safety in a letter signed by an appropriate
senior official of the requesting department, agency, or
instrumentality.\7\ The FAA will not accept or consider requests for
approval from anyone other than the requesting department, agency, or
instrumentality. In addition, the senior official signing the letter
requesting FAA approval on behalf of the requesting department, agency,
or instrumentality must be sufficiently positioned within the
organization to demonstrate that the senior leadership of the
requesting department, agency, or instrumentality supports the request
for approval and is committed to taking all necessary steps to minimize
operational risks to the proposed flights. The senior official must
also be in a position to: (1) Attest to the accuracy of all
representations made to the FAA in the request for approval, and (2)
ensure that any support from the requesting U.S. Government department,
agency, or instrumentality described in the request for approval is in
fact brought to bear and is maintained over time. Unless justified by
exigent circumstances, requests for approval must be submitted to the
FAA no less than 30 calendar days before the date on which the
requesting department, agency, or instrumentality wishes the proposed
operation(s) to commence.
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\7\ This approval procedure applies to U.S. Government
departments, agencies, or instrumentalities; it does not apply to
the public. The FAA describes this procedure in the interest of
providing transparency with respect to the FAA's process for
interacting with U.S. Government departments, agencies, or
instrumentalities that seek to engage U.S. civil aviation to operate
in the area in which this SFAR prohibits their operations.
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The requestor must send the request to the Associate Administrator
for Aviation Safety, Federal Aviation Administration, 800 Independence
Avenue SW, Washington, DC 20591. Electronic submissions are acceptable,
and the requesting entity may request that the FAA notify it
electronically as to whether the FAA grants the request for approval.
If a requestor wishes to make an electronic submission to the FAA, the
requestor should contact the Air Transportation Division, Flight
Standards Service, at (202) 267-8166, to obtain the appropriate email
address. A single letter may request approval from the FAA for multiple
persons described in SFAR No. 113, Sec. 91.1607, or for multiple
flight operations. To the extent known, the letter must identify the
person(s) expected to be covered under the SFAR on whose behalf the
U.S. Government department, agency, or instrumentality seeks FAA
approval, and it must describe--
The proposed operation(s), including the nature of the
mission being supported;
The service that the person(s) covered by the SFAR will
provide;
To the extent known, the specific locations in the
specified areas of the Dnipropetrovsk FIR (UKDV) where the proposed
operation(s) will occur, including, but not limited to, the flight path
and altitude of the aircraft while it is operating in the specified
areas of the Dnipropetrovsk FIR (UKDV) and the airports, airfields, or
landing zones at which the aircraft will take off and land; and
The method by which the U.S. Government department,
agency, or instrumentality will provide, or how the operator will
otherwise obtain, current threat information and an explanation of how
the operator will integrate this information into all phases of the
proposed operations (i.e., the pre-mission planning and briefing, in-
flight, and post-flight phases).
The request for approval must also include a list of operators with
whom the U.S. Government department, agency, or instrumentality
requesting FAA approval has a current contract(s), grant(s), or
cooperative agreement(s) (or its prime contractor has a subcontract(s))
for specific flight operations in the specified areas of the
Dnipropetrovsk FIR (UKDV). The requestor may identify additional
operators to the FAA at any time after the FAA issues its approval.
Neither the operators listed in the original request, nor any operators
the requestor subsequently seeks to add to the approval, may commence
operations under the approval until the FAA issues them an Operations
Specification (OpSpec) or Letter of Authorization (LOA), as
appropriate, for operations in the specified areas of the
Dnipropetrovsk FIR (UKDV). The approval conditions discussed below
apply to all operators, whether included in the original list or
subsequently added to the approval. Requestors should send updated
lists to the email address obtained from the Air Transportation
Division by calling (202) 267-8166.
If an approval request includes classified information, requestors
may contact Aviation Safety Inspector Stephen Moates for instructions
on submitting it to the FAA. His contact information is listed in the
FOR FURTHER INFORMATION CONTACT section of this final rule.
FAA approval of an operation under SFAR No. 113, Sec. 91.1607,
does not relieve persons subject to this SFAR of the responsibility to
comply with all other applicable FAA rules and regulations. Operators
of civil aircraft must comply with the conditions of their
certificates, OpSpecs, and LOAs, as applicable. Operators must also
comply with all rules and regulations of other U.S. Government
departments or agencies that may apply to the proposed operation(s),
including, but not limited to, regulations issued by the Transportation
Security Administration.
B. Approval Conditions
If the FAA approves the request, the FAA's Aviation Safety
organization will send an approval letter to the requesting U.S.
Government department, agency, or instrumentality informing it that the
FAA's approval is subject to all of the following conditions:
(1) The approval will stipulate those procedures and conditions
that limit, to the greatest degree possible, the risk to the operator,
while still allowing the operator to achieve its operational
objectives.
(2) Before any approval takes effect, the operator must submit to
the FAA:
(a) A written release of the U.S. Government from all damages,
claims, and liabilities, including without limitation legal fees and
expenses, relating to any event arising out of or related to the
approved operations in
[[Page 65683]]
the specified areas of the Dnipropetrovsk FIR (UKDV); and
(b) The operator's written agreement to indemnify the U.S.
Government with respect to any and all third-party damages, claims, and
liabilities, including without limitation legal fees and expenses,
relating to any event arising from or related to the approved
operations in the specified areas of the Dnipropetrovsk FIR (UKDV).
(3) Other conditions the FAA may specify, including those the FAA
might impose in OpSpecs or LOAs, as applicable.
The release and agreement to indemnify do not preclude an operator
from raising a claim under an applicable non-premium war risk insurance
policy the FAA issues under chapter 443 of title 49, U.S. Code.
If the FAA approves the proposed operation(s), the FAA will issue
an OpSpec or LOA, as applicable, to the operator(s) identified in the
original request authorizing them to conduct the approved operation(s).
In addition, the FAA will notify the U.S. Government department,
agency, or instrumentality that requested the FAA's approval of any
additional conditions beyond those contained in the approval letter.
VI. Information Regarding Petitions for Exemption
Any operations not conducted under an approval the FAA issues
through the approval process set forth previously may only occur in
accordance with an exemption from SFAR No. 113, Sec. 91.1607. A
petition for exemption must comply with 14 CFR part 11. The FAA will
consider whether exceptional circumstances exist beyond those the
approval process described in the previous section contemplates. To
determine whether a petition for exemption from the prohibition this
SFAR establishes fulfills the standard of 14 CFR 11.81, the FAA
consistently finds necessary the following information:
The proposed operation(s), including the nature of the
operation;
The service the person(s) covered by the SFAR will
provide;
The specific locations in the specified areas of the
Dnipropetrovsk FIR (UKDV) where the proposed operation(s) will occur,
including, but not limited to, the flight path and altitude of the
aircraft while it is operating in the specified areas of the
Dnipropetrovsk FIR (UKDV) and the airports, airfields, or landing zones
at which the aircraft will take off and land;
The method by which the operator will obtain current
threat information and an explanation of how the operator will
integrate this information into all phases of its proposed operations
(i.e., the pre-mission planning and briefing, in-flight, and post-
flight phases); and
The plans and procedures the operator will use to minimize
the risks, identified in this preamble, to the proposed operations, to
establish that granting the exemption would not adversely affect safety
or would provide a level of safety at least equal to that provided by
this SFAR. The FAA has found comprehensive, organized plans and
procedures of this nature to be helpful in facilitating the agency's
safety evaluation of petitions for exemption from flight prohibition
SFARs.
The FAA includes, as a condition of each such exemption it issues,
a release and agreement to indemnify, as described previously.
The FAA recognizes that, with the support of the U.S. Government,
the governments of other countries could plan operations that SFAR No.
113, Sec. 91.1607, affects. While the FAA will not permit these
operations through the approval process, the FAA will consider
exemption requests for such operations on an expedited basis and in
accordance with the order of preference set forth in paragraph (c) of
SFAR No. 113, Sec. 91.1607.
If a petition for exemption includes security-sensitive or
proprietary information, requestors may contact Aviation Safety
Inspector Stephen Moates for instructions on submitting it to the FAA.
His contact information appears in the FOR FURTHER INFORMATION CONTACT
section of this final rule.
VII. Regulatory Notices and Analyses
Changes to Federal regulations must undergo several economic
analyses. First, Executive Orders 12866 and 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. In addition, DOT rulemaking procedures in subpart B of 49 CFR
part 5 instruct DOT agencies to issue a regulation upon a reasoned
determination that benefits exceed costs. Second, the Regulatory
Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603
et seq., requires agencies to analyze the economic impact of regulatory
changes on small entities. Third, the Trade Agreements Act of 1979
(Pub. L. 96-39), as codified in 19 U.S.C. Chapter 13, prohibits
agencies from setting standards that create unnecessary obstacles to
the 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
(Pub. L. 104-4), as codified in 2 U.S.C. Chapter 25, 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.
In conducting these analyses, the FAA has determined this final
rule has benefits that justify its costs. This rule is a significant
regulatory action, as defined in section 3(f) of Executive Order 12866
and DOT rulemaking procedures, as it raises novel policy issues. This
rule also complies with the requirements of the Department of
Transportation's administrative rule on rulemaking at 49 CFR part 5. As
5 U.S.C. 553 does not require notice and comment for this final rule, 5
U.S.C. 603 and 604 do not require regulatory flexibility analyses
regarding impacts on small entities. This rule will not create
unnecessary obstacles to the foreign commerce of the United States.
This rule will not impose an unfunded mandate on State, local, or
tribal governments, or on the private sector, by exceeding the
threshold identified previously.
A. Regulatory Evaluation
This action does not extend the prohibition against certain U.S.
civil flight operations in the specified areas of the Simferopol FIR
(UKFV), which will expire on October 27, 2020. As a result of this
expiration, U.S. civil operators will have additional routing options
available to them, which may reduce flight times and operational costs
for some flights, as SFAR No. 113, Sec. 91.1607, will no longer
require them to avoid the specified areas of the Simferopol FIR (UKFV)
after that date.
This action also extends, without any changes to its boundaries,
the prohibition against certain U.S. civil flight operations in the
specified areas of the Dnipropetrovsk FIR (UKDV) for one additional
year due to the significant, continuing hazards to U.S. civil aviation
in that airspace, as described in the preamble to this final rule.
Because this rule does not apply to the western portion of the
Dnipropetrovsk FIR (UKDV), U.S. civil operators and airmen may continue
to operate in that area. This action also continues to permit U.S.
civil flight
[[Page 65684]]
operations to the extent necessary to conduct takeoffs and landings at
three Ukrainian international airports near the western boundary of
SFAR No. 113, Sec. 91.1607, in the Dnipropetrovsk FIR (UKDV).
The FAA acknowledges the continuation of the flight prohibition in
the specified areas of the Dnipropetrovsk FIR (UKDV) might result in
additional costs to some U.S. operators, such as increased fuel costs
and other operational-related costs. However, the FAA expects the
benefits of this action exceed the costs because it will result in the
avoidance of risks of fatalities, injuries, and property damage that
could occur if a U.S. operator's aircraft were shot down (or otherwise
damaged) while operating in the specified areas of the Dnipropetrovsk
FIR (UKDV). The FAA will continue to monitor and evaluate the safety
risks to U.S. civil operators and airmen as a result of the security
conditions in the specified areas of the Dnipropetrovsk FIR (UKDV).
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an
agency to prepare an initial regulatory flexibility analysis describing
impacts on small entities whenever 5 U.S.C. 553 or any other law
requires an agency to publish a general notice of proposed rulemaking
for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to
prepare a final regulatory flexibility analysis when an agency issues a
final rule under 5 U.S.C. 553, after that section or any other law
requires publication of a general notice of proposed rulemaking. The
FAA concludes good cause exists to forgo notice and comment and to not
delay the effective date for this rule. As 5 U.S.C. 553 does not
require notice and comment in this situation, 5 U.S.C. 603 and 604
similarly do not require regulatory flexibility analyses.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39) 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 this Act, 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 final rule and
determined that its purpose is to protect the safety of U.S. civil
aviation from risks to their operations in the specified areas of the
Dnipropetrovsk FIR (UKDV), a location outside the U.S. Therefore, the
rule complies with the Trade Agreements Act of 1979.
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 $155 million in lieu of $100
million.
This 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
the FAA consider the impact of paperwork and other information
collection burdens it imposes on the public. The FAA has determined no
new requirement for information collection is associated with this
final rule.
F. International Compatibility and Cooperation
In keeping with U.S. obligations under the Convention on
International Civil Aviation, the FAA's policy is to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined no ICAO Standards and Recommended Practices correspond to
this regulation. The FAA also finds this action is fully consistent
with the obligations under 49 U.S.C. 40105(b)(1)(A) to ensure the FAA
exercises its duties consistently with the obligations of the United
States under international agreements.
While the FAA's flight prohibition does not apply to foreign air
carriers, DOT codeshare authorizations prohibit foreign air carriers
from carrying a U.S. codeshare partner's code on a flight segment that
operates in airspace for which the FAA has issued a flight prohibition
for U.S. civil aviation. In addition, foreign air carriers and other
foreign operators may choose to avoid, or be advised or directed by
their civil aviation authorities to avoid, airspace for which the FAA
has issued a flight prohibition for U.S. civil aviation.
G. Environmental Analysis
The FAA has analyzed this action under Executive Order 12114,
Environmental Effects Abroad of Major Federal Actions, and DOT Order
5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be
informed of environmental considerations and take those considerations
into account when making decisions on major Federal actions that could
have environmental impacts anywhere beyond the borders of the United
States. The FAA has determined this action is exempt pursuant to
Section 2-5(a)(i) of Executive Order 12114 because it does not have the
potential for a significant effect on the environment outside the
United States.
In accordance with FAA Order 1050.1F, Environmental Impacts:
Policies and Procedures, paragraph 8-6(c), the FAA has prepared a
memorandum for the record stating the reason(s) for this determination
and has placed it in the docket for this rulemaking.
VIII. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this rule under the principles and criteria of
Executive Order 13132, Federalism. 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. The agency has determined it is not a
``significant energy action'' under the executive order and will not be
likely to have a significant adverse effect on the supply,
distribution, or use of energy.
C. Executive Order 13609, Promoting International Regulatory
Cooperation
Executive Order 13609, Promoting International Regulatory
Cooperation, promotes international regulatory cooperation to meet
shared challenges
[[Page 65685]]
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 rule is not subject to the requirements of Executive Order
13771, Reducing Regulation and Controlling Regulatory Costs, because
the FAA is issuing with respect to a national security function of the
United States.
IX. Additional Information
A. Availability of Rulemaking Documents
An electronic copy of a rulemaking document may be obtained from
the internet by--
Searching the docket for this rulemaking at https://www.regulations.gov;
Visiting the FAA's Regulations and Policies web page at
https://www.faa.gov/regulations_policies; or
Accessing the Government Publishing Office's website at
https://www.govinfo.gov.
Copies may also be obtained by sending a request (identified by
amendment or docket number of this rulemaking) to the Federal Aviation
Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue
SW, Washington, DC 20591, or by calling (202) 267-9677.
Except for classified material, all documents the FAA considered in
developing this rule, including economic analyses and technical
reports, may be accessed from the internet through the docket for this
rulemaking.
B. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601)
requires the FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. A small entity with questions regarding this document may
contact its local FAA official, or the persons listed under the FOR
FURTHER INFORMATION CONTACT heading at the beginning of the preamble.
To find out more about SBREFA on the internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.
List of Subjects in 14 CFR Part 91
Air traffic control, Aircraft, Airmen, Airports, Aviation safety,
Freight, Ukraine.
The Amendment
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(f), 106(g), 40101, 40103, 40105, 40113,
40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715,
44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122,
47508, 47528-47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49 U.S.C.
44703 note); articles 12 and 29 of the Convention on International
Civil Aviation (61 Stat. 1180), (126 Stat. 11).
0
2. Revise Sec. 91.1607 to read as follows:
Sec. 91.1607 Special Federal Aviation Regulation No. 113--
Prohibition Against Certain Flights in Specified Areas of the
Dnipropetrovsk Flight Information Region (FIR) (UKDV).
(a) Applicability. This Special Federal Aviation Regulation (SFAR)
applies to the following persons:
(1) All U.S. air carriers and U.S. commercial operators;
(2) All persons exercising the privileges of an airman certificate
issued by the FAA, except when such persons are operating U.S.-
registered aircraft for a foreign air carrier; and
(3) All operators of U.S.-registered civil aircraft, except when
the operator of such aircraft is a foreign air carrier.
(b) Flight prohibition. Except as provided in paragraphs (c) and
(d) of this section, no person described in paragraph (a) of this
section may conduct flight operations in the Dnipropetrovsk FIR (UKDV)
from the surface to unlimited, east of a line drawn direct from ABDAR
(471802N 351732E) along airway M853 to NIKAD (485946N 355519E), then
along airway N604 to GOBUN (501806N 373824E). This prohibition applies
to airways M853 and N604.
(c) Permitted operations. This section does not prohibit persons
described in paragraph (a) of this section from conducting flight
operations in the specified areas described in paragraph (b) of this
section, under the following circumstances:
(1) Operations are permitted to the extent necessary to take off
from and land at the following three airports, subject to the approval
of, and in accordance with the conditions established by, the
appropriate authorities of Ukraine:
(i) Kharkiv International Airport (UKHH);
(ii) Dnipropetrovsk International Airport (UKDD); and
(iii) Zaporizhzhia International Airport (UKDE).
(2) Operations are permitted provided that they are conducted under
a contract, grant, or cooperative agreement with a department, agency,
or instrumentality of the U.S. Government (or under a subcontract
between the prime contractor of the department, agency, or
instrumentality of the U.S. Government and the person described in
paragraph (a) of this section) with the approval of the FAA, or under
an exemption issued by the FAA. The FAA will consider requests for
approval or exemption in a timely manner, with the order of preference
being: First, for those operations in support of U.S. Government-
sponsored activities; second, for those operations in support of
government-sponsored activities of a foreign country with the support
of a U.S. Government department, agency, or instrumentality; and third,
for all other operations.
(d) Emergency situations. In an emergency that requires immediate
decision and action for the safety of the flight, the pilot in command
of an aircraft may deviate from this section to the extent required by
that emergency. Except for U.S. air carriers and commercial operators
that are subject to the requirements of 14 CFR part 119, 121, 125, or
135, each person who deviates from this section must, within 10 days of
the deviation, excluding Saturdays, Sundays, and Federal holidays,
submit to the responsible Flight Standards office a complete report of
the operations of the aircraft involved in the deviation, including a
description of the deviation and the reasons for it.
(e) Expiration. This SFAR will remain in effect until October 27,
2021. The FAA may amend, rescind, or extend this SFAR as necessary.
(f) Definition. For purposes of this section, the Dnipropetrovsk
FIR (UKDV) is defined as that airspace from the surface to unlimited
within the lateral limits in figure 1 to this paragraph (f):
BILLING CODE 4910-13-P
[[Page 65686]]
[GRAPHIC] [TIFF OMITTED] TR16OC20.000
Issued in Washington, DC, under the authority of 49 U.S.C.
106(f) and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), on
September 24, 2020.
Steve Dickson,
Administrator.
[FR Doc. 2020-22041 Filed 10-15-20; 8:45 am]
BILLING CODE 4910-13-C
