[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Rules and Regulations]
[Pages 94958-94961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31237]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2014-0708; Amendment No. 91-334A]
RIN 2120-AK93


Extension of the Prohibition Against Certain Flights Within the 
Damascus (OSTT) Flight Information Region (FIR)

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

ACTION: Final rule.

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SUMMARY: This action extends the prohibition of certain flight 
operations in the Damascus (OSTT) Flight Information Region (FIR) 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. The FAA finds that this action continues to 
be necessary to address a potential hazard to persons and aircraft 
engaged in such flight operations.

DATES:  This final rule is effective on December 30, 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: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

    This action continues the prohibition against certain flight 
operations in the

[[Page 94959]]

Damascus (OSTT) Flight Information Region (FIR) 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. The FAA finds this action necessary to address a 
continuing hazard to persons and aircraft engaged in such flight 
operations. This rule extends SFAR No. 114, Sec.  91.1609, (SFAR 114) 
from December 30, 2016, to December 30, 2018.

II. Authority and Good Cause

A. Legal Authority

    The FAA is responsible for the safety of flight in the United 
States 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 
of the U.S. Code. Subtitle I, section 106(f), describes the authority 
of the FAA Administrator. 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 
his authority consistently with the obligations of the U.S. Government 
under international agreements.
    This SFAR is promulgated under the authority described in Title 49, 
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 the prohibition against certain 
flight operations in the OSTT FIR due to the hazard to persons and 
aircraft engaged in such flight operations that is described in the 
Background section of this final rule.

B. Good Cause for Immediate Adoption

    Section 553(b)(3)(B) of title 5, U.S. Code, authorizes agencies to 
dispense with notice and comment procedures for rules when the agency 
for ``good cause'' finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' In this instance, 
the FAA finds that notice and public comment to this 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 Damascus (OSTT) FIR, as 
described in the Background section of this final rule.

III. Background

    The significant threat identified when the FAA first published SFAR 
114 to civil aviation operating in the Damascus (OSTT) FIR continues 
due to the presence of anti-aircraft weapons controlled by non-state 
actors, threats made by the extremist groups, de-confliction concerns, 
and ongoing military fighting. Flight safety risks associated with a 
lack of de-confliction between various military forces conducting 
operations in Syria and civil aviation, as identified in the original 
prohibition, also continue unabated.
    Due to the presence of foreign national military forces and non-
state actors operating in Syria, the FAA has determined that safety of 
flight continues to be a serious safety concern for U.S. civil aviation 
flight operations in the Damascus (OSTT) FIR. There are multiple 
extremist groups, known to be equipped with a variety of anti-aircraft 
weapons including radar-guided surface-to-air missiles (SAMs) and man-
portable air defense systems (MANPADs), which have the capability to 
threaten civil aircraft. Syrian and Russian military aircraft have been 
shot down during the course of the current conflict and these groups 
have previously warned civilian air carriers against operating within 
(or providing service to) Syria.
    In 2015 and in support of the Asad regime, Russia began conducting 
military operations using fighter and bomber aircraft and employed 
advanced cruise missiles. These operations further increase the risk to 
civilian flight operations within the Damascus (OSTT) FIR.
    The FAA continues to assess the situation in the Damascus (OSTT) 
FIR and believes there is a significant threat to civil aviation 
operating in the Damascus (OSTT) FIR at all altitudes due to the 
presence of anti-aircraft weapons controlled by non-state actors, 
threats made by the extremist groups, de-confliction concerns, and 
ongoing military fighting.
    Due to the continuation of the previously described hazards to U.S. 
civil aviation operations, the FAA is extending the expiration date of 
SFAR No. 114, Sec.  91.1609, from December 30, 2016 to December 30, 
2018, to maintain the prohibition on flight operations in the Damascus 
(OSTT) FIR 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.
    The FAA will continue to actively monitor the situation and, based 
on evaluations, determine the extent U.S. civil operators may be able 
to safely operate in the Damascus (OSTT) FIR in the future. Amendments 
to this SFAR No. 114, Sec.  91.1609, may be appropriate if the risk to 
aviation safety and security changes. Thus, the FAA may amend or 
rescind this SFAR No. 114, Sec.  91.1609, as necessary prior to its 
expiration date.
    Because the circumstances described herein warrant a continuation 
of the flight restrictions imposed by SFAR 114, 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

    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

[[Page 94960]]

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, 
as it raises novel policy issues contemplated under that Executive 
Order; further, this rule is ``significant'' as defined in DOT's 
Regulatory Policies and Procedures. 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.

A. Regulatory Evaluation

    Department of Transportation (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.
    For SFAR No. 114, Sec.  91.1609, the FAA determined that 
incremental costs were minimal for U.S. operators of large transport 
category airplanes (four part 121 operators and two part 125M 
operators) because they had voluntarily ended their overflights in 
March, 2011, before the FAA's August 18, 2014 issuance of FDC NOTAM 4/
4936. The FAA also determined that the incremental costs of SFAR No. 
114 were minimal for about 15 ``on-demand'' large carriers (part 121 
and part 121/135) and about 75 small ``on-demand'' operators (parts 
135, 125, 125M, and 91K). These operators had previously flown into and 
out of Syria or conducted overflights in the OSTT FIR. But because of 
sanctions imposed by the U.S. Department of the Treasury's Office of 
Foreign Assets Control (OFAC) and the ongoing conflict, the FAA 
believed that few, if any, of these ``on-demand'' operators were still 
operating in the OSTT FIR immediately before the FAA issued FDC NOTAM 
4/4936.
    Due to significant and increased hostilities, and because the OFAC 
sanctions remain in place, the reasons for the FAA's previous finding 
of minimal cost for SFAR No. 114 remain unchanged. Therefore, the FAA 
finds that the incremental cost of the SFAR No. 114 extension will be 
minimal.

B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, ``RFA''), 5 
U.S.C. 601 et seq., 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 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, 
5 U.S.C. 605(b) provides that the head of the agency may so certify and 
a regulatory flexibility analysis will not be required. The 
certification must include a statement providing the factual basis for 
this determination, and the reasoning should be clear.
    Prior to the hostilities leading to the earlier published SFAR No. 
114, Sec.  91.1609, there were many small entities conducting 
operations through the now restricted airspace. After the FAA published 
SFAR No. 114, Sec.  91.1609, the FAA received no request to use this 
airspace. Given no requests have occurred, the FAA believes the earlier 
determination of minimal cost is accurate. Thus, extending the airspace 
restriction will not impose a significant economic impact. 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. 3501(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 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

[[Page 94961]]

Standards and Recommended Practices that correspond to this regulation.
    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. 
Further, following the downing of Malaysian Airlines Flight 17, there 
is increased attention in the international community and ICAO to 
conflict-related threats to civil aircraft. Foreign air carriers and 
other foreign operators may choose to avoid, or be advised/directed by 
their civil aviation authorities to avoid, airspace for which the FAA 
has issued a flight prohibition.

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 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, and, 
therefore, does not have Federalism implications.

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

    The FAA analyzed this 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 is not a ``significant energy action'' under the 
executive order, and it is not 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 a rulemaking document may be obtained by 
using the Internet--
     Searching the Federal eRulemaking Portal (http://www.regulations.gov);
     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 section at the beginning of the 
preamble. You can find out more about SBREFA on the Internet at: 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, Syria.

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), 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. Revise Sec.  91.1609, paragraph (e), to read as follows:


Sec.  91.1609   Special Federal Aviation Regulation No. 114--
Prohibition Against Certain Flights in the Damascus (OSTT) Flight 
Information Region (FIR).

* * * * *
    (e) Expiration. This SFAR will remain in effect until December 30, 
2018. The FAA may amend, rescind, or extend this SFAR No. 114, Sec.  
91.1609, as necessary.

    Issued under authority provided by 49 U.S.C. 106(f), 
40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), in Washington, DC, on 
December 19, 2016.
Michael P. Huerta,
Administrator.
[FR Doc. 2016-31237 Filed 12-23-16; 8:45 am]
 BILLING CODE 4910-13-P