Rule2021-26521
Extension of the Prohibition Against Certain Flights in Specified Areas of the Sanaa Flight Information Region (FIR) (OYSC)
Primary source
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Published
December 7, 2021
Effective
December 7, 2021
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This action extends the Special Federal Aviation Regulation (SFAR) prohibiting certain flights in the specified areas of the Sanaa Flight Information Region (FIR) (OYSC) by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when the operator of such aircraft is a foreign air carrier. The FAA finds this action necessary to address hazards to persons and aircraft engaged in such flight operations due to significant, continuing safety-of-flight risks to U.S. civil aviation operations in that airspace associated with the ongoing conflict between the Saudi Arabian-led Coalition and Iranian- aligned Houthi forces. The FAA extends the expiration date of this SFAR from January 7, 2022, until January 7, 2025. Additionally, the FAA republishes the approval process and exemption information for this SFAR, consistent with other recently published flight prohibition SFARs.
Full Text
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<title>Federal Register, Volume 86 Issue 232 (Tuesday, December 7, 2021)</title>
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[Federal Register Volume 86, Number 232 (Tuesday, December 7, 2021)]
[Rules and Regulations]
[Pages 69167-69173]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26521]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No.: FAA-2015-8672; Amdt. No. 91-340C]
RIN 2120-AL69
Extension of the Prohibition Against Certain Flights in Specified
Areas of the Sanaa Flight Information Region (FIR) (OYSC)
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This action extends the Special Federal Aviation Regulation
(SFAR) prohibiting certain flights in the specified areas of the Sanaa
Flight Information Region (FIR) (OYSC) by all: U.S. air carriers; U.S.
commercial operators; persons exercising the privileges of an airman
certificate issued by the FAA, except when such persons are operating
U.S.-registered aircraft for a foreign air carrier; and operators of
U.S.-registered civil aircraft, except when the operator of such
aircraft is a foreign air carrier. The FAA finds this action necessary
to address hazards to persons and aircraft engaged in such flight
operations due to significant, continuing safety-of-flight risks to
U.S. civil aviation operations in that airspace associated with the
ongoing conflict between the Saudi Arabian-led Coalition and Iranian-
aligned Houthi forces. The FAA extends the expiration date of this SFAR
from January 7, 2022, until January 7, 2025. Additionally, the FAA
republishes the approval process and exemption information for this
SFAR, consistent with other recently published flight prohibition
SFARs.
[[Page 69168]]
DATES: This final rule is effective on December 7, 2021.
FOR FURTHER INFORMATION CONTACT: Stephen Moates, Air Transportation
Division, Flight Standards Service, Federal Aviation Administration,
800 Independence Avenue SW, Washington, DC 20591; telephone 202-267-
8166; email <a href="/cdn-cgi/l/email-protection#9cefe8f9ecf4f9f2b2f1f3fde8f9efdcfafdfdb2fbf3ea"><span class="__cf_email__" data-cfemail="becdcadbced6dbd090d3d1dfcadbcdfed8dfdf90d9d1c8">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This action extends the prohibition against certain flights in the
specified areas of the Sanaa Flight Information Region (FIR) (OYSC) by
all: U.S. air carriers; U.S. commercial operators; persons exercising
the privileges of an airman certificate issued by the FAA, except when
such persons are operating U.S.-registered aircraft for a foreign air
carrier; and operators of U.S.-registered civil aircraft, except when
the operator of such aircraft is a foreign air carrier. Specifically,
this amendment continues to prohibit all persons described in paragraph
(a) of SFAR No. 115, title 14 Code of Federal Regulations (CFR), Sec.
91.1611, from conducting civil flight operations in the specified areas
of the Sanaa FIR (OYSC), as described in paragraph (b) of the rule,
until January 7, 2025, due to the significant, continuing safety-of-
flight risks to U.S. civil aviation operations in that airspace
associated with the ongoing conflict between the Saudi Arabian-led
Coalition (SLC) and Iranian-aligned Houthi forces.
II. Legal Authority and Good Cause
A. Legal Authority
The FAA is responsible for the safety of flight in the U.S. and the
safety of U.S. civil operators, U.S.-registered civil aircraft, and
U.S.-certificated airmen throughout the world. Sections 106(f) and (g)
of title 49, United States Code (U.S.C.), subtitle I, establish the FAA
Administrator's authority to issue rules on aviation safety. Subtitle
VII of title 49, Aviation Programs, describes in more detail the scope
of the agency's authority. Section 40101(d)(1) provides that the
Administrator shall consider in the public interest, among other
matters, assigning, maintaining, and enhancing safety and security as
the highest priorities in air commerce. Section 40105(b)(1)(A) requires
the Administrator to exercise this authority consistently with the
obligations of the U.S. Government under international agreements.
The FAA is promulgating this rulemaking under the authority
described in 49 U.S.C. 44701, General requirements. Under that section,
the FAA is charged broadly with promoting safe flight of civil aircraft
in air commerce by prescribing, among other things, regulations and
minimum standards for practices, methods, and procedures that the
Administrator finds necessary for safety in air commerce and national
security.
This regulation is within the scope of the FAA's authority because
it continues to prohibit the persons described in paragraph (a) of SFAR
No. 115, Sec. 91.1611, from conducting civil flight operations in the
specified areas of the Sanaa FIR (OYSC) due to significant, continuing
risks to the safety of U.S. civil flight operations, as described in
the preamble to this final rule.
B. Good Cause for Immediate Adoption
Section 553(b)(B) of title 5, U.S.C., authorizes agencies to
dispense with notice and comment procedures for rules when the agency
for ``good cause'' finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' Section 553(d) also
authorizes agencies to forgo the delay in the effective date of a final
rule for good cause found and published with the rule. In this
instance, the FAA finds good cause exists to forgo notice and comment
because notice and comment would be impracticable and contrary to the
public interest. In addition, it is contrary to the public interest to
allow any lapse in the effectivity of the prohibition of U.S. civil
flights in the areas to which this SFAR applies, making it appropriate
to waive any delay in effective date.
The risk environment for U.S. civil aviation in airspace managed by
other countries with respect to the safety of flight is often fluid in
circumstances involving weapons capable of targeting, or otherwise
negatively affecting, U.S. civil aviation, as well as other hazards to
U.S. civil aviation associated with fighting, extremist and militant
activity, or heightened tensions. This fluidity and the need for the
FAA to rely upon classified information in assessing these risks make
issuing notice and seeking comments impracticable and contrary to the
public interest. With respect to the impracticability of notice and
comment procedures, the potential for rapid changes in the risks to
U.S. civil aviation significantly limits how far in advance of a new or
amended flight prohibition the FAA can usefully assess the risk
environment. Furthermore, to the extent that these rules and any
amendments to them are based upon classified information, the FAA is
not legally permitted to share such information with the general
public, who cannot meaningfully comment on information to which they
are not legally allowed access. As a result, engaging in notice and
comment would be impracticable.
Additionally, while there is a public interest in having an
opportunity for the public to comment on agency action, it is crucial
that the FAA's flight prohibitions, and any amendments thereto, reflect
the agency's current understanding of the risk environment for U.S.
civil aviation. This allows the FAA to protect the safety of U.S.
operators' aircraft and the lives of their passengers and crews without
over-restricting U.S. operators' routing options.
As described in the preamble to this rule, extending the flight
prohibition for U.S. civil aviation operations in the specified areas
of the Sanaa FIR (OYSC) is necessary due to significant, continuing
safety-of-flight hazards associated with the ongoing conflict between
the SLC and Iranian-aligned Houthi forces. Such circumstances establish
that engaging in notice and comment for this rule would be
impracticable and contrary to the public interest. Accordingly, the FAA
finds good cause exists to forgo notice and comment and any delay in
the effective date for this rule.
III. Background
On January 7, 2016, the FAA published SFAR No. 115, Sec. 91.1611,
to prohibit U.S. civil aviation operations in the specified areas of
the Sanaa FIR (OYSC), due to the hazardous situation faced by U.S.
civil aviation from ongoing military operations, political instability,
violence from competing armed groups, and the continuing terrorism
threat from extremist elements associated with the fighting and
instability in Yemen.\1\
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\1\ Prohibition Against Certain Flights in Specified Areas of
the Sanaa (OYSC) Flight Information Region (FIR) final rule, 81 FR
727 (Jan. 7, 2016).
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The FAA determined international civil air routes that transited
the then-specified areas of the Sanaa FIR (OYSC) and aircraft operating
to and from Yemeni airports were at risk from terrorist and militant
groups potentially employing anti-aircraft-capable weapons, including
man-portable air defense systems (MANPADS), surface-to-air missiles
(SAMs), small-arms fire, and indirect fire from mortars and rockets. At
the time it promulgated the January 2016 final rule, the FAA found that
due to the fighting and instability, there was a risk of possible loss
of state control over more advanced anti-aircraft-capable weapons to
terrorist and
[[Page 69169]]
militant groups. Some of the weapons about which the FAA was concerned
had the capability to target aircraft at higher altitudes or during
approach and departure and had weapon ranges that could extend into the
near offshore areas along Yemen's coastline.
In the January 2016 final rule, the FAA also indicated that U.S.
civil aviation was at risk from combat operations and other military-
related activity associated with the fighting and instability in Yemen
and that there was an ongoing threat of terrorism. Al-Qa'ida in the
Arabian Peninsula (AQAP) remained active in Yemen and had demonstrated
the capability and intent to target U.S. and Western aviation
interests. Various Yemeni airports had been attacked during the
fighting, including Sanaa International Airport (OYSN) and Aden
International Airport (OYAA), resulting in instances of damage to
airport facilities and temporary closure of those airports.
On December 14, 2017, the FAA amended SFAR No. 115, Sec. 91.1611,
to reduce the boundaries of its prohibition of U.S. civil aviation
operations in the specified areas of the Sanaa FIR (OYSC).\2\ Between
January 2016 and December 2017, the situation in Yemen had slightly
improved, as a coalition of Yemeni government forces, supporting
nations, and allied militia elements successfully limited the area of
opposition force control and reduced some of the opposition force's
weapon capabilities. In December 2017, opposition elements in Yemen did
not possess functional medium-/long-range strategic SAM capabilities.
As a result, the FAA found there was a sufficiently reduced level of
risk to U.S. civil aviation operations on certain international air
routes that transit offshore areas of the Sanaa FIR (OYSC) to permit
U.S. civil aviation operations on those routes again. However, U.S.
civil aviation operations remained prohibited in the rest of the
specified areas of the Sanaa FIR (OYSC).
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\2\ Amendment of the Prohibition Against Certain Flights in
Specified Areas of the Sanaa (OYSC) Flight Information Region final
rule, 82 FR 58722 (Dec. 14, 2017).
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On December 11, 2019, after it again assessed the situation in the
specified areas of the Sanaa FIR (OYSC), the FAA determined the
situation continued to be hazardous for U.S. civil aviation.\3\
Significant risk to U.S. civil aviation operations in the specified
areas of the Sanaa FIR (OYSC) continued to exist due to the ongoing
conflict between the SLC and Iranian-aligned Houthi forces and an
enduring extremist/militant threat to U.S. civil aviation operations in
those areas. There had been multiple reported surface-to-air incidents,
including successful shoot downs of military tactical and surveillance
aircraft by Houthi forces armed with a variety of anti-aircraft-capable
weapons. With international assistance, Houthi elements had received or
developed, and successfully employed, innovative anti-aircraft-capable
weapons, ballistic missiles, and unmanned aircraft systems (UAS)
capabilities. Various entities using multiple capabilities had attacked
airports within the Sanaa FIR (OYSC). Additionally, extremist or
militant elements continued to exploit the conflict for control of
territory to launch attacks. As of December 2019, both AQAP and
extremists aligned with the Islamic State of Iraq and ash-Sham (ISIS)
operated in Yemen. Both of these international extremist or militant
organizations have a history of targeting U.S. interests, including
civil aviation.
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\3\ Extension of the Prohibition Against Certain Flights in
Specified Areas of the Sanaa Flight Information Region (FIR) (OYSC)
final rule, 84 FR 67659 (Dec. 11, 2019).
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The FAA continued to assess that opposition elements in Yemen did
not possess functional medium-/long-range strategic SAM capabilities
and did not control territory from which surface to air weapons could
reach air routes off the southern and western coasts of Yemen.
IV. Discussion of the Final Rule
The FAA continues to assess the situation in the specified areas of
the Sanaa FIR (OYSC) as presenting significant, continuing safety-of-
flight risks for U.S. civil aviation due to the ongoing conflict
between the SLC and Iranian-aligned Houthi forces and the enduring
extremist or militant threat to U.S. civil aviation operations in those
areas. Houthi forces have continued to develop, acquire, and employ
advanced weapons capabilities, including non-traditional air defense
capabilities, UAS, and missile capabilities. Collectively, such
capabilities pose risks to U.S. civil aviation operations at all
altitudes in the specified areas of the Sanaa FIR (OYSC) and airports
in Yemen.
Houthi forces operate multiple air defense systems capable of
targeting aircraft at various altitudes. Notably, they have employed
increasingly capable Iranian-supplied SAMs and electro-optical/infrared
seeker (E.O./IR) air-to-air (AA) missiles modified for use as SAMs to
engage manned and unmanned military aircraft. In 2020, Houthi elements
reportedly shot down multiple SLC tactical manned and unmanned aircraft
operating in Yemeni airspace, including a Tornado fighter aircraft in
February 2020 and an SLC UAS in December 2020. Houthi air defense
capabilities pose an inadvertent risk to U.S. civil aviation operations
due to the potential for misidentification or miscalculation by
irregular forces using advanced air defense capabilities for which they
may not have received adequate training and may not have adequate air
surveillance information to distinguish accurately between civil
aircraft and potential airborne threats. The FAA continues to assess
Houthi forces in Yemen do not possess functional medium-/long-range
strategic SAM capabilities.
Additionally, Houthi elements have targeted international airports
in the region using weaponized UAS, as well as ballistic and cruise
missiles. In December 2020, an attack on Aden International Airport
(OYAA) occurred shortly after the arrival of a commercial aircraft from
Saudi Arabia carrying senior members of the internationally-recognized
Government of Yemen.
Although some Houthi offensive weapons systems have range
capabilities that would allow them to reach the limited areas of the
Sanaa FIR (OYSC) in which the FAA permits U.S. civil aviation to
operate, Houthi forces have not demonstrated an intent to conduct
weaponized UAS or missile attacks in those areas. Instead, they have
focused these types of attacks primarily on targets in Saudi Arabia and
targets in contested areas of Yemen. In addition, Houthi weaponized UAS
operations would only present a safety of flight hazard to civil
aircraft operating off the Yemeni coast if such aircraft were operating
below cruising altitudes.
Besides the safety-of-flight risks associated with the conflict
between the SLC and Iranian-aligned Houthi forces, extremist or
militant groups operating in Yemen likely have access to anti-aircraft-
capable weapons, including MANPADS, presenting a risk up to 25,000
feet. AQAP continues to operate in Yemen and historically has attempted
to attack Western civil aviation through novel improvised explosive
devices, including the 2009 failed underwear bombing attempt on a U.S.-
bound flight and the 2010 printer cartridge plot targeting U.S.-bound
cargo flights. Additionally, Islamic State of Iraq and ash-Sham (ISIS)
cells remain active in Yemen.
As a result of the significant, continuing unacceptable risks to
the safety of U.S. civil aviation operations in the specified areas of
the Sanaa FIR (OYSC) described in this rule, the FAA extends the
expiration date of SFAR No. 115, Sec. 91.1611, from January 7, 2022,
until January 7, 2025.
[[Page 69170]]
In addition, the FAA has determined U.S. civil aviation operations
may continue safely at this time in the remainder of the Sanaa FIR
(OYSC). Specifically, U.S. civil aviation operations remain permitted
in that airspace west of a line drawn direct from KAPET (163322N
0530614E) to NODMA (152603N 0533359E), southwest of a line drawn direct
from NODMA to ORBAT (140638N 0503924E) then from ORBAT to PAKER
(115500N 0463500E), north of a line drawn direct from PAKER to PARIM
(123142N 0432712E), and east of a line drawn direct from PARIM to RIBOK
(154700N 0415230E). Operations on jet routes UT702 and M999 also remain
permitted.
Further amendments to SFAR No. 115, Sec. 91.1611, might be
appropriate if the risk to U.S. civil aviation safety and security
changes. In this regard, the FAA will continue to monitor the situation
and evaluate the extent to which persons described in paragraph (a) of
this rule might be able to operate safely in the specified areas of the
Sanaa FIR (OYSC).
The FAA also republishes the details concerning the approval and
exemption processes in sections V and VI of this preamble, consistent
with other recently published flight prohibition SFARs, to enable
interested persons to refer to this final rule for comprehensive
information about requesting relief from the FAA from the provisions of
SFAR No. 115, Sec. 91.1611.
V. Approval Process Based on a Request From a Department, Agency, or
Instrumentality of the United States Government
A. Approval Process Based on an Authorization Request From a
Department, Agency, or Instrumentality of the United States Government
In some instances, U.S. Government departments, agencies, or
instrumentalities may need to engage U.S. civil aviation to support
their activities in the specified areas of the Sanaa FIR (OYSC). If a
department, agency, or instrumentality of the U.S. Government
determines that it has a critical need to engage any person described
in paragraph (a) of SFAR No. 115, Sec. 91.1611, including a U.S. air
carrier or commercial operator, to transport civilian or military
passengers or cargo or conduct other operations in the specified areas
of the Sanaa FIR (OYSC), that department, agency, or instrumentality
may request the FAA to approve persons described in paragraph (a) of
SFAR No. 115, Sec. 91.1611, to conduct such operations.
The requesting U.S. Government department, agency, or
instrumentality must submit the request for approval to the FAA's
Associate Administrator for Aviation Safety in a letter signed by an
appropriate senior official of the requesting department, agency, or
instrumentality.\4\ The FAA will not accept or consider requests for
approval from anyone other than the requesting U.S. Government
department, agency, or instrumentality. In addition, the senior
official signing the letter requesting FAA approval must be
sufficiently positioned within the requesting department, agency, or
instrumentality to demonstrate that the organization's senior
leadership supports the request for approval and is committed to taking
all necessary steps to minimize aviation safety and security risks to
the proposed flights. The senior official must also be in a position
to: (1) Attest to the accuracy of all representations made to the FAA
in the request for approval, and (2) ensure that any support from the
requesting U.S. Government department, agency, or instrumentality
described in the request for approval is in fact brought to bear and is
maintained over time. Unless justified by exigent circumstances,
requesting U.S. Government departments, agencies, or instrumentalities
must submit requests for approval to the FAA no less than 30 calendar
days before the date on which the requesting department, agency, or
instrumentality wishes the proposed operation(s) to commence.
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\4\ This approval procedure applies to U.S. Government
departments, agencies, or instrumentalities; it does not apply to
the public. The FAA describes this procedure in the interest of
providing transparency with respect to the FAA's process for
interacting with U.S. Government departments, agencies, or
instrumentalities that seek to engage U.S. civil aviation to operate
in the area in which this SFAR would prohibit their operations in
the absence of specific FAA approval.
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The requestor must send the request to the Associate Administrator
for Aviation Safety, Federal Aviation Administration, 800 Independence
Avenue SW, Washington, DC 20591. Electronic submissions are acceptable,
and the requesting entity may request that the FAA notify it
electronically as to whether the FAA grants the request for approval.
If a requestor wishes to make an electronic submission to the FAA, the
requestor should contact the Air Transportation Division, Flight
Standards Service, at (202) 267-8166, to obtain the appropriate email
address. A single letter may request approval from the FAA for multiple
persons described in SFAR No. 115, Sec. 91.1611, or multiple flight
operations. To the extent known, the letter must identify the person(s)
the requester expects the SFAR to cover on whose behalf the U.S.
Government department, agency, or instrumentality seeks FAA approval,
and it must describe--
<bullet> The proposed operation(s), including the nature of the
mission being supported;
<bullet> The service the person(s) covered by the SFAR will
provide;
<bullet> To the extent known, the specific locations in the
specified areas of the Sanaa FIR (OYSC) where the proposed operation(s)
will occur, including, but not limited to, the flight path and altitude
of the aircraft while it is operating in the specified areas of the
Sanaa FIR (OYSC) and the airports, airfields, or landing zones at which
the aircraft will take off and land; and
<bullet> The method by which the requesting department, agency, or
instrumentality will provide, or how the operator will otherwise
obtain, current threat information and an explanation of how the
operator will integrate this information into all phases of the
proposed operations (i.e., the pre-mission planning and briefing, in-
flight, and post-flight phases).
The request for approval must also include a list of operators with
whom the U.S. Government department, agency, or instrumentality
requesting FAA approval has a current contract(s), grant(s), or
cooperative agreement(s) (or its prime contractor has a subcontract(s))
for specific flight operations in the specified areas of the Sanaa FIR
(OYSC). The requestor may identify additional operators to the FAA at
any time after the FAA issues its approval. Neither the operators
listed in the original request, nor any operators the requestor
subsequently seeks to add to the approval, may commence operations
under the approval until the FAA issues them an Operations
Specification (OpSpec) or Letter of Authorization (LOA), as
appropriate, for operations in the specified areas of the Sanaa FIR
(OYSC). The approval conditions discussed below apply to all operators.
Requestors should send updated lists to the email address they obtain
from the Air Transportation Division by calling (202) 267-8166.
If an approval request includes classified information, requestors
may contact Aviation Safety Inspector Stephen Moates for instructions
on submitting it to the FAA. His contact information appears in the FOR
FURTHER INFORMATION CONTACT section of this final rule.
FAA approval of an operation under SFAR No. 115, Sec. 91.1611,
does not relieve persons subject to this SFAR of the responsibility to
comply with all
[[Page 69171]]
other applicable FAA rules and regulations. Operators of civil aircraft
must comply with the conditions of their certificates, OpSpecs, and
LOAs, as applicable. Operators must also comply with all rules and
regulations of other U.S. Government departments, agencies, or
instrumentalities that may apply to the proposed operation(s),
including, but not limited to, regulations issued by the Transportation
Security Administration.
B. Approval Conditions
If the FAA approves the request, the FAA's Aviation Safety
organization will send an approval letter to the requesting U.S.
Government department, agency, or instrumentality informing it that the
FAA's approval is subject to all of the following conditions:
(1) The approval will stipulate those procedures and conditions
that limit, to the greatest degree possible, the risk to the operator,
while still allowing the operator to achieve its operational
objectives.
(2) Before any approval takes effect, the operator must submit to
the FAA:
(a) A written release of the U.S. Government from all damages,
claims, and liabilities, including without limitation legal fees and
expenses, relating to any event arising out of or related to the
approved operations in the specified areas of the Sanaa FIR (OYSC); and
(b) The operator's written agreement to indemnify the U.S.
Government with respect to any and all third-party damages, claims, and
liabilities, including without limitation legal fees and expenses,
relating to any event arising out of or related to the approved
operations in the specified areas of the Sanaa FIR (OYSC).
(3) Other conditions the FAA may specify, including those the FAA
might impose in OpSpecs or LOAs, as applicable.
The release and agreement to indemnify do not preclude an operator
from raising a claim under an applicable non-premium war risk insurance
policy the FAA issues under chapter 443 of title 49, U.S.C.
If the FAA approves the proposed operation(s), the FAA will issue
an OpSpec or LOA, as applicable, to the operator(s) identified in the
original request and any operators the requestor subsequently adds to
the approval, authorizing them to conduct the approved operation(s). In
addition, as stated in paragraph (3) of this section V.B., the FAA
notes that it may include additional conditions beyond those contained
in the approval letter in any OpSpec or LOA associated with a
particular operator operating under this approval, as necessary in the
interests of aviation safety. U.S. Government departments, agencies,
and instrumentalities requesting FAA approval on behalf of entities
with which they have a contract or subcontract, grant, or cooperative
agreement should request a copy of the relevant OpSpec or LOA directly
from the entity with which they have any of the foregoing types of
arrangements, if desired.
VI. Information Regarding Petitions for Exemption
Any operations not conducted under an approval the FAA issues
through the approval process set forth previously may only occur in
accordance with an exemption from SFAR No. 115, Sec. 91.1611. A
petition for exemption must comply with 14 CFR part 11. The FAA will
consider whether exceptional circumstances exist beyond those described
in the approval process in the previous section. To determine whether a
petition for exemption from the prohibition this SFAR establishes
fulfills the standard of 14 CFR 11.81, the FAA consistently finds
necessary the following information:
<bullet> The proposed operation(s), including the nature of the
operation;
<bullet> The service the person(s) covered by the SFAR will
provide;
<bullet> The specific locations in the specified areas of the Sanaa
FIR (OYSC) where the proposed operation(s) will occur, including, but
not limited to, the flight path and altitude of the aircraft while it
is operating in the specified areas of the Sanaa FIR (OYSC), and the
airports, airfields, or landing zones at which the aircraft will take
off and land;
<bullet> The method by which the operator will obtain current
threat information and an explanation of how the operator will
integrate this information into all phases of its proposed operations
(i.e., the pre-mission planning and briefing, in-flight, and post-
flight phases); and
<bullet> The plans and procedures the operator will use to minimize
the risks identified in this preamble to the proposed operations, to
support the relief sought and that granting such relief would not
adversely affect safety or would provide a level of safety at least
equal to that provided by this SFAR. The FAA has found comprehensive,
organized plans and procedures of this nature to be helpful in
facilitating the agency's safety evaluation of petitions for exemption
from flight prohibition SFARs.
The FAA includes, as a condition of each such exemption it issues,
a release and agreement to indemnify, as described previously.
The FAA recognizes that, with the support of the U.S. Government,
the governments of other countries could plan operations that may be
affected by SFAR No. 115, Sec. 91.1611. While the FAA will not permit
these operations through the approval process, the FAA will consider
exemption requests for such operations on an expedited basis and in
accordance with the order of preference set forth in paragraph (c) of
SFAR No. 115, Sec. 91.1611.
If a petition for exemption includes security-sensitive or
proprietary information, requestors may contact Aviation Safety
Inspector Stephen Moates for instructions on submitting it to the FAA.
His contact information is listed in the FOR FURTHER INFORMATION
CONTACT section of this final rule.
VII. Regulatory Notices and Analyses
Changes to Federal regulations must undergo several economic
analyses. First, Executive Orders 12866 and 13563 direct that each
Federal agency shall propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354),
as codified in 5 U.S.C. 603 et seq., requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act of 1979 (Pub. L. 96-39), as codified in 19 U.S.C.
Chapter 13, prohibits agencies from setting standards that create
unnecessary obstacles to the foreign commerce of the United States. In
developing U.S. standards, the Trade Agreements Act requires agencies
to consider international standards and, where appropriate, that they
be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform
Act of 1995 (Pub. L. 104-4), as codified in 2 U.S.C. Chapter 25,
requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation with base year of
1995). This portion of the preamble summarizes the FAA's analysis of
the economic impacts of this final rule.
In conducting these analyses, the FAA has determined this final
rule has benefits that justify its costs. This rule is a significant
regulatory action, as defined in section 3(f) of Executive Order 12866,
as it raises novel policy issues contemplated under that
[[Page 69172]]
Executive order. As 5 U.S.C. 553 does not require notice and comment
for this final rule, 5 U.S.C. 603 and 604 do not require regulatory
flexibility analyses regarding impacts on small entities. This rule
will not create unnecessary obstacles to the foreign commerce of the
United States. This rule will not impose an unfunded mandate on State,
local, or tribal governments, or on the private sector, by exceeding
the threshold identified previously.
A. Regulatory Evaluation
This action extends without change the prohibition against certain
U.S. civil flight operations in the specified areas of the Sanaa FIR
(OYSC) for an additional three years, due to the significant,
continuing hazards to U.S. civil aviation operations in that airspace,
as described in the preamble of this final rule. The rule continues to
allow U.S. civil aviation to use the M999 and UT702 air routes, so
flight times and operating expenses, such as fuel, for U.S. operators
that transit the Middle East on those routes are not affected by this
final rule.
The FAA acknowledges the continued prohibition of U.S. civil
aviation operations in the specified areas of the Sanaa FIR (OYSC)
might result in additional costs to some U.S. operators, such as
increased fuel costs and other operational-related costs. However, the
FAA expects the benefits of this action exceed the costs because it
will result in the avoidance of risks of fatalities, injuries, and
property damage that could occur if a U.S. operator's aircraft were
shot down (or otherwise damaged) while operating in the specified areas
of the Sanaa FIR (OYSC). The FAA will continue to monitor and evaluate
the safety and security risks to U.S. civil operators and airmen as a
result of conditions in the specified areas of the Sanaa FIR (OYSC) and
the surrounding region.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an
agency to prepare an initial regulatory flexibility analysis describing
impacts on small entities whenever 5 U.S.C. 553 or any other law
requires an agency to publish a general notice of proposed rulemaking
for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to
prepare a final regulatory flexibility analysis when an agency issues a
final rule under 5 U.S.C. 553, after that section or any other law
requires publication of a general notice of proposed rulemaking. The
FAA concludes good cause exists to forgo notice and comment and to not
delay the effective date for this rule. As 5 U.S.C. 553 does not
require notice and comment in this situation, 5 U.S.C. 603 and 604
similarly do not require regulatory flexibility analyses.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to this Act, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
The FAA has assessed the potential effect of this final rule and
determined that its purpose is to protect the safety of U.S. civil
aviation from risks to their operations in the specified areas of the
Sanaa FIR (OYSC), a location outside the U.S. Therefore, the rule
complies with the Trade Agreements Act of 1979.
D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(in 1995 dollars) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $155 million in lieu of $100
million.
This final rule does not contain such a mandate. Therefore, the
requirements of Title II of the Act do not apply.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
the FAA to consider the impact of paperwork and other information
collection burdens it imposes on the public. The FAA has determined no
new requirement for information collection is associated with this
final rule.
F. International Compatibility and Cooperation
In keeping with U.S. obligations under the Convention on
International Civil Aviation, the FAA's policy is to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined no ICAO Standards and Recommended Practices correspond to
this regulation. The FAA finds this action is fully consistent with the
obligations under 49 U.S.C. 40105(b)(1)(A) to ensure the FAA exercises
its duties consistent with the obligations of the United States under
international agreements.
While the FAA's flight prohibition does not apply to foreign air
carriers, DOT codeshare authorizations prohibit foreign air carriers
from carrying a U.S. codeshare partner's code on a flight segment that
operates in airspace for which the FAA has issued a flight prohibition
for U.S. civil aviation. In addition, foreign air carriers and other
foreign operators may choose to avoid, or be advised or directed by
their civil aviation authorities to avoid, airspace for which the FAA
has issued a flight prohibition for U.S. civil aviation.
G. Environmental Analysis
The FAA has analyzed this action under Executive Order 12114,
Environmental Effects Abroad of Major Federal Actions, and DOT Order
5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be
informed of environmental considerations and take those considerations
into account when making decisions on major Federal actions that could
have environmental impacts anywhere beyond the borders of the United
States. The FAA has determined this action is exempt pursuant to
Section 2-5(a)(i) of Executive Order 12114 because it does not have the
potential for a significant effect on the environment outside the
United States.
In accordance with FAA Order 1050.1F, Environmental Impacts:
Policies and Procedures, paragraph 8-6(c), the FAA has prepared a
memorandum for the record stating the reason(s) for this determination
and has placed it in the docket for this rulemaking.
VIII. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this rule under the principles and criteria of
Executive Order 13132. The agency has determined this action will not
have a substantial direct effect on the States, or the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, this
[[Page 69173]]
rule will not have federalism implications.
B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this rule under Executive Order 13211. The agency
has determined it is not a ``significant energy action'' under the
executive order and will not be likely to have a significant adverse
effect on the supply, distribution, or use of energy.
C. Executive Order 13609, Promoting International Regulatory
Cooperation
Executive Order 13609 promotes international regulatory cooperation
to meet shared challenges involving health, safety, labor, security,
environmental, and other issues and to reduce, eliminate, or prevent
unnecessary differences in regulatory requirements. The FAA has
analyzed this action under the policies and agency responsibilities of
Executive Order 13609 and has determined that this action will have no
effect on international regulatory cooperation.
IX. Additional Information
A. Electronic Access
Except for classified material, all documents the FAA considered in
developing this rule, including economic analyses and technical
reports, may be accessed from the internet through the docket for this
rulemaking.
Those documents may be viewed online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
using the docket number listed above. A copy of this rule will be
placed in the docket. Electronic retrieval help and guidelines are
available on the website. It is available 24 hours each day, 365 days
each year. An electronic copy of this document may also be downloaded
from the Office of the Federal Register's website at <a href="https://www.federalregister.gov">https://www.federalregister.gov</a> and the Government Publishing Office's website
at <a href="https://www.govinfo.gov">https://www.govinfo.gov</a>. A copy may also be found at the FAA's
Regulations and Policies website at <a href="https://www.faa.gov/regulations_policies">https://www.faa.gov/regulations_policies</a>.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.
Commenters must identify the docket or notice number of this
rulemaking.
B. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601)
requires the FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. A small entity with questions regarding this document may
contact its local FAA official, or the persons listed under the FOR
FURTHER INFORMATION CONTACT heading at the beginning of the preamble.
To find out more about SBREFA on the internet, visit <a href="https://www.faa.gov/regulations_policies/rulemaking/sbre_act/">https://www.faa.gov/regulations_policies/rulemaking/sbre_act/</a>.
List of Subjects in 14 CFR Part 91
Air traffic control, Aircraft, Airmen, Airports, Aviation safety,
Freight, Yemen.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends chapter I of title 14, Code of Federal
Regulations, as follows:
PART 91--GENERAL OPERATING AND FLIGHT RULES
0
1. The authority citation for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40113,
40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715,
44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122,
47508, 47528-47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49 U.S.C.
44703 note); articles 12 and 29 of the Convention on International
Civil Aviation (61 Stat. 1180), (126 Stat. 11).
0
2. Amend Sec. 91.1611 by revising paragraph (e) to read as follows:
Sec. 91.1611 Special Federal Aviation Regulation No. 115--
Prohibition Against Certain Flights in Specified Areas of the Sanaa
Flight Information Region (FIR) (OYSC).
* * * * *
(e) Expiration. This SFAR will remain in effect until January 7,
2025. The FAA may amend, rescind, or extend this SFAR, as necessary.
Issued in Washington, DC, under the authority of 49 U.S.C. 106(f)
and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), on or about
December 1, 2021.
Steve Dickson,
Administrator.
[FR Doc. 2021-26521 Filed 12-6-21; 8:45 am]
BILLING CODE 4910-13-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.