Prohibition Against Certain Flights Within the Territory and Airspace of Afghanistan and Yemen; Final Rules

Federal Aviation Administration

14 CFR Part 91

[Docket No. 27744; Special Federal Aviation Regulation (SFAR) No. 67]

RIN 2120-AF38

Prohibition Against Certain Flights Within the Territory and

Airspace of Afghanistan

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action prohibits 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, 1994. Expiration date: May 10, 1995.

FOR FURTHER INFORMATION CONTACT: Patricia Lane, Airspace and Air

Traffic Law Branch, AGC-230, or Mark W. Bury, International Affairs and

Legal Policy Staff, AGC-7, Office of the Chief Counsel, Federal

Aviation Administration, 800 Independence Avenue SW., Washington, DC

20591. Telephone: (202) 267-3491.

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

103(1) of the Federal Aviation Act of 1958 (Act) declares, as a matter

of policy, that the regulation of air commerce to promote safety is in

the public interest. Section 601(a) of the Act 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 has determined that the current civil war in

Afghanistan justifies 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 the current government and various factions had

been localized to an area around Kabul and the northern portion of the

country. However, recent fighting has intensified and spread to a

larger area of the country. Areas of northern Afghanistan, including

major airbases and military garrisons at Mazare Sharif, have come under

the control of heavily armed insurgent forces opposed to the Kabul

regime.

Government and rebel forces possess a wide range of sophisticated

weapons that potentially could be used to attack overflying civil

aviation aircraft at cruising altitudes. These weapons include various

surface-to-air missiles (SAMs) and antiaircraft artillery. Russian made

fighter and attack aircraft, armed with cannons and air-to-air

missiles, are also being utilized by government and rebel forces.

Opposition forces have attacked Kabul with rockets, artillery, and

bombs. Government aircraft have countered with air strikes on rebel

airfields and other key facilities. According to press reports, some

air-to-air encounters have occurred between aircraft from the Afghan

factions and SAMs have been used to target aircraft. Segments of

Afghanistan continue to be the scene of factional fighting and

consequently pose a threat to transiting civilian aircraft.

Fluctuations in the level and intensity of combat create an unsafe

environment for any aircraft in Afghan airspace.

As a result of the stepped-up fighting, advisories have been issued

by the governments of Russia and the United Kingdom and by the

International Civil Aviation Organization (ICAO) urging civil air

carriers to avoid Afghan airspace. On January 11, 1994, the Russian

Civil Aviation Authority issued a notice specifically advising all

aircraft crossing Afghanistan airspace to avoid the Termez-Mazare-

Sharif-Kabul air corridor. On January 21, a communique. was issued by

the Coordination Council of the Afghan opposition calling on all

international airline organizations to restrict passenger-carrying

aircraft from flying in Afghan airspace. On February 22, 1994, the

British government issued a notice advising that there may be a risk to

civilian aircraft flying along certain air routes in northern and

southern Afghanistan, and that British and Hong Kong carriers are now

avoiding these routes. ICAO also has issued a directive urging air

carriers to discontinue flights over Afghanistan. These notices and the

communique reflect the violent and uncertain nature of the situation

and underscore the danger to flights in Afghan airspace.

While there are no indications that any faction in Afghanistan

intends to deliberately target civil aircraft, both sides have the

capability to do so and such a possibility cannot be ruled out in the

current environment. 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. It is uncertain how long these conditions will last.

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 immediate 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 presents

an immediate hazard to the operation of civil aircraft in the territory

and airspace of Afghanistan. Accordingly, I am ordering a prohibition

of flight operations (excluding those operations approved by the U.S.

Government and 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 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 section

1102(a) of the Federal Aviation Act to ensure that I 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 contains an expiration date of May 10, 1995, but may be

terminated sooner or extended through the publication of a

corresponding notice if circumstances so warrant.

Regulatory Evaluation Summary

Benefits

This regulation will generate potential benefits in the form of

ensuring that the current acceptable level of safety continues for U.S.

commercial air carriers and other operators. The potential benefits of

this action will accrue only to those air carriers and other operators

currently engaging in overflights of Afghanistan's territory. Since

this action is proactive rather than reactive, there are no statistics

from which a quantitative estimate of benefits can be derived.

Costs

The SFAR will impose a potential incremental cost of compliance in

the form of the circumnavigation (including the additional time for

preflight planning) of Afghanistan's territory and airspace. Based on

information available to informed FAA personnel, there are no U.S. air

carriers or commercial operators currently conducting revenue flights

into Afghanistan. Therefore, these operators will not be impacted by

this action. However, there are overflights of Afghanistan's territory

by U.S. commercial air carriers. Thus, these operators will be the only

entities affected by this action. These operators will incur costs for

additional fuel and time as the result of diverting from their normal

flight routes over Afghanistan between Europe, Africa, and Asia. Since

the FAA does not know at this time to what extent the potential cost of

compliance will be, the FAA solicits comments from potentially affected

operators. Please provide detailed cost information on the extent the

action will impose costs in the form of additional preflight planning

and circumnavigation of Afghanistan's territory.

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.).

International Trade Impact Assessment

This final rule could have an impact on the international flights

of U.S. air carriers and commercial operators because it will restrict

their ability to overfly the territory of Afghanistan and therefore may

impose additional costs relating to the circumnavigation of

Afghanistan's territorial airspace. This final rule will not restrict

the ability of foreign air carriers to overfly Afghanistan's territory.

Given the narrow scope of this rule, it will not eliminate existing or

create additional barriers to the sale of foreign aviation products in

the United States or to the sale of U.S. aviation products and services

in foreign countries.

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, Air traffic control, Aircraft, Airmen, Airports,

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, 1966-1970 Comp.,

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

2. Special Federal Aviation Regulation (SFAR) No. 67 is added to

read as follows:

Special Federal Aviation Regulation No. 67--Prohibition Against

Certain Flights Within the Territory and Airspace of Afghanistan

1. Applicability. This rule applies to all U.S. air carriers and

commercial operators, all persons exercising the privileges of an

airman certificate issued by the FAA, and all operators using aircraft

registered in the United States except where the operator of such

aircraft is a foreign air carrier.

2. Flight prohibition. Except as provided in paragraph 3 and 4 of

this SFAR, no person described in paragraph 1 may conduct flight

operations 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 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.

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 14 CFR 121.557, 121.559, or

135.19, each person who deviates from this rule shall, within ten (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

therefor.

5. Expiration. This Special Federal Aviation Regulation expires May

10, 1995.

Issued in Washington, DC, on May 10, 1994.

David R. Hinson,

Administrator.

[FR Doc. 94-11714 Filed 5-10-94; 2:57 pm]

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