[Federal Register Volume 75, Number 138 (Tuesday, July 20, 2010)]
[Proposed Rules]
[Pages 42015-42017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17762]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No.: FAA-2010-0289; SFAR No. 110]
RIN 2120-AJ69


Prohibition Against Certain Flights Within the Territory and 
Airspace of Afghanistan; Supplemental Regulatory Flexibility Analysis

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Proposed rule; Notice of availability and request for comments.

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SUMMARY: This document announces the availability of and request for 
comments on the Supplemental Regulatory Flexibility Analysis for the 
previously published proposed rule entitled, Prohibition Against 
Certain Flights Within the Territory and Airspace of Afghanistan.

DATES: Comments must be received on or before August 4, 2010.

ADDRESSES: You may send comments identified by Docket Number FAA-2010-
0289 using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-
140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at 202-493-2251.
    For more information on the rulemaking process, see the Additional 
Information section of this document.
    Privacy: We will post all comments we receive, without change, to 
http://www.regulations.gov, including any personal information you 
provide. Using the search function of the docket Web site, anyone can 
find and read the electronic form of all comments received into any of 
our dockets, including the name of the individual sending the comment 
(or signing the comment for an association, business, labor union, 
etc.). You may review DOT's complete Privacy Act Statement in the 
Federal Register published on April 11, 2000 (65 FR 19477-78) or you 
may visit http://DocketsInfo.dot.gov.
    Docket: To read background documents or comments received, go to 
http://www.regulations.gov at any time and follow the online 
instructions for accessing the docket or Docket Operations in Room W12-
140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Michael Lukacs, APO-300, Federal 
Aviation Administration, 800 Independence Ave., SW., Washington, DC 
20591; telephone number: (202) 267-9641.

SUPPLEMENTARY INFORMATION: Later in this preamble under the Additional 
Information section, we discuss how you can comment on this action and 
how we will handle your comments. Included in this discussion is 
related information about the docket, privacy, and the handling of 
proprietary or confidential business information. We also discuss how 
you can get a copy of related rulemaking documents.

Background

    On May 26, 2010, the FAA published in the Federal Register the 
Notice of Proposed Rulemaking (NPRM) entitled Prohibition Against 
Certain Flights Within the Territory and Airspace of Afghanistan.\1\ 
The comment period for the NPRM closed on June 10, 2010. The FAA 
received several comments about the agency's economic assessment of the 
proposed rule. Specifically, some commenters did not agree with the 
FAA's determination that the NPRM would not have a significant economic 
impact on a substantial number of small entities. To address these 
concerns, the FAA is publishing the below Supplemental Regulatory 
Flexibility Analysis for comment.
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    \1\ Prohibition Against Certain Flights Within the Territory and 
Airspace of Afghanistan: 75 FR 29466; May 26, 2010.
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Supplemental Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation. To achieve this principle, agencies are required 
to solicit and consider flexible regulatory proposals

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and to explain the rationale for their actions to assure that such 
proposals are given serious consideration.'' The RFA covers a wide-
range of small entities, including small businesses, not-for-profit 
organizations, and small governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA.
    Based on the comments received following publication of the NPRM, 
we have re-evaluated our certification under the RFA that the proposed 
rule will not, if promulgated, have a significant economic impact on a 
substantial number of small entities. Based on our re-evaluation, we 
have determined that the proposed rule will, if promulgated, have a 
significant economic impact on a substantial number of small entities. 
Consequently, we have completed a Supplemental Regulatory Flexibility 
Analysis and request comments from affected small entities. The purpose 
of this analysis is to identify the number of small entities affected, 
assess the economic impact of the proposed regulation on them, and 
consider less burdensome alternatives and still meet the agency's 
statutory objectives. Under Section 603(b) and 603(c) of the RFA, the 
analysis must address:
    1. A description of the reasons why the action by the agency is 
being considered.
    2. A succinct statement of the objectives of, and legal basis for, 
the proposed rule.
    3. A description--and, where feasible, an estimate of the number--
of small entities to which the proposed rule will apply.
    4. A description of the projected reporting, recordkeeping, and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that will be subject to the 
requirement and the types of professional skills necessary for 
preparation of the report or record.
    5. An identification, to the extent practicable, of all relevant 
federal rules that may duplicate, overlap, or conflict with the 
proposed rule.
    6. Significant alternatives.
    1. Description of the reasons why the action by the agency is being 
considered.
    This action would permit certain U.S. civil flight operations below 
flight level (FL) 160 within the territory and airspace of Afghanistan, 
when approved by the FAA or when authorized by exemption by the FAA. 
Otherwise, flight operations below FL 160 within the territory and 
airspace of Afghanistan would be prohibited for all U.S. air carriers; 
U.S. commercial operators; persons exercising the privileges of a U.S. 
airman certificate, except when that person is operating a U.S.-
registered aircraft for a foreign air carrier; and operators of U.S.-
registered aircraft, except when such operators are foreign air 
carriers.
    The FAA is considering this action because insurgent activity in 
Afghanistan has increased and threatens the safety of U.S. civil 
aircraft and operators operating within Afghan airspace and overflying 
the territory of Afghanistan. This insurgent activity has adversely 
affected the safety of airfield operations for these flights. The 
Afghan insurgents, armed with various weapons, pose a serious threat to 
U.S. civil aircraft and operators at local airports and to these 
aircraft on approach to and departing from these airports. Insurgents 
with small arms fire capabilities have been targeting airfields with 
rockets and have fired on aircraft at these airfields. While U.S. civil 
aircraft have not yet specifically been targeted, there have been 
several reported events of these aircraft being hit by small arms fire. 
Also, foreign civil aircraft that support the North Atlantic Treaty 
Organization (NATO) have been shot down by small arms and rocket-
propelled grenade fire.
    2. Objectives and legal basis for the proposed rule.
    The 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. Also, the FAA is responsible for 
issuing rules affecting the safety of air commerce and national 
security. The FAA's authority to issue the rules on aviation safety is 
found in Title 49 of the United States Code. Subtitle I, Section 
106(g), describes the authority of the FAA Administrator. Subtitle VII, 
Aviation Programs, describes in more detail the scope of the agency's 
authority. Section 40101(d)(1) provides that the Administrator shall 
consider in the public interest, among other matters, assigning, 
maintaining, and enhancing safety and security as the highest 
priorities in air commerce. Section 40105(b)(1)(A) requires the 
Administrator to exercise his authority consistently with the 
obligations of the United States Government under international 
agreements. Further, the FAA has broad authority under section 
44701(a)(5) to prescribe regulations governing the practices, methods, 
and procedures the Administrator finds necessary for safety in air 
commerce and national security.
    The FAA finds the proposed rule necessary to prevent a potential 
hazard to persons and aircraft engaged in Afghanistan flight 
operations. The nature of the hazard that the FAA seeks to address is 
described in the preceding section, ``Description of the reasons why 
the action by the agency is being considered.''
    3. Description and Estimate of small entities.
    There are currently no operational restrictions in Afghanistan. The 
proposed rule would affect U.S. operators, operators of U.S.-registered 
aircraft (except foreign air carriers), and U.S-certificated airmen 
(except those U.S. certificated airmen engaged in the operation of 
U.S.-registered aircraft for foreign air carriers) who operate in 
Afghanistan below FL 160.
    In view of the threat escalation in the territory and airspace of 
Afghanistan, and in furtherance of the FAA Administrator's 
responsibilities to promote the safe flight of U.S. civil aircraft in 
air commerce and to issue aviation rules in the interest of national 
security of the United States, the Administrator has determined that 
the potential hazard to U.S-registered aircraft and U.S.-certificated 
airmen must be mitigated. Therefore, the FAA proposes to issue an SFAR 
to restrict flight below FL 160 within the airspace and territory of 
Afghanistan, except in compliance with the procedures set forth in the 
proposed rule.
    We expect as many as 25 small entities would seek authorization 
from the FAA to operate in Afghanistan under this proposed rule. 
Depending on the characteristics of the existing flight operations, the 
number of flights could be affected. The operators currently operating 
are all-cargo, and all have less than 1,500 employees. Generally, these 
operators provide niche market services and have available capacity to 
provide military support. We are unable from the comments we received 
to the NPRM to determine the magnitude of the economic impact of the 
proposed rule on these operators. Separately, we are also unable to 
document and publish the revenue and number of operations per operator.
    4. Compliance requirements.
    The proposed rule would allow flights below FL 160 in the territory 
or airspace of Afghanistan only with the approval of the FAA or by an 
exemption issued by the FAA. The required documentation for the 
affected entities to be in compliance with this proposed rule would 
take each operator one hour to

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fill out, endorse and file the required paperwork. As such, the cost 
for a one-year period would be $94 (1 hour x $94 per hour).
    In addition to the paperwork that would be required as a result of 
this proposal, it is expected that some flight operations would not be 
authorized. Without authorization from the FAA to conduct these 
flights, the operator's inability to conduct such operations would 
result in a significant economic impact.
    The FAA has used Department of Transportation Form 41 data for the 
total operating revenue per flight for international cargo operations 
of U.S. Operators. In 2009, the reported median revenue estimate was 
approximately $70,000 per flight, although the profit would be 
substantially less. As the number of flights currently operating would 
continue for the foreseeable future, operators who eliminate flights as 
a result of the proposed rule would incur a significant economic loss. 
The proposal would affect ``more than just a few'' operators who fly in 
Afghanistan. As such, we believe flights would be eliminated for a 
substantial number of operators.
    The requirements of this proposal would have a significant economic 
impact on a substantial number of small entities.
    5. Relevant federal rules that may duplicate, overlap, or conflict 
with the proposed rule.
    The FAA is unaware that the rule would overlap, duplicate, or 
conflict with existing federal rules.
    6. Significant Alternatives Considered.
    Maintain the status quo: Continue to allow all flights to occur 
without requiring steps to manage the risks to these operations from 
insurgent activity or an approval or exemption from the FAA.
    The FAA is responsible for both the safety of flight in the United 
States and for the safety of U.S.-registered aircraft and U.S. 
operators throughout the world. The FAA rejected this alternative and 
has not identified any significant alternatives to the proposed rule 
which accomplish the stated objectives of applicable statutes and which 
minimize any significant economic impact of the proposed rule on small 
entities.
    The FAA has determined that the proposed rule would have a 
significant economic impact on a substantial number of small entities. 
Therefore, we have prepared the above Supplemental Regulatory 
Flexibility Analysis. We solicit comments on this determination. We 
also solicit comments on the analysis of the number of small entities 
that would be affected, the economic impact of the proposed regulation 
on these small entities, and whether there are any less burdensome 
alternatives that still meet the agency's statutory objectives.

Additional Information

Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The most 
helpful comments will reference a specific portion of the Supplemental 
Regulatory Flexibility Analysis or related rulemaking document, explain 
the reason for any recommended change, and include supporting data. To 
ensure the docket does not contain duplicate comments, please submit a 
single copy of your written or electronic comments only one time.
    All comments we receive will be filed in the docket, as well as a 
report summarizing each substantive public contact with FAA personnel 
concerning the proposed rulemaking. Before acting on the proposal, we 
will consider all comments we receive on or before the closing date for 
comments. We will consider comments filed after the comment period has 
closed if it is possible to do so without incurring expense or delay. 
We may make changes to the proposal in light of the comments we 
receive.

Proprietary or Confidential Business Information

    Do not file in the docket information that you consider to be 
proprietary or confidential business information. Send or deliver this 
information directly to the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this document. You must mark the 
information that you consider proprietary or confidential. If you send 
the information on a disk or CD-ROM, mark the outside of the disk or 
CD-ROM and also identify electronically within the disk or CD-ROM the 
specific information that is proprietary or confidential.
    Under 14 CFR 11.35(b), when we are aware of proprietary information 
filed with a comment, we do not place it in the docket. We hold it in a 
separate file to which the public does not have access, and we place a 
note in the docket that we have received it. If we receive a request to 
examine or copy this information, we treat it as any other request 
under the Freedom of Information Act (5 U.S.C. 552). We process such a 
request under the DOT procedures found in 49 CFR part 7.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents using the 
Internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies; or
    3. Accessing the Government Printing Office's web page at http://www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the docket or SFAR number of this rulemaking.
    You may access all documents the FAA considered in developing the 
proposed rule, including economic analyses and technical reports, from 
the internet through the Federal eRulemaking Portal referenced in 
paragraph (1).

    Issued in Washington, DC, on July 15, 2010.
Pamela Hamilton-Powell,
Director, Office of Rulemaking.
[FR Doc. 2010-17762 Filed 7-19-10; 8:45 am]
BILLING CODE 4910-13-P