88 FR 206 pgs. 73529-73532 - Removal of the Prohibition Against Certain Flights in Specified Areas of the Dnipro Flight Information Region (FIR) (UKDV)
Type: RULEVolume: 88Number: 206Pages: 73529 - 73532
Pages: 73529, 73530, 73531, 73532Docket number: [Docket No. FAA-2014-0225; Amdt. No. 91-331H]
FR document: [FR Doc. 2023-23656 Filed 10-25-23; 8:45 am]
Agency: Transportation Department
Sub Agency: Federal Aviation Administration
Official PDF Version: PDF Version
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. FAA-2014-0225; Amdt. No. 91-331H]
RIN 2120-AL95
Removal 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 removes the current flight prohibition Special Federal Aviation Regulation (SFAR) for specified areas of the Dnipro Flight Information Region (FIR) (UKDV). This SFAR, which is scheduled to expire on October 27, 2023, reflects risks to the safety of U.S. civil aviation as they existed prior to the Russian Federation's full-scale invasion of Ukraine in February 2022 and is therefore obsolete. This action is necessary to alleviate confusion that might otherwise result from leaving an obsolete rule in the Code of Federal Regulations (CFR) after its scheduled expiration date of October 27, 2023. FAA Notice-to-Air-Missions (NOTAM) KICZ A0004/22 remains in effect and continues to prohibit U.S. civil flight operations in the Lviv (UKLV), Kyiv (UKBV), Dnipro (UKDV), Simferopol (UKFV), and Odesa (UKOV) FIRs, as well as the Kyiv Upper Information Region (UIR) (UKBU). NOTAM KICZ A0004/22, together with NOTAMs KICZ A0003/22 and A0005/22, reflects the FAA's current assessment of the safety-of-flight risks the Russia-Ukraine conflict presents to U.S. civil aviation operations.
DATES:
This final rule is effective on October 27, 2023.
FOR FURTHER INFORMATION CONTACT:
Bill Petrak, Flight Standards Service, through the Washington Operations Center, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone (202) 267-3203; email 9-FAA-OverseasFlightProhibitions@faa.gov.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This action removes the FAA's current flight prohibition SFAR for specified areas of the Dnipro FIR (UKDV), SFAR No. 113, 14 CFR 91.1607. 1 SFAR No. 113, §?91.1607, which is scheduled to expire on October 27, 2023, reflects risks to the safety of U.S. civil aviation as they existed prior to the Russian Federation's full-scale invasion of Ukraine in February 2022 and is therefore obsolete. This action is necessary to alleviate confusion that might otherwise result from leaving an obsolete rule in the CFR after its scheduled expiration date of October 27, 2023. NOTAM KICZ A0004/22 remains in effect and continues to prohibit U.S. civil flight operations in the Lviv (UKLV), Kyiv (UKBV), Dnipro (UKDV), Simferopol (UKFV), and Odesa (UKOV) FIRs, as well as the Kyiv UIR (UKBU). NOTAM KICZ A0004/22, together with NOTAMs KICZ A0003/22 and A0005/22, 2 reflects the FAA's current assessment of the safety-of-flight risks the Russia-Ukraine conflict presents to U.S. civil aviation operations.
Footnotes:
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.
2 ?NOTAM KICZ A0003/22 prohibits U.S. civil aviation operations in the Minsk FIR (UMMV), and NOTAM KICZ A0005/22 prohibits U.S. civil aviation operations in specified areas of the Moscow (UUWV), Samara (UWWW), and Rostov-na Donu (URRV) FIRs within the 160 nautical miles of the boundaries of those FIRs and the Ukrainian-managed FIRs described in NOTAM KICZ A0005/22.
II. Authority and Good Cause
A. Authority
The FAA is responsible for the safety of flight in the U.S. and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. Sections 106(f) and (g) of title 49, U.S. Code (U.S.C.), subtitle I, establish the FAA Administrator's authority to issue rules on aviation safety. Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. Section 40101(d)(1) provides that the Administrator shall consider in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Section 40105(b)(1)(A) requires the Administrator to exercise this authority consistently with the obligations of the U.S. Government under international agreements.
The FAA is promulgating this rule 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.
[top] This regulation is within the scope of the FAA's authority because it removes an obsolete flight prohibition that prohibits the persons described in paragraph (a) of SFAR No. 113, §?91.1607, from conducting flight operations in specified areas of the Dnipro FIR (UKDV) only. The February 2022 full-scale Russian invasion of Ukraine and the ensuing armed conflict between the Russian Federation and Ukraine significantly expanded the area of unacceptable safety-of-flight risks to U.S. civil aviation beyond the boundaries of SFAR No. 113, §?91.1607. To address the resulting emergency related to safety in air commerce, which required immediate action, the FAA Administrator issued emergency orders, as authorized by 49 U.S.C. 46105(c), in the form of NOTAMs KICZ A0003/22, A0004/22, and A0005/22. As described in NOTAMs KICZ A0003/22, A0004/22, and A0005/22, these emergency orders prohibit U.S. civil aviation operations throughout all of the FIRs managed by Belarus and Ukraine and in specified areas of certain FIRs managed by the Russian Federation. The FAA has determined it is not practicable at this time to give preference to a proceeding to incorporate the flight prohibition contained in NOTAM KICZ A0004/22 into the CFR, because the Russia-
B. Good Cause for Immediate Adoption
Section 553(b)(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." Also, section 553(d) permits agencies, upon a finding of good cause, to issue rules with an effective date less than 30 days from the date of publication. In this instance, the FAA finds good cause to forgo notice and comment and the delayed effective date because they would be unnecessary.
This action removes SFAR No. 113, §?91.1607, which only prohibits U.S. civil aviation operations in specified areas of the Dnipro FIR (UKDV) and is scheduled to expire on October 27, 2023. As previously described, the February 2022 full-scale Russian invasion of Ukraine and the ensuing armed conflict between the Russian Federation and Ukraine significantly expanded the area of unacceptable safety-of-flight risks to U.S. civil aviation, leading the FAA to issue NOTAMs KICZ A0003/22, A0004/22, and A0005/22 to address the resulting emergency related to safety in air commerce. NOTAM KICZ A0004/22 prohibits U.S. civil aviation operations in all of the FIRs managed by Ukraine, including the specified areas of the Dnipro FIR (UKDV) in which SFAR No. 113, §?91.1607, prohibits U.S. civil aviation operations. NOTAM KICZ A0004/22 remains in effect until modified, superseded, or rescinded by the FAA.
Leaving SFAR No. 113, §?91.1607, in the CFR after its scheduled expiration date of October 27, 2023, might confuse the regulated community. Therefore, to alleviate the potential for confusion, the FAA is removing SFAR No. 113, §?91.1607. This action is ministerial in nature as it is only removing an expired provision from the CFR and has no substantive effect on the public.
For the reasons previously described, the FAA finds that providing notice and seeking public comment under 5 U.S.C. 553(b)(B) are unnecessary. For the same reasons, the FAA finds that good cause exists under 5 U.S.C. 553(d) for making this rule effective in less than 30 days. Accordingly, the FAA finds good cause exists to forgo notice and comment and any delay in the effective date for this rule.
III. Background and Discussion of the Final Rule
On April 25, 2014, the FAA published SFAR No. 113, §?91.1607, which initially prohibited certain flight operations in a portion of the Simferopol FIR (UKFV) after Russia unlawfully seized Crimea from Ukraine. 3 In the months that followed, the ensuing violence and the associated safety-of-flight risks to U.S. civil aviation expanded to encompass the entirety of the Simferopol and Dnipro FIRs (UKFV and UKDV, respectively). Tragically, Malaysia Airlines Flight 17 (MH 17) 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.
Footnotes:
3 ? 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 entirety of the Simferopol and Dnipro FIRs (UKFV and UKDV, respectively). The FAA subsequently incorporated that flight prohibition into SFAR No. 113, §?91.1607, on December 29, 2014. 4
Footnotes:
4 ? Prohibition Against Certain Flights in the Simferopol (UKFV) and Dnipropetrovsk (UKDV) Flight Information Regions (FIRs) final rule, 79 FR 77857 (Dec. 29, 2014).
In the years that followed, 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. 5 Most recently, in an October 2021 final rule, 6 the FAA determined that an unacceptable level of inadvertent risk to U.S. civil aviation operations remained in the specified areas of the Dnipro FIR (UKDV), which included the airspace over and near the line of contact, as it existed at that time, where most cease-fire violations occurred. Tensions remained elevated, in part due to the 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 continued. These circumstances resulted in continued inadvertent risk to U.S. civil aviation operations due to the potential for miscalculation or misidentification.
Footnotes:
5 ? 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); 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); and Extension of the Prohibition Against Certain Flights in Specified Areas of the Dnipro Flight Information Region (FIR) (UKDV) final rule, 86 FR 55485 (Oct. 6, 2021).
6 ? Extension of the Prohibition Against Certain Flights in Specified Areas of the Dnipro Flight Information Region (FIR) (UKDV) final rule, 86 FR 55485 (Oct. 6, 2021).
The February 2022 full-scale Russian invasion of Ukraine greatly expanded the area of unacceptable safety-of-flight risks to U.S. civil aviation to include the entirety of Ukrainian territorial airspace, as well as the international airspace of all of the FIRs managed by Ukraine. On February 24, 2022, the FAA issued NOTAM KICZ A0004/22, prohibiting U.S. civil aviation operations in all of the FIRs managed by Ukraine at all altitudes.
The FAA has determined the situation in all of the FIRs managed by Ukraine continues to pose an unacceptable level of risk for U.S. civil aviation safety. Conflict-related risks affecting civil aviation in these FIRs include near-daily attacks using weaponized unmanned aircraft systems (UAS), cruise missiles, and attack helicopters, resulting in the increased defensive use of advanced surface-to-air missile systems and electronic warfare. The Russian Federation has demonstrated its continuing capability and intent to use standoff strike capabilities to engage targets throughout Ukraine, including the capital, Kyiv, and Lviv, located in western Ukraine near the border with Poland. In June 2023, Ukraine launched its anticipated counteroffensive in eastern and southern Ukraine, prompting increased Russian standoff attacks to put pressure on the Ukrainian government. The protracted conflict is expected to continue in the near to mid-term, despite minimal changes in territorial control so far as the Ukraine counteroffensive takes shape. It remains unclear when and how the conflict, and the associated areas of unacceptable safety-of-flight risks to U.S. civil aviation, may eventually stabilize. Under these circumstances, the FAA has determined it is not practicable to give preference to a proceeding to incorporate the flight prohibition contained in NOTAM KICZ A0004/22 into the CFR at this time.
[top] The current version of SFAR No. 113, §?91.1607, which only prohibits U.S. civil aviation operations in specified
Footnotes:
7 ?NOTAMS KICZ A0003/22 and A0005/22 also remain in effect.
The FAA will continue to closely monitor the conflict for changes in the risk environment as it relates to the safety and security of U.S. civil aviation.
IV. Regulatory Notices and Analyses
Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Orders 12866 and 13563, as amended by Executive Order 14094 ("Modernizing Regulatory Review"), 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 nonsignificant significant regulatory action, as defined in section 3(f) of Executive Order 12866 as amended by Executive Order 14094. As 5 U.S.C. 553 does not require notice and comment for this final rule, 5 U.S.C. 603 and 604 do not require regulatory flexibility analyses regarding impacts on small entities. This rule will not create unnecessary obstacles to the foreign commerce of the United States. This rule will not impose an unfunded mandate on State, local, or Tribal governments, or on the private sector, by exceeding the threshold identified previously.
A. Regulatory Evaluation
This rule removes the flight prohibition SFAR for specified areas of the Dnipro FIR (UKDV). Given that the Russia-Ukraine conflict and the associated areas of unacceptable safety-of-flight risks to U.S. civil aviation have yet to stabilize sufficiently, the FAA has determined it is not practicable to give preference to a proceeding to incorporate the flight prohibition contained in NOTAM KICZ A0004/22 into the CFR at this time. To avoid the potential confusion that leaving the obsolete flight prohibition in the CFR after its scheduled expiration date might cause, the FAA is removing SFAR No. 113, §?91.1607.
U.S. civil flight operations in the Lviv (UKLV), Kyiv (UKBV), Dnipro (UKDV), Simferopol (UKFV), and Odesa (UKOV) FIRs, as well as the Kyiv UIR (UKBU), remain prohibited by NOTAM KICZ A0004/22. Accordingly, the removal of SFAR No. 113, §?91.1607, which prohibits U.S. civil aviation operations in airspace fully encompassed within the much larger area of airspace in which NOTAM KICZ A0004/22 prohibits U.S. civil aviation operations, has no incremental costs. This rule alleviates the potential for confusion amongst the regulated community.
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.
This rule removes an existing prohibition on U.S. civil aviation operations in specified areas of the Dnipro FIR (UKDV), a location outside the United States, that is scheduled to expire on October 27, 2023. As this rule relates to a location outside the United States, 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 $177 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
[top] 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
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 consistently with the obligations of the United States under international agreements.
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.
V. 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.
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.
VI. Additional Information
A. Electronic Access
Except for classified and controlled unclassified material not authorized for public release, 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.
B. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601) requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the persons listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit 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.
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:
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).
§?91.1607 [Reserved]
2. Remove and reserve §?91.1607.
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).
Polly E. Trottenberg,
Acting Administrator.
[FR Doc. 2023-23656 Filed 10-25-23; 8:45 am]
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