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[Federal Register Volume 81, Number 208 (Thursday, October 27, 2016)]
[Rules and Regulations]
[Pages 74671-74675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25962]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No.: FAA-2014-0225; Amdt. No. 91-331D]
RIN 2120-AK92

Extension of the Prohibition Against Certain Flights in the 
Simferopol (UKFV) and Dnipropetrovsk (UKDV) Flight Information Regions 
(FIRs)

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This action extends the prohibition against certain flight 
operations in the Simferopol (UKFV) and Dnipropetrovsk (UKDV) flight 
information regions (FIRs) by all United States (U.S.) air carriers; 
U.S. commercial operators; persons exercising the privileges of a U.S. 
airman certificate, except when such persons are operating a U.S.-
registered aircraft for a foreign air carrier; and operators of U.S.-
registered civil aircraft, except when such operators are foreign air 
carriers. The FAA finds this action to be necessary to address a 
continuing hazard to persons and aircraft engaged in such flight 
operations.

DATES: This final rule is effective on October 27, 2016.

FOR FURTHER INFORMATION CONTACT: Michael Filippell, Air Transportation 
Division, AFS-220, Flight Standards Service, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591; 
telephone: 202-267-8166; email: michael.e.filippell@faa.gov.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

    This action continues the prohibition on flight operations in the 
Simferopol (UKFV) and Dnipropetrovsk (UKDV) FIRs by all U.S. air 
carriers; U.S. commercial operators; persons exercising the privileges 
of a U.S. airman certificate, except when such persons are operating a 
U.S.-registered aircraft for a foreign air carrier; and operators of 
U.S.-registered civil aircraft,

[[Page 74672]]

except when such operators are foreign air carriers. The FAA finds this 
action necessary to address a continuing hazard to persons and aircraft 
engaged in such flight operations.

II. Legal Authority and Good Cause

A. Authority for This Rulemaking

    The FAA is responsible for the safety of flight in the U.S. and for 
the safety of U.S. civil operators, U.S.-registered civil aircraft, and 
U.S.-certificated airmen throughout the world. The FAA's authority to 
issue rules on aviation safety is found in title 49, U.S. Code. 
Subtitle I, section 106(f), describes the authority of the FAA 
Administrator. 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 his authority consistently with the 
obligations of the U.S. Government under international agreements.
    This rulemaking is promulgated under the authority described in 
Subtitle VII, Part A, subpart III, section 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 
that authority because it continues to prohibit the persons subject to 
paragraph (a) of Special Federal Aviation Regulation (SFAR) No. 113, 
Sec.  91.1607, from conducting flight operations in the Simferopol 
(UKFV) and Dnipropetrovsk (UKDV) FIRs due to the hazard to the safety 
of such persons' flight operations, as described in the Background 
section of this rule.

B. Good Cause for Immediate Adoption

    Section 553(b)(3)(B) of title 5, U.S. Code, authorizes agencies to 
dispense with notice and comment procedures for rules when the agency 
for ``good cause'' finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' In this instance, 
the FAA finds that notice and public comment to this immediately 
adopted final rule, as well as any delay in the effective date of this 
rule, are contrary to the public interest due to the immediate need to 
address the continuing hazard to civil aviation that exists in the 
Simferopol (UKFV) and Dnipropetrovsk (UKDV) FIRs, as described in the 
Background section of this final rule.

III. Background

    The threat to safety in existence when the FAA first published SFAR 
No. 113, Sec.  91.1607 on April 25, 2014 (79 FR 22862) has not abated. 
At that time, the FAA viewed the possibility of civil aircraft 
receiving confusing and conflicting air traffic control instructions 
from both Ukrainian and Russian air traffic service providers when 
operating in the portion of the Simferopol (UKFV) FIR covered by SFAR 
No. 113, Sec.  91.1607, as an unsafe condition that presented a 
potential hazard to U.S. civil flight operations in the disputed 
airspace. Because political and military tensions between Ukraine and 
the Russian Federation remained high, the FAA was also concerned that 
compliance with air traffic control instructions issued by the 
authorities of one country could result in a civil aircraft being 
misidentified as a threat and intercepted or otherwise engaged by air 
defense forces of the other country. The FAA continues to have these 
concerns.
    On July 18, 2014, the FAA issued a Notice to Airmen (NOTAM) FDC 4/
2182, expanding the flight prohibition to the entire Simferopol (UKFV) 
and Dnipropetrovsk (UKDV) FIRs, primarily as an immediate response to 
the shoot down of Malaysia Airlines MH17 on July 17, 2014, while flying 
over Ukraine at 33,000 feet just west of the Russian border. Two 
hundred ninety eight passengers and crew perished. In addition, there 
were other attacks on fixed-wing and rotary-wing Ukrainian military 
aircraft flying at lower altitudes, such as the shoot down of a 
Ukrainian An-26 flying at 21,000 feet southeast of Luhansk on July 14, 
2014. As a result of these events, the FAA determined that the ongoing 
conflict in the region posed a significant threat to U.S. civil 
aviation operations in these FIRs. The use of weapons capable of 
targeting and shooting down aircraft flying on civil air routes at 
cruising altitudes posed a significantly dangerous threat to civil 
aircraft flying in the Simferopol (UKFV) and Dnipropetrovsk (UKDV) 
FIRs. The FAA published a final rule incorporating the expanded flight 
prohibition into SFAR No. 113, Sec.  91.1607, on December 29, 2014 (79 
FR 77857). The FAA extended this flight prohibition in a final rule 
published October 27, 2015 (80 FR 65621).
    The State Aviation Administration of Ukraine conducted and 
completed an airspace restructuring that went into effect in the late 
2014 timeframe. The new configuration altered both the Simferopol 
(UKFV) and Dnipropetrovsk (UKDV) Flight Information Region (FIR) 
altitude structures. To address the Ukraine airspace restructuring and 
provide additional clarity, on July 22, 2016, the FAA published a 
technical amendment to specifically identify the prohibited airspace in 
which SFAR No. 113, Sec.  91.1607, applies, with inclusive altitudes 
and lateral limitations (latitude and longitude coordinates). 81 FR 
47699.
    The FAA has continued to evaluate the situation in the Simferopol 
(UKFV) and Dnipropetrovsk (UKDV) FIRs and has determined there is a 
continuing significant flight safety hazard to U.S. civil aviation. 
Although the European Aviation Safety Agency's (EASA) published a 
Safety Information Bulletin (SIB) on February 17, 2016, indicating that 
ATS routes L851 and M856 could be considered for planning flights in 
the Simferopol (UKFV) FIR, there is continuing concern over the hazard 
to U.S. civil aviation from possible conflicting air traffic control 
instructions from Ukrainian and Russian air traffic service providers. 
Shortly following the EASA bulletin, the Russian Federal Air Transport 
Agency responded with a press release in which it again asserted that 
it was responsible for air traffic services in a portion of the 
Simferopol (UKFV) FIR. The Russian circular (from Feb 21, 2016) further 
stated, ``The Russian Federation does not bear the responsibility for 
the provision of safety to those flights, which will be operated within 
Simferopol FIR under control of ATC unit other than Simferopol Air 
Traffic Management Centre.'' Russia contended that EASA's decision was 
politically motivated and `pose[d] a threat to aviation safety in the 
region.' In addition, there have been reported incidents of purposeful 
interference, including GPS jamming, in the Simferopol (UKFV) and 
Dnipropetrovsk (UKDV) FIRs. Based on this information, the FAA 
continues to assess that there is a significant flight safety hazard to 
U.S. civil aviation in the Simferopol (UKFV) FIR.
    In the Dnipropetrovsk (UKDV) FIR, there is an ongoing risk of 
skirmishes in the area and a potential for larger-scale fighting in 
eastern Ukraine involving combined Russian-separatist forces, which 
could result in civil aircraft being misidentified as a threat and then 
intercepted or otherwise engaged, as demonstrated by the shoot down of 
Malaysia Airlines Flight 17 on July 17, 2014. These combined forces 
have access to a variety of anti-aircraft

[[Page 74673]]

weapons, to include man-portable air defense systems (MANPADS) and 
possibly more advanced surface-to-air-missiles (SAMs) that have the 
capability to engage aircraft at higher altitudes. Separatists have 
demonstrated their ability to use these anti-aircraft weapons by 
successfully shooting down a number of aircraft during the course of 
the fighting in eastern Ukraine in 2014. More recently, Organization 
for Security and Cooperation in Europe (OSCE) Special Monitoring 
Mission to Ukraine (SMM) unmanned aerial systems (UASs) also have been 
shot down by surface-to-air missiles and small arms ground fire, and 
brought down with GPS jamming in the Dnipropetrovsk (UKDV) FIR.
    Due to the previously described continuing hazards to U.S. civil 
aviation operations, the FAA is extending the expiration date of SFAR 
No. 113, Sec.  91.1607, to continue the prohibition on flight 
operations in the Simferopol (UKFV) and Dnipropetrovsk (UKDV) FIRs by 
all U.S. air carriers; U.S. commercial operators; persons exercising 
the privileges of a U.S. airman certificate, except when such persons 
are operating a U.S.-registered aircraft for a foreign air carrier; and 
operators of U.S.-registered civil aircraft, except when such operators 
are foreign air carriers. This rule extends the expiration date of SFAR 
No. 113, Sec.  91.1607, from October 27, 2016, to October 27, 2018.
    The FAA will continue to actively evaluate the area to determine to 
what extent U.S. civil aviation may be able to safely operate therein. 
Adjustments to this SFAR may be appropriate if the risk to aviation 
safety and security changes. The FAA may amend or rescind this SFAR as 
necessary prior to its expiration date.
    Because the circumstances described herein warrant a continuation 
of the flight restrictions imposed by SFAR No. 113, I find that notice 
and public comment under 5 U.S.C. 553(b)(3)(B) are impracticable and 
contrary to the public interest. I also find that this action is fully 
consistent with the obligations under 49 U.S.C. 40105 to ensure that I 
exercise my duties consistently with the obligations of the United 
States under international agreements.

IV. Regulatory Notices and Analyses

A. Regulatory Evaluation

    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 (Pub. L. 96-39), as amended, 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, 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 
or as defined in DOT's Regulatory Policies and Procedures, as it raises 
novel policy issues. This final rule merely extends an existing flight 
prohibition without change. This rule will not have a significant 
economic impact on a substantial number of small entities. This rule 
will not create unnecessary obstacles to the foreign commerce of the 
United States. This rule will not impose an unfunded mandate on State, 
local, or tribal governments, or on the private sector by exceeding the 
threshold identified above.
    DOT Order 2100.5 prescribes policies and procedures for 
simplification, analysis, and review of regulations. If the expected 
cost impact is so minimal that a proposed or final rule does not 
warrant a full evaluation, this order permits a statement to that 
effect and the basis for it to be included in the preamble if a full 
regulatory evaluation of the costs and benefits is not prepared. Such a 
determination has been made for this final rule. The reasoning for this 
determination follows.
    This rule extends the existing prohibition against U.S. civil 
flight operations in the Simferopol (UKFV) and Dnipropetrovsk (UKDV) 
FIRs. As we noted in the most recent previous amendment to SFAR No. 
113, Sec.  91.1607 (80 FR 65621, October 27, 2015), almost all U.S. 
operators already had voluntarily ceased their operations in these FIRs 
prior to the issuance of the FAA NOTAM on July 18, 2014 (UTC), which 
prohibited U.S. civil flight operations in these two FIRS in their 
entirety. Prior to the issuance of the July 18, 2014 (UTC) NOTAM, the 
FAA had already prohibited U.S. civil flight operations in a portion of 
the Simferopol (UKFV) FIR due to a dispute between Ukraine and the 
Russian Federation over which country is responsible for providing air 
navigation services in the area, first via NOTAM and subsequently when 
the FAA initially published SFAR No. 113, Sec.  91.1607, on April 25, 
2014. Consequently, no U.S. operators were operating in that portion of 
the Simferopol (UKFV) FIR at the time of the December 29, 2014 
amendment to the rule.
    Because of the continuing significant hazards to U.S. civil 
aviation discussed in the Background section of this final rule, the 
FAA believes that few, if any, U.S. operators presently wish to conduct 
operations in either of these two FIRS. Moreover, both the amendment 
published on December 29, 2014, and this rule, permit a U.S. Government 
department, agency, or instrumentality to request FAA approval on 
behalf of a person described in paragraph (a) of SFAR No. 113, Sec.  
91.1607, to conduct operations under a contract (or subcontract), 
grant, or cooperative agreement with that department, agency, or 
instrumentality. As no U.S. Government department, agency, or 
instrumentality has requested such approval since December 29, 2014, 
there is apparently little demand for such approvals. Finally, the 
possibility of obtaining an approval, should one be requested, lowers 
the expected cost of the extended rule. Accordingly, the FAA believes 
the incremental costs of this final rule will be minimal. These minimal 
costs will be exceeded by the benefits of avoiding the deaths, 
injuries, and/or property damage that would result from a U.S. 
operator's aircraft being shot down (or otherwise damaged) while 
operating in either or both of the Simferopol (UKFV) and Dnipropetrovsk 
(UKDV) FIRs.

B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale

[[Page 74674]]

of the businesses, organizations, and governmental jurisdictions 
subject to regulation. To achieve this principle, agencies are required 
to solicit and consider flexible regulatory proposals and to explain 
the rationale for their actions to assure that such proposals are given 
serious consideration.'' The RFA covers a wide range of small entities, 
including small businesses, not-for-profit organizations, and small 
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis, as described in the RFA.
    However, if an agency determines that a rule is not expected to 
have a significant economic impact on a substantial number of small 
entities, section 605(b) of the RFA provides that the head of the 
agency may so certify and a regulatory flexibility analysis is not 
required. The certification must include a statement providing the 
factual basis for this determination, and the reasoning should be 
clear.
    As described in the Regulatory Evaluation section of this preamble, 
the incremental costs of this rule are minimal. Therefore, as provided 
in Sec.  605(b), the head of the FAA certifies that this rulemaking 
will not result in a significant economic impact on a substantial 
number of small entities.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended, 
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 effect of this final rule and determined 
that its purpose is to protect the safety of U.S. civil aviation from a 
hazard outside the U.S. Therefore, the rule is in compliance with the 
Trade Agreements Act.

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 $155.0 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 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. The FAA has determined that 
there is no new requirement for information collection associated with 
this immediately adopted final rule.

F. International Compatibility and Cooperation

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to conform to 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to this regulation.

G. Environmental Analysis

    FAA Order 1050.1F identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act (NEPA) in the absence of extraordinary circumstances. The FAA has 
determined this rulemaking action qualifies for the categorical 
exclusion identified in paragraph 5-6.6f of this order and involves no 
extraordinary circumstances.
    The FAA has reviewed the implementation of this SFAR and determined 
it is categorically excluded from further environmental review 
according to FAA Order 1050.1F, ``Environmental Impacts: Policies and 
Procedures,'' paragraph 5-6.6f. The FAA has examined possible 
extraordinary circumstances and determined that no such circumstances 
exist. After careful and thorough consideration of the action, the FAA 
finds that this Federal action does not require preparation of an 
Environmental Assessment or Environmental Impact Statement in 
accordance with the requirements of NEPA, Council on Environmental 
Quality (CEQ) regulations, and FAA Order 1050.1F.

V. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this immediately adopted final rule under the 
principles and criteria of Executive Order 13132, Federalism. The 
agency has determined that this action would not have a substantial 
direct effect on the States, or the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government, and, 
therefore, would not have Federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

    The FAA analyzed this immediately adopted final rule under 
Executive Order 13211, Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use (May 18, 
2001). The agency has determined that it would not be a ``significant 
energy action'' under the executive order and would not be likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy.

C. Executive Order 13609, Promoting International Regulatory 
Cooperation

    Executive Order 13609, Promoting International Regulatory 
Cooperation, (77 FR 26413, May 4, 2012) 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 would have no effect on international regulatory 
cooperation.

VI. Additional Information

A. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the 
Internet by--

 Searching the Federal eRulemaking Portal (http://www.regulations.gov);

[[Page 74675]]

 Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or
 Accessing the Government Publishing Office's Web page at 
http://www.fdsys.gov

    Copies may also be obtained by sending a request (identified by 
docket or amendment number of the rule) to the Federal Aviation 
Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue 
SW., Washington, DC 20591, or by calling (202) 267-9677.
    Except for classified material, all documents the FAA considered in 
developing this rule, including economic analyses and technical 
reports, may be accessed from the Internet through the Federal 
eRulemaking Portal referenced above.

B. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) 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 person listed under 
the FOR FURTHER INFORMATION CONTACT heading at the beginning of the 
preamble. To find out more about SBREFA on the Internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects in 14 CFR Part 91

    Air traffic control, Aircraft, Airmen, Airports, Aviation safety, 
Freight, Ukraine.

    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), 1155, 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, articles 12 and 29 of the 
Convention on International Civil Aviation (61 Stat. 1180), (126 
Stat. 11).

0
2. Amend Sec.  91.1607 by revising paragraph (e) to read as follows:

Sec.  91.1607  Special Federal Aviation Regulation No. 113--Prohibition 
Against Certain Flights in the Simferopol (UKFV) and Dnipropetrovsk 
(UKDV) Flight Information Regions (FIRs).

* * * * *
    (e) Expiration. This SFAR will remain in effect until October 27, 
2018. 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), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), on October 21, 
2016.
Victoria B. Wassmer,
Acting Deputy Administrator.
[FR Doc. 2016-25962 Filed 10-24-16; 4:20 pm]
 BILLING CODE 4910-13-P
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