[Federal Register Volume 72, Number 65 (Thursday, April 5, 2007)]
[Rules and Regulations]
[Pages 16710-16712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1709]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

RIN No. 2120-AJ03
[Docket No. FAA-2007-27602; SFAR 107]


Prohibition Against Certain Flights Within the Territory and 
Airspace of Somalia

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action prohibits flight operations below flight level 200 
within the territory and airspace of Somalia by all: (1) U.S. air 
carriers; (2) U.S. commercial operators; (3) operators of U.S. 
registered aircraft except when such operators are foreign air 
carriers; and (4) persons exercising the privileges of a U.S. airman 
certificate except if the flight is on behalf of a foreign air carrier. 
The FAA finds this action necessary to prevent a potential hazard to 
persons and aircraft engaged in such flight operations.

EFFECTIVE DATE: This action is effective March 30, 2007, shall remain 
in effect until further notice.

FOR FURTHER INFORMATION CONTACT: David Catey, Air Transportation 
Division, Flight Standards Service, Federal Aviation Administration, 
800 Independence Avenue, SW., Washington, DC 20591. Telephone: (202) 
267-3732 or 267-8166.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is 
found in Title 49 of the United States Code. 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. 
Additionally, the FAA is responsible for issuing rules affecting the 
safety of air commerce and national security. Title 49 United States 
Code (U.S.C.) Section 40101(d)(1) provides that the Administrator shall 
consider the following, among others, as being in the public interest: 
assigning, maintaining, and enhancing safety and security as the 
highest priorities in air commerce. Title 49 U.S.C. Section 44701(a)(5) 
provides the FAA with broad authority to prescribe regulations 
governing the practices, methods, and procedures the Administrator 
finds necessary for safety in air commerce and national security.

Background

    The United States has aviation safety and national security 
interest concerns regarding the safety of flight operations in Somalia. 
In addition, it has concerns for the individuals affected by this SFAR 
who may overfly Somalia below flight level (FL) 200 or land anywhere in 
Somalia except when necessary due to an inflight emergency.
    On 9 March, the fuselage of an IL-76 aircraft supporting the 
deployment of Ugandan peacekeeping forces to Somalia exploded and 
caught fire just above the landing gear while on final approach to 
Mogadishu International Airport. There is evidence to support the 
possibility that the aircraft may have been struck by a rocket 
propelled grenade (RPG) while 2.5-3 kilometers off the coast of Somalia 
at approximately 120 meters in altitude. The aircraft was able to land 
at Mogadishu, but was heavily damaged, although no serious injuries 
occurred to any crew or passengers. While there have been conflicting 
accounts regarding the cause of the explosion or fire, we believe that 
the attack on the IL-76 was probably caused by an RPG. We cannot rule 
out the possibility that some individuals also have access to man-
portable air defense systems (MANPADS) that could be used against those 
persons covered by this SFAR. On 23 March, an IL-76 aircraft crashed 
after taking off from Mogadishu airport, killing all the passengers and 
crew. The aircraft brought engineers and parts to the IL-76 crippled in 
the 9 March incident. Although the cause of the crash is under 
investigation, there is a possibility the IL-76 was downed by a MANPADS 
missile or RPG. These incidents occurred days after unknown individuals 
mortared the airport at Mogadishu, causing minimal damage. 
Consequently, the FAA has determined that it is not safe to overfly 
Somali territory below FL 200. Furthermore, it is in the United States' 
national security interests for those covered by this SFAR not to 
engage in flight operations within the territory and airspace of 
Somalia.

[[Page 16711]]

Prohibition Against Certain Flights Within the Territory and Airspace 
of Somalia

    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 and to issue aviation rules in the national security 
interests of the United States, I have determined that action by the 
FAA is necessary to prevent the injury to U.S. operators or the loss of 
certain U.S.-registered aircraft conducting flights in the territory 
and airspace of Somalia below FL 200. Accordingly, I am ordering a 
prohibition on all flight operations within the territory and airspace 
of Somalia below FL 200 by all United States air carriers, U.S. 
commercial operators, and all persons exercising the privileges of an 
airman certificate issued by the FAA unless such a person is engaged in 
the operation of a U.S.-registered aircraft for a foreign air carrier. 
This prohibition also applies to the operation of U.S.-registered 
aircraft below FL 200 in the territory and airspace of Somalia except 
where the operator 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. SFAR 107 will remain in effect until 
further notice.
    Because the circumstances described herein warrant immediate action 
by the FAA, I find that notice and public comment under 5 U.S.C. 
553(b)(3)(B) are impracticable and contrary to the public interest. 
Further I find that good cause exists under 5 U.S.C. 553(d) for making 
this rule effective immediately upon issuance. I also find that this 
action is fully consistent with the obligations under Title 49 U.S.C. 
Section 40105 to ensure that I exercise my duties consistently with the 
obligations of the United States under international agreements.

Approval Based on Authorization Request of an Agency of the United 
States Government

    If a department or agency of the U.S. Government determines that it 
has a critical need to engage any person covered under paragraph 1 of 
SFAR 107, including a U.S. air carrier or a commercial operator in a 
charter for transportation of civilian or military passengers or cargo 
where the total capacity of the aircraft is used solely for that 
charter while the aircraft operates within Somalia, the U.S. Government 
agency may request FAA approval of the operation on behalf of the 
person covered under paragraph 1 of the SFAR.
    That request for approval must be made in writing, in the form of a 
letter under the signature of a senior official of that department or 
agency, and sent to the FAA Associate Administrator for Aviation Safety 
(AVS). That request for approval must include:
    1. A written contract between the other U.S. Government agency and 
persons covered under paragraph 1 of SFAR 107 for specific flight 
operations, which includes terms and conditions detailing how the 
operations are to be conducted;
    2. A plan approved by the U.S. Government agency describing how, in 
light of the need for and risk of the proposed operation, the threats 
to the operation will be mitigated, including the threats associated 
with MANPADS (FAA review of the plan does not constitute FAA acceptance 
or approval of the plan); and,
    3. Any other information requested by the FAA.
    The FAA will review the request for approval submitted by the U.S. 
Government agency to determine whether that agency has addressed the 
threats to the proposed operations, including the threats associated 
with MANPADS. If the FAA determines that the U.S. Government agency has 
addressed those issues, an approval may be issued as described under 
the ``Approval Conditions'' discussion that follows.\1\ FAA approval of 
the operation under paragraph 3 of SFAR 107 does not relieve the 
operator of the responsibility of ensuring compliance with all rules 
and regulations of other U.S. Government agencies that may apply to the 
operation, including, but not limited to the Transportation Security 
Regulations issued by the Transportation Security Administration, 
Department of Homeland Security.
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    \1\ The process set forth above outlines the conditions under 
which the FAA anticipates that approvals of flight operations into 
Somalia may be granted at this time. Any requests for exemption 
under 14 CFR part 11 will require exceptional circumstances beyond 
those presently contemplated by this approval process.
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Approval Conditions

    If the FAA approves the requested operation, AVS will issue an 
approval directly to the carrier through the use of Operations 
Specifications (large air carriers) or a letter of authorization 
(general aviation operations). AVS will send a letter to the 
authorizing agency that stipulates the specific conditions under which 
the FAA approves the air carrier or other covered persons for the 
requested operations in Somalia. Specifically:
    1. Any approval will stipulate those procedures and conditions that 
limit to the greatest degree possible the risk to the operator while 
still allowing the operator to achieve its operational objectives;
    2. Any approval will specify that the operation is not eligible for 
coverage through a premium war risk insurance policy issued by the FAA 
under section 44302 of chapter 443 of Title 49 of the United States 
Code. A request for such coverage will not be granted; and
    3. If the operator already is covered by a premium war risk 
insurance policy issued by the FAA,\2\ the applicant will be required 
to request the FAA to issue an endorsement to its premium war risk 
insurance policy that specifically excludes coverage for any operations 
where the flight level will be lower than FL 200 over Somalia, 
including a flight plan that contemplates landing or taking off from 
Somali territory. The operator must expressly waive any claims against 
the U.S. Government in the event of injury, death or loss resulting 
from any such operation as a condition for an approval or an exemption 
issued in accordance with paragraph 3 of SFAR 107. If approved by the 
FAA, such an endorsement to the premium war risk insurance policy must 
be issued and effective prior to the effective date of the approval. 
Additionally, the operator must notify the FAA in writing of its 
agreement to release the U.S. Government from all claims and 
liabilities, as well as its agreement to indemnify the U.S. Government 
with respect to any third party claims and liabilities relating to any 
and all events arising from or related to any such operation.
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    \2\ Coverage under FAA premium war risk insurance policies is 
suspended, as a condition of the premium war risk policy, if an 
operation is covered by non-premium war risk insurance through a 
contract with an agency of the U.S. Government under section 44305 
of chapter 443 of Title 49 of the U.S. Code.
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    If the operation includes the carriage of passengers, the operator 
must obtain signed statements from each passenger that--(1) contain a 
statement that the passenger knowingly accepts the risk of the 
operation and consents to that risk, and (2) releases the U.S. 
Government from all claims and liabilities relating to any and all 
events arising from or related to any such operation.

Regulatory Analysis

    This rulemaking action is taken under an emergency situation within 
the meaning of Section 6(a)(3)(d) of Executive Order 12866, Regulatory 
Planning and Review. It also is considered an emergency regulation

[[Page 16712]]

under Paragraph 11g of the Department of Transportation (DOT) 
Regulatory Policies and Procedures. It is not a significant rule within 
the meaning of the Executive Order and DOT's policies and procedures. 
No regulatory analysis or evaluation accompanies the rule.
    The FAA certifies that this rule will not have a substantial impact 
on a substantial number of small entities as defined in the Regulatory 
Flexibility Act of 1980, as amended. It also will have no impact on 
international trade and creates no unfunded mandate for any entity.

Availability of This Final Rule

    You can get an electronic copy using the Internet by:
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) web page (http://dms.dot.gov/search);
    (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 number, notice number, or amendment number 
of this rulemaking.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996, requires the FAA to comply with small entity requests for 
information or advice about compliance with statutes and regulations 
within its jurisdiction. Therefore, any small entity that has a 
question regarding this document may contact their local FAA official. 
Internet users can find additional information on SBREFA in the FAA's 
Web page at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects in 14 CFR Part 91

    Air traffic control, Aircraft, Airmen, Airports, Aviation safety, 
Freight, Somalia.

The Amendment

0
For the reasons set forth above, the Federal Aviation Administration 
amends 14 CFR part 91 as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

0
1. The authority citation for part 91 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 
44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 
46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531; 
Articles 12 and 29 of the Convention on International Civil Aviation 
(61 Stat. 1180).


0
2. In part 91, Special Federal Aviation Regulation (SFAR) No. 107 is 
added to read as follows:

Special Federal Aviation Regulation No. 107--Prohibition Against 
Certain Flights Within the Territory and Airspace of Somalia

    1. Applicability. This rule applies to the following persons:
    (a) All U.S. air carriers or commercial operators;
    (b) All persons exercising the privileges of an airman certificate 
issued by the FAA except such persons operating U.S.-registered 
aircraft for a foreign air carrier; and
    (c) All operators of aircraft registered in the United States 
except where the operator of such aircraft is a foreign air carrier.
    2. Flight prohibition. Except as provided below, or in paragraphs 3 
and 4 of this SFAR, no person described in paragraph 1 may conduct 
flight operations within the territory and airspace of Somalia below 
flight level (FL) 200.
    (a) Overflights of Somalia may be conducted above FL 200 subject to 
the approval of, and in accordance with the conditions established by, 
the appropriate authorities of Somalia.
    (b) Flights departing from countries adjacent to Somalia whose 
climb performance will not permit operation above FL 200 prior to 
entering Somali airspace may operate at altitudes below FL 200 within 
Somalia to the extent necessary to permit a climb above FL 200, subject 
to the approval of, and in accordance with the conditions established 
by, the appropriate authorities of Somalia.
    3. Permitted operations. This SFAR does not prohibit persons 
described in section 1 from conducting flight operations within the 
territory and airspace below FL 200 of Somalia when such operations are 
authorized either by another agency of the United States Government 
with the approval of the FAA or by an exemption issued by the 
Administrator.
    4. Emergency situations. In an emergency that requires immediate 
decision and action for the safety of the flight, the pilot in command 
of an aircraft may deviate from this SFAR to the extent required by 
that emergency. Except for U.S. air carriers and commercial operators 
that are subject to the requirements of Title 14 CFR parts 119, 121, or 
135, each person who deviates from this rule must, within 10 days of 
the deviation, excluding Saturdays, Sundays, and Federal holidays, 
submit to the nearest FAA Flight Standards District Office a complete 
report of the operations of the aircraft involved in the deviation, 
including a description of the deviation and the reasons for it.
    5. Expiration. This Special Federal Aviation Regulation will remain 
in effect until further notice.

    Issued in Washington, DC on March 30, 2007.
Robert A. Sturgell,
Deputy Administrator.
[FR Doc. 07-1709 Filed 4-3-07; 8:45 am]
BILLING CODE 4910-13-P