[Federal Register Volume 59, Number 92 (Friday, May 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11714]


[[Page Unknown]]

[Federal Register: May 13, 1994]


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Part VIII





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 91


 

Prohibition Against Certain Flights Within the Territory and Airspace 
of Afghanistan and Yemen; Final Rules
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Federal Aviation Administration

14 CFR Part 91

[Docket No. 27744; Special Federal Aviation Regulation (SFAR) No. 67]
RIN 2120-AF38

Prohibition Against Certain Flights Within the Territory and 
Airspace of Afghanistan

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action prohibits flight operations within the territory 
and airspace of Afghanistan by any United States air carrier and 
commercial operator, by any person exercising the privileges of an 
airman certificate issued by the FAA, or by an operator using an 
aircraft registered in the United States unless the operator of such 
aircraft is a foreign air carrier. This action is taken to prevent an 
undue hazard to persons and aircraft engaged in such flight operations 
as a result of the ongoing civil war in Afghanistan.

DATES: Effective Date: May 10, 1994. Expiration date: May 10, 1995.

FOR FURTHER INFORMATION CONTACT: Patricia Lane, Airspace and Air 
Traffic Law Branch, AGC-230, or Mark W. Bury, International Affairs and 
Legal Policy Staff, AGC-7, Office of the Chief Counsel, Federal 
Aviation Administration, 800 Independence Avenue SW., Washington, DC 
20591. Telephone: (202) 267-3491.

SUPPLEMENTARY INFORMATION:

Availability of Document

    Any person may obtain a copy of this document by submitting a 
request to the Federal Aviation Administration, Office of Public 
Affairs, Attention: Public Inquiry Center, APA-230, 800 Independence 
Avenue, SW., Washington, D.C. 20591, or by calling (202) 267-3484. 
Communications must identify the number of this SFAR. Persons 
interested in being placed on a mailing list for future rules should 
also request a copy of Advisory Circular No. 11-2A, which describes the 
application procedure.

Background

    The Federal Aviation Administration (FAA) is responsible for the 
safety of flight in the United States and for the safety of U.S.-
registered aircraft and U.S. operators throughout the world. Section 
103(1) of the Federal Aviation Act of 1958 (Act) declares, as a matter 
of policy, that the regulation of air commerce to promote safety is in 
the public interest. Section 601(a) of the Act provides the FAA with 
broad authority to carry out this policy by prescribing regulations 
governing the practices, methods, and procedures necessary to ensure 
safety in air commerce. In the exercise of these statutory 
responsibilities, the FAA has determined that the current civil war in 
Afghanistan justifies the imposition of certain measures to ensure the 
safety of U.S.-registered aircraft and operators that are conducting 
flight operations in the vicinity of Afghanistan's territory and 
airspace.
    Fighting between the current government and various factions had 
been localized to an area around Kabul and the northern portion of the 
country. However, recent fighting has intensified and spread to a 
larger area of the country. Areas of northern Afghanistan, including 
major airbases and military garrisons at Mazare Sharif, have come under 
the control of heavily armed insurgent forces opposed to the Kabul 
regime.
    Government and rebel forces possess a wide range of sophisticated 
weapons that potentially could be used to attack overflying civil 
aviation aircraft at cruising altitudes. These weapons include various 
surface-to-air missiles (SAMs) and antiaircraft artillery. Russian made 
fighter and attack aircraft, armed with cannons and air-to-air 
missiles, are also being utilized by government and rebel forces. 
Opposition forces have attacked Kabul with rockets, artillery, and 
bombs. Government aircraft have countered with air strikes on rebel 
airfields and other key facilities. According to press reports, some 
air-to-air encounters have occurred between aircraft from the Afghan 
factions and SAMs have been used to target aircraft. Segments of 
Afghanistan continue to be the scene of factional fighting and 
consequently pose a threat to transiting civilian aircraft. 
Fluctuations in the level and intensity of combat create an unsafe 
environment for any aircraft in Afghan airspace.
    As a result of the stepped-up fighting, advisories have been issued 
by the governments of Russia and the United Kingdom and by the 
International Civil Aviation Organization (ICAO) urging civil air 
carriers to avoid Afghan airspace. On January 11, 1994, the Russian 
Civil Aviation Authority issued a notice specifically advising all 
aircraft crossing Afghanistan airspace to avoid the Termez-Mazare-
Sharif-Kabul air corridor. On January 21, a communique. was issued by 
the Coordination Council of the Afghan opposition calling on all 
international airline organizations to restrict passenger-carrying 
aircraft from flying in Afghan airspace. On February 22, 1994, the 
British government issued a notice advising that there may be a risk to 
civilian aircraft flying along certain air routes in northern and 
southern Afghanistan, and that British and Hong Kong carriers are now 
avoiding these routes. ICAO also has issued a directive urging air 
carriers to discontinue flights over Afghanistan. These notices and the 
communique reflect the violent and uncertain nature of the situation 
and underscore the danger to flights in Afghan airspace.
    While there are no indications that any faction in Afghanistan 
intends to deliberately target civil aircraft, both sides have the 
capability to do so and such a possibility cannot be ruled out in the 
current environment. At the very least, central Afghan government 
control over installations critical to navigation and communication 
cannot be assured. Use of combat aircraft and SAMs by all factions in 
the conflict calls into question the security of Afghan airspace for 
civilian aircraft. It is uncertain how long these conditions will last.

Prohibition Against Certain Flights Within the Territory and 
Airspace of Afghanistan

    On the basis of the above information, and in furtherance of my 
responsibilities to promote the safety of flight of civil aircraft in 
air commerce, I have determined that immediate action by the FAA is 
required to prevent the injury to or loss of certain U.S.-registered 
aircraft and U.S. operators conducting flights in the vicinity of 
Afghanistan. I find that the current civil war in Afghanistan presents 
an immediate hazard to the operation of civil aircraft in the territory 
and airspace of Afghanistan. Accordingly, I am ordering a prohibition 
of flight operations (excluding those operations approved by the U.S. 
Government and emergency operations) within the territory and airspace 
of Afghanistan by any United States air carrier and commercial 
operator, by any person exercising the privileges of an airman 
certificate issued by the FAA, or by an operator using an aircraft 
registered in the United States unless the operator of such aircraft is 
a foreign air carrier. This action is necessary to prevent an undue 
hazard to aircraft and to protect persons on board those aircraft. 
Because the circumstances described in this notice warrant immediate 
action by the FAA to maintain the safety of flight, I also find that 
notice and public comment under 5 U.S.C. 553(b) are impracticable and 
contrary to the public interest. Further, I find that good cause exists 
for making this rule effective immediately upon issuance. I also find 
that this action is fully consistent with my obligations under section 
1102(a) of the Federal Aviation Act to ensure that I exercise my duties 
consistently with the obligations of the United States under 
international agreements. The Department of State has been advised of, 
and has no objection to, the action taken herein.
    The rule contains an expiration date of May 10, 1995, but may be 
terminated sooner or extended through the publication of a 
corresponding notice if circumstances so warrant.

Regulatory Evaluation Summary

Benefits

    This regulation will generate potential benefits in the form of 
ensuring that the current acceptable level of safety continues for U.S. 
commercial air carriers and other operators. The potential benefits of 
this action will accrue only to those air carriers and other operators 
currently engaging in overflights of Afghanistan's territory. Since 
this action is proactive rather than reactive, there are no statistics 
from which a quantitative estimate of benefits can be derived.

Costs

    The SFAR will impose a potential incremental cost of compliance in 
the form of the circumnavigation (including the additional time for 
preflight planning) of Afghanistan's territory and airspace. Based on 
information available to informed FAA personnel, there are no U.S. air 
carriers or commercial operators currently conducting revenue flights 
into Afghanistan. Therefore, these operators will not be impacted by 
this action. However, there are overflights of Afghanistan's territory 
by U.S. commercial air carriers. Thus, these operators will be the only 
entities affected by this action. These operators will incur costs for 
additional fuel and time as the result of diverting from their normal 
flight routes over Afghanistan between Europe, Africa, and Asia. Since 
the FAA does not know at this time to what extent the potential cost of 
compliance will be, the FAA solicits comments from potentially affected 
operators. Please provide detailed cost information on the extent the 
action will impose costs in the form of additional preflight planning 
and circumnavigation of Afghanistan's territory.

Paperwork Reduction Act

    This rule contains no information collection requests requiring 
approval of the Office of Management and Budget pursuant to the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

International Trade Impact Assessment

    This final rule could have an impact on the international flights 
of U.S. air carriers and commercial operators because it will restrict 
their ability to overfly the territory of Afghanistan and therefore may 
impose additional costs relating to the circumnavigation of 
Afghanistan's territorial airspace. This final rule will not restrict 
the ability of foreign air carriers to overfly Afghanistan's territory. 
Given the narrow scope of this rule, it will not eliminate existing or 
create additional barriers to the sale of foreign aviation products in 
the United States or to the sale of U.S. aviation products and services 
in foreign countries.

Federalism Determination

    The SFAR set forth herein will not have substantial direct effects 
on the states, on the relationship between the national government and 
the states, or on the distribution of power and responsibilities among 
the various levels of government. Therefore, in accordance with 
Executive Order 12612 (52 FR 41685; October 30, 1987), it is determined 
that this regulation does not have federalism implications warranting 
the preparation of a Federalism Assessment.

Conclusion

    For the reasons set forth above, FAA has determined that this 
action is not a ``significant regulatory action'' under Executive Order 
12866. This action is considered a ``significant rule'' under DOT 
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). 
Because revenue flights to Afghanistan are not currently being 
conducted by U.S. air carriers or commercial operators, the FAA 
certifies that this rule will not have a significant economic impact, 
positive or negative, on a substantial number of small entities under 
the criteria of the Regulation Flexibility Act.

List of Subjects in 14 CFR Part 91

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

The Amendment

    For the reasons set forth above, the Federal Aviation 
Administration is amending 14 CFR part 91 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. app. 1301(7), 1303, 1344, 1348, 1352 
through 1355, 1401, 1421 through 1431, 1471, 1472, 1502, 1510, 1522, 
and 2121 through 2125; Articles 12, 29, 31, and 32(a) of the 
Convention on International Civil Aviation (61 Stat. 1180); 42 
U.S.C. 4321 et seq., E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970 Comp., 
p. 902; 49 U.S.C. 106(g).

    2. Special Federal Aviation Regulation (SFAR) No. 67 is added to 
read as follows:

Special Federal Aviation Regulation No. 67--Prohibition Against 
Certain Flights Within the Territory and Airspace of Afghanistan

    1. Applicability. This rule applies to all U.S. air carriers and 
commercial operators, all persons exercising the privileges of an 
airman certificate issued by the FAA, and all operators using aircraft 
registered in the United States except where the operator of such 
aircraft is a foreign air carrier.
    2. Flight prohibition. Except as provided in paragraph 3 and 4 of 
this SFAR, no person described in paragraph 1 may conduct flight 
operations within the territory and airspace of Afghanistan.
    3. Permitted operations. This SFAR does not prohibit persons 
described in paragraph 1 from conducting flight operations within the 
territory and airspace of Afghanistan where such operations are 
authorized either by exemption issued by the Administrator or by 
another agency of the United States Government with the approval of the 
FAA.
    4. Emergency situations. In an emergency that requires immediate 
decision and action for the safety of the flight, the pilot in command 
of an aircraft may deviate from this SFAR to the extent required by 
that emergency. Except for U.S. air carriers and commercial operators 
that are subject to the requirements of 14 CFR 121.557, 121.559, or 
135.19, each person who deviates from this rule shall, within ten (10) 
days of the deviation, excluding Saturdays, Sundays, and Federal 
holidays, submit to the nearest FAA Flight Standards District Office a 
complete report of the operations of the aircraft involved in the 
deviation, including a description of the deviation and the reasons 
therefor.
    5. Expiration. This Special Federal Aviation Regulation expires May 
10, 1995.

    Issued in Washington, DC, on May 10, 1994.
David R. Hinson,
Administrator.
[FR Doc. 94-11714 Filed 5-10-94; 2:57 pm]
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