24430 Federal Register / Vol. 61, No. 94 / Tuesday, May 14, 1996 / 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–AG10

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, 1996.

Expiration date: May 10, 1997.

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 Rulemaking, Attention: ARM–1, 800

Independence Avenue, SW.,

Washington, D.C. 20591, or by calling

(202) 267–9677. 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. SFAR 67 was originally

scheduled to expire after one year.

Notice of the extension of SFAR 67 for

an additional year was published at 60

FR 25980 (May 15, 1995).

Fighting between government and

opposition forces continues throughout

Afghanistan at a level and intensity

similar to that noted when SFAR 67 was

originally issued. Opposing forces in

this long-running civil war 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-to-air missiles, and surface-to-air

missile (SAM) systems. Although

aircraft primarily have been used 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 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.

Advisories have been issued by the

International Civil Aviation

Organization (ICAO) urging civil air

carriers to avoid 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 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. 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

FIR can not be assured.’’ 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

two rebel factions, in Afghanistan

intend to deliberately target civil

aircraft. In a statement released in

September 1995, forces opposed to the

Rabbani Government warned all

international air carriers that they

would force or shoot down any plane

that ventured into airspace they

controlled without first obtaining proper

clearance from them. This follows a

similar warning issued in 1994 by the

Opposition Council. Air corridors over

central and southern Afghanistan have

been closed frequently as a result of

these threats. Although it seems

unlikely that any faction in the civil war

would deliberately target a foreignflagged commercial air carrier, their

growing frustration with the airlift of

arms, ammunition and other supplies to

the Kabul regime creates a potentially

hazardous environment whereby an

airliner might be misidentified and

inadvertently targeted. The FAA has

received reports that scheduled

passenger flights have been intercepted

by opposition fighter aircraft. Other

reports indicate that charter flights have

been forced to land in Kandahar; one of

these aircraft and its crew continue to be

held there.

At the very least, central Afghan

government control over installations

critical to navigation and

communication can not be assured. The

use of combat aircraft and SAMs by all

factions in the conflict calls into

question the security/safety 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
Federal Register / Vol. 61, No. 94 / Tuesday, May 14, 1996 / Rules and Regulations 24431

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 for an additional year 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

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, 1997, 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 misidentified 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 misidentify

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 aircraft 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 flight’s origin and

destination).

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 has determined that the SFAR

would have little effect 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 Regulatory

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. 106(g), 40103, 40113,

40120, 44101, 44111, 44701, 44709, 44711,

44712, 44715, 44716, 44717, 44722, 46306,

46315, 46316, 46502, 46504, 46506–46507,

47122, 47508, 47528–47531.

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, 1997.

Issued in Washington, DC, on May 9, 1996.

David R. Hinson,

Administrator.

[FR Doc. 96–12132 Filed 5–9–96; 4:52 pm]

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