25980 Federal Register / Vol. 60, No. 93 / Monday, May 15, 1995 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. 27744; Special Federal Aviation

Regulation (SFAR) No. 67]

RIN 2120–AF74

Prohibition Against Certain Flights

Within the Territory and Airspace of

Afghanistan

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Final rule; extension of

expiration date.

SUMMARY: This action amends Special

Federal Aviation Regulation (SFAR) 67

to extend the prohibition on flight

operations within 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. This action is taken

to prevent an undue hazard to persons

and aircraft engaged in such flight

operations as a result of the ongoing

civil war in Afghanistan.

DATES: Effective date: May 10, 1995.

Expiration date: May 10, 1996.

FOR FURTHER INFORMATION CONTACT:

Mark W. Bury, International Affairs and

Legal Policy Staff, AGC–7, Office of the

Chief Counsel, Federal Aviation

Administration, 800 Independence

Avenue, SW., Washington, D.C. 20591.

Telephone: (202) 267–3515.

SUPPLEMENTARY INFORMATION:

Availability of Document

Any person may obtain a copy of this

document by submitting a request to the

Federal Aviation Administration, Office

of Public Affairs, Attention: Public

Inquiry Center, APA–230, 800

Independence Avenue, SW.,

Washington, D.C. 20591, or by calling

(202) 267–3484. Communications must

identify the number of this SFAR.

Persons interested in being placed on a

mailing list for future rules should also

request a copy of Advisory Circular No.

11–2A, which describes the application

procedure.

Background

The Federal Aviation Administration

(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. Section

40101(d)(1) of Title 49, United States

Code, declares, as a matter of policy,

that the regulation of air commerce to

promote safety is in the public interest.

Section 44701(a) of Title 49, United

States Code, provides the FAA with

broad authority to carry out this policy

by prescribing regulations governing the

practices, methods, and procedures

necessary to ensure safety in air

commerce.

In the exercise of these statutory

responsibilities, the FAA issued SFAR

67, prohibiting flight operations within

the territory and airspace of Afghanistan

by any United States air carrier or

commercial operator, any person

exercising the privileges of an airman

certificate issued by the FAA, or any

operator using an aircraft registered in

the United States unless the operator of

such aircraft is a foreign air carrier.

Notice of SFAR 67 was published at 59

FR 25282 (May 13, 1994). The FAA

issued SFAR 67 based upon a

determination that the ongoing civil war

in Afghanistan justified the imposition

of certain measures to ensure the safety

of U.S.-registered aircraft and operators

that are conducting flight operations in

the vicinity of Afghanistan’s territory

and airspace.

Fighting between government and

opposition forces continues throughout

Afghanistan at a similar level and

intensity as was noted when SFAR 67

was originally issued. Government and

opposition forces still possess a wide

range of sophisticated weapons that

potentially could be used to attack civil

aviation aircraft overflying Afghanistan

at cruising altitudes. These weapons

include Russian-made fighter and attack

aircraft armed with cannons and air-toair missiles, and surface-to-air missile

(SAMs) systems. Although government

and opposition aircraft primarily have

been used for ground attacks against

airfields and other key facilities, air-toair encounters also have been observed.

Press reports also suggest that a number

of Afghan military and civilian aircraft

have been shot down using SAMs. Large

areas of the country continue to be the

scene of factional fighting. Fluctuations

in the level and intensity of combat

create an unsafe environment for

transiting civilian aircraft.

As a result of the recent escalation in

fighting, advisories have been issued by

the International Civil Aviation

Organization (ICAO) and Russia urging

civil air carriers to avoid Afghan

airspace. In a letter dated April 8, 1994,

President Assad Kotaite of ICAO issued

a notice urging air carriers to

discontinue flights over Afghanistan. In

a subsequent letter of November 14,

1994, President Kotaite warned of the

continuing risks associated with flights

over Afghanistan, including operations

using certain routes developed by the

Afghan Government or neighboring

countries. In January 1994, the Russian

civil aviation authority released a

service message warning that because of

military aircraft operations around

Kabul and in northern Afghanistan, civil

aircraft were advised to avoid the

Termez-Mazare Sharif-Kabul air traffic

corridor and to increase enroute flight

levels as much as possible. These

advisories reflect the uncertain nature of

the situation and underscore the danger

to flights in Afghan airspace.

There also are indications that at least

one faction in Afghanistan intends to

deliberately target civil aircraft. In

September 1994, the Supreme

Coordination Council for the Islamic

Revolution in Afghanistan issued a

press release warning that it would

attempt to shoot down any Afghan

Ariana Airlines aircraft operating in

Afghan airspace. Although it seems

unlikely that any action in the civil war

would deliberately target a foreignflagged air carrier, the potential for

misidentification or inadvertent

targeting is a real possibility. The FAA

has received at least one report that a

civil aircraft was the target of antiaircraft fire by Afghan government

forces.

At the very least, central Afghan

government control over installations

critical to navigation and

communication cannot be assured. Use

of combat aircraft and SAMs by all

factions in the conflict calls into

question the security of Afghan airspace

for civilian aircraft. An environment for

long-term stability in this troubled

region has yet to emerge.

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 required to prevent the

injury to or loss of certain U.S.-

registered aircraft and U.S. operators

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 in the territory and airspace

of Afghanistan. Accordingly, I am

ordering the amendment of SFAR 67 to

extend the prohibition on flight

operations (excluding those operations

approved by the U.S. Government and

certain emergency operations) within

the territory and airspace of Afghanistan

by any United States air carrier and
Federal Register / Vol. 60, No. 93 / Monday, May 15, 1995 / Rules and Regulations 25981

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. This

action is necessary to prevent an undue

hazard to aircraft and to protect persons

and property on board those aircraft.

Because the circumstances described in

this notice warrant immediate action by

the FAA to maintain the safety of flight,

I also find that notice and public

comment under 5 U.S.C. 553(b) are

impracticable and contrary to the public

interest. Further, I find that good cause

exists for making this rule effective

immediately upon issuance. I also find

that this action is fully consistent with

my obligations under 49 U.S.C.

40105(b)(1)(A) to exercise my duties

consistently with the obligations of the

United States under international

agreements. The Department of State

has been advised of, and has no

objection to, the action taken herein.

The rule now contains an expiration

date of May 10, 1996, but may be

terminated sooner or extended through

the publication of a corresponding

notice if circumstances so warrant.

Regulatory Evaluation

Over the past 10 years, there have

been a number of instances worldwide

where civilian aircraft were either shot

at or shot down. In some instances, the

shooting was intentional, while in

others the aircraft was mis-identified as

an enemy aircraft. One such reported

incident, described earlier, involved

Afghan government forces mistakenly

shooting at a civilian aircraft. This

incident highlights the risk that one side

in the Afghan civil war will mis-identify

a U.S. civil aircraft overflying

Afghanistan as a hostile aircraft. One

faction involved in the fighting in

Afghanistan has specifically stated that

it would target the aircraft of an Afghan

air carrier. This stated threat increases

the risk of a U.S. aircraft being misidentified and shot down.

Navigating around Afghanistan will

result in increased variable operating

costs (i.e., maintenance, fuel, and crew)

primarily for U.S. operators who

conduct flights between Europe and

India. The FAA estimates that the

weighted-average variable operating cost

for a wide-body air carrier is

approximately $3,100 per hour. Based

on data received from two U.S. carriers,

the amount of additional time it takes to

navigate around Afghanistan using

alternate routes ranges from 10 minutes

by flying over Iran to between one and

four hours by flying over Saudi Arabia

(depending on where the flight

originated).

Some U.S. operators use the alternate

route over Iran, thereby incurring little,

if any, additional flying time and

operating costs. Two U.S. operators use

routes over Saudi Arabia, which result

in additional costs of approximately

$3,100 to $12,400 per flight.

Based on the potentially small costs of

navigating around Afghanistan and the

potentially devastating result of a U.S.

air carrier being shot down, the FAA has

determined that the SFAR is costbeneficial.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980

(RFA) was enacted by Congress to

ensure that small entities are not

unnecessarily and disproportionately

burdened by Federal regulations. The

RFA requires a Regulatory Flexibility

Analysis if a proposed rule would have

‘‘significant economic impact on a

substantial number of small entities.’’

FAA Order 2100.14A outlines the FAA’s

procedures and criteria for

implementing the RFA. The FAA has

determined that none of the U.S. air

carriers affected by the SFAR are ‘‘small

entities’’ as defined by FAA Order

2100.14A. Thus, the SFAR would not

impose a ‘‘significant economic impact

on a substantial number of small

entities.’’

International Trade Impact Assessment

The SFAR could have an adverse

affect on the international flights of U.S.

air carriers and commercial operators

primarily because it could increase their

operating costs relative to foreign

carriers who continue to overfly

Afghanistan. However, because of the

narrow scope of the SFAR and the small

incremental cost of some of the alternate

routes available to U.S. operators, the

FAA contends that the SFAR would

have little, if any, affect on the sale of

U.S. aviation products and services in

foreign countries.

Paperwork Reduction Act

This rule 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

The SFAR set forth herein 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 41685; October 30, 1987), it is

determined that this regulation does not

have federalism implications warranting

the preparation of a Federalism

Assessment.

Conclusion

For the reasons set forth above, 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

U.S. 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 Regulation

Flexibility Act.

List of Subjects in 14 CFR Part 91

Afghanistan, Aircraft, Airmen,

Airports, Air traffic control, Aviation

safety, Freight.

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. app. 1301(7), 1303,

1344, 1348, 1352 through 1355, 1401, 1421

through 1431, 1471, 1472, 1502, 1510, 1522,

and 2121 through 2125; Articles 12, 29, 31,

and 32(a) of the Convention on International

Civil Aviation (61 Stat. 1180); 42 U.S.C. 4321

et seq., E.O. 11514, 35 FR 4247, 3 CFR, 1966–

1790 Comp., p. 902; 49 U.S.C. 106(g).

2. Section 5 of Special Federal

Aviation Regulation (SFAR) No. 67 is

revised to read as follows:

* * * * *

5. Expiration. This Special Federal

Aviation Regulation expires May 10,

1996.

Issued in Washington, DC, on May 10,

1995.

David R. Hinson,

Administrator.

[FR Doc. 95–11944 Filed 5–10–95; 4:45 pm]

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