# Prohibition Against Certain Flights Within the Territory and Airspace of Afghanistan

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URL: https://www.frixlaw.com/law-library/documents/fr%3A98-8495

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** April 1, 1998
- **Citation:** 63 FR 16078

## Text

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]
BILLING CODE 4910-13-M

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-8495. Public record. Not legal advice.