Extension of the Prohibition Against Certain Flights in Specified Areas of the Dnipro Flight Information Region (FIR) (UKDV), 55485-55492 [2021-21797]

Download as PDF Federal Register / Vol. 86, No. 191 / Wednesday, October 6, 2021 / Rules and Regulations ANE NH D Portsmouth, NH [Amended] Portsmouth International Airport at Pease, NH (Lat. 43°04′41″ N, long. 70°49′24″ W) Eliot, Littlebrook Air Park, ME (Lat. 43°08′35″ N, long. 70°46′24″ W) That airspace extending upward from the surface to and including 2,600 feet MSL within a 4.7-mile radius of the Portsmouth International Airport at Pease, excluding that airspace within a 1.5-mile radius of the Littlebrook Air Park. Paragraph 6004 Class E Airspace Designated as an Extension to Class E Surface Area. * * * ANE NH E4 * * Portsmouth, NH [Removed] Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. * * * * * ANE NH E5 Portsmouth, NH [Amended] Portsmouth International Airport at Pease, NH (Lat. 43°04′41″ N, long. 70°49′24″ W) That airspace extending upward from 700 feet above the surface within an 8.2-mile radius of Portsmouth International Airport at Pease. Issued in College Park, Georgia, on September 29, 2021. Andreese C. Davis, Manager, Airspace & Procedures Team South, Eastern Service Center, Air Traffic Organization. [FR Doc. 2021–21631 Filed 10–5–21; 8:45 am] BILLING CODE 4910–13–P 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) Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. AGENCY: 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.- jspears on DSK121TN23PROD with RULES1 SUMMARY: VerDate Sep<11>2014 16:21 Oct 05, 2021 Jkt 256001 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 stephen.moates@faa.gov. 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), § 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 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. PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 55485 operations due to the potential for miscalculation or misidentification. 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, § 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 E:\FR\FM\06OCR1.SGM 06OCR1 jspears on DSK121TN23PROD with RULES1 55486 Federal Register / Vol. 86, No. 191 / Wednesday, October 6, 2021 / Rules and Regulations 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 overrestricting 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. VerDate Sep<11>2014 16:21 Oct 05, 2021 Jkt 256001 III. Background On April 25, 2014, the FAA published SFAR No. 113, § 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. 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, § 91.1607, on December 29, 2014.3 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 2 Prohibition Against Certain Flights in the Simferopol (UKFV) Flight Information Region (FIR) final rule, 79 FR 22862 (Apr. 25, 2014). 3 Prohibition Against Certain Flights in the Simferopol (UKFV) and Dnipropetrovsk (UKDV) Flight Information Regions (FIRs) final rule, 79 FR 77857 (Dec. 29, 2014). 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, § 91.1607, expired on October 27, PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 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). 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), 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). 6 The FAA has updated the airport name in accordance with the Aeronautical Information Publication of Ukraine (AIP), available at http:// www.aisukraine.net/publications/eng/ publ(eng).htm. E:\FR\FM\06OCR1.SGM 06OCR1 Federal Register / Vol. 86, No. 191 / Wednesday, October 6, 2021 / Rules and Regulations jspears on DSK121TN23PROD with RULES1 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 manportable 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, smallarms 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, § 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 Russiancontrolled area. In addition, by late VerDate Sep<11>2014 16:21 Oct 05, 2021 Jkt 256001 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, § 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, 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. PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 55487 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. 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 Russianback 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, § 91.1607, from October 27, 2021, to October 27, 2023. Further amendments to SFAR No. 113, § 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, § 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 E:\FR\FM\06OCR1.SGM 06OCR1 55488 Federal Register / Vol. 86, No. 191 / Wednesday, October 6, 2021 / Rules and Regulations 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, § 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 jspears on DSK121TN23PROD with RULES1 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, § 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, § 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 VerDate Sep<11>2014 16:21 Oct 05, 2021 Jkt 256001 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. 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, § 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— • The proposed operation(s), including the nature of the mission being supported; 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. PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 • The service the person(s) covered by the SFAR will provide; • 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 • 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 premission 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, § 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 E:\FR\FM\06OCR1.SGM 06OCR1 Federal Register / Vol. 86, No. 191 / Wednesday, October 6, 2021 / Rules and Regulations jspears on DSK121TN23PROD with RULES1 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 VerDate Sep<11>2014 16:21 Oct 05, 2021 Jkt 256001 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, § 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 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; • 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 may be affected by SFAR No. 113, § 91.1607. While the FAA will not permit these operations PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 55489 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, § 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 E:\FR\FM\06OCR1.SGM 06OCR1 55490 Federal Register / Vol. 86, No. 191 / Wednesday, October 6, 2021 / Rules and Regulations 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, § 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. jspears on DSK121TN23PROD with RULES1 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. VerDate Sep<11>2014 16:21 Oct 05, 2021 Jkt 256001 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 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 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. E:\FR\FM\06OCR1.SGM 06OCR1 Federal Register / Vol. 86, No. 191 / Wednesday, October 6, 2021 / Rules and Regulations 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. jspears on DSK121TN23PROD with RULES1 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 1. The authority citation for part 91 continues to read as follows: 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 https://www.regulations.gov 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 https:// www.federalregister.gov and the Government Publishing Office’s website at https://www.govinfo.gov. A copy may also be found at the FAA’s Regulations and Policies website at https:// www.faa.gov/regulations_policies. 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 16:21 Oct 05, 2021 List of Subjects in 14 CFR Part 91 Air traffic control, Aircraft, Airmen, Airports, Aviation safety, Freight, Ukraine. ■ IX. Additional Information VerDate Sep<11>2014 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/. Jkt 256001 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). ■ 2. Revise § 91.1607 to read as follows: § 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 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 55491 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 E:\FR\FM\06OCR1.SGM 06OCR1 55492 Federal Register / Vol. 86, No. 191 / Wednesday, October 6, 2021 / Rules and Regulations 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 DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Part 774 [Docket No. 210923–0195] RIN 0694–AI44 Control of Deuterium That Is Intended for Use Other Than in a Nuclear Reactor Under the Export Administration Regulations (EAR) Bureau of Industry and Security, Department of Commerce. ACTION: Final rule. AGENCY: The Department of Commerce is publishing this final rule in conjunction with a U.S. Nuclear Regulatory Commission (NRC) final rule to revise its regulations to remove the NRC’s licensing authority for exports of deuterium for non-nuclear end use. The responsibility for the licensing of exports of deuterium for non-nuclear end use is being transferred to the Department of Commerce’s Bureau of Industry and Security (BIS). BIS is publishing this final rule to include deuterium under its export licensing jurisdiction under the Export Administration Regulations (EAR). This Commerce final rule describes the changes made to the EAR to control the deuterium moved from the export control authority of the NRC to the export control authority of BIS under the EAR. Exports of deuterium for nuclear end use will remain under the NRC’s export licensing jurisdiction. DATES: This rule is effective December 6, 2021. FOR FURTHER INFORMATION CONTACT: Steven Clagett, Office of Nonproliferation Controls and Treaty Compliance, Nuclear and Missile Technology Controls Division, tel. (202) 482–1641 or email steven.clagett@ bis.doc.gov. jspears on DSK121TN23PROD with RULES1 SUMMARY: SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 16:21 Oct 05, 2021 Jkt 256001 Background The Department of Commerce is publishing this final rule in conjunction with a U.S. Nuclear Regulatory Commission (NRC) final rule being published in this issue of the Federal Register to revise its regulations to remove the NRC’s licensing authority for exports of deuterium for non-nuclear end use. The responsibility for the licensing of exports of deuterium for non-nuclear end use is being transferred to the Department of Commerce’s Bureau of Industry and Security (BIS). BIS is publishing this final rule to include deuterium under its export licensing jurisdiction under the Export Administration Regulations (EAR). This Commerce final rule describes the changes made to the EAR to control the deuterium moved from the export control authority of the NRC to the export control authority of BIS under the EAR. Exports of deuterium for nuclear end use will remain under the NRC’s export licensing jurisdiction. Deuterium Under NRC and Its Evolution Into Broader Commercial Use Section 109 of the Atomic Energy Act of 1954 (AEA), as amended by the Nuclear Non-Proliferation Act of 1978 (NNPA), authorizes and directs the NRC, after consultation with the Secretaries of State, Energy, and Commerce, to exercise its export licensing authority over ‘‘items or substances’’ determined by the Commission to be ‘‘especially relevant from the standpoint of export control because of their significance for nuclear explosive purposes’’ (42 U.S.C. 2139(b)). Since 1978, under this authority, the NRC has exercised jurisdiction over all exports of deuterium, including heavy water, as well as deuterium gas and other deuterated compounds for both nuclear and non-nuclear end uses. In the early years of the nuclear energy industry, deuterium oxide (heavy water) was largely produced for use in nuclear reactors. High-purity reactor grade heavy water, which has a deuterium concentration of 99.75 percent or greater, has been used to operate reactors with natural uranium. In the last decade, the market for deuterium has significantly expanded and evolved beyond nuclear reactor use. Non-nuclear use of deuterium includes but is not limited to production of: Advanced electronics, deuterated solvents, deuterated pharmaceuticals, hydrogen arc-lamps, neutron generators, and tracers in hydrological, biological, and medical studies. Despite this market change, the NRC has continued to control all exports of PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 deuterium under the general or specific export licensing provisions in 10 CFR part 110. The NRC has determined, in consultation with the Executive Branch, that it is appropriate to revise its regulations and transfer the export licensing control of non-nuclear end uses of deuterium to the Department of Commerce, as was done for the nonnuclear end uses of nuclear graphite in 2005 (70 FR 41937; July 21, 2005). Over the past 10 years, the quantity of deuterium exported for non-nuclear end use has steadily increased. A growing number of companies have been required to obtain specific licenses to export deuterium for non-nuclear use because the quantity exceeded the general license quantity thresholds. As stated in the NRC final rule published in this edition of the Federal Register in conjunction with this Commerce final rule, the NRC’s recent licensing experience has shown that deuterium has been exported almost exclusively for non-nuclear industrial and research end uses, prompting the reevaluation of NRC licensing requirements concerning these non-nuclear end use exports. Other supplier nations have export controls over deuterium but have limited them to cover exports ‘‘for use in a nuclear reactor.’’ This limitation appears in both the Nuclear NonProliferation Treaty Exporters Committee (Zangger Committee) and the Nuclear Suppliers Group (NSG) clarifications of items on the Trigger List. The United States is a member of the Zangger Committee and a Participating Government of the NSG. As stated in the NRC final rule published in conjunction with this Commerce final rule, the history of the use of deuterium exported under the NRC’s authority indicates that deuterium has not been diverted for known illicit purposes to produce weapons-grade material or for use in unsafeguarded nuclear activities. To the extent that any risk of diversion may exist, exports of deuterium for nonnuclear end use will continue to be controlled by the Department of Commerce under the EAR, and appropriate control mechanisms exist within national regulatory authorities and the international community to detect efforts to divert deuterium for known illicit purposes. Exports and reexports of deuterium for non-nuclear end use will be controlled for Nuclear Proliferation (NP) Column 2 under the EAR. A license will be required for all destinations controlled for NP 2 reasons, which means an authorization (a BIS license or license exception) will be required under the EAR for exports and reexports to these destinations. In E:\FR\FM\06OCR1.SGM 06OCR1

Agencies

[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 [www.gpo.gov]
[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 [email protected].

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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \3\ Prohibition Against Certain Flights in the Simferopol (UKFV) 
and Dnipropetrovsk (UKDV) Flight Information Regions (FIRs) final 
rule, 79 FR 77857 (Dec. 29, 2014).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \6\ The FAA has updated the airport name in accordance with the 
Aeronautical Information Publication of Ukraine (AIP), available at 
http://www.aisukraine.net/publications/eng/publ(eng).htm.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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--
     The proposed operation(s), including the nature of the 
mission being supported;
     The service the person(s) covered by the SFAR will 
provide;
     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
     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:
     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 
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;
     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 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 https://www.regulations.gov 
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 https://www.federalregister.gov and the Government Publishing Office's website 
at https://www.govinfo.gov. A copy may also be found at the FAA's 
Regulations and Policies website at https://www.faa.gov/regulations_policies.
    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 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 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