Prohibition Against Certain Flights Within the Territory and Airspace of Afghanistan

SUMMARY: This action proposes to amend Special Federal Aviation

Regulation (SFAR) 67 to extend 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, and to permit 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: Comments must be received by April 16, 1998.

ADDRESSES: Comments should be submitted in triplicate to the Federal

Aviation Administration, Office of the Chief Counsel, Attn: Rules

Docket (AGC-200), Docket No. 27744, 800 Independence Avenue, SW,

Washington, DC 20591.

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:

Comments Invited

All interested persons are invited to comment on this proposed rule

by submitting such written data, views, or arguments as they may

desire,including comments relating to the environmental, energy, or

economic impacts. Communications should identify the regulatory docket

number, and be submitted in triplicate to the Federal Aviation

Administration, Office of the Chief Counsel, Attn: Rules Docket (AGC-

200), Docket No. 27744, 800 Independence Ave., Washington, DC 20591.

Comments may also be sent electronically to the Rules Docket by using

the following Internet address: [email protected]. All

communications received will be considered by the Administrator. This

proposed rule may be changed as a result of comments received from the

public. All comments submitted will be available for examination in the

Rules Docket in Room 915-G of the FAA Building, 800 Independence Ave.,

Washington, DC 20591. Persons wishing to have the FAA acknowledge

receipt of their comments must submit a self-addressed, stamped

postcard with the following statement: ``Comments to Docket Number

27744.'' The postcard will then be dated, time stamped, and returned by

the FAA.

Availability of This Proposed Rule

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 a 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

proposal.

Persons interested in begin 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.

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

proposed 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. The area where civil aviation 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

[[Page 16079]]

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. These advisories, which are still germane, reflect the uncertain

nature of the situation and underscore the dangers to flights in

portions of Afghan airspace.

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 Taliban fighter intercepted a Pakistan

International Airlines flight enroute from London to Lahore. 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 proposes to remove 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 two years. Therefore, the FAA

proposes to remove the flight prohibition for that portion of Afghan

airspace south of the 33 deg. north latitude.

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 injure 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 proposing to

extend 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 would expire on May 10,

2000.

I also am proposing to order 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 the actions proposed

herein.

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

[[Page 16080]]

Corridor. This amendment to the extension to SFAR 67, allows United

States air carriers access to more Afghan airspace east of 070 deg.35'

east longitude and south of 33 deg. north latitude (the old boundaries

were 071 deg.35' east longitude). There is no inordinate hazard to

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

the Wakhan Corridor, and because no combat action is known to have

occurred in the area or south of 33 deg. north latitude for at least

two years. This proposed amendment provides U.S. air carriers with the

opportunity to operate along more routes than previously allowed. If

U.S. air carriers choose to fly along the routes east of 070 deg.35'

east longitude or south of 33 deg. north latitude, 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 proposed 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 would

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 would 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 Public Law 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 proposed ``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

meangingful and timely opportunity to provide input in the development

of regulatory proposals.

This proposed 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 proposal 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 amendment proposed 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.

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 Proposed Amendment

For the reasons set forth above, the Federal Aviation

Administration is proposing to amend 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.

2. Paragraphs 3 and 5 of SFAR 67 are proposed 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.

[[Page 16081]]

Issued in Washington, DC, on March 26, 1998.

Thomas E. Stuckey,

Acting Director, Flight Standards Service.

[FR Doc. 98-8495 Filed 3-31-98; 8:45 am]

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