Rule2023-05390
Prohibition Against Certain Flights in the Territory and Airspace of Libya
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
March 21, 2023
Effective
March 17, 2023
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This action amends, with modifications to reflect changed conditions in the Tripoli Flight Information Region (FIR) (HLLL) and the associated risks to U.S. civil aviation safety, the prohibition against certain flight operations in the Tripoli FIR (HLLL) 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, with this final rule, the FAA removes the prohibition against U.S. civil aviation operations at altitudes below Flight Level (FL) 300 in those portions of the Tripoli FIR (HLLL) that are outside the territory and airspace of Libya. The FAA also republishes the approval process and exemption information for this SFAR consistent with other recently published flight prohibition SFARs. The FAA also modifies the title of the relevant section of the Code of Federal Regulations to reflect that the geographic scope of FAA's flight prohibition for U.S. civil aviation is now limited to the territory and airspace of Libya.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 54 (Tuesday, March 21, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 54 (Tuesday, March 21, 2023)]
[Rules and Regulations]
[Pages 16871-16878]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-05390]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. FAA-2011-0246; Amdt. No. 91-321F]
RIN 2120-AL79
Prohibition Against Certain Flights in the Territory and Airspace
of Libya
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action amends, with modifications to reflect changed
conditions in the Tripoli Flight Information Region (FIR) (HLLL) and
the associated risks to U.S. civil aviation safety, the prohibition
against certain flight operations in the Tripoli FIR (HLLL) 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,
with this final rule, the FAA removes the prohibition against U.S.
civil aviation operations at altitudes below Flight Level (FL) 300 in
[[Page 16872]]
those portions of the Tripoli FIR (HLLL) that are outside the territory
and airspace of Libya. The FAA also republishes the approval process
and exemption information for this SFAR consistent with other recently
published flight prohibition SFARs. The FAA also modifies the title of
the relevant section of the Code of Federal Regulations to reflect that
the geographic scope of FAA's flight prohibition for U.S. civil
aviation is now limited to the territory and airspace of Libya.
DATES: This final rule is effective on March 17, 2023.
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#55373c39397b25302127343e153334347b323a23"><span class="__cf_email__" data-cfemail="9efcf7f2f2b0eefbeaecfff5def8ffffb0f9f1e8">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This action amends SFAR No. 112, title 14 Code of Federal
Regulations (CFR), 91.1603, which currently prohibits certain U.S.
civil flight operations in the Tripoli FIR (HLLL) \1\ 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. This final rule contains
modifications to reflect changed conditions in the Tripoli FIR (HLLL)
and the associated risks to U.S. civil aviation safety. Specifically,
with this final rule, the FAA removes the prohibition against U.S.
civil aviation operations at altitudes below Flight Level (FL) 300 in
those portions of the Tripoli FIR (HLLL) that are outside the territory
and airspace of Libya. However, the FAA continues to prohibit U.S.
civil aviation operations at all altitudes in the territory and
airspace of Libya due to the significant, continuing unacceptable risks
to the safety of such operations from various armed groups' access to
advanced anti-aircraft weapon systems, airspace de-confliction
challenges, and ongoing, intermittent violence in Libya.
---------------------------------------------------------------------------
\1\ Articles 1 and 2 of the Convention on International Civil
Aviation (the ``Chicago Convention''), done at Chicago, December 7,
1944, and to which nearly all countries around the world are
parties, recognize that every country has complete and exclusive
sovereignty of the airspace above its territory, and defines the
term ``territory,'' for purposes of the Convention, as ``the land
areas and territorial waters adjacent thereto under the sovereignty,
suzerainty, protection or mandate of such [country].'' While there
are many potential nuances depending upon local geographic factors,
in most cases, the territorial sea of a country extends 12 nautical
miles from the coastal baselines of that country drawn in accordance
with international law. The Tripoli FIR (HLLL) includes the entire
territory and airspace of Libya, and extends north into
international airspace above the Gulf of Sidra. It also extends
south into a portion of the territory and airspace of Chad.
---------------------------------------------------------------------------
The FAA also extends the expiration date of this Special Federal
Aviation Regulation (SFAR) from March 20, 2023 until March 20, 2025.
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 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. 112, 14 CFR 91.1603, from conducting flight operations in the
territory and airspace of Libya due to the continuing 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,
unnecessary, and contrary to the public interest.
Providing notice and the opportunity for the public to comment here
would be contrary to the public interest. The FAA's flight
prohibitions, and any amendments thereto, need to include appropriate
boundaries that 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 or under-restricting U.S. operators'
routing options. However, 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 fighting, extremist and militant
activity, or periods of heightened tensions, particularly where weapons
capable of targeting or otherwise negatively affecting U.S. civil
aviation are or may be present. This fluidity, and 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. 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
weapon 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
[[Page 16873]]
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 Libya.
Alternatively, if the FAA made changes to the area in which U.S.
civil aviation operations would be prohibited between a notice of
proposed rulemaking and a final rule due to changed conditions, the
version of the rule the public commented on would no longer reflect the
FAA's current assessment of the risk environment for U.S. civil
aviation. In addition, some or all of the rationale for such changes
during the course of the rulemaking might be based upon classified
information or controlled unclassified information not authorized for
public release. The FAA's ability to notify the public of its reasoning
and respond to comments would necessarily be limited--thus rendering
such proceedings impracticable, unnecessary, and contrary to the public
interest.
Therefore, providing notice and the opportunity for comment would
be contrary to the public interest, as it would hinder FAA's ability to
maintain appropriate flight prohibitions based on up-to-date risk
assessments of the risks to the safety of U.S. civil aviation
operations in airspace managed by other countries.
For the same reasons discussed above, 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. For altitudes at or below FL300 in
those portions of the Tripoli FIR (HLLL) that are outside the territory
and airspace of Libya, any delay in the effective date of the rule
would continue a prohibition on U.S. civil aviation operations at those
altitudes that the FAA has determined is no longer needed for the
safety of U.S. civil aviation and would thus unnecessarily restrict
U.S. operators' routing options at those altitudes.
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 July 27, 2020, the FAA published a final rule in the Federal
Register prohibiting U.S. civil flight operations in the entirety of
the territory and airspace of Libya. That rule also prohibited U.S.
civil flight operations in those portions of the Tripoli FIR (HLLL)
outside the territory and airspace of Libya at altitudes below
FL300.\2\ The FAA assessed the area of unacceptable inadvertent risk to
U.S. civil aviation operations at all altitudes had spread to the
entire territory and airspace of Libya. This spread was due to the
geographic expansion of the ongoing conflict between the Tripoli-based
Government of National Accord (GNA) and the Tobruk-based Libyan
National Army (LNA) for control over Libya's government, territory, and
resources.
---------------------------------------------------------------------------
\2\ Prohibition Against Certain Flights in the Tripoli Flight
Information Region (FIR) (HLLL) final rule, 85 FR 45084 (Jul. 27,
2020).
---------------------------------------------------------------------------
Foreign state actors continued to provide material and technical
assistance to both the GNA and the LNA. This support involved third
party forces, as well as the deployment of advanced weapons, including
advanced fighter aircraft, weaponized unmanned aircraft systems (UAS),
surface-to-air missile (SAM) systems, and, likely, jammers. Both sides
had conducted air strikes, utilizing tactical combat aircraft and long-
range, armed UAS, to target airport infrastructure and aircraft on the
ground at airports. In May 2020, Russia deployed multiple fighter
aircraft to Libya to provide close air support to its private military
contractors and the LNA and protect their operations from attacks by
manned aircraft and weaponized UAS. The foreign states supporting the
LNA and GNA also deployed anti-aircraft weapons and self-protection
jamming systems to mitigate the air threat. The combination of these
activities posed airspace de-confliction concerns and an inadvertent
risk of in-flight engagement of civil aircraft as a result of possible
misidentification or miscalculation.
More advanced, higher-altitude air defense systems had also been
deployed to Libya. In addition to an SA-22 SAM system, a foreign
sponsor associated with the GNA had reportedly deployed multiple
variants of anti-aircraft weapons to provide a layered air defense in
Tripoli. This deployment included a medium range I-Hawk SAM and a
Korkut 35mm air defense gun.
The activities of the GNA and the LNA also presented risks to U.S.
civil aviation in the territory and airspace of Libya. Both the GNA and
the LNA possessed anti-aircraft artillery and MANPADS, some of which
have a maximum altitude of up to 25,000 feet (7,620 meters). As a
result of weapons activity posing a risk to civil aviation, the GNA
closed Mitiga International Airport (HLLM) on multiple occasions during
January and February 2020. LNA leader General Haftar announced on
January 23, 2020, that LNA forces would engage any military or civil
aircraft operating from Mitiga International Airport (HLLM). The FAA
was also concerned the GNA and the LNA might augment their air defense
operations with increased Global Positioning System (GPS) and radio
frequency jamming.
Collectively, the FAA assessed that the escalating fighting,
increased foreign intervention, and deployment of additional air
defense capabilities presented an increasing risk to U.S. civil
aviation operations in the territory and airspace of Libya at all
altitudes. For these reasons, the July 27, 2020 final rule incorporated
the flight prohibition on U.S civil aviation operations in the
territory and airspace of Libya at all altitudes, previously contained
in NOTAM KICZ A0026/19, into SFAR No. 112, Sec. 91.1603.
In addition, the FAA assessed that the hazards to the safety of
U.S. civil aviation operations at altitudes below FL 300 described in
the preamble to the March 2019 final rule remained of concern in those
portions of the Tripoli FIR (HLLL) that are outside the territory and
airspace of Libya.\3\ The FAA noted that foreign military manned and
unmanned tactical aircraft might operate or approach targets from off
the northern coast, presenting airspace de-confliction challenges at
altitudes below FL300. Additionally, there was the potential for GPS
interference bleed over that might impact flights operating over the
southern Mediterranean Sea in the Tripoli FIR (HLLL). For these
reasons, the July 27, 2020 final rule also continued the prohibition
against all flights by U.S. civil operators and airmen at altitudes
below FL300 in those portions of the Tripoli FIR (HLLL) outside the
territory and airspace of Libya.\4\
---------------------------------------------------------------------------
\3\ Amendment of the Prohibition Against Certain Flights in the
Tripoli Flight Information Region (FIR) (HLLL) final rule, 84 FR at
9952-9953 (Mar. 19, 2019).
\4\ For all of the reasons described in the preamble to the July
27, 2020 final rule, the FAA also extended the expiration date of
SFAR No. 112, Sec. 91.1603, until March 20, 2023. See Prohibition
Against Certain Flights in the Tripoli Flight Information Region
(FIR) (HLLL) final rule, 85 FR 45084 (Jul. 27, 2020).
---------------------------------------------------------------------------
[[Page 16874]]
IV. Discussion of the Final Rule
The FAA continues to assess the situation in the territory and
airspace of Libya as hazardous for U.S. civil aviation. Representatives
of the Libyan Army of the GNA and the LNA General Command of the Armed
Forces signed a United Nations-backed ceasefire agreement on October
23, 2020. Among other things, the October 23, 2020 ceasefire provided
for: an immediate ceasefire, effective upon signature of the agreement;
the departure of all mercenaries and foreign fighters from Libya,
including its land, air, and sea territory, within three months; and
the suspension of all military training agreements and departure of all
training crews until a new unified government assumed its functions.
Since the October 23, 2020 ceasefire agreement, combat operations
in Libya have significantly decreased, with only intermittent ground
clashes between opposing factions. In addition, Russian-backed Vagner
Group (also referred to as private military company (PMC) Wagner) has
reduced the number of its air defense systems and forces deployed in
Libya, with more than 1,300 Vagner personnel having departed the
country. However, protests and intermittent clashes between the various
armed factions in Libya continue. Unrest in the capital, in particular,
has been driven by militia infighting and multiple failed attempts by
the Government of National Stability (GNS) to enter Tripoli, and has
contributed to the lack of progress on key milestones set forth in the
ceasefire agreement. In particular, the provisions of the ceasefire
agreement relating to departure of all mercenaries and foreign fighters
from Libya and the suspension of all military training agreements and
departure of all training crews until the Government of National Unity
(GNU) assumed its functions have not been fully implemented. In June
and August 2022, the GNS attempted to enter Tripoli to seize control of
government offices and were met with protests and violence, including
armed clashes that resulted in the temporary suspension of flight
operations at Mitiga International Airport (HLLM).
Airspace de-confliction challenges also remain a safety-of-flight
concern in the territory and airspace of Libya. Various armed groups
operating in Libya continue to have access to advanced anti-aircraft
weapons systems. These groups likely lack comprehensive airspace
awareness sufficient to enable effective aircraft identification and
de-confliction of civil and military flights. These circumstances
create the potential for localized operational control and use of anti-
aircraft systems, rather than a coordinated air defense command and
control structure, posing an enduring inadvertent risk to civil
aviation operations in the territory and airspace of Libya. Forces
aligned with GNA and LNA can quickly increase force protection
measures, such as GPS jamming, air strikes, and the deployment of SAM
systems capable of reaching as high as 49,000 feet. In addition to
foreign-operated air defense capabilities, both GNA and LNA forces have
access to anti-aircraft artillery and advanced MANPADS, some of which
have a maximum altitude of 25,000 feet.
On August 22, 2022, LNA air defense forces claimed to have shot
down a U.S. MQ-9 UAS operating in the vicinity of Benghazi during a
period of increased tensions and threats of renewed violence between
competing militias vying for control of Tripoli. The MQ-9 was operating
in support of diplomatic engagements, and the operator had conducted
pre-mission coordination with Libyan authorities. While this incident
involved a military UAS, it is illustrative of the potential for
inadequate aircraft identification and de-confliction procedures
leading to an inadvertent shoot down, resulting in significant
casualties, and loss of an aircraft, if a civil aircraft carrying
passengers were mistakenly engaged.
In addition, despite a reduction in foreign presence, tensions in
Libya remain elevated, and warring factions in Libya and their
affiliated foreign sponsors maintain access to advanced weapons.
Tensions over the implementation of a unity government spiked violently
in March, June, and August 2022 in conjunction with GNU attempts to
enter Tripoli and assume control of national government functions. The
ensuing clashes between Libya's various armed factions included small
arms and indirect fire exchanges, causing temporary disruptions to
airport operations in the capital region. Within their respective
strongholds in various areas of the country, Libya's armed factions
have either gained access to, or have foreign sponsors equipped with,
tactical aircraft, long-range weaponized UAS, air defense systems, and
GPS jammers. Given the current tenuous security environment in Libya,
the FAA remains concerned about the continued risk of rapid escalation
involving these systems during spikes in tensions, which would pose
safety-of-flight risks to U.S. civil aviation outside the capital
region.
As a result of the significant, continuing unacceptable risks to
the safety of U.S. civil aviation operations at all altitudes in the
territory and airspace of Libya, the FAA maintains the prohibition on
U.S. civil aviation operations at all altitudes in the territory and
airspace of Libya and extends the expiration date of SFAR No. 112, 14
CFR 91.1603, from March 20, 2023, until March 20, 2025. Further
amendments to SFAR No. 112, 14 CFR 91.1603, 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 Libya.
The FAA assesses the risk to U.S. civil aviation operations in the
portions of the Tripoli FIR (HLLL) outside the territory and airspace
of Libya at altitudes below FL300 has diminished and the situation has
stabilized sufficiently to permit U.S. civil aviation operations to
resume in that airspace. Since the October 2020 ceasefire agreement,
foreign actors have significantly reduced weapons shipments and
military activities off the coast of Libya. Previously, these
activities included targeting suspected weapons shipments destined for
the opposing side or their foreign sponsors. As a result, the risk of
either side or their foreign sponsors misidentifying civil aircraft
operations in the overwater portion of the Tripoli FIR as carrying
weapons shipments destined for the other side or their foreign sponsors
and mistakenly targeting them has diminished. The reduction of
widespread conflict has also reduced the risk to U.S. civil aviation
operations in the small portion of the Tripoli FIR (HLLL) that extends
into Chad's territorial airspace. Therefore, due to the diminished
risks to the safety of U.S. civil aviation operations and stabilized
situation in those portions of the Tripoli FIR (HLLL) outside the
territory and airspace of Libya, the FAA amends SFAR No. 112, 14 CFR
91.1603, to remove the prohibition on U.S. civil aviation operations in
those areas.
The FAA 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. 112, Sec. 91.1603. The FAA also modifies the heading of SFAR
No. 112, 14 CFR 91.1603, in the CFR, to reflect the change in the
geographic scope of the FAA's flight prohibition for U.S.
[[Page 16875]]
civil aviation, which is now limited to the territory and airspace of
Libya.
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 Libya. 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. 112, 14 CFR 91.1603, 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 Libya, that department, agency, or instrumentality may
request the FAA to approve persons described in paragraph (a) of SFAR
No. 112, 14 CFR 91.1603, 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.\5\ 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).
---------------------------------------------------------------------------
\5\ 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.
---------------------------------------------------------------------------
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. 112, 14 CFR 91.1603, 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 Libya 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
Libya 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 Libya.
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 Libya. The approval conditions discussed below apply to
all operators. Requestors should send updated lists to the email
address they obtained from the Air Transportation Division by calling
(202) 267-8166.
If an approval request includes classified information or
controlled unclassified material 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. 112, 14 CFR 91.1603,
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 Libya; and
[[Page 16876]]
(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 Libya.
(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. Code.
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. 112, 14 CFR 91.1603. 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 standards described in 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
Libya 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 Libya 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. 112, 14 CFR 91.1603. 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. 112, 14 CFR 91.1603.
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. Severability
Congress authorized the FAA by statute to promote safe flight of
civil aircraft in air commerce by prescribing, among other things,
regulations and minimum standards for practices, methods, and
procedures the Administrator finds necessary for safety in air commerce
and national security. 49 U.S.C. 44701. Consistent with that mandate,
the FAA is prohibiting certain persons from conducting flight
operations in the territory and airspace of Libya due to the continuing
hazards to the safety of U.S. civil flight operations. The purpose of
this rule is to operate holistically in addressing a range of hazards
and needs in the territory and airspace of Libya. However, the FAA
recognizes that certain provisions focus on unique factors. Therefore,
the FAA finds that the various provisions of this final rule are
severable and able to operate functionally if severed from each other.
In the event a court were to invalidate one or more of this final
rule's unique provisions, the remaining provisions should stand, thus
allowing the FAA to continue to fulfill its Congressionally authorized
role of promoting safe flight of civil aircraft in air commerce.
VIII. 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
[[Page 16877]]
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 amends, with modifications to reflect changed
conditions in the Tripoli FIR (HLLL) and the associated risks to U.S.
civil aviation safety, the SFAR prohibiting certain U.S. civil flight
operations in the Tripoli FIR (HLLL). This action also extends the
expiration date of the SFAR for an additional two years. As a result of
this rule, U.S. civil operators and airmen may operate in those
portions of the Tripoli FIR (HLLL) outside the territory and airspace
of Libya at all altitudes, instead of being limited to conducting
flight operations in those portions of the Tripoli FIR (HLLL) outside
the territory and airspace of Libya at altitudes at or above FL300.
U.S. civil aviation operations in the territory and airspace of Libya
remain prohibited at all altitudes.
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 amendment of
this flight prohibition SFAR are minimal. By prohibiting unsafe
flights, the benefits of this rule will exceed the minimal flight
deviation costs. Therefore, the FAA finds that the incremental costs of
amending and extending SFAR No. 112, 14 CFR 91.1603, will be minimal
and are exceeded by the benefits of avoided risks 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 Libya.
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 Libya, 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.
IX. 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
[[Page 16878]]
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 Order 13609 and has determined that this action will have no
effect on international regulatory cooperation.
X. 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 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="http://www.faa.gov/regulations_policies/rulemaking/sbre_act/">http://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, Libya.
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. 91.1603 by revising the section heading and paragraphs
(b), (c), and (e) to read as follows:
Sec. 91.1603 Special Federal Aviation Regulation No. 112--Prohibition
Against Certain Flights in the Territory and Airspace of Libya.
* * * * *
(b) Flight prohibition. Except as provided in paragraphs (c) and
(d) of this section, no person described in paragraph (a) of this
section may conduct flight operations in the territory and airspace of
Libya.
(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 Libya, provided that such
flight operations occur 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
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 March 20,
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 March 13, 2023.
Billy Nolen,
Acting Administrator.
[FR Doc. 2023-05390 Filed 3-17-23; 11:15 am]
BILLING CODE 4910-13-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on March 21, 2023.
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.