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, 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 foreign-flagged 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

[[Page 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 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 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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