Rule2022-28134
Prohibition Against Certain Flights in the Territory and Airspace of Somalia
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 27, 2022
Effective
December 27, 2022
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This action amends and extends the prohibition against certain flight operations in the territory and airspace of Somalia at altitudes below Flight Level 260 (FL260) 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 is amending the flight prohibition to permit overwater operations in the territory and airspace of Somalia at altitudes below FL260 to the extent necessary for climb-outs from, and descents into, Djibouti Ambouli International Airport (HDAM) in the Addis Ababa Flight Information Region (FIR) (HAAA), subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Djibouti and consistent with air traffic control instructions. Operators climbing out of or descending into Djibouti Ambouli International Airport (HDAM) must remain overwater while operating in the territorial airspace of Somalia at altitudes below FL260 and must operate either on a published instrument procedure or under the direction of air traffic control. The FAA determined the risk to the safety of such operations is low. However, due to increasing safety-of-flight risks to U.S. civil aviation in the rest of the territory and airspace of Somalia at altitudes below FL260 from extremist and militant activity, the FAA also extends the expiration date of this rule from January 7, 2023, until January 7, 2027. The FAA also republishes the approval process and exemption information for this Special Federal Aviation Regulation (SFAR), consistent with other recently published flight prohibition SFARs.
Full Text
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<title>Federal Register, Volume 87 Issue 247 (Tuesday, December 27, 2022)</title>
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[Federal Register Volume 87, Number 247 (Tuesday, December 27, 2022)]
[Rules and Regulations]
[Pages 79239-79245]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-28134]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. FAA-2007-27602; Amdt. No. 91-339C]
RIN 2120-AL78
Prohibition Against Certain Flights in the Territory and Airspace
of Somalia
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This action amends and extends the prohibition against certain
flight operations in the territory and airspace of Somalia at altitudes
below Flight Level 260 (FL260) 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 is amending the flight
prohibition to permit overwater operations in the territory and
airspace of Somalia at altitudes below FL260 to the extent necessary
for climb-outs from, and descents into, Djibouti Ambouli International
Airport (HDAM) in the Addis Ababa Flight Information Region (FIR)
(HAAA), subject to the approval of, and in accordance with the
conditions established by, the appropriate authorities of Djibouti and
consistent with air traffic control instructions. Operators climbing
out of or descending into Djibouti Ambouli International Airport (HDAM)
must remain overwater while operating in the territorial airspace of
Somalia at altitudes below FL260 and must operate either on a published
instrument procedure or under the direction of air traffic control. The
FAA determined the risk to the safety of such operations is low.
However, due to increasing safety-of-flight risks to U.S. civil
aviation in the rest of the territory and airspace of Somalia at
altitudes below FL260 from extremist and militant activity, the FAA
also extends the expiration date of this rule from January 7, 2023,
until January 7, 2027. The FAA also republishes the approval process
and exemption information for this Special Federal Aviation Regulation
(SFAR), consistent with other recently published flight prohibition
SFARs.
DATES: This final rule is effective on December 27, 2022.
FOR FURTHER INFORMATION CONTACT: Bill Petrak, 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#99fbf0f5f5b7e9fcedebf8f2d9fff8f8b7fef6ef"><span class="__cf_email__" data-cfemail="583a31343476283d2c2a3933183e3939763f372e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This action amends and extends SFAR No. 107, title 14 Code of
Federal Regulations (CFR) 91.1613, which prohibits certain flight
operations in the territory and airspace of Somalia at altitudes below
FL260 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, the FAA is amending the flight prohibition to permit
overwater operations in the territory and airspace of Somalia at
altitudes below FL260 necessary for climb-outs from, or descents into,
Djibouti Ambouli International Airport (HDAM) in the Addis Ababa FIR
(HAAA). These operations are subject to the approval of the appropriate
authorities of Djibouti and must be conducted in accordance with the
conditions established by those authorities and consistent with air
traffic control instructions. Operators climbing out of or descending
into Djibouti Ambouli International Airport (HDAM) must remain
overwater while operating in the territory and airspace of Somalia at
altitudes below FL260 and must be either on a published instrument
procedure or under the direction of air traffic control. Because
weapons systems to which extremist and/or militant groups active in
Somalia likely have access have minimal ranges from the coastline, and
aircraft using these approaches and departures would only briefly be
present in the territory and airspace of Somalia at altitudes below
FL260, the FAA determined such operations present a low risk.
However, the FAA has determined increasing safety-of-flight risks
exist for U.S. civil aviation operations in the rest of the territory
and airspace of Somalia at altitudes below FL260 from extremist and
militant activity, as described in the Discussion of the Final Rule
section of this preamble. For this reason, the FAA extends the
expiration date of this rule from January 7, 2023, until January 7,
2027. Consistent with other recently published flight prohibition
SFARs, this action also republishes the approval process and exemption
information for this flight prohibition SFAR.
II. Authority and Good Cause
A. Authority
The FAA is responsible for the safety of flight in the U.S. and for
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, U.S. 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
[[Page 79240]]
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 rule 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. 107, Sec. 91.1613, from conducting flight operations in the
territory and airspace of Somalia at altitudes below FL260 due to the
increasing hazards 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. Code, 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.'' Also, section 553(d)
permits agencies, upon a finding of good cause, to issue rules with an
effective date less than 30 days from the date of publication. In this
instance, the FAA finds good cause to forgo notice and comment and the
delayed effective date because they would be impracticable and contrary
to the public interest.
The risk environment for U.S. civil aviation in airspace managed by
other countries with respect to safety of flight is 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 periods of heightened tensions. This fluidity and the need
for the FAA to rely upon classified information and controlled
unclassified information not authorized for public release in assessing
these risks make providing notice and opportunity to comment
impracticable. 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 these rules and any amendments
are based upon classified information or controlled unclassified
information not authorized for public release, the FAA cannot share
such information with the general public. As a result, engaging in
notice and comment would be impracticable.
Additionally, it is in the public interest for the FAA's flight
prohibitions, and any amendments thereto, to reflect the agency's
current understanding of the risk environment for U.S. civil aviation
and set appropriate boundaries for the flight prohibition to minimize
such risks. This allows the FAA to protect the safety of U.S.
operators' aircraft and the lives of their passengers and crews without
over-restricting or under-restricting U.S. operators' routing options.
The delay that would be occasioned by providing an opportunity to
comment on this action would significantly increase the risk that the
resulting final action would not accurately reflect the current risks
to U.S. civil aviation associated with the situation and thus would not
establish boundaries for the flight prohibition commensurate with those
risks.
While the FAA sought and responded to public comments, the
boundaries of the area in which unacceptable risks to the safety of
U.S. civil aviation existed might change due to: evolving military or
political circumstances; extremist and militant group activity; the
introduction, removal, or repositioning of more advanced anti-aircraft
weapons systems; or other factors. As a result, if the situation
improved while the FAA sought and responded to public comments, the
rule the FAA finalized might be over-restrictive, unnecessarily
limiting U.S. operators' routing options and potentially causing them
to incur unnecessary additional fuel and operations-related costs, as
well as potentially causing passengers to incur unnecessarily some
costs attributed to their time. Conversely, if the situation
deteriorated while the FAA sought and responded to public comments, the
rule the FAA finalized might be under-restrictive, allowing U.S. civil
aviation to continue operating in areas where unacceptable risks to
their safety had developed. Such an outcome would endanger the safety
of these aircraft, as well as their passengers and crews, exposing them
to unacceptable risks of death, injury, and property damage that could
occur if a U.S. operator's aircraft were shot down (or otherwise
damaged) while operating in the territory and airspace of Somalia at
altitudes below FL260.
For the reasons previously described, engaging in notice and
comment for this rule would be impracticable and contrary to the public
interest. Similarly, the potential safety impacts and the need for
prompt action on up to date information that is not public would make
delaying the effective date 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
When the FAA last extended the rule prohibiting certain U.S. civil
flight operations in the territory and airspace of Somalia at altitudes
below FL260 in 2019,\1\ it assessed that the situation in the territory
and airspace of Somalia at altitudes below FL260 remained hazardous for
U.S. civil aviation operations due to the poor security environment and
fragile governance structure in Somalia, as well as the threat posed by
al-Shabaab, an al-Qa'ida-aligned extremist group, and other extremists/
militants. Al-Shabaab had demonstrated an intent and capabilities to
target civil aviation operations in the territory and airspace of
Somalia at altitudes below FL260 through a variety of means, including
the use of an insider to smuggle a concealed improvised explosive
device (IED) onto a civil aircraft, use of anti-aircraft-capable
weapons, and direct and indirect attacks on Somali airports. Al-Shabaab
had frequently targeted Aden Adde International Airport (HCMM) with
attacks using indirect fire, small-arms fire, and vehicle-borne IEDs.
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\1\ Extension of the Prohibition Against Certain Flights in the
Territory and Airspace of Somalia, 84 FR 67665, December 11, 2019.
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In addition, al-Shabaab also frequently conducted vehicle-borne IED
attacks targeting Western interests and public venues in Mogadishu,
including detonating vehicle-borne IEDs near malls (February 2019),
hotels (November 2018), and near a security checkpoint close to Aden
Adde International Airport (HCMM) (June 2019). Al-Shabaab was also
assessed to have access to anti-aircraft-capable weapons presenting a
risk to U.S. civil aviation operations at altitudes below FL260.
Furthermore, the Islamic State of Iraq and ash-Sham (ISIS) had a cell
trying to gain influence in Somalia, which presented another extremist
threat to Western interests, including civil aviation. The FAA was
concerned ISIS elements in Somalia might have access to anti-aircraft-
capable weapons.
In February 2019, the African Union Mission in Somalia (AMISOM)
began to draw down its forces, as its mandate was set to expire in
2020, and began
[[Page 79241]]
transferring security responsibilities back to Somalia. During the
AMISOM drawdown, the FAA assessed that al-Shabaab might attempt to
exploit vulnerabilities in Somali security and increase attacks on
remaining AMISOM bases and Western interests. For these reasons, the
FAA was concerned the risk to U.S. civil aviation operations might
increase as AMISOM continued its scheduled drawdown. As a result of the
significant continuing risks to the safety of U.S. civil aviation in
the territory and airspace of Somalia at altitudes below FL260, the FAA
extended the expiration date of SFAR No. 107, Sec. 91.1613, from
January 7, 2020 until January 7, 2023.
IV. Discussion of the Final Rule
While developing this final rule, the FAA became aware that certain
approaches and departures into and out of Djibouti Ambouli
International Airport (HDAM) in the Addis Ababa FIR (HAAA) require
flights using those approaches and departures to briefly transit
overwater portions of Somalia's territorial airspace \2\ at altitudes
below FL260. The FAA assessed the flightpaths used to conduct these
operations and determined the brief presence of U.S. civil aviation
overwater in the territory and airspace of Somalia at altitudes below
FL260 necessary to use these approaches and departures would present a
low risk. The risks to U.S. civil aviation operations in the territory
and airspace of Somalia at altitudes below FL260 from extremist and
militant activity are concentrated primarily on and over the land
territory of Somalia. Weapons systems to which extremist/militant
groups active in Somalia likely have access have minimal ranges from
the coastline. Therefore, the FAA is amending SFAR No. 107, Sec.
91.1613, to permit U.S. civil aviation operations to operate overwater
in the territory and airspace of Somalia at altitudes below FL260 to
the extent necessary to climb out of, or descend into, Djibouti Ambouli
International Airport (HDAM) in the Addis Ababa FIR (HAAA). These
operations are subject to the approval of the appropriate authorities
of Djibouti and must be conducted in accordance with the conditions
established by those authorities and consistent with air traffic
control instructions. Operators climbing out of or descending into
Djibouti Ambouli International Airport (HDAM) must remain overwater
while operating in the territory and airspace of Somalia at altitudes
below FL260 and must be either on a published instrument procedure or
under the direction of air traffic control.
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\2\ As a general matter, a country's territorial waters extend
12 nautical miles from its coastal baselines determined in
accordance with international law, and the airspace above a
country's territorial waters forms part of that country's
territorial airspace.
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The FAA assesses the situation in the rest of the territory and
airspace of Somalia at altitudes below FL260 as being increasingly
hazardous for U.S. civil aviation. Since mid-2020, the number,
lethality, and complexity of militant and/or extremist attacks has
continued to increase, posing increased risk concerns for U.S. civil
aviation operations in the territory and airspace of Somalia at
altitudes below FL260. The Government of Somalia remains challenged in
establishing security and governance in the country amidst economic
constraints and faces increased threats from militant and/or extremist
groups, particularly al-Shabaab.
Since the December 2019 final rule, AMISOM has reduced its forces
in Somalia and continues the process of restructuring its presence into
the African Union Transition Mission in Somalia (ATMIS). Al-Shabaab,
the primary threat to U.S. civil aviation operations in the territory
and airspace of Somalia at altitudes below FL260, has taken advantage
of security transitions and drawdowns to expand its influence and
attack operations. Al-Shabaab continues to demonstrate its intent and
various capabilities to conduct attacks on targets often collocated
with airports and against civil aviation. In 2022, al-Shabaab conducted
multiple high-profile attacks demonstrating its increasing capacity and
capability to conduct complex attacks throughout Somalia.
For example, during the first half of 2022, al-Shabaab frequently
targeted international forces and Government of Somalia electoral
venues located at Aden Adde International Airport (HCMM) using a
variety of capabilities and tactics, including rocket fire, small-arms
fire, and IEDs. These attacks often resulted in temporary flight
disruptions at Aden Adde International Airport (HCMM). In May 2022, al-
Shabaab successfully overran an African Union base at El Baraf,
resulting in significant casualties and al-Shabaab's seizure of various
weapons, including light anti-aircraft artillery weapon systems. In
August 2022, al-Shabaab claimed responsibility for an attack on a hotel
complex in Mogadishu frequented by Somali government officials.
Al-Shabaab and ISIS factions operating in Somalia likely have
access to a variety of weapons, including man-portable air defense
systems (MANPADS), heavy machine guns, rocket-propelled grenades
(RPGs), and small-arms. Some MANPADS may be capable of reaching a
maximum altitude of 25,000 feet above ground level (AGL), presenting a
risk to U.S. civil aviation operations in the territory and airspace of
Somalia at altitudes below FL260.
Additionally, al-Shabaab is working to further develop its
capabilities, including a weaponized unmanned aircraft systems (UAS)
capability. If this effort is successful, it would present further
increased safety-of-flight risks to aircraft operating at lower
altitudes in the vicinity of potentially targeted airports and
airfields and to aircraft on the ground at these locations, both as a
collision hazard and as a weapon system. Al-Shabaab has also expanded
its weapons procurement efforts and indigenous production of weapons,
increasing the quantity of weapons available for use in attacks.
In addition to extremist/militant activity, third-party forces--
operating in Somalia without adequate coordination with Somali aviation
authorities and a complete air picture present inadvertent risks to
U.S. civil aviation operations in the territory and airspace of Somalia
at altitudes below FL260. For example, international forces operating
in Somalia engaged civil aircraft with small-arms fire on at least two
occasions in 2020.
The FAA has determined, based on the enduring risks to U.S. civil
aviation operations in the territory and airspace of Somalia at
altitudes below FL260 described in this preamble, that four years is an
appropriate duration for this SFAR. Therefore, as a result of the
increasing unacceptable risk to the safety of U.S. civil aviation
operations in the territory and airspace of Somalia at altitudes below
FL260, the FAA extends the expiration date of SFAR No. 107, Sec.
91.1613, from January 7, 2023, until January 7, 2027.
Further amendments to SFAR No. 107, Sec. 91.1613, 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 territory and airspace
of Somalia at altitudes below FL260.
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. 107, Sec. 91.1613.
[[Page 79242]]
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 territory and airspace of Somalia at altitudes
below FL260. 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. 107, Sec. 91.1613, including a
U.S. air carrier or commercial operator, to transport civilian or
military passengers or cargo or conduct other operations in the
territory and airspace of Somalia at altitudes below FL260, that
department, agency, or instrumentality may request the FAA approve
persons described in paragraph (a) of SFAR No. 107, Sec. 91.1613, 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.\3\ 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 operator(s) to commence the proposed
operation(s).
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\3\ 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. 107, Sec. 91.1613, or for 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
territory and airspace of Somalia at altitudes below FL260 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
territory and airspace of Somalia at altitudes below FL260 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 territory and airspace of Somalia
at altitudes below FL260. 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 territory and airspace of Somalia at
altitudes below FL260. 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 or
controlled unclassified information not authorized for public release,
requestors may contact Aviation Safety Inspector Bill Petrak 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. 107, Sec. 91.1613,
does not relieve persons subject to this SFAR of the responsibility to
comply with all 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 territory and airspace of Somalia at
altitudes below FL260, unless climbing
[[Page 79243]]
out of or descending into Djibouti Ambouli International Airport while
remaining overwater in the territory and airspace of Somalia at
altitudes below FL260 and either on a published instrument procedure or
under the direction of air traffic control; 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 territory and airspace of Somalia at altitudes below
FL260, unless climbing out of or descending into Djibouti Ambouli
International Airport while remaining overwater in the territory and
airspace of Somalia at altitudes below FL260 and either on a published
instrument procedure or under the direction of air traffic control.
(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 49 U.S.C. chapter 443.
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. 107, Sec. 91.1613. 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 territory and airspace of
Somalia at altitudes below FL260 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 territory and airspace of
Somalia at altitudes below FL260 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 demonstrate 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. 107, Sec. 91.1613. 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. 107, Sec. 91.1613.
If a petition for exemption includes information that is sensitive
for security reasons or proprietary information, requestors may contact
Aviation Safety Inspector Bill Petrak 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
Federal agencies consider impacts of regulatory actions under a
variety of Executive orders and other requirements. 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 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 rule prohibits U.S. civil flights in the territory and
airspace of Somalia at altitudes below FL260 due to the significant,
increasing risks to the safety of U.S. civil aviation described in this
[[Page 79244]]
preamble. The alternative flight routes result in some additional fuel
and operations costs to the operators, as well as some costs attributed
to passenger time. Accordingly, the incremental costs of the extension
of this SFAR are minimal. By continuing to prohibit unsafe flights, the
benefits of this rule will exceed the minimal flight deviation costs.
Therefore, the FAA finds that the incremental costs of extending SFAR
No. 107, Sec. 91.1613, will be minimal and are exceeded by the
benefits of avoided risk of deaths, injuries, and property damage that
could occur if a U.S. operator's aircraft were shot down (or otherwise
damaged) while operating in the territory and airspace of Somalia at
altitudes below FL260.
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 territory and airspace
of Somalia at altitudes below FL260, 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 consistently 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.
The FAA has determined that this action will not have a significant
environmental effect abroad. 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 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
[[Page 79245]]
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 and controlled unclassified material not
authorized for public release, 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 section 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, Somalia.
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. 91.1613 by revising paragraphs (c) and (e) to read as
follows:
Sec. 91.1613 Special Federal Aviation Regulation No. 107--Prohibition
Against Certain Flights in the Territory and Airspace of Somalia.
* * * * *
(c) Permitted operations. This section does not prohibit persons
described in paragraph (a) of this section from conducting flight
operations in the territory and airspace of Somalia under the following
circumstances:
(1) Overflights of Somalia may be conducted at altitudes at or
above FL260 subject to the approval of, and in accordance with the
conditions established by, the appropriate authorities of Somalia.
(2) Aircraft departing from Djibouti Ambouli International Airport
(International Civil Aviation Organization (ICAO) code: HDAM) may
operate overwater in the territory and airspace of Somalia at altitudes
below FL260 only to the extent necessary to permit a climb during
takeoff if the operator of that aircraft:
(i) Receives any necessary approval from the appropriate
authorities of Djibouti;
(ii) Conducts operations that comply with applicable conditions
established by the appropriate authorities of Djibouti and air traffic
control instructions; and
(iii) Is either on a published instrument procedure or under the
direction of air traffic control.
(3) Aircraft descending into Djibouti Ambouli International Airport
(HDAM) may operate overwater at altitudes below FL260 in the territory
and airspace of Somalia only to the extent necessary to permit descent
for landing at Djibouti Ambouli International Airport (HDAM), if the
operator of that aircraft:
(i) Receives any necessary approval from the appropriate
authorities of Djibouti;
(ii) Conducts operations that comply with applicable conditions
established by the appropriate authorities of Djibouti and air traffic
control instructions; and
(iii) Is either on a published instrument procedure or under the
direction of air traffic control.
(4) Flight operations may be conducted in the territory and
airspace of Somalia at altitudes below FL260 if such flight operations
are conducted under a contract, grant, or cooperative agreement with a
department, agency, or instrumentality of the U.S. Government (or under
a subcontract between the prime contractor of the U.S. Government
department, agency, or instrumentality and the person described in
paragraph (a) of this section) with the approval of the FAA or under an
exemption issued by the FAA. The FAA will consider requests for
approval or exemption in a timely manner, with the order of preference
being: First, for those operations in support of U.S. Government-
sponsored activities; second, for those operations in support of
government-sponsored activities of a foreign country with the support
of a U.S. Government department, agency, or instrumentality; and third,
for all other operations.
* * * * *
(e) Expiration. This SFAR will remain in effect until January 7,
2027. 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).
Billy Nolen,
Acting Administrator.
[FR Doc. 2022-28134 Filed 12-23-22; 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.