[Federal Register Volume 62, Number 94 (Thursday, May 15, 1997)]
[Rules and Regulations]
[Pages 26890-26892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12744]



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Part III





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. 62, No. 94 / Thursday, May 15, 1997 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. 27744; Special Federal Aviation Regulation (SFAR) No. 67]
RIN 2120-AG40


Prohibition Against Certain Flights Within the Territory and 
Airspace of Afghanistan

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; amendment.

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SUMMARY: This action amends Special Federal Aviation Regulation (SFAR 
67) to extend, with the exception noted below, the prohibition on 
flight operations within the territory and airspace of Afghanistan by 
any United States air carrier or 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, 
and to permit flight operations by the aforementioned persons through 
Afghan airspace over what is hereinafter described as the Wakhan 
Corridor. The current SFAR was issued on May 13, 1994, and was 
subsequently extended twice to the current expiration date of May 10, 
1997. 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: This amendment to SFAR 67 is effective May 9, 1997. SFAR 67 
shall remain in effect until May 10, 1998.

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, S.W., Washington, DC 
20591. Telephone: 202-267-3515.

SUPPLEMENTARY INFORMATION:

Availability of Document

    An electronic copy of this document may be downloaded using a 
modern and suitable communications software from the FAA regulations 
section of the Fedworld bulletin board service (telephone: 703-321-
3339), the Federal Register's electronic bulletin board service 
(telephone: 202-512-1661), or the FAA's Aviation Rulemaking Advisory 
Committee bulletin board service (telephone: 800-FAA-ARAC).
    Internet users may reach the FAA's web page at http://www.faa.gov 
or the Federal Register's web page at http://www.access.gpo.gov/
su__docs for access to recently published rulemaking documents.
    Any person may obtain a copy of this document by submitting a 
request to the Federal Aviation Administration, Office of Rulemaking, 
ARM-1, 800 Independence Avenue S.W., Washington, DC 20591, or by 
calling 202-267-9680. Communications must identify the number of this 
SFAR or the docket number of this document. Persons interested in being 
placed on a mailing list for future rules should request from the above 
office a copy of Advisory Circular No. 11-2A, Notice of Proposed 
Rulemaking Distribution System, that describes the application 
procedure.

Background

    The FAA is responsible for the safety of flight in the United 
States and for the safety of United States-registered aircraft and 
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 on May 
13, 1994, 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 United States-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). Subsequently, by notice published at 61 FR 24430 (May 14, 1996), 
the FAA extended the expiration date of SFAR 67 to May 10, 1997.
    Fighting between government and opposition forces continues 
throughout much of Afghanistan at a level and intensity similar to that 
described when SFAR 67 was originally issued and later amended. 
Government and opposition forces still possess a wide range of 
sophisticated surface- and air-based weapons that potentially could be 
used to attack civil aircraft overflying Afghanistan at cruising 
altitudes. These weapons include fighter and attack aircraft armed with 
cannons and air-to-air missiles, and surface-to-air missiles (SAM) 
systems. Although aircraft have been used primarily for ground attacks 
against airfields and other key facilities, air-to-air encounters have 
also been observed. Press reports also suggest that a number of Afghan 
military and civil 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 in most areas of the 
country.
    Advisories have been issued by the International Civil Aviation 
Organization (ICAO) urging civil aircraft 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 dated November 14, 1994, Dr. 
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 [Flight Information Region] can not be 
assured.'' Dr. Kotaite did indicate in this letter that if operators 
were using Afghan airspace, flying time over Afghanistan should be 
minimized and that route V500, promulgated by a Pakistani NOTAM, 
involves only a two minute flying time over Afghanistan.
    A letter of May 10, 1996, advised of a report by the crew of a 
Boeing 747 cargo aircraft of anti-aircraft fire in the vicinity of 
Kabul. These advisories, which are still germane, reflect the uncertain 
nature of the situation and underscore the dangers to flights in Afghan 
airspace. There are also indications that at least two major factions 
in Afghanistan have in recent fighting deliberately targeted civil 
aircraft. Such policies occasionally have been publicly announced. In a 
statement released in September 1995, General Dostam, who at the time 
opposed the nominal Rabbani Government, warned all international air 
carriers that his forces would force or shoot down any airplane 
venturing into airspace

[[Page 26891]]

controlled by his faction without first obtaining proper clearance from 
them. This statement followed a similar warning issued in 1994 by an 
opposition council. Air corridors over central Afghanistan have been 
closed frequently as a result of these threats and active factional 
fighting.
    Although it is not certain that any faction in the civil war would 
deliberately target a foreign-flagged commercial air carrier, the 
Taliban's growing frustration with the airlift of arms, ammunition, and 
supplies to other factions, and the other factions' interest in 
bringing down Taliban flights, creates a potentially hazardous 
environment whereby an airliner might be misidentified and 
inadvertently targeted. The FAA continues to receive reports that 
scheduled passenger flights have been intercepted by opposition fighter 
aircraft. In July 1996, a Taliban fighter intercepted a Pakistan 
International Airlines flight enroute from London to Lahore. Charter 
flights appear to be equally or more vulnerable. A Russian-operated 
charter flight from the UAE carrying unmanifested ammunition to Kabul 
was forced to land in Kandahar; the aircraft and its crew were held 
there for almost one year before escaping in August 1996.
    At the very least, central Afghan government control over 
installations critical to navigation and communication cannot be 
assured. The Taliban now controls Kabul and most government facilities, 
including air traffic control facilities. Moreover, the use of combat 
aircraft and SAMs by all factions in the conflict calls into question 
the security/safety of the majority of Afghan airspace for civil 
aircraft. An environment for long-term stability in Afghanistan has yet 
to emerge.
    Although other areas of the country continue to be the scene of 
sporadic factional fighting, most of the recent combat has occurred in 
areas to the immediate north of Kabul, the central province of 
Bamiayan, and the northwestern provinces, away from the Wakhan 
Corridor. The Wakhan Corridor is a remote, sparsely populated expanse 
of Afghan territory jutting eastward to the Chinese border (from 
approximately 071 deg.35' east longitude). The territory is nominally 
controlled by Commander Masood; however, due to its remoteness, 
inhospitable terrain and limited population, the Wakhan Corridor plays 
an insignificant role in the current conflict. No combat action is 
known to have taken place there, and the population is generally 
removed from the effects of the fighting. There is no evidence to 
suggest that Afghan factions or terrorist elements harbor any intent to 
conduct activity against United States or other international air 
carriers overflying the Wakhan Corridor. The only potential threat 
against civil aircraft over the Wakhan Corridor is of a limited 
capability. While an action aimed at shooting down or intercepting an 
aircraft over the Wakhan Corridor cannot be absolutely ruled out, it is 
considered unlikely. The U.S. Government assessment is that the overall 
risk is minimal. Several non-U.S. air carriers currently operate safely 
over the Wakhan Corridor along the V500 airway.

Amendment of 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 
necessary to prevent the injury to U.S. operators or loss of certain 
U.S.-registered aircraft conducting flights in the vicinity of 
Afghanistan. I find that the current civil war in Afghanistan continues 
to present an immediate hazard to the operation of civil aircraft over 
Afghan territory and in most Afghan airspace. Accordingly, I am 
ordering a one-year extension of the prohibition under SFAR 67 on 
flight operations within the territory and airspace of Afghanistan. 
This action is necessary to prevent an undue hazard to aircraft and to 
protect persons and property on board those aircraft. SFAR 67 will now 
expire on May 10, 1998. Because the circumstances described in this 
notice warrant immediate action by the FAA to maintain the safety of 
flight, I also find that good cause exists for making this amendment 
effective immediately on publication.
    I also am ordering the amendment of SFAR 67 to allow flights by 
United States air carriers and commercial operators, by any person 
exercising the privileges of a certificate issued by the FAA, or by an 
operator using aircraft registered in the U.S. through Afghan airspace 
east of 071 deg.35' east longitude. Because this action lifts a 
restriction, I find that good cause exists for making this amendment 
effective immediately upon publication.
    The Department of State has been advised of, and has no objection 
to, the actions taken herein.

Regulatory Evaluation Summary

    In accordance with SFAR 67, United States air carriers and 
commercial operators currently use alternate routes to avoid Afghan 
territory and airspace. Navigating around Afghanistan results in 
increased variable operating costs, primarily for United States air 
carriers operating between Europe and India. Based on data identified 
during the promulgation of SFAR 67, the FAA estimates that the 
weighted-average variable cost for a wide-body aircraft is 
approximately $3,200 per hour. Based on data received from two United 
States air carriers, the additional time it takes to navigate around 
Afghanistan ranges from 10 minutes by flying over Iran to between one 
and four hours by flying over Saudi Arabia (depending on the flight's 
origin and destination). Additional costs associated with these 
alternate routes range from $530 by flying over Iran to between $3,200 
to $12,700 per flight over Saudi Arabia.
    In addition, there is an amendment to the extension to SFAR 67, 
which allows United States air carriers through Afghan airspace east of 
071 deg.35' east longitude. There is no inordinate hazard to persons 
and aircraft, due to the remote, sparsely populated nature of the 
Wakhan Corridor, and because no combat action is known to have occurred 
in the area. Therefore, if U.S. air carriers choose to fly over the 
Wakhan region, they could experience cost savings ranging from 
approximately $530 by flying over Iran, and between $3,200 to $12,700 
per flight over Saudi Arabia.
    This Action imposes no additional burden on domestic and foreign 
air carrier certificate holders. In view of the foregoing, the FAA has 
determined that the extension to SFAR 67 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 No. 2100.14A outlines the FAA's procedures and 
criteria for implementing the RFA. The FAA has determined that none of 
the United States air carriers or commercial operators are ``small 
entities'' as defined under FAA Order No. 2100.14A. Therefore, the SFAR 
would not impose a ``significant economic impact on a substantial 
number of small entities.''

International Trade Impact Assessment

    When the FAA promulgated SFAR 67, it found that the SFAR could have 
an adverse impact on the international flights of United States air 
carriers and

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commercial operators because it could marginally increase their 
operating costs and flight times relative to foreign carriers who 
continue to overfly Afghanistan. This action does not impose any 
restrictions on United States air carriers or commercial operators 
beyond those originally imposed by SFAR 67. Therefore, the FAA believes 
that the SFAR would have little, if any, effect on the sale of United 
States aviation products and services in foreign countries.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (the Act), 
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal 
agency, to the extent permitted by law, to prepare a written assessment 
of the effects of any Federal mandate on a proposed or final agency 
rule that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year. 
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal 
agency to develop an effective process to permit timely input by 
elected officers (or their designees) of State, local, and tribal 
governments on a proposed ``significant intergovernmental mandate.'' A 
``significant intergovernmental mandate'' under the Act is any 
provision in a Federal agency regulation that would impose an 
enforceable duty upon State, local, and tribal governments, in the 
aggregate, of $100 million (adjusted annually for inflation) in any one 
year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section 
204(a), provides that before establishing any regulatory requirements 
that might significantly or uniquely affect small governments, the 
agency shall have developed a plan that, among other things, provides 
for notice to potentially affected small governments, if any, and for a 
meaningful and timely opportunity to provide input in the development 
of regulatory proposals.
    This rule does not contain any Federal intergovernmental mandates, 
but does contain a private sector mandate. However, because 
expenditures by the private sector will not exceed $100 million 
annually, the requirements of Title II of the Unfunded Mandates Reform 
Act of 1995 do not apply.

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 USC. 3507 et seq.).

Federalism Determination

    The amendment 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 4168; 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, the 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 United States 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 USC 106(g), 40103, 40113, 40120, 44101, 44701, 
44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 
46316, 46502, 46504, 46506-, 47122, 47508, 47528-47531.

    2. Paragraph 3 and 5 of SFAR 67 are (revised to read as follows:
    Special Federal Aviation Regulation No. 67--Prohibition Against 
Certain Flights 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:
    a. Where such operations are authorized either by the exemption 
issued by the Administrator or by another agency of the United 
States Government with the approval of the FAA; or

b. East of 071 deg.35' east longitude.
* * * * *
    5. Expiration. This Special Federal Aviation Regulation expires 
May 10, 1998.

    Issued in Washington, DC, on May 9, 1997.
Barry Valentine,
Acting Administrator.
[FR Doc. 97-12744 Filed 5-12-97; 1:04 pm]
BILLING CODE 4910-13-M