Rule2021-21797
Extension of the Prohibition Against Certain Flights in Specified Areas of the Dnipro Flight Information Region (FIR) (UKDV)
Primary source
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Published
October 6, 2021
Effective
October 6, 2021
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This action amends and extends the Special Federal Aviation Regulation (SFAR) prohibiting certain flights in the specified areas of the Dnipro 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 due to the continuing hostilities along the line of contact between Ukraine and Russian-backed separatists and heightened tensions between Russia and Ukraine. The FAA extends the expiration date of this Special Federal Aviation Regulation from October 27, 2021, until October 27, 2023. 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.
Full Text
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<title>Federal Register, Volume 86 Issue 191 (Wednesday, October 6, 2021)</title>
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[Federal Register Volume 86, Number 191 (Wednesday, October 6, 2021)]
[Rules and Regulations]
[Pages 55485-55492]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-21797]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No.: FAA-2014-0225; Amdt. No. 91-331G]
RIN 2120-AL68
Extension of the Prohibition Against Certain Flights in Specified
Areas of the Dnipro Flight Information Region (FIR) (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 Dnipro 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 due to the continuing hostilities along the line of
contact between Ukraine and Russian-backed separatists and heightened
tensions between Russia and Ukraine. The FAA extends the expiration
date of this Special Federal Aviation Regulation from October 27, 2021,
until October 27, 2023. 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 6, 2021.
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 <a href="/cdn-cgi/l/email-protection#32414657425a575c1c5f5d53465741725453531c555d44"><span class="__cf_email__" data-cfemail="5c2f28392c3439327231333d28392f1c3a3d3d723b332a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This action extends the prohibition against certain flights in the
specified areas of the Dnipro Flight Information Region (FIR) (UKDV)
\1\ 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 Code of Federal
Regulations (CFR), Sec. 91.1607, from conducting civil flight
operations in the specified areas of the Dnipro FIR (UKDV) until
October 27, 2023, due to hazards to the safety of U.S. civil aviation
associated with continuing hostilities along the line of contact
between Ukraine and Russian-backed separatists and heightened tensions
between Russia and Ukraine. These circumstances result in a continued
inadvertent risk to U.S. civil aviation operations due to the potential
for miscalculation or misidentification.
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\1\ In its May 24, 2018, Aeronautical Information Regulation and
Control (AIRAC 1806) publication, the Ukrainian State Air Traffic
Services Enterprise, the air navigation service provider for
Ukraine, renamed the FIR formerly known as the Dnipropetrovsk FIR
(UKDV) the Dnipro FIR (UKDV). This rule uses the current FIR name,
including in historical references to the FIR.
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II. Legal Authority and Good Cause
A. Legal Authority
The FAA is responsible for the safety of flight in the U.S. and 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, United States 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 that 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 Dnipro FIR (UKDV) due to 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)(B) of title 5, U.S., 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 a 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
[[Page 55486]]
of the prohibition of U.S. civil flights in the areas to which this
SFAR applies, making it appropriate to waive any delay in effective
date.
The risk environment for U.S. civil aviation in airspace managed by
other countries with respect to the safety of flight is often fluid in
circumstances involving 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 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 that 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. As a result, engaging in notice and
comment would be impracticable.
Additionally, while there is a public interest in having an
opportunity for the public to comment on agency action, it is crucial
that 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.
As described in the preamble to this rule, extending the flight
prohibition for U.S. civil aviation operations in the specified areas
of the Dnipro FIR (UKDV) is necessary due to continuing safety-of-
flight hazards associated with the continuing hostilities along the
line of contact between Ukraine and Russian-backed separatists and
heightened tensions between Russia and Ukraine. Inadvertent risk to
U.S. civil aviation operations continues to exist due to the potential
for miscalculation or misidentification. Such circumstances establish
that engaging in notice and comment for this rule would be
impracticable and contrary to the public interest. Accordingly, the FAA
finds good cause exists to forgo notice and comment and any delay in
the effective date for this rule.
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 Russia unlawfully seized Crimea from
Ukraine.\2\ In the months that followed, the violence and the
associated risks to civil aviation expanded to encompass the entirety
of the Simferopol and Dnipro FIRs (UKFV and UKDV, respectively). In
addition to a series of attacks on military aircraft flying at low
altitudes, two aircraft operating at high altitudes were shot down over
eastern Ukraine. The first was a Ukrainian Antonov An-26, which was
shot down on July 14, 2014, while flying at 21,000 feet, southeast of
Luhansk, Ukraine. The second was Malaysia Airlines Flight 17 (MH 17),
which was shot down on July 17, 2014, while flying over Ukraine at
33,000 feet, just west of the Russian border. All of the 298 passengers
and crew on board MH 17 perished.
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\2\ Prohibition Against Certain Flights in the Simferopol (UKFV)
Flight Information Region (FIR) final rule, 79 FR 22862 (Apr. 25,
2014).
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The FAA determined the use of weapons capable of targeting and
shooting down aircraft flying on civil air routes at cruising altitudes
posed a dangerous threat to U.S. civil aviation operating in the
Simferopol and Dnipro FIRs (UKFV and UKDV, respectively). On July 18,
2014, Coordinated Universal Time (UTC), the FAA issued NOTAM FDC 4/
2182, which prohibited U.S. civil aviation operations in the entire
Simferopol and Dnipro FIRs (UKFV and UKDV, respectively). The FAA
subsequently incorporated the flight prohibition into SFAR No. 113,
Sec. 91.1607, on December 29, 2014.\3\
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\3\ Prohibition Against Certain Flights in the Simferopol (UKFV)
and Dnipropetrovsk (UKDV) Flight Information Regions (FIRs) final
rule, 79 FR 77857 (Dec. 29, 2014).
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In 2018, the FAA determined security and safety conditions had
stabilized sufficiently in certain portions of the Simferopol and
Dnipro FIRs (UKFV and UKDV, respectively), for U.S. civil aviation
operations to resume safely.\4\ However, the FAA also determined
continuing hazards to U.S. civil aviation existed in certain specified
areas of the Simferopol and Dnipro FIRs (UKFV and UKDV,
respectively).\5\
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\4\ 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
(Oct. 19, 2018).
\5\ Id. In 2020, the FAA determined U.S. civil aviation
operations could 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, expired on October 27,
2020. Amendment of the Prohibition Against Certain Flights in
Specified Areas of the Simferopol and Dnipropetrovsk Flight
Information Regions (FIRs) (UKFV and UKDV) final rule, 85 FR 65678
(Oct. 16, 2020).
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In the October 2018 final rule, the FAA determined an inadvertent
risk to civil aviation associated with ongoing violence continued to
exist in the eastern portion of the Dnipro FIR (UKDV). This violence
involved localized skirmishes and the potential for large-scale
fighting. The FAA was concerned this situation could lead to certain
air defense forces misidentifying or engaging civil aviation. The FAA
determined these threats were concentrated in the eastern portion of
the Dnipro 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 Dnipro FIR (UKDV), the
military situation had begun to stabilize, which reduced the risk of a
large-scale conflict that might extend into the western portion of the
Dnipro FIR (UKDV). The FAA determined these circumstances indicated the
level of risk to civil aviation in the western portion of the Dnipro
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 Dnipro FIR (UKDV) in NOTAM FDC 4/2182. As a result, the FAA
amended its flight prohibition for the Dnipro FIR (UKDV) to allow U.S.
civil aviation to resume flight operations in the western portion of
the Dnipro 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), Dnipro
International Airport (UKDD),\6\ and Zaporizhzhia International Airport
(UKDE).
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\6\ The FAA has updated the airport name in accordance with the
Aeronautical Information Publication of Ukraine (AIP), available at
<a href="http://www.aisukraine.net/publications/eng/publ">http://www.aisukraine.net/publications/eng/publ</a>(eng).htm.
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The FAA determined in the October 2020 final rule that the
situation in the specified areas of the Dnipro FIR (UKDV) continued to
present an unacceptable level of risk to U.S. civil aviation. This
inadvertent risk arose from the ongoing violence based on localized
skirmishes and the potential for large-scale fighting in the eastern
portion of the Dnipro FIR (UKDV),
[[Page 55487]]
particularly near the line of contact bordering the Russian-controlled
area. The FAA remained concerned these skirmishes and the risk for
potential large-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 continued 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 a cease-fire arrangement between Ukraine and Russia, which
went into effect in December 2019, conflict-related air defense
activity in eastern Ukraine also indicated the existence of an
inadvertent risk to U.S. civil aviation operations in the eastern
portion of the Dnipro 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 Dnipro 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. Russian-led forces in eastern Ukraine regularly
used SAMs, small-arms ground fire, and Global Positioning System (GPS)
jamming to target OSCE SMM unmanned aircraft, including in the eastern
portion of the Dnipro 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 remained unconfirmed.
Although the situation had remained mostly stable since 2018,
skirmishes and attacks within the Dnipro FIR (UKDV) and sub-adjacent
Ukrainian territory continued to occur with little or no warning. As a
result of the significant, continuing unacceptable risk to the safety
of U.S. civil aviation operations in the specified areas of the Dnipro
FIR (UKDV), the FAA extended the expiration date of SFAR No. 113, Sec.
91.1607, from October 27, 2020, to October 27, 2021.
IV. Discussion of the Final Rule
During the first quarter of the calendar year 2021, an increasing
number of cease-fire violations in the eastern portion of the Dnipro
FIR (UKDV) occurred, particularly near the line of contact bordering
the Russian-controlled area. In addition, by late March 2021, Russia
had deployed additional military capabilities, including ground forces,
tactical fighter aircraft, and air defense equipment, to occupied
Crimea and to western Russia in close proximity to the Russia-Ukraine
border. Russia's military force mobilization, increased cease-fire
violations along the established line of contact in eastern Ukraine,
and heightened political rhetoric had the potential to escalate
tensions further and result in increased military activities in the
region, which elevates the level of risk to U.S. civil aviation
operations. Russian military exercises near the Russia-Ukraine border
further strained regional tensions.
Jamming and electronic warfare activity, which could affect civil
aircraft navigation or communications systems, also increased in the
border region. On April 8 and 9, 2021, the OSCE's SMM to Ukraine
reported two UAS flights experienced GPS interference while conducting
monitoring missions along the line of contact. The April 9, 2021, SMM
UAS flight experienced GPS interference resulting in an attempted orbit
maneuver to regain the GPS signal prior to executing an emergency
landing. OSCE indicated increased GPS interference occurred since March
21, 2021, along the line of contact.
Overall, circumstances in the region presented an increased
potential inadvertent risk to U.S. civil aviation operations due to the
potential for miscalculation or misidentification. Heightened regional
tensions contributed to the inadvertent shoot down of Malaysia Airlines
Flight 17 (MH 17) over eastern Ukraine in July 2014. Although this risk
was greatest in the specified areas of the Dnipro FIR (UKDV) in which
SFAR No. 113, Sec. 91.1607, prohibits U.S. civil aviation operations,
it also extended beyond those areas. As a result, the FAA issued two
advisory Notices to Airmen (NOTAMs): NOTAMs KICZ A0012/21 \7\ and KICZ
A0013/21.\8\ In late April 2021, Russia declared its military readiness
exercise had met its objectives and announced forces deployed to the
Russia-Ukraine border region would begin returning to their respective
bases. By early to mid-May 2021, this redeployment activity had begun,
reducing tensions and the associated risks to civil aviation in the
Simferopol FIR (UKFV), the Kyiv FIR (UKBV), and the Dnipro FIR (UKDV)
from their peak. Consequently, the FAA cancelled NOTAM KICZ A0013/21 on
May 13, 2021. NOTAM KICZ A0012/21 remains in effect.
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\7\ NOTAM KICZ A0012/21 (issued on or about Apr. 17, 2021)
advised U.S. civil aviation to exercise extreme caution when flying
into, out of, within, or over those areas of airspace in the Moscow
FIR (UUWV) and Rostov-na Donu FIR (URRV) within 100 nautical miles
outside the boundaries of the Dnipro FIR (UKDV), the Simferopol FIR
(UKFV), and the Kyiv FIR (UKBV), including that portion of the Kyiv
Upper Information Region (UIR) (UKBU) airspace within the lateral
limits of the UKDV, UKFV, and UKBV FIRs.
\8\ NOTAM KICZ A0013/21 (issued on or about Apr. 17, 2021)
advised U.S. civil aviation operators to exercise extreme caution
when flying into, out of, within, or over the Dnipro FIR (UKDV), the
Simferopol FIR (UKFV), and the Kyiv FIR (UKBV), including a portion
of the Kyiv Upper Information Region (UIR) (UKBU) airspace within
the lateral limits of the entire UKDV, UKFV, and UKBV FIRs.
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An unacceptable level of inadvertent risk to U.S. civil aviation
operations remains in the specified areas of the Dnipro FIR (UKDV)
described in this final rule, which include the airspace over and near
the line of contact where most of the recent cease-fire violations
occurred. While tensions between Ukraine and Russia have lowered from
their peak earlier this year, they remain elevated, in part due to the
recent period of heightened Russian military force posturing in Crimea
and along the Russia-Ukraine border and increases in cease-fire
violations. In addition, the conflict between Ukraine and Russian-back
separatists in eastern Ukraine continues. These circumstances result in
a continued inadvertent risk to U.S. civil aviation operations due to
the potential for miscalculation or misidentification.
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 Dnipro FIR (UKDV), the FAA extends the expiration date of
SFAR No. 113, Sec. 91.1607, from October 27, 2021, to October 27,
2023.
Further amendments to SFAR No. 113, Sec. 91.1607, might be
appropriate if the risk to U.S. 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
Dnipro 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.
Finally, the FAA makes several technical revisions to the rule to
reflect current naming conventions and clarify the description of the
airspace in which
[[Page 55488]]
U.S. civil aviation operations remain prohibited. This rule contains
updated names for the Dnipro FIR (UKDV) and the Dnipro International
Airport (UKDD) to reflect Ukraine's current nomenclature. This rule
also describes the specified areas of the Dnipro FIR (UKDV) in a manner
that is easier for operators to understand. Previously, paragraph (b)
of SFAR No. 113, Sec. 91.1607, described the boundaries of the
specified areas of the Dnipro FIR (UKDV), from surface to unlimited, in
terms of airways and detailed waypoints with their corresponding
latitudes and longitudes. Meanwhile, paragraph (f) of the rule
described the boundaries of the Dnipro FIR (UKDV) in terms of a series
of waypoints and their corresponding latitudes and longitudes and
international borders. Because paragraph (f) is no longer necessary,
this rule contains a clarifying sentence to paragraph (b) to describe
the flight prohibition. The boundaries of the area in which the FAA
prohibits U.S. civil aviation operations that are subject to this rule
remain unchanged.
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 Dnipro 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 Dnipro 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 U.S. Government department, agency, or
instrumentality 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.\9\ The FAA will not accept or consider requests for
approval from anyone other than the requesting U.S. Government
department, agency, or instrumentality. In addition, the senior
official signing the letter requesting FAA approval must be
sufficiently positioned within the requesting department, agency, or
instrumentality to demonstrate that the organization's senior
leadership supports the request for approval and is committed to taking
all necessary steps to minimize aviation safety and security 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,
requesting U.S. Government departments, agencies, or instrumentalities
must submit requests for approval 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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\9\ 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 would prohibit their operations in
the absence of specific FAA approval.
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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 multiple flight
operations. To the extent known, the letter must identify the person(s)
the requester expects the SFAR to cover on whose behalf the U.S.
Government department, agency, or instrumentality seeks FAA approval,
and it must describe--
<bullet> The proposed operation(s), including the nature of the
mission being supported;
<bullet> The service the person(s) covered by the SFAR will
provide;
<bullet> To the extent known, the specific locations in the
specified areas of the Dnipro 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 Dnipro FIR (UKDV) and the airports, airfields, or landing
zones at which the aircraft will take off and land; and
<bullet> The method by which the requesting 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 Dnipro 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 Dnipro FIR (UKDV). The
approval conditions discussed below apply to all operators. Requestors
should send updated lists to the email address they obtain 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 appears 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, agencies, or instrumentalities that may
[[Page 55489]]
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 the specified areas of the Dnipro 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 out of or related to the approved
operations in the specified areas of the Dnipro 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.C.
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 and any operators the requestor subsequently adds to
the approval, authorizing them to conduct the approved operation(s). In
addition, as stated in paragraph (3) of this section V.B., the FAA
notes that it may include additional conditions beyond those contained
in the approval letter in any OpSpec or LOA associated with a
particular operator operating under this approval, as necessary in the
interests of aviation safety. U.S. Government departments, agencies,
and instrumentalities requesting FAA approval on behalf of entities
with which they have a contract or subcontract, grant, or cooperative
agreement should request a copy of the relevant OpSpec or LOA directly
from the entity with which they have any of the foregoing types of
arrangements, if desired.
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:
<bullet> The proposed operation(s), including the nature of the
operation;
<bullet> The service the person(s) covered by the SFAR will
provide;
<bullet> The specific locations in the specified areas of the
Dnipro 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 Dnipro FIR
(UKDV) and the airports, airfields, or landing zones at which the
aircraft will take off and land;
<bullet> 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
<bullet> 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 may be
affected by SFAR No. 113, Sec. 91.1607. 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 is listed 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. 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,
as it raises novel policy issues contemplated under that Executive
order. 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
[[Page 55490]]
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 extends without change the prohibition against certain
U.S. civil flight operations in the specified areas of the Dnipro FIR
(UKDV) for two additional years due to 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 Dnipro 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 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 Dnipro FIR
(UKDV).
The FAA acknowledges the continued prohibition of U.S. civil
aviation operations in the specified areas of the Dnipro 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 to 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 Dnipro FIR (UKDV). The FAA will continue to monitor and evaluate
the safety and security risks to U.S. civil operators and airmen as a
result of conditions in the specified areas of the Dnipro FIR (UKDV)
and the surrounding region.
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
Dnipro 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 to 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 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 consistent 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. The agency has determined this action will not
have a substantial direct effect on the States, or the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, this rule will not have federalism implications.
[[Page 55491]]
B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this rule under Executive Order 13211. 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 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.
IX. Additional Information
A. Electronic Access
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.
Those documents may be viewed online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
using the docket number listed above. A copy of this rule will be
placed in the docket. Electronic retrieval help and guidelines are
available on the website. It is available 24 hours each day, 365 days
each year. An electronic copy of this document may also be downloaded
from the Office of the Federal Register's website at <a href="https://www.federalregister.gov">https://www.federalregister.gov</a> and the Government Publishing Office's website
at <a href="https://www.govinfo.gov">https://www.govinfo.gov</a>. A copy may also be found at the FAA's
Regulations and Policies website at <a href="https://www.faa.gov/regulations_policies">https://www.faa.gov/regulations_policies</a>.
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.
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 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 <a href="https://www.faa.gov/regulations_policies/rulemaking/sbre_act/">https://www.faa.gov/regulations_policies/rulemaking/sbre_act/</a>.
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 Dnipro 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 Dnipro 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. This prohibition extends from the surface to
unlimited and includes that portion of the Kyiv Upper Information
Region (UIR) (UKBU) airspace within the lateral limits set forth in
this paragraph (b) from the upper boundaries of the Dnipro FIR to
unlimited.
(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) Dnipro 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
[[Page 55492]]
description of the deviation and the reasons for it.
(e) Expiration. This SFAR will remain in effect until October 27,
2023. The FAA may amend, rescind, or extend this SFAR as necessary.
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 or
about September 30, 2021.
Steve Dickson,
Administrator.
[FR Doc. 2021-21797 Filed 10-5-21; 8:45 am]
BILLING CODE 4910-13-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.