Prohibition Against Certain Flights Within the Territory and Airspace of Afghanistan

SUMMARY: This action amends Special Federal Aviation Regulation (SFAR)

67 by extending until May 10, 2000, the prohibition on flight

operations within portions of 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; the

amendment also permits flight operations by the aforementioned persons

through Afghan airspace east of 070 deg.35' east longitude, or south of

33 deg. north latitude. This action is necessary to continue the

prevention of an undue hazard to persons and aircraft engaged in such

flight operations as a result of the ongoing civil war in Afghanistan.

DATES: This action is effective May 7, 1998.

FOR FURTHER INFORMATION CONTACT: David Catey, Air Transportation

Division, Flight Standards Service, Federal Aviation Administration,

800 Independence Avenue, SW., Washington, D.C. 20591. Telephone: (202)

267-8166.

SUPPLEMENTARY INFORMATION:

Availability of This Action

An electronic copy of this document may be downloaded, using a

modem and suitable communications software, from the FAA regulations

section of the Fedworld electronic bulletin board service ((703) 321-

3339), the Federal Register's electronic bulletin board service ((202)

512-1661), or the FAA's Aviation Rulemaking Advisory Committee Bulletin

Board service ((800) 322-2722 or (202) 267-5948). Internet users may

reach the FAA's web page at http://www.faa.gov or the Federal

Register's web page at http://www.access.gpo.gov/su__docs for access to

recently published rulemaking documents.

Any person may obtain a copy of this document by submitting a

request to the Federal Aviation Administration, Office of Rulemaking,

ARM-1, 800 Independence Ave, SW., Washington, DC 20591, or by calling

(202) 267-9677. Communications must identify the docket number of this

action.

Persons interested in being placed on the mailing list for future

rules should request from the above office a copy of Advisory Circular

No. 11-2A, Notice of Proposed Rulemaking Distribution System, which

describes the application procedure.

Small Entity Inquiries

The Small Business Regulatory Enforcement Fairness Act of 1996

(SBREFA) requires the FAA to report inquiries from small entities

concerning information on, and advice about, compliance with statutes

and regulations within the FAA's jurisdiction, including interpretation

and application of the law to specific sets of facts supplied by a

small entity.

If you are a small entity and have a question, contact your local

FAA official. If you do not know how to contact your local FAA

official, you may contact Charlene Brown, Program Analyst Staff, Office

of Rulemaking, ARM-27, Federal Aviation Administration, 800

Independence Avenue, SW, Washington, DC 20591, 1-888-551-1594. Internet

users can find additional information on SBREFA in the ``Quick Jump''

section of the FAA's web page at http://www.faa.gov and may send

electronic inquiries to the following Internet address: 9-AWA-

[email protected].

Background

On May 10, 1994, the FAA issued SFAR 67 in response to the threat

to civil aviation due to the civil war in Afghanistan (59 FR 25282; May

14, 1994). SFAR 67 was originally scheduled to expire after one year.

Notices of the extension of SFAR 67 were published on May 15, 1995 (60

FR 25980) and May 14, 1996 (61 FR 24430). On May 9, 1997, the FAA again

extended the expiration date to May 10, 1998, and permitted flight

operations by affected persons through Afghan airspace over the Wakhan

Corridor (62 FR 26890; May 15, 1997).

Fighting between government and opposition forces, and the

resulting threat to civil aviation, continues in portions of

Afghanistan, although at a lower level and intensity in the areas to be

opened to U.S. civil aviation than when SFAR 67 was originally issued

and later amended. The Taliban have controlled all of southern

Afghanistan for a considerable time; currently the fighting is

primarily confined to the central Kabul area and northern and

northwestern Afghanistan. While other areas of the country continue to

be the scene of sporadic fighting, the factions involved have little or

no capability to target aircraft operating at normal cruising altitudes

in the areas being opened to U.S. operators. The area where civil

aviation is most threatened in Afghanistan lies in an area north of

33 deg. north latitude and west of 070 deg.35' east longitude.

The primary factions, the Taliban and a loose coalition of

opposition forces, still possess a wide range of sophisticated surface-

and air-based weapons that potentially could be used to attack civil

aircraft overflying central, northern, and northwestern Afghanistan at

cruising altitudes. These weapons include fighter and attack aircraft

armed with cannons and air-to-air missiles, and surface-to-air missiles

(SAM) systems. Although aircraft have been used primarily 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 civil aircraft have been shot down using

SAMs. The fluctuations in the level and intensity of combat create an

unsafe environment for transiting civilian aircraft in the vicinity of

Kabul and northern and northwestern Afghanistan.

Advisories issued by the International Civil Aviation Organization

(ICAO) urging civil aircraft to avoid Afghan airspace remain valid for

at least a portion of 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 dated November 14, 1994, Dr. 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 [Flight

Information Region] can not be assured.'' Dr. Kotaite did indicate in

this letter that if operators were using Afghan airspace, flying time

over Afghanistan should be minimized and that route V500, promulgated

by a Pakistani notice to airmen (NOTAM), involves only a two minute

flying time over Afghanistan. A letter of May 10, 1996, advised of a

report by the crew of a Boeing 747 cargo aircraft of anti-aircraft fire

in the vicinity of Kabul; however, at 37,000 feet altitude, the

aircraft was never in any danger. These

[[Page 26685]]

advisories, which are still germane, reflect the uncertain nature of

the situation and underscore the dangers to flights in portions of

Afghan airspace. On April 29, 1998, Dr. Kotaite sent a letter to the

United States supporting the approach taken in the proposal. Further,

Dr. Kotaite stated that ICAO is considering issuing another letter to

all ICAO member states indicating that flights could be permitted in

the eastern and southern areas of Afghanistan.

In the past, at least two major factions in Afghanistan have

deliberately targeted civil aircraft. Such policies occasionally have

been publicly announced. In a statement released in September 1995,

General Dostam, who at the time opposed the nominal Rabbani Government,

warned all international air carriers that his forces would force or

shoot down any airplane venturing into airspace controlled by his

faction without first obtaining proper clearance from them. This

statement followed a similar warning issued in 1994 by an opposition

council. Air corridors over central Afghanistan have been closed

frequently as a result of these threats and active factional fighting.

Currently, none of the factions in the civil war has a clear intent

to deliberately target a foreign-flagged commercial air carrier.

However, the Taliban's continued frustration with the airlift of arms,

ammunition, and supplies to other factions, combined with the other

factions' interest in bringing down Taliban flights, creates a

potentially hazardous environment whereby an airliner might be

misidentified and inadvertently targeted in the central, northern, and

northwestern portions of Afghanistan. The FAA has received reports that

scheduled passenger flights have been intercepted by opposition fighter

aircraft. In July 1996, a fighter intercepted a Pakistan International

Airlines flight enroute from London to Lahore. Some reporting indicates

that the aircraft may have been 40-50 NM off its assigned international

air route. Charter flights appear to be equally or more vulnerable. A

Russian-operated charter flight from the UAE carrying unmanifested

ammunition to Kabul was forced to land in Kandahar; the aircraft and

its crew were held there for almost one year before escaping in August

1996.

The control and operation of Afghanistan's limited air traffic

control facilities remains relatively stable. Although central Afghan

government control over installations critical to air traffic

navigation and communication changed hands when the Taliban took

control of Kabul, the transfer of authority went smoothly. Indeed, most

air traffic control employees remained on the job and only the senior

leadership was replaced. If opposition forces retake Kabul, the

realignment of control to the previous occupants should be smooth as

well.

The greatest threat to civil aviation is within the area over

Afghanistan north of 33 deg. north latitude and west of 070 deg.35'

east longitude. The fighting described above, and the resulting threat

to civil aviation, has occurred well away from the Wakhan Corridor,

which the FAA opened to U.S. operators in May 1997 by allowing

operations east of 071 deg.35' east longitude. Several non-U.S.

carriers also utilize international air corridor V876, just west of the

Wakhan Corridor, as an alternate to the Wakhan Corridor. The area

surrounding V876 (east of 070 deg.35' east longitude) is remote and

sparsely populated. There is no evidence that Afghan factions or

terrorist elements would target or make preparations for specific

operations against U.S. or other international air carriers overflying

Afghanistan east of 070 deg.35' east longitude, which includes V876.

While an action aimed at shooting down or intercepting an aircraft on

V876 cannot be absolutely ruled out, it is considered unlikely. The

U.S. Government assesses the overall risk for flights using V876 as

low; the risk for the Wakhan Corridor continues to be assessed as

minimal. The slightly higher threat along V876 comes mainly from the

fact that flights could cross factional boundaries and areas of

expected fighting. This threat is mitigated by the lack of surface-to-

air missiles and fighter aircraft in this area and the lack of intent

to target aircraft by the armed factions in the area. Several non-U.S.

air carriers currently operate safely along the V876 airway, and the

International Air Transport Association endorses its use. Therefore,

the FAA is removing the flight prohibition for that portion of Afghan

airspace east of 070 deg.35' east longitude.

Similarly, civil aviation operations along several routes south of

33 deg. north latitude-particularly G202 and V922--would encounter

minimal to low risk. The Taliban has controlled all of southern

Afghanistan, including the areas encompassing the routes south of the

33 deg. north latitude. That area has remained relatively stable, with

no fighting observed for at least 2 years. Therefore, the FAA is

removing the flight prohibition for that portion of Afghan airspace

south of the 33 deg. north latitude.

Consideration of Comments

On April 1, 1998, the FAA proposed to revise SFAR 67 (62 FR 16078).

Three comments were received in the docket. The Air Transport

Association supported the amendment as proposed citing the economic

benefits of reducing the circumnavigation of Afghan airspace. The Air

Line Pilots' Association concurred with continuing flight prohibitions

in certain areas of Afghanistan as proposed. The International Civil

Aviation Organization supported the approach taken by the United States

as proposed. Therefore, the FAA will adopt the amendment as proposed.

Amendment of 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

necessary to prevent the injury to U.S. operators or loss of certain

U.S.-registered aircraft 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

within portions of Afghan airspace. Accordingly, I am extending for 2

years the prohibition under SFAR 67 on flight operations within the

territory and airspace of Afghanistan. This action is necessary to

prevent an undue hazard to aircraft and to protect persons and property

on board those aircraft. SFAR 67 expires on May 10, 2000. Because the

circumstances described herein warrant continued action by the FAA to

maintain the safety of flight within certain portions of Afghan

airspace, I find good cause exists for making this rule effective

immediately upon issuance. I also find that this action is fully

consistent with the obligations under section 40105 of Title 49, United

States Code to ensure that I exercise my duties consistently with the

obligations of the United States under international agreements.

I also am ordering the amendment of SFAR 67 to allow flights by

United States air carriers and commercial operators, by any person

exercising the privileges of a certificate issued by the FAA, or by an

operator using aircraft registered in the United States through Afghan

airspace east of 070 deg.35' east longitude or south of 33 deg. north

latitude.

The Department of State has been advised of and has no objections

to the actions taken herein.

[[Page 26686]]

Regulatory Evaluation Summary

In accordance with SFAR 67, United States air carriers and

commercial operators currently use alternate routes to avoid Afghan

territory and airspace. Navigating around Afghanistan results in

increased variable operating costs, primarily for United States air

carriers operating between Europe and India. Based on data identified

during the promulgation of SFAR 67, the FAA estimates that the

weighted-average variable cost for a wide-body aircraft is

approximately $3,200 per hour. Based on data received from two United

States air carriers, the additional time it takes to navigate around

Afghanistan ranges from 10 minutes by flying over Iran to between one

and four hours by flying over Saudi Arabia (depending on the flight's

origin and destination). Additional costs associated with these

alternate routes range from little, if any, by flying over Iran to

between $3,200 to $12,700 per flight over Saudi Arabia.

Last year the FAA amended SFAR 67 to allow for flights along the

route V500 airway that passes through the Wakhan Corridor. This

amendment to the extension to SFAR 67, further allows United States air

carriers access to Afghan airspace east of 070 deg.35' east longitude

and south of 33 deg. north latitude. There is no inordinate hazard to

persons and aircraft, due to the remote, sparsely populated nature of

the area surrounding the Wakhan Corridor and V876, and because no

significant combat action is known to have occurred in the area east of

070 deg.35' east longitude and south of 33 deg. north latitude for at

least 2 years. This amendment provides U.S. air carriers with an option

to operate along route V876 rather than route V500 or route G8 which

goes over Iran and Pakistan. If U.S. air carriers choose to fly route

V876 over the Wakhan region, they could experience the same cost

savings that route V500 offered, which ranged from approximately $530

by flying over Iran, and between $3,200 to $12,700 per flight over

Saudi Arabia.

This action imposes no additional cost burden on U. S. air

carriers, only cost savings. In view of the foregoing, the FAA has

determined that the extension to SFAR 67 is cost beneficial.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA), as amended, was

enacted by Congress to ensure that small entities are not unnecessarily

and disproportionately burdened by Government regulations. The Act

requires that whenever an agency publishes a general notice of proposed

rulemaking, an initial regulatory flexibility analysis identifying the

economic impact on small entities, and considering alternatives that

may lessen those impacts must be conducted if the rule would have a

significant economic impact on a substantial number of small entities.

The FAA has determined that none of the United States air carriers

or commercial operators are small entities. Therefore, the SFAR will

not impose a significant economic impact on a substantial number of

small entities.

International Trade Impact Assessment

When the FAA promulgated SFAR 67, it found that the SFAR could have

an adverse impact on the international flights of United States air

carriers and commercial operators because it could marginally increase

their operating costs and flight times relative to foreign carriers who

continue to overfly Afghanistan. This action does not impose any

restrictions on United States air carriers or commercial operators

beyond those originally imposed by SFAR 67. Therefore, the FAA believes

that the SFAR will have little, if any, effect on the sale of United

States aviation products and services in foreign countries.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (the Act),

enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal

agency, to the extent permitted by law, to prepare a written assessment

of the effects of any Federal mandate in a proposed or final agency

rule that may result in the expenditure by State, local, and tribal

governments, in the aggregate, or by the private sector, of $100

million or more (adjusted annually for inflation) in any one year.

Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal

agency to develop an effective process to permit timely input by

elected officers (or their designees) of State, local, and tribal

governments on a ``significant intergovernmental mandate.'' A

``significant intergovernmental mandate'' under the Act is any

provision in a Federal agency regulation that would impose an

enforceable duty upon State, local, and tribal governments, in the

aggregate, of $100 million (adjusted annually for inflation) in any one

year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section

204(a), provides that before establishing any regulatory requirements

that might significantly or uniquely affect small governments, the

agency shall have developed a plan that, among other things, provides

for notice to potentially affected small governments, if any, and for a

meaningful and timely opportunity to provide input in the development

of regulatory actions.

This rule does not contain any Federal intergovernmental mandates,

but does contain a private sector mandate. However, because

expenditures by the private sector will not exceed $100 million

annually, the requirements of Title II of the Unfunded Mandates Reform

Act of 1995 do not apply.

Paperwork Reduction Act

This amendment 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

This amendment 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.

Significance

The 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 United States 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.

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, 44701,

44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315,

46316, 46502, 46504, 46506, 47122, 47508, 47528-47531.

[[Page 26687]]

2. Paragraphs 3 and 5 of SFAR 67 are revised to read as follows:

SPECIAL FEDERAL AVIATION REGULATIONS NO. 67--PROHIBITION AGAINST

CERTAIN FLIGHTS 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:

a. 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; or

b. East of 070 deg.35' east longitude, or south of 33 deg. north

latitude.

* * * * *

5. Expiration. This Special Federal Aviation Regulation remains

in effect until May 10, 2000.

Issued in Washington, DC on May 7, 1998.

Jane F. Garvey,

Administrator.

[FR Doc. 98-12631 Filed 5-8-98; 10:11 am]

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