[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]]

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Part II





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. 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.

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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]
BILLING CODE 4910-13-P