Extension of the Prohibition Against Certain Flights in Specified Areas of the Dnipro Flight Information Region (FIR) (UKDV), 55485-55492 [2021-21797]
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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.
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ANE NH E4
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Portsmouth, NH [Removed]
Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Above the Surface of the Earth.
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*
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.-
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SUMMARY:
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16:21 Oct 05, 2021
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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.
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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
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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.
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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,
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In the October 2018 final rule, the
FAA determined an inadvertent risk to
civil aviation associated with ongoing
violence continued to exist in the
eastern portion of the Dnipro FIR
(UKDV). This violence involved
localized skirmishes and the potential
for large-scale fighting. The FAA was
concerned this situation could lead to
certain air defense forces misidentifying
or engaging civil aviation. The FAA
determined these threats were
concentrated in the eastern portion of
the Dnipro FIR (UKDV) within the
Russian-controlled area and in close
proximity to the line of contact that
bordered that area. While the potential
for fluctuating levels of military
engagement continued along the line of
contact in eastern portions of the Dnipro
FIR (UKDV), the military situation had
begun to stabilize, which reduced the
risk of a large-scale conflict that might
extend into the western portion of the
Dnipro FIR (UKDV). The FAA
determined these circumstances
indicated the level of risk to civil
aviation in the western portion of the
Dnipro FIR (UKDV) had diminished
from the level of risk that had existed
when the FAA initially prohibited U.S.
civil aviation operations in the entire
Dnipro FIR (UKDV) in NOTAM FDC 4/
2182. As a result, the FAA amended its
flight prohibition for the Dnipro FIR
(UKDV) to allow U.S. civil aviation to
resume flight operations in the western
portion of the Dnipro FIR (UKDV) from
the surface to unlimited, west of a line
drawn direct from ABDAR (471802N
351732E) along airway M853 to NIKAD
(485946N 355519E), then along airway
N604 to GOBUN (501806N 373824E).
The October 2018 final rule also
provided an exception to permit takeoffs
and landings at Kharkiv International
Airport (UKHH), Dnipro International
Airport (UKDD),6 and Zaporizhzhia
International Airport (UKDE).
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 https://
www.aisukraine.net/publications/eng/
publ(eng).htm.
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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
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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.
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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
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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
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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
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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.
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• 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
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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
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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
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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
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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.
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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.
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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
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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.
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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.
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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
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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
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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.
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SUMMARY:
SUPPLEMENTARY INFORMATION:
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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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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
https://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
