26684 Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations

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.

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°35′ east longitude, or south of 33°

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/suldocs 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–

SBREFA@faa.dot.gov.

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° north latitude and west of 070°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 antiaircraft fire in the vicinity of Kabul;

however, at 37,000 feet altitude, the

aircraft was never in any danger. These
Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations 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° north latitude and west of 070°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°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°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°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°35′ east

longitude.

Similarly, civil aviation operations

along several routes south of 33° 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° 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° 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°35′ east

longitude or south of 33° north latitude.

The Department of State has been

advised of and has no objections to the

actions taken herein.
26686 Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations

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°35′ east

longitude and south of 33° 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°35′ east

longitude and south of 33° 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.
Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations 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°35′ east longitude, or south

of 33° 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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