Prohibition Against Certain Flights Between the United States and Haiti

DEPARTMENT OF TRANSPORTATION

14 CFR Part 91

[Docket No. 27748; Special Federal Aviation Regulation (SFAR) No. 69]

RIN 2120-AF40

Prohibition Against Certain Flights Between the United States and

Haiti

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action prohibits the takeoff from, landing in, or

overflight of the territory of the United States by an aircraft on a

flight to or from the territory of Haiti. This action further prohibits

the landing in, takeoff from, or overflight of the territory of the

United States by any aircraft of a flight from or to any intermediate

destination, if the flight's origin or ultimate destination is Haiti.

Exceptions are made for regularly scheduled air carrier passenger

flights or particular flights approved by the United States Government.

This action is taken to implement Executive Order 12914, issued by the

President on May 7, 1994, and UN Security Council Resolution 917 (May

6, 1994) mandating, inter alia, an embargo of most air traffic with

Haiti.

DATES: Effective date: May 13, 1994. Expiration date: May 13, 1995.

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, DC 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, DC 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 the safety of U.S.-registered

aircraft 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 addition, section 1102(a) of the Act requires that the FAA

Administrator exercise his authority consistently with any treaty

obligations of the United States. The United States is a party to the

Charter of the Untied Nations (Charter) (59 Stat. 1031; 3 Bevans 1153).

Articles 25 and 48 of that Charter require that Members of the United

Nations carry out the decision of the Security Council. Article 25

states: ``[t]he Members of the United Nations agree to accept and carry

out the decisions of the Security Council in accordance with the

present Charter.'' Article 48(1) states, in pertinent part: ``[t]he

action required to carry out the decisions of the Security Council for

the maintenance of international peace and security shall be taken by

all members of the United Nations * * *.''

The Security Council has recently decided that certain measures are

necessary to encourage the restoration of democracy in Haiti. In 1991,

the democratically-elected government of President Jean-Bertand

Aristide was overthrown in a violent military coup. In the months since

the coup, efforts to negotiate the return to democracy in Haiti with

the restoration of the government of President Aristide have not

succeeded. The efforts have included limited international embargoes of

oil and arms.

On May 6, 1994, the Security Council adopted Resolution 917

imposing additional sanctions against Haiti. Article 2 of the

Resolution requires all countries to deny permission to any aircraft to

takeoff from, land in, or overfly their territory if the aircraft is

destined for or has departed from Haiti. Exceptions to this prohibition

are made for regularly scheduled commercial passenger flights and for

approved flights for humanitarian or other authorized purposes that are

consistent with the terms of the Resolution.

In response to Security Council Resolution 917, the President

issued Executive Order 12914 on May 7, 1994. Section 2 of Executive

Order 12914 provides that:

The following are prohibited, notwithstanding the existence of

any rights or obligations conferred or imposed by an international

agreement or any contract entered into or any license or permit

granted before the effective date of this order, except to the

extent provided in regulations, orders directives, authorizations,

or licenses that may hereafter be issued pursuant to this order: (a)

the granting of permission to any aircraft to take off from, land

in, or overfly the territory of the United States, if the aircraft,

as part of the same flight or a continuation of that flight, is

destined to land in or has taken off from the territory of Haiti,

with the exception of regular scheduled commercial passenger flights

* * *.

Executive Order 12914 cites the President's authority under the

International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.),

the National Emergencies Act (50 U.S.C. 1601 et seq.), section 301 of

the United States Code (3 U.S.C. 301), sections 212(f) and 215(a)(1) of

the Immigration and Nationality Act of 1952 (8 U.S.C. 1182(f) and

1185(a)(1)), and section 5 of the United Nations Participation Act of

1945 (22 U.S.C. 287(c)). In particular, the United Nations

Participation Act provides that:

Notwithstanding the provisions of any other law, whenever the

United States is called upon by the [UN] Security Council to apply

measures which said Council has decided are * * * to be employed to

give effect to its decisions under [the United Nations] Charter, the

President may, to the extent necessary to apply such measures,

through any agency which he may designate, and under such orders,

rules, or regulations as may be prescribed by him, investigate,

regulate, or prohibit, in whole or in part, economic relations of

rail, sea, [and] air * * * between any foreign country or any

national thereof or any person therein and the United States or any

person subject to the jurisdiction thereof * * *.

On May 9, 1994, the Secretary of Transportation issued Order 94-5-

13 directing all interested parties to show cause why charter and all-

cargo air services between the United States and Haiti should not be

prohibited by appropriate amendment of all Department of Transportation

(DOT) certificates issued under section 401 of the Act, all permits

issued under section 402 of the Act, and all exemptions from sections

401 and 402 of the Act. The proposed action by the Secretary would

further implement Executive Order 12914. Comments in response to the

Secretary's Order to Show Cause were required by the end of May 10,

1994.

Copies of Security Council Resolution No. 917, Executive Order

12914, and DOT Order 94-5-13 have been placed in the docket for this

rulemaking.

Restrictions on Flights Between the United States and Haiti

On the basis of the above, and in support of the Executive Order of

the President of the United States, I find that immediate action by the

FAA is required to implement Executive Order 12914 and to meet the

obligations of the United States under international law as evidenced

by U.N. Security Council Resolution No. 917. Accordingly, I am ordering

a prohibition on the takeoff from, landing in, or overflight of the

territory of the United States by an aircraft on a flight that has

Haiti as its origin or ultimate destination. Regularly-scheduled,

passenger-carrying operations by U.S. and foreign air carriers and

operations approved by the United States Government for approved

purposes shall be excepted from this prohibition. For the reasons

stated above, 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 rule contains an expiration date of May 13, 1995, but may be

terminated sooner or extended through the publication of a

corresponding notice if circumstances so warrant.

Regulatory Evaluation

Executive Order 12914 prohibits any air travel between the United

States and Haiti, with the exception of regularly scheduled commercial

passenger flights. This action will not impose any restrictions on

commercial carriers beyond those imposed by the Executive Order.

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

The action will not create a competitive advantage or disadvantage

for foreign companies in the sale of aviation products or services in

the United States, nor for domestic firms in the sale of aviation

products or services in foreign countries, except for Haiti. Because

the FAA expects all countries to observe the sanctions ordered in U.N.

Security Council Resolution 917, there should be no change in the

competitive relationships between U.S. and foreign companies.

Federalism Determination

The amendment 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 4168; 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).

List of Subjects in 14 CFR Part 91

Aircraft, Airmen, Airports, Air traffic control, Aviation safety,

Haiti.

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. 69 is added to

read as follows:

Special Federal Aviation Regulation No. 69--Prohibition Against Certain

Flights Between the United States and Haiti

1. Applicability. This rule applies to all aircraft operations

originating from, landing in, or overflying the territory of the

United States.

2. Special flight restrictions. Except as provided in paragraph

3 and 4 of this SFAR--

(a) No person may operate an aircraft or initiate a flight from

any point in the United States to any point in Haiti, a flight

having any intermediate or ultimate destination in Haiti, or a

flight that includes a landing at any point in Haiti in its

itinerary;

(b) No person may operate an aircraft to any point in the United

States from any point in Haiti, from any intermediate point of

departure on a flight the origin of which is in Haiti, or which

includes a departure from any point in Haiti in its itinerary; or

(c) No person may operate an aircraft over the territory of the

United States if that aircraft's flight itinerary includes any

landing at or departure from any point in Haiti.

3. Permitted operations. This SFAR does not prohibit the takeoff

or landing of an aircraft, the initiation of a flight, or the

overflight of United States territory by any civil aircraft:

(a) Operated by a U.S. or foreign air carrier to conduct

scheduled passenger-carrying operations between the United States

and Haiti; or

(b) Authorized to conduct such operations either 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 13, 1995.

Issued in Washington, DC, on May 13, 1994.

David R. Hinson,

Administrator.

[FR Doc. 94-12130 Filed 5-13-94; 3:16 pm]

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