[Federal Register Volume 61, Number 94 (Tuesday, May 14, 1996)]
[Rules and Regulations]
[Pages 24430-24431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12132]
[[Page 24429]]
_______________________________________________________________________
Part VI
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 91
Prohibition Against Certain Flights Within the Territory and Airspace
of Afghanistan; Final Rule
Federal Register / Vol. 61, No. 94 / Tuesday, May 14, 1996 / Rules
and Regulations
[[Page 24430]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. 27744; Special Federal Aviation Regulation (SFAR) No. 67]
RIN 2120-AG10
Prohibition Against Certain Flights Within the Territory and
Airspace of Afghanistan
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; extension of expiration date.
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SUMMARY: This action amends Special Federal Aviation Regulation (SFAR)
67 to extend the prohibition on 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, 1996. Expiration date: May 10, 1997.
FOR FURTHER INFORMATION CONTACT: Mark W. Bury, International Affairs
and Legal Policy Staff, AGC-7, Office of the Chief Counsel, Federal
Aviation Administration, 800 Independence Avenue, SW., Washington, D.C.
20591. Telephone: (202) 267-3515.
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 Rulemaking,
Attention: ARM-1, 800 Independence Avenue, SW., Washington, D.C. 20591,
or by calling (202) 267-9677. 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
40101(d)(1) of Title 49, United States Code, declares, as a matter of
policy, that the regulation of air commerce to promote safety is in the
public interest. Section 44701(a) of Title 49, United States Code,
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 issued
SFAR 67, prohibiting flight operations within the territory and
airspace of Afghanistan by any United States air carrier or commercial
operator, any person exercising the privileges of an airman certificate
issued by the FAA, or any operator using an aircraft registered in the
United States unless the operator of such aircraft is a foreign air
carrier. Notice of SFAR 67 was published at 59 FR 25282 (May 13, 1994).
The FAA issued SFAR 67 based upon a determination that the ongoing
civil war in Afghanistan justified 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. SFAR 67 was originally scheduled to expire after one
year. Notice of the extension of SFAR 67 for an additional year was
published at 60 FR 25980 (May 15, 1995).
Fighting between government and opposition forces continues
throughout Afghanistan at a level and intensity similar to that noted
when SFAR 67 was originally issued. Opposing forces in this long-
running civil war possess a wide range of sophisticated weapons that
potentially could be used to attack civil aviation aircraft overflying
Afghanistan at cruising altitudes. These weapons include Russian-made
fighter and attack aircraft armed with cannons and air-to-air missiles,
and surface-to-air missile (SAM) systems. Although aircraft primarily
have been used for ground attacks against airfields and other key
facilities, air-to-air encounters also have been observed. Press
reports also suggest that a number of Afghan military and civilian
aircraft have been shot down using SAMs. Large areas of the country
continue to be the scene of factional fighting. Fluctuations in the
level and intensity of combat create an unsafe environment for
transiting civilian aircraft.
Advisories have been issued by the International Civil Aviation
Organization (ICAO) urging civil air carriers to avoid Afghan airspace.
In a letter dated April 8, 1994, Assad Kotaite, President of the ICAO
Council, issued a notice urging air carriers to discontinue flights
over Afghanistan. In a subsequent letter of November 14, 1994,
President Kotaite warned of the continuing risks associated with
flights over Afghanistan, including operations using certain routes
developed by the Afghan Government or neighboring countries. On
September 18, 1995, in yet another letter addressing flight safety over
Afghanistan, Dr. Kotaite advised that ``the safety of international
civil flight operations through the Kabul FIR can not be assured.''
These advisories reflect the uncertain nature of the situation and
underscore the danger to flights in Afghan airspace.
There also are indications that at least two rebel factions, in
Afghanistan intend to deliberately target civil aircraft. In a
statement released in September 1995, forces opposed to the Rabbani
Government warned all international air carriers that they would force
or shoot down any plane that ventured into airspace they controlled
without first obtaining proper clearance from them. This follows a
similar warning issued in 1994 by the Opposition Council. Air corridors
over central and southern Afghanistan have been closed frequently as a
result of these threats. Although it seems unlikely that any faction in
the civil war would deliberately target a foreign-flagged commercial
air carrier, their growing frustration with the airlift of arms,
ammunition and other supplies to the Kabul regime creates a potentially
hazardous environment whereby an airliner might be misidentified and
inadvertently targeted. The FAA has received reports that scheduled
passenger flights have been intercepted by opposition fighter aircraft.
Other reports indicate that charter flights have been forced to land in
Kandahar; one of these aircraft and its crew continue to be held there.
At the very least, central Afghan government control over
installations critical to navigation and communication can not be
assured. The use of combat aircraft and SAMs by all factions in the
conflict calls into question the security/safety of Afghan airspace for
civilian aircraft. An environment for long-term stability in this
troubled region has yet to emerge.
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 continued 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
[[Page 24431]]
Afghanistan. I find that the current civil war in Afghanistan continues
to present an immediate hazard to the operation of civil aircraft in
the territory and airspace of Afghanistan. Accordingly, I am ordering
the amendment of SFAR 67 to extend for an additional year the
prohibition on flight operations (excluding those operations approved
by the U.S. Government and certain 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 and property 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 49 U.S.C. 40105(b)(1)(A) to
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 now contains an expiration date of May 10, 1997, but may
be terminated sooner or extended through the publication of a
corresponding notice if circumstances so warrant.
Regulatory Evaluation
Over the past 10 years, there have been a number of instances
worldwide where civilian aircraft were either shot at or shot down. In
some instances, the shooting was intentional, while in others the
aircraft was misidentified as an enemy aircraft. One such reported
incident, described earlier, involved Afghan government forces
mistakenly shooting at a civilian aircraft. This incident highlights
the risk that one side in the Afghan civil war will misidentify a U.S.
civil aircraft overflying Afghanistan as a hostile aircraft. One
faction involved in the fighting in Afghanistan has specifically stated
that it would target the aircraft of an Afghan air carrier. This stated
threat increases the risk of a U.S. aircraft being misidentified and
shot down.
Navigating around Afghanistan will result in increased variable
operating costs (i.e., maintenance, fuel, and crew) primarily for U.S.
operators who conduct flights between Europe and India. The FAA
estimates that the weighted-average variable operating cost for a wide-
body aircraft is approximately $3,100 per hour. Based on data received
from two U.S. carriers, the amount of additional time it takes to
navigate around Afghanistan using alternate routes ranges from 10
minutes by flying over Iran to between one and four hours by flying
over Saudi Arabia (depending on flight's origin and destination).
Some U.S. operators use the alternate route over Iran, thereby
incurring little, if any, additional flying time and operating costs.
Two U.S. operators use routes over Saudi Arabia, which result in
additional costs of approximately $3,100 to $12,400 per flight.
Based on the potentially small costs of navigating around
Afghanistan and the potentially devastating result of a U.S. air
carrier being shot down, the FAA has determined that the SFAR is cost-
beneficial.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily and
disproportionately burdened by Federal regulations. The RFA requires a
Regulatory Flexibility Analysis if a proposed rule would have
``significant economic impact on a substantial number of small
entities.'' FAA Order 2100.14A outlines the FAA's procedures and
criteria for implementing the RFA. The FAA has determined that none of
the U.S. air carriers affected by the SFAR are ``small entities'' as
defined by FAA Order 2100.14A Thus, the SFAR would not impose a
``significant economic impact on a substantial number of small
entities.''
International Trade Impact Assessment
The SFAR could have an adverse affect on the international flights
of U.S. air carriers and commercial operators primarily because it
could increase their operating costs relative to foreign carriers who
continue to overfly Afghanistan. However, because of the narrow scope
of the SFAR and the small incremental cost of some of the alternate
routes available to U.S. operators, the FAA has determined that the
SFAR would have little effect on the sale of U.S. aviation products and
services in foreign countries.
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.)
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 Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 91
Afghanistan, Aircraft, Airmen, Airports, Air traffic control,
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. 106(g), 40103, 40113, 40120, 44101, 44111,
44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306,
46315, 46316, 46502, 46504, 46506-46507, 47122, 47508, 47528-47531.
2. Section 5 of Special Federal Aviation Regulation (SFAR) No. 67
is revised to read as follows:
5. Expiration. This Special Federal Aviation Regulation expires
May 10, 1997.
Issued in Washington, DC, on May 9, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-12132 Filed 5-9-96; 4:52 pm]
BILLING CODE 4910-13-M