[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Rules and Regulations]
[Pages 26684-26687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12631]
[[Page 26683]]
_______________________________________________________________________
Part II
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. 63, No. 92 / Wednesday, May 13, 1998 / Rules
and Regulations
[[Page 26684]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. 27744; SFAR 67]
RIN 2120-AG56
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 amends Special Federal Aviation Regulation (SFAR)
67 by extending until May 10, 2000, the prohibition on flight
operations within portions of 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; the
amendment also permits flight operations by the aforementioned persons
through Afghan airspace east of 070 deg.35' east longitude, or south of
33 deg. north latitude. This action is necessary to continue the
prevention of an undue hazard to persons and aircraft engaged in such
flight operations as a result of the ongoing civil war in Afghanistan.
DATES: This action is effective May 7, 1998.
FOR FURTHER INFORMATION CONTACT: David Catey, Air Transportation
Division, Flight Standards Service, Federal Aviation Administration,
800 Independence Avenue, SW., Washington, D.C. 20591. Telephone: (202)
267-8166.
SUPPLEMENTARY INFORMATION:
Availability of This Action
An electronic copy of this document may be downloaded, using a
modem and suitable communications software, from the FAA regulations
section of the Fedworld electronic bulletin board service ((703) 321-
3339), the Federal Register's electronic bulletin board service ((202)
512-1661), or the FAA's Aviation Rulemaking Advisory Committee Bulletin
Board service ((800) 322-2722 or (202) 267-5948). 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 Ave, SW., Washington, DC 20591, or by calling
(202) 267-9677. Communications must identify the docket number of this
action.
Persons interested in being placed on the 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, which
describes the application procedure.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) requires the FAA to report inquiries from small entities
concerning information on, and advice about, compliance with statutes
and regulations within the FAA's jurisdiction, including interpretation
and application of the law to specific sets of facts supplied by a
small entity.
If you are a small entity and have a question, contact your local
FAA official. If you do not know how to contact your local FAA
official, you may contact Charlene Brown, Program Analyst Staff, Office
of Rulemaking, ARM-27, Federal Aviation Administration, 800
Independence Avenue, SW, Washington, DC 20591, 1-888-551-1594. Internet
users can find additional information on SBREFA in the ``Quick Jump''
section of the FAA's web page at http://www.faa.gov and may send
electronic inquiries to the following Internet address: 9-AWA-
[email protected].
Background
On May 10, 1994, the FAA issued SFAR 67 in response to the threat
to civil aviation due to the civil war in Afghanistan (59 FR 25282; May
14, 1994). SFAR 67 was originally scheduled to expire after one year.
Notices of the extension of SFAR 67 were published on May 15, 1995 (60
FR 25980) and May 14, 1996 (61 FR 24430). On May 9, 1997, the FAA again
extended the expiration date to May 10, 1998, and permitted flight
operations by affected persons through Afghan airspace over the Wakhan
Corridor (62 FR 26890; May 15, 1997).
Fighting between government and opposition forces, and the
resulting threat to civil aviation, continues in portions of
Afghanistan, although at a lower level and intensity in the areas to be
opened to U.S. civil aviation than when SFAR 67 was originally issued
and later amended. The Taliban have controlled all of southern
Afghanistan for a considerable time; currently the fighting is
primarily confined to the central Kabul area and northern and
northwestern Afghanistan. While other areas of the country continue to
be the scene of sporadic fighting, the factions involved have little or
no capability to target aircraft operating at normal cruising altitudes
in the areas being opened to U.S. operators. The area where civil
aviation is most threatened in Afghanistan lies in an area north of
33 deg. north latitude and west of 070 deg.35' east longitude.
The primary factions, the Taliban and a loose coalition of
opposition forces, still possess a wide range of sophisticated surface-
and air-based weapons that potentially could be used to attack civil
aircraft overflying central, northern, and northwestern 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 also have been observed. Press reports also suggest that a
number of Afghan military and civil aircraft have been shot down using
SAMs. The fluctuations in the level and intensity of combat create an
unsafe environment for transiting civilian aircraft in the vicinity of
Kabul and northern and northwestern Afghanistan.
Advisories issued by the International Civil Aviation Organization
(ICAO) urging civil aircraft to avoid Afghan airspace remain valid for
at least a portion of 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 notice to airmen (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; however, at 37,000 feet altitude, the
aircraft was never in any danger. These
[[Page 26685]]
advisories, which are still germane, reflect the uncertain nature of
the situation and underscore the dangers to flights in portions of
Afghan airspace. On April 29, 1998, Dr. Kotaite sent a letter to the
United States supporting the approach taken in the proposal. Further,
Dr. Kotaite stated that ICAO is considering issuing another letter to
all ICAO member states indicating that flights could be permitted in
the eastern and southern areas of Afghanistan.
In the past, at least two major factions in Afghanistan have
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 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.
Currently, none of the factions in the civil war has a clear intent
to deliberately target a foreign-flagged commercial air carrier.
However, the Taliban's continued frustration with the airlift of arms,
ammunition, and supplies to other factions, combined with the other
factions' interest in bringing down Taliban flights, creates a
potentially hazardous environment whereby an airliner might be
misidentified and inadvertently targeted in the central, northern, and
northwestern portions of Afghanistan. The FAA has received reports that
scheduled passenger flights have been intercepted by opposition fighter
aircraft. In July 1996, a fighter intercepted a Pakistan International
Airlines flight enroute from London to Lahore. Some reporting indicates
that the aircraft may have been 40-50 NM off its assigned international
air route. 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.
The control and operation of Afghanistan's limited air traffic
control facilities remains relatively stable. Although central Afghan
government control over installations critical to air traffic
navigation and communication changed hands when the Taliban took
control of Kabul, the transfer of authority went smoothly. Indeed, most
air traffic control employees remained on the job and only the senior
leadership was replaced. If opposition forces retake Kabul, the
realignment of control to the previous occupants should be smooth as
well.
The greatest threat to civil aviation is within the area over
Afghanistan north of 33 deg. north latitude and west of 070 deg.35'
east longitude. The fighting described above, and the resulting threat
to civil aviation, has occurred well away from the Wakhan Corridor,
which the FAA opened to U.S. operators in May 1997 by allowing
operations east of 071 deg.35' east longitude. Several non-U.S.
carriers also utilize international air corridor V876, just west of the
Wakhan Corridor, as an alternate to the Wakhan Corridor. The area
surrounding V876 (east of 070 deg.35' east longitude) is remote and
sparsely populated. There is no evidence that Afghan factions or
terrorist elements would target or make preparations for specific
operations against U.S. or other international air carriers overflying
Afghanistan east of 070 deg.35' east longitude, which includes V876.
While an action aimed at shooting down or intercepting an aircraft on
V876 cannot be absolutely ruled out, it is considered unlikely. The
U.S. Government assesses the overall risk for flights using V876 as
low; the risk for the Wakhan Corridor continues to be assessed as
minimal. The slightly higher threat along V876 comes mainly from the
fact that flights could cross factional boundaries and areas of
expected fighting. This threat is mitigated by the lack of surface-to-
air missiles and fighter aircraft in this area and the lack of intent
to target aircraft by the armed factions in the area. Several non-U.S.
air carriers currently operate safely along the V876 airway, and the
International Air Transport Association endorses its use. Therefore,
the FAA is removing the flight prohibition for that portion of Afghan
airspace east of 070 deg.35' east longitude.
Similarly, civil aviation operations along several routes south of
33 deg. north latitude-particularly G202 and V922--would encounter
minimal to low risk. The Taliban has controlled all of southern
Afghanistan, including the areas encompassing the routes south of the
33 deg. north latitude. That area has remained relatively stable, with
no fighting observed for at least 2 years. Therefore, the FAA is
removing the flight prohibition for that portion of Afghan airspace
south of the 33 deg. north latitude.
Consideration of Comments
On April 1, 1998, the FAA proposed to revise SFAR 67 (62 FR 16078).
Three comments were received in the docket. The Air Transport
Association supported the amendment as proposed citing the economic
benefits of reducing the circumnavigation of Afghan airspace. The Air
Line Pilots' Association concurred with continuing flight prohibitions
in certain areas of Afghanistan as proposed. The International Civil
Aviation Organization supported the approach taken by the United States
as proposed. Therefore, the FAA will adopt the amendment as proposed.
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
within portions of Afghan airspace. Accordingly, I am extending for 2
years 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 expires on May 10, 2000. Because the
circumstances described herein warrant continued action by the FAA to
maintain the safety of flight within certain portions of Afghan
airspace, I find good cause exists for making this rule effective
immediately upon issuance. I also find that this action is fully
consistent with the obligations under section 40105 of Title 49, United
States Code to ensure that I exercise my duties consistently with the
obligations of the United States under international agreements.
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 United States through Afghan
airspace east of 070 deg.35' east longitude or south of 33 deg. north
latitude.
The Department of State has been advised of and has no objections
to the actions taken herein.
[[Page 26686]]
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 little, if any, by flying over Iran to
between $3,200 to $12,700 per flight over Saudi Arabia.
Last year the FAA amended SFAR 67 to allow for flights along the
route V500 airway that passes through the Wakhan Corridor. This
amendment to the extension to SFAR 67, further allows United States air
carriers access to Afghan airspace east of 070 deg.35' east longitude
and south of 33 deg. north latitude. There is no inordinate hazard to
persons and aircraft, due to the remote, sparsely populated nature of
the area surrounding the Wakhan Corridor and V876, and because no
significant combat action is known to have occurred in the area east of
070 deg.35' east longitude and south of 33 deg. north latitude for at
least 2 years. This amendment provides U.S. air carriers with an option
to operate along route V876 rather than route V500 or route G8 which
goes over Iran and Pakistan. If U.S. air carriers choose to fly route
V876 over the Wakhan region, they could experience the same cost
savings that route V500 offered, which ranged from approximately $530
by flying over Iran, and between $3,200 to $12,700 per flight over
Saudi Arabia.
This action imposes no additional cost burden on U. S. air
carriers, only cost savings. 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), as amended, was
enacted by Congress to ensure that small entities are not unnecessarily
and disproportionately burdened by Government regulations. The Act
requires that whenever an agency publishes a general notice of proposed
rulemaking, an initial regulatory flexibility analysis identifying the
economic impact on small entities, and considering alternatives that
may lessen those impacts must be conducted if the rule would have a
significant economic impact on a substantial number of small entities.
The FAA has determined that none of the United States air carriers
or commercial operators are small entities. Therefore, the SFAR will
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 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 will 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 in 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 ``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 actions.
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 amendment 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
This amendment 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.
Significance
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.
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, 44701,
44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315,
46316, 46502, 46504, 46506, 47122, 47508, 47528-47531.
[[Page 26687]]
2. Paragraphs 3 and 5 of SFAR 67 are revised to read as follows:
SPECIAL FEDERAL AVIATION REGULATIONS 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 exemption
issued by the Administrator or by another agency of the United
States Government with the approval of the FAA; or
b. East of 070 deg.35' east longitude, or south of 33 deg. north
latitude.
* * * * *
5. Expiration. This Special Federal Aviation Regulation remains
in effect until May 10, 2000.
Issued in Washington, DC on May 7, 1998.
Jane F. Garvey,
Administrator.
[FR Doc. 98-12631 Filed 5-8-98; 10:11 am]
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