Amendment of the Prohibition Against Certain Flights in Specified Areas of the Simferopol and Dnipropetrovsk Flight Information Regions (FIRs) (UKFV and UKDV), 65678-65686 [2020-22041]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[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).

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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 https://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