Exemption No. 10340

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

SOUTHERN AIR, INC. Regulatory Docket No. FAA-2008-0591

for an exemption from part 91, SFAR 87, of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated Septem ber 23, 2010, Mr. Aaron Goerlich, Attorney, Garofalo Goerlich Hainbach PC, 1200 New Hampshire Avenue, NW., Suite 800, Washington, D.C. 20036- 6802, petitioned the Federal Aviation Administration (FAA) on behalf of Southern Air for an exemption from part 91, Special Federal Aviation Regulation (SFAR 87), of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Southern Air the use of UR-611, the airway that transits the prohibited airspace in the 12-mile triangle of Ethiopian airspace adjacent to the Ethiopia – Sudan border and the line of 12 degrees north

latitude.

The petitioner requests relief from the following regulation:

SFAR 87 prescribes a prohibition to all flight operations within the territory and airspace of Ethiopia north of 12 degrees north latitude by any U.S. air carrier or commercial operator. Specifically, Southern Air would utilize the exemption to fly at cruise altitude on airway UR-611, which runs directly between Addis Ababa, Ethiopia, and Khartoum, Sudan, and is located more than 140 statute miles southwest of the Ethiopia – Eritrea border.

The petitioner supports its request with the following information:

AFS-08-319-E2

The petitioner states SFAR 87 was implemented to serve a legitimate safety purpose but because it affects a blanket prohibition on operations by U.S. carriers far beyond the stated area of concern, SFAR 87 is overboard on its face. As stated above, airway UR-611 transects the Ethiopia – Sudan border more than 140 statute miles from the southwestern most point of the Ethiopia – Eritrea border. Southern Air believes this area is sufficiently outside the zone in which any threat could be posed to civilian aircraft by the outbreak of hostilities between Ethiopia and Eritrea, and thus it, would not appear that SFAR 87 was intended to prohibit operations such as those covered in its request. Moreover, the petitioner states that any risk that would be posed by the manner in which Ethiopia would handle “uniden tified aircraft in its airspace” would be largely mitigated by the fact that Southern Air’s operation would originate in central Ethiopia or enter the country on a routing unmistakably within Sudanese airspace, rather than crossing over Ethiopia’s northern border with Eritrea. Additionally, Ethiopian Airways and other non-U.S. commercial carriers currently operate aircraft on airway UR-611 in coordination with Ethiopi a and Sudan air traffic control (ATC). Several other air carriers also utilize this section of UR-611 as an en route airway while serving other destinations. These operations have occurred without incident, and to the best of Southern Air’s knowledge, there have been no instances in which civilian

aircraft were threatened and/or harmed since 1999.

Southern Air states that this proposed exemption is in the public interest since it would:

1. Result in significant savings for Southern Air in terms of time, fuel, and operating costs and, thus, enhance and improve the ability of U.S. carriers to provide on-time service to its contractors and the public.

2. Place Southern Air and other U.S. carriers on equal competitive footing with African and other non-U.S. air carriers by easing the unintended effect of an otherwise valid airspace restriction that only applies to, and thus effectively discriminates against, U.S. carriers.

3. Restore operational flexibility and thereby promote competition and expand potential business opportunities for Southern Air and other U.S. air carriers in an area that has been unnecessarily restricted by SFAR 87.

4. Promote conservation by eliminating the unnecessary waste of jet fuel and resulting

carbon emissions.

In accordance with § 11.87, Southern Air requests that a finding of good cause be made for waiving the requirement for Federal Register publication since further delay in Southern Air’s ability to utilize airway UR-611 will continue to have a direct adverse monetary and competitive effect on Southern Air.3

The FAA has determined that good cause exists for waiving the requirement for Federal Register publication because any further delay in acting on this petition would be detrimental

to Southern Air.

The FAA’s analysis is as follows:

The FAA has considered fully the petitioner’s request and supporting information and finds that an exemption would provide a level of safety at least equal to that provided by the current regulations.

Currently, SFAR 87 prohibits all flight operations within the territory and airspace of Ethiopia north of 12 degrees north latitude by any U.S. air carrier or commercial operator. The Administrator deemed such prohibition necessary in May 2000 because of the threat posed by hostilities between Ethiopia and Eritrea.

Southern Air’s exemption request is specifically to fly at cruise altitude on airway UR-611, which runs between Addis Abba, Ethiopia, and Khartoum, Sudan, and is located more than 115 nautical miles southwest of the Ethiopia – Eritrea border. According to Southern Air, using UR-611 would involve less than 4 minutes of flying time in Ethiopian airspace north of 12 north latitude at a cruising altitude of over 30,000 feet, covering a distance of less than 30 miles at a speed of 500 knots.

The FAA has determined that the area in which Southern Air wants to operate is sufficiently below the border area where military forces remain and a potential risk exists. Therefore, the FAA does not assess the route to present an adverse risk to U.S. flight safety.

The FAA also finds that granting the petitioner’s request would be in the public interest. Foreign air carriers are permitted to operate on UR-611 without deviating around prohibited airspace designated in SFAR 87. Southern Air claims that complying with SFAR 87 adds about 115 nautical miles to each flight and burns an extra 1,000 gallons of fuel. The financial penalty imposed by SFAR 87 creates an unnecessary competitive disadvantage and discriminates against Southern Air in favor of the foreign air carriers. It is in the public interest to increase competition among U.S. and foreign air carriers. Preventing U.S. air carriers from using this portion of airway UR-611 serves no useful purpose and is contrary to the public interest.4

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exem ption is in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701 delegated to me by the Administrator, Southern Air, Inc., is granted an exemption from 14 CFR part 91, SFAR 87, to the extent necessary to allow Southern Air the use of UR-611, the airway that transits the prohibited airspace in the 12-mile triangle of Ethiopian airspace adjacent to the Ethiopia – Sudan border and the line of 12 degrees north latitude, subject to the conditions

and limitations listed below.

Conditions and Limitations

1. Applies to Southern Air aircraft painted in the white and black company livery only.

2. Aircrew/aircraft will continuously squawk their ATC assigned transponder codes.

3. Aircrew/aircraft will maintain contact with Ethiopian or Sudanese ATC.

This exemption terminates when SFAR 87 is rescinded or amended, unless sooner superseded.

Issued in Washington, D.C., on August 29, 2011.

/s/

John W. McGraw . Acting Director, Flight Standards

Service