[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]]


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Part VI





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; 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