Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This rulemaking proposes to harmonize the FAA's regulations regarding the North Atlantic (NAT) Minimum Navigation Performance Specifications (MNPS) with those of the International Civil Aviation Organization (ICAO). ICAO's NAT Region is transitioning from the decades-old MNPS navigation specification to a more modern, Performance-Based Navigation (PBN) specification. This proposed rule would also correct and update the incorporation by reference of ICAO Annex 2 in the FAA's regulations.
Send comments on or before October 31, 2016.
Send comments identified by docket number FAA-2016-9154 using any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your comments electronically.
Mail: Send comments to Docket Operations, M-30; U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.
Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Fax: Fax comments to Docket Operations at 202-493-2251.
Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.
Docket: Background documents or comments received may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
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FOR FURTHER INFORMATION CONTACT:
For technical questions concerning this action, contact Kevin C. Kelley, Flight Technologies Division, Performance Based Flight Systems Branch, AFS-470, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-8854; email email@example.com.
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Start Supplemental Information
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 United States Code (U.S.C.). 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 rulemaking 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 rulemaking is also promulgated pursuant to title 49 U.S.C. 40103(b)(1) and (2), which charge the FAA with issuing regulations: (1) To ensure the safety of aircraft and the efficient use of airspace; and (2) to govern the flight of aircraft for purposes of navigating, protecting and identifying aircraft, and protecting individuals and property on the ground.
This regulation is within the scope of that authority, because it amends 14 CFR 91.703 to harmonize and incorporate changes made to international standards directly applicable in airspace over the high seas.
I. Executive Summary
The proposed rule would harmonize FAA regulations with ICAO standards relevant to the North Atlantic and to airspace over the high seas. In January 2016, ICAO announced that the NAT Minimum Navigation Performance Specifications (MNPS) airspace would be renamed NAT High Level Airspace (HLA) effective February 4, 2016. ICAO further announced that existing MNPS authorizations by the State of the operator or the State of registry will expire in January 2020. As a result, operators in the NAT HLA would no longer be able to use the MNPS for the navigation of aircraft and would be required to transition to a PBN specification. Airspace over the high seas (oceans, seas, and waters outside of sovereign jurisdiction) is governed by ICAO Annex 2. The FAA's regulatory basis for operational authorizations for the NAT and for all airspace over the high seas is addressed in 14 CFR 91.703, which incorporates Annex 2 by reference, and § 91.705, which provides for NAT MNPS authorizations.
This proposed rule, if adopted, would remove MNPS from part 91 of title 14 Start Printed Page 66878Code of Federal Regulations (14 CFR) and would not impose any new requirements.
Additionally, under this proposal, the FAA is updating the incorporation by reference (IBR) of ICAO Annex 2 in § 91.703, which was last updated in 1997. Since that time, ICAO has published thirteen amendments to Annex 2. This proposal would remove potential ambiguities about the version of Annex 2 applicable to airspace over the high seas.
Costs and Benefits
The proposed rule is an administrative harmonization, as it does not impose any new requirements. If the FAA does not adopt this rule, ICAO's current transition from the MNPS specification to PBN specifications for operations in the NAT HLA, will still take place by 2020. Consequently, there are no costs associated with this proposed rule.
International Civil Aviation Organization (ICAO)
The Chicago Convention was adopted to promote the safe and orderly development of international civil aviation. The Chicago Convention also created ICAO, which promulgates uniform international Standards and Recommended Practices (SARPs) aimed at standardizing international civil aviation operational practices and services. Currently, these SARPs are detailed in 19 annexes to the Chicago Convention. Annex 2, Rules of the Air, is of particular relevance here, as these rules pertain to airspace over the high seas. Article 12 to the Convention obligates each Contracting State to adopt measures to ensure that persons operating an aircraft over the high seas comply with Annex 2. As a Contracting State, the U.S. has satisfied this responsibility through 14 CFR part 91, General Operating and Flight Rules, which requires that U.S.-registered aircraft comply with Annex 2 when over the high seas (see 14 CFR 91.703). Annex 2, paragraph 5.1.1 provides that “Aircraft shall be equipped with suitable instruments and with navigation equipment appropriate to the route to be flown.”
Transition From Minimum Navigation Performance Specifications (MNPS) to Performance-Based Navigation (PBN) Specification
In 1977, ICAO established the Minimum Navigation Performance Specifications (MNPS) and the corresponding NAT airspace where MNPS would apply in an effort to address constrained capacity in light of continued growth of NAT traffic. The following year, the required lateral separation was safely halved from 120 to 60 nautical miles due to the enhanced reliability of navigation equipment meeting the MNPS. This resulted in large capacity and efficiency gains.
Since the implementation of the MNPS, the 60 nautical mile lateral separation has remained in place.
In the meantime, more modern PBN specifications of Area Navigation/Required Navigation Performance 10 (RNAV/RNP 10) and RNP 4, have been introduced, as well as automatic aircraft datalink systems which provide periodic position reports to ground stations.
In light of those new developments, and in an effort to again safely increase capacity and efficiency, ICAO has allowed for authorizations by the State of the operator or the State of registry using RNAV 10 and RNP 4 specifications. The FAA has published guidance explaining RNP operations in FAA Advisory Circular 90-105A, Approval Guidance for RNP Operations and Barometric Vertical Navigation in the U.S. National Airspace System and in Oceanic and Remote Continental Airspace. Also, in a State Letter dated January 5, 2015, and “NAT OPS Bulletin 2016_001” issued January 22, 2016, ICAO announced that NAT Minimum Navigation Performance Specifications (MNPS) airspace would be renamed as the NAT High Level Airspace (HLA) effective February 4, 2016.
III. Discussion of the Proposal
Removal of References to the North Atlantic Minimum Navigation Performance Specifications
As a result of ICAO renaming the NAT MNPS airspace, the references to NAT MNPS in the FAA's regulations are outdated. The FAA proposes to remove all instances of MNPS in 14 CFR part 91. The prescriptive references to navigational specifications are not necessary since operators are required to comply with Annex 2, which aligned RNP and RNAV terminology with the PBN concept in Amendment 41. The FAA issued a revised Operations Specification (OpSpec B039) for the authorization of PBN operations in the NAT HLA on June 10, 2016. Two part 121 carriers are conducting operations in the NAT HLA under revised OpSpec B039 and the FAA expects other carriers and operators to follow suit.
Existing B039 authorizations remain valid until December 31, 2019.
Incorporation by Reference Update and Correction
The FAA also proposes to update and correct the incorporation by reference to ICAO Annex 2 in § 91.703 to the current version of the document, as amended through November 10, 2016. Annex 2, including all amendments through Amendment 32, was incorporated by reference into § 91.703 effective April 9, 1997 (62 FR 17480, Apr. 9, 1997). Since then, 13 amendments to Annex 2 have been published (see Table 1).
Table 1—Amendments to ICAO Annex 2 Since Last IBR Into 14 CFR Part 91
|33||Communication failure procedures||16 November 1997.|
|34||Definitions; automatic dependent surveillance systems and procedures; data interchange between automated ATS systems; ATS applications for air-ground data links; problematic use of psychoactive substances||5 November 1998.|
|35||ATS airspace classifications; visual meteorological conditions clearance; runway-holding position||4 November 1999.|
|36||Revised definitions of “air traffic control unit”, “approach control unit”, “alternate aerodrome” “flight crew member”, “pilot-in-command” and “visibility”; editorial amendments||1 November 2001.|
|37||Pilot procedures in the event of unlawful interference; editorial amendments||28 February 2003.|
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|38||Definitions; marshalling signals; communication failure procedures; interception maneuvers; editorial amendments||24 November 2005.|
|39||Restructuring of text to emphasize the responsibility of the pilot-in-command for the avoidance of collisions||23 November 2006.|
|40||Definitions and associated procedures for ADS-B, ADS-C and ADS-C agreement; pilot procedures in the event of unlawful interference||22 November 2007.|
|41||Amendment to a definition and Standard to align required navigation performance (RNP) and area navigation (RNAV) terminology with the performance-based navigation (PBN) concept||20 November 2008.|
|42||Amendments to standard emergency hand signals for emergency communications between aircraft rescue and firefighting personnel and flight and/or cabin crews; and harmonization of cruising levels||19 November 2009.|
|43||Amendment to definitions; speed variations; and remotely piloted aircraft||15 November 2012.|
|44||Definitions related to instrument approach operations||13 November 2014.|
|45||Speed variation procedures||10 November 2016.|
In accordance with a process described in FAA Order JO 7000.6A, Identification and Notification of Differences Between ATO Products and Services and ICAO Documents, the FAA has examined each of the Amendments to Annex 2 listed in Table 1. Differences are published in the GEN 1.7 section of the current United States Aeronautical Information Publication (AIP). The differences listed in the AIP for Annex 2 are minor in nature, generally apply to operations within the United States and have no relation to the Annex 2 requirement for aircraft to be operated over the high seas with navigation equipment appropriate to the route to be flown.
The FAA notes that the current IBR of Annex 2 does not include the proper language conveying approval of the Director of the Federal Register and proposes to update the IBR of Annex 2 to reflect the Director of the Federal Register's approval as reflected in the proposed regulatory text.
Annex 2 is available through the International Civil Aviation Organization (ICAO), Document Sales Unit, 999 University Street, Montreal, Quebec H3C 5H7, Canada. Also, you will be able obtain this document on the Internet at http://www.ICAO.int/eshop/index.cfm. It will also be available for inspection at the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
IV. Regulatory Notices and Analyses
A. Regulatory Evaluation
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 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) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade 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) 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 proposed rule.
Department of Transportation Order DOT 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 that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this rule. The reasoning for this determination follows. This rulemaking would harmonize the FAA's regulations regarding the NAT MNPS with those of ICAO. ICAO's NAT Region is transitioning from the decades-old “MNPS” navigation specification to a more modern PBN specification. The FAA also intends to update the incorporation by reference of ICAO Annex 2 in § 91.703. This proposed action, if adopted, would remove all references to MNPS under 14 CFR part 91 and would not impose any new requirements.
Flights in international airspace must follow ICAO standards in that airspace. United States operators have historically complied with provisions relevant to airspace over the high seas in Annex 2. Accordingly, as operators are already complying with ICAO's provisions relevant to operations over the high seas, the FAA believes the proposed rule incorporating the current version of ICAO Annex 2 would impose minimal cost. The FAA requests comments on this determination.
The FAA has, therefore, determined that this rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.
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 of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals Start Printed Page 66880and 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.
Even though there are substantial numbers of small entities operating aircraft across international waters, this proposed rule would not impose a significant economic impact. Flights in international airspace must follow ICAO standards in that airspace. Currently, United States operators must comply with Annex 2 when operating over the high seas. This proposed rule harmonizes FAA regulations to be in accord with new ICAO rules effective in airspace over the high seas and imposes no new regulations. Accordingly, no affected entity incurs new costs. Thus the FAA expects this proposed rule would not impose a significant economic impact on a substantial number of small entities. The FAA asks for comment on this determination.
Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking would 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 by the Uruguay Round Agreements Act (Pub. L. 103-465), 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 these Acts, 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 rule and determined that it uses international ICAO standards and the rule complies with the Trade Agreements Act as amended by the Uruguay Round 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 million in lieu of $100 million. This 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 would be no new requirement for information collection associated with this proposed rule.
F. International Compatibility
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified differences with the current version of Annex 2 (through Amendment 45). These differences, as prescribed in ICAO Annex 15, have been published in the United States Aeronautical Information Publication (AIP), section GEN 1.7. The differences listed in the AIP for Annex 2 are minor in nature and have no relation to the Annex 2 requirement for aircraft to be operated with navigation equipment appropriate to the route to be flown. This is consistent with the FAA's support of international compatibility and its obligations under the Convention on International Civil Aviation.
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 in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6 and involves no extraordinary circumstances.
V. Executive Order Determinations
The FAA has analyzed this proposed 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 proposed 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.
Executive Order (E.O.) 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 reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policy and agency responsibilities of Executive Order 13609, Promoting International Regulatory Cooperation. The agency has determined that this action would not have a significant international impact, but would remove potential ambiguities about the applicability of ICAO rules over the high seas.Start Printed Page 66881
VI. Additional Information
A. Comments Invited
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.
B. Availability of Rulemaking Documents
An electronic copy of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or
3. Accessing the Government Printing Office's Web page at http://www.gpo.gov/fdsys/.
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) 267-9680. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1).
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- Air carrier
- Air taxis
- Air traffic control
- Aviation safety
- Incorporation by reference
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:
PART 91—GENERAL OPERATING AND FLIGHT RULES
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1. The authority citation for part 91 continues to read as follows: End Amendment Part
Start Amendment Part
2. Amend § 91.703 as follows: End Amendment Part
Start Amendment Part
a. Amend paragraphs (a)(1) and (3) by capitalizing the “a” in “Annex”; End Amendment Part
Start Amendment Part
b. Remove the first sentence of paragraph (a)(4); and End Amendment Part
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c. Revise paragraph (b) to read as follows: End Amendment Part
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Operations of civil aircraft of U.S. registry outside of the United States.
* * * * *
(b) Annex 2 to the Convention on International Civil Aviation, Tenth Edition—July 2005, with Amendments through Amendment 45, applicable November 10, 2016 is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the FAA must publish a document in the Federal Register and the material must be available to the public. All approved material is available for inspection at U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590 and is available from the International Civil Aviation Organization (ICAO), Document Sales Unit, 999 University Street, Montreal, Quebec H3C 5H7, Canada; http://www.ICAO.int/eshop/index.cfm. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
3. Remove § 91.705. End Amendment Part
Start Amendment Part
4. Amend § 91.1027(a)(2) by removing “MNPS,”. End Amendment Part
Appendix C to Part 91—[Removed]
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5. Remove appendix C to part 91. End Amendment Part
Start Amendment Part
6. Amend appendix G to part 91 by revising paragraph (a)(2) of section 8 to read as follows: End Amendment Part
Appendix G to Part 91—Operations in Reduced Vertical Separation Minimum (RVSM) Airspace
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Section 8. Airspace Designation
(a) * * *
(2) RVSM may be effective in the High Level Airspace (HLA) within the NAT. The HLA airspace within the NAT is defined by the volume of airspace between FL 285 and FL 420 (inclusive) extending between latitude 27 degrees north and the North Pole, bounded in the east by the eastern boundaries of control areas Santa Maria Oceanic, Shanwick Oceanic, and Reykjavik Oceanic and in the west by the western boundaries of control areas Reykjavik Oceanic, Gander Oceanic, and New York Oceanic, excluding the areas west of 60 degrees west and south of 38 degrees 30 minutes north.
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Issued under authority provided by 49 U.S.C. 106(f), 40101(d)(1), 40103(b)(1), 40105(b)(1)(A), and 44701(a)(5) in Washington, DC, on September 14, 2016.
John S. Duncan,
Director, Flight Standards Service.
[FR Doc. 2016-22798 Filed 9-28-16; 8:45 am]
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