Prohibition Against Certain Flights Within the Territory and Airspace of Afghanistan

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-to-air 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-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.

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 foreign-flagged 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 anti-aircraft 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 [[Page 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 mis-identified 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 cost-

beneficial.

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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