Rule2023-15635
Prohibition Against Certain Flights in the Kabul Flight Information Region (FIR) (OAKX)
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
July 25, 2023
Effective
July 25, 2023
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This action prohibits certain flight operations in the Kabul Flight Information Region (FIR) (OAKX) at altitudes below Flight Level (FL) 320 by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when the operator of such aircraft is a foreign air carrier. The FAA finds this action necessary to address hazards to persons and aircraft engaged in such flight operations due to the risk posed by violent extremist and militant activity and the lack of adequate risk mitigation capabilities to counter such activity. However, the FAA has determined that U.S. civil overflights of the Kabul FIR (OAKX) at altitudes at and above FL320 may resume due to diminished risks to U.S. civil aviation operations at those altitudes. This action also provides information regarding the approval and exemption processes for this Special Federal Aviation Regulation (SFAR), consistent with other recently published flight prohibition SFARs.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 141 (Tuesday, July 25, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 141 (Tuesday, July 25, 2023)]
[Rules and Regulations]
[Pages 47765-47771]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15635]
[[Page 47765]]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. FAA-2023-1415; Amdt. No. 91-369]
RIN 2120-AL71
Prohibition Against Certain Flights in the Kabul Flight
Information Region (FIR) (OAKX)
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action prohibits certain flight operations in the Kabul
Flight Information Region (FIR) (OAKX) at altitudes below Flight Level
(FL) 320 by all: U.S. air carriers; U.S. commercial operators; persons
exercising the privileges of an airman certificate issued by the FAA,
except when such persons are operating U.S.-registered aircraft for a
foreign air carrier; and operators of U.S.-registered civil aircraft,
except when the operator of such aircraft is a foreign air carrier. The
FAA finds this action necessary to address hazards to persons and
aircraft engaged in such flight operations due to the risk posed by
violent extremist and militant activity and the lack of adequate risk
mitigation capabilities to counter such activity. However, the FAA has
determined that U.S. civil overflights of the Kabul FIR (OAKX) at
altitudes at and above FL320 may resume due to diminished risks to U.S.
civil aviation operations at those altitudes. This action also provides
information regarding the approval and exemption processes for this
Special Federal Aviation Regulation (SFAR), consistent with other
recently published flight prohibition SFARs.
DATES: This final rule is effective on July 25, 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#ff9d969393d18f9a8b8d9e94bf999e9ed1989089"><span class="__cf_email__" data-cfemail="6002090c0c4e10051412010b200601014e070f16">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This action prohibits certain flight operations in the Kabul FIR
(OAKX) at altitudes below FL320 by all: U.S. air carriers; U.S.
commercial operators; persons exercising the privileges of an airman
certificate issued by the FAA, except when such persons are operating
U.S.-registered aircraft for a foreign air carrier; and operators of
U.S.-registered civil aircraft, except when the operator of such
aircraft is a foreign air carrier. The FAA finds this action necessary
to address continuing significant hazards to persons and aircraft
engaged in such flight operations due to the risk posed by violent
extremist and militant activity and the lack of adequate risk
mitigation capabilities to counter such activity.
However, the FAA has determined that U.S. civil overflights of the
Kabul FIR (OAKX) at altitudes at and above FL320 may resume due to
diminished risks to U.S. civil aviation operations at those altitudes.
The FAA previously prohibited civil overflights of the Kabul FIR (OAKX)
at all altitudes, except for the use of jet routes P500-G500, under
Notice to Air Missions (NOTAM) KICZ A0029/21. Afghanistan has
promulgated contingency measures based upon internationally recognized
flight procedures and its published contingency plan. Afghanistan
developed this contingency plan in consultation with the International
Civil Aviation Organization (ICAO) and neighboring States. Consistent
with other recently published flight prohibition SFARs, this action
provides information about how to seek relief from this SFAR through
the approval and exemption processes, as applicable. This rule expires
on July 25, 2025.
II. Authority and Good Cause
A. Authority
The FAA is responsible for the safety of flight in the United
States 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
prohibits the persons described in paragraph (a) of SFAR No. 119, Sec.
91.1619, from conducting flight operations in the Kabul FIR (OAKX) at
altitudes below FL320 due to the continuing significant hazards to the
safety of U.S. civil flight operations at those altitudes, as described
in the preamble to this final rule.
B. Good Cause for Immediate Adoption
Section 553(b)(B) of title 5, U.S.C., authorizes agencies to
dispense with notice and comment procedures for rules when the agency
for ``good cause'' finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' 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.
Providing notice and the opportunity for the public to comment here
would be impracticable. 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 the safety of flight is
fluid in circumstances involving fighting, violent 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
[[Page 47766]]
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; violent 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 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 Kabul FIR
(OAKX) at altitudes below FL320.
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, seeking comment would be contrary to the public
interest because some of the rational basis for the rulemaking is based
upon classified information and controlled unclassified information not
authorized for public release. In order to meaningfully provide comment
on a proposal, the public would need access to the basis for the
agency's decision-making, which FAA cannot provide. Disclosing
classified or controlled unclassified information in order to seek
meaningful comment on the proposal would harm the public interest.
Accordingly, FAA meaningfully seeking comment on the proposal is
contrary to the public interest.
Therefore, providing notice and the opportunity for comment would
be impracticable as it would hinder the 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 and contrary to the public interest as FAA
cannot protect classified and controlled unclassified information and
meaningfully seek public comment.
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 and above FL320 in
the Kabul FIR (OAKX), except for transiting overflights on jet routes
P500-G500, 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
The Taliban's takeover of Afghanistan and the ongoing threat of
violent extremist organization (VEO) terrorist attacks, coupled with
the coalition force withdrawal from Kabul International Airport (ICAO:
OAKB),\1\ resulted in a substantially degraded safety and security
environment for U.S. civil aviation operations in the Kabul FIR (OAKX),
including at Kabul International Airport (OAKB). The withdrawal of
United States and coalition forces resulted in the removal of
associated risk mitigation capabilities previously deployed at Kabul
International Airport (OAKB). In addition, the absence of a functioning
civil aviation authority and air navigation service provider created an
unacceptable level of aviation safety risk for U.S. civil aviation
operations in the Kabul FIR (OAKX) at all altitudes, with the exception
of transiting overflight operations on jet routes P500-G500.
---------------------------------------------------------------------------
\1\ Between 2014 and late 2021, Kabul International Airport was
known as Hamid Karzai International Airport (ICAO code: OAKB). The
FAA has used the currently-recognized airport name throughout this
document, although certain references are to historical events that
occurred while the airport was named Hamid Karzai International
Airport.
---------------------------------------------------------------------------
After the Taliban took over the country, the security environment
in Afghanistan remained tenuous and complex and presented an enduring
safety and security risk to U.S. civil aviation operating in the Kabul
FIR (OAKX) at altitudes below FL260.\2\ Thousands of individuals had
been released from Afghan prisons, and various groups, including VEOs
outside of Taliban control, had seized large quantities of military
equipment. In addition, some VEOs operating in Afghanistan had
demonstrated their capability and willingness to target civil aviation,
as shown by attacks against Kabul International Airport (OAKB) during
late August 2021 and previous instances of surface-to-air fire against
U.S. Government-contracted aircraft over the course of the nearly 20-
year U.S. presence in Afghanistan. On August 26, 2021, the Islamic
State in Iraq and ash-Sham in Khorasan (ISIS-K) conducted a complex
attack against Kabul International Airport (OAKB), killing hundreds,
and, on August 30, 2021, ISIS-K employed indirect fire to target
evacuation operations at the airport. Additionally, ISIS-K conducted an
IED attack on a military security gate at Kabul International Airport
(OAKB) on January 1, 2023, killing several people. Military and civil
aircraft operating at lower altitudes had previously encountered
weapons activity, and the FAA was concerned further incidents might
occur from deliberate or inadvertent targeting that might endanger
flight operations.
---------------------------------------------------------------------------
\2\ While the background notice the FAA published for NOTAM KICZ
A0029/21 (available at <a href="https://www.faa.gov/air_traffic/publications/us_restrictions/#restrictAF">https://www.faa.gov/air_traffic/publications/us_restrictions/#restrictAF</a>) refers to FL260 in discussing these
threats, that reference did not take into account the high altitude
of some of Afghanistan's terrain. As described later in this
preamble, the use of FL320 in this final rule accounts for risks
associated with the capabilities of weapons systems potentially
available to VEOs and the terrain under established international
air routes in the Kabul FIR (OAKX).
---------------------------------------------------------------------------
The FAA assessed that civil aircraft operating at lower altitudes
might encounter direct or indirect surface-to-air fire threats,
including small-arms fire, rocket-propelled grenades, and low-altitude
anti-aircraft fire. The Taliban, ISIS-K, and other VEOs likely had
access to weapons, including small arms, automatic machine guns, anti-
aircraft artillery (AAA), anti-tank guided missiles (ATGMs), and
unmanned aircraft systems (UAS), which posed a risk to aircraft during
low-altitude flight operations, including the arrival and departure
phases of flight, and while on the ground at targeted airports and
airfields.
A limited threat also existed from the possible use of shoulder-
fired man-portable air defense systems (MANPADS), which may be capable
of reaching a maximum altitude of 25,000
[[Page 47767]]
feet above ground level (AGL). While the stockpile of MANPADS in
Afghanistan was limited, there were VEOs seeking to acquire this
capability. In the recent past, civil aircraft in Afghanistan had not
been targeted with MANPADS. Military aircraft had been infrequently
targeted with MANPADS since coalition operations in Afghanistan began
in 2001. Although the FAA assessed it was unlikely the Taliban would
target civil aviation in the Kabul FIR (OAKX) now that they had taken
over the country, ISIS-K and some other VEOs operating in Afghanistan
remained outside of Taliban control. The FAA assessed that ISIS-K and
other VEOs had varying capabilities, including potentially having
access to anti-aircraft weapons, including MANPADS.
In addition to the noted security risks, there was also an
increased safety risk to U.S. civil aviation operations in the Kabul
FIR (OAKX) at all altitudes. The Taliban takeover resulted in the lack
of a functioning civil aviation authority and air navigation service
provider. This included a lack of air traffic services (ATS)
capabilities necessary to support en-route services for overflight
operations without the implementation of appropriate contingency
measures to enable safe flight operations under those conditions. In
the immediate aftermath of the Taliban takeover, such contingency
measures were not in place.
Taken together, these circumstances posed an unacceptable risk to
the safety of U.S. civil aviation operations in the Kabul FIR (OAKX) at
all altitudes, except for transiting overflight operations on jet
routes P500-G500. To address these risks, on August 30, 2021, the FAA
issued NOTAM KICZ A0029/21. This NOTAM prohibited, with certain limited
exceptions, U.S. civil aviation operations in the Kabul FIR (OAKX) at
all altitudes 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, due to the risk posed by violent extremist and militant
activity, lack of adequate risk mitigation capabilities, and disruption
to air traffic services. The NOTAM allowed U.S. civil aviation
overflights to transit the Kabul FIR (OAKX) on jet routes P500-G500, as
such operations are only in the Kabul FIR (OAKX) very briefly.
IV. Discussion of the Final Rule
Following the Taliban takeover of Afghanistan, the ICAO Asia-
Pacific Office made contact with Afghanistan's civil aviation authority
and stood up a contingency coordination team (CCT) composed of
Afghanistan and neighboring air navigation service providers, as well
as International Air Transport Association (IATA) representation.
Afghanistan's civil aviation authority and the CCT worked with
neighboring air navigation service providers to establish a contingency
plan for the safe resumption of civil overflights in the Kabul FIR
(OAKX).
Subsequently, Afghanistan issued a series of NOTAMs delineating
overflight procedures and established altitude blocks for specific
categories of flight operations across various regions. The overflight
procedures rely upon internationally-recognized traffic information by
aircraft (TIBA) procedures, which pilots use in areas around the world
where air traffic services are very limited or unavailable to maintain
safe separation between aircraft. Consequently, the FAA has determined
that U.S. civil aviation operations in the Kabul FIR (OAKX) may resume
at altitudes at or above FL320 due to diminished risks to U.S. civil
aviation operations at those altitudes.
However, the FAA continues to assess the situation in the Kabul FIR
(OAKX) at altitudes below FL320 as being hazardous for U.S. civil
aviation. Following the Taliban takeover of the country and the
withdrawal of coalition forces, the Taliban have struggled to ensure
security throughout Afghanistan. The Taliban face increasing attacks
from ISIS-K, who have also threatened Western and international
interests in the country. During the first half of 2022, ISIS-K
conducted multiple attacks, in part in an effort to frustrate Taliban
attempts to normalize relations with the international community. One
incident of note took place in June 2022, in which ISIS-K attacked a
bus serving Mazar-I-Sharif Airport (ICAO: OAMS), killing two airport
workers.
The Taliban, ISIS-K, and other VEOs likely had and potentially
maintain access to a variety of weapons, including small arms,
automatic machine guns, AAA, ATGMs, and UAS, posing an ongoing risk to
civil aircraft during low-altitude flight operations, including the
arrival and departure phases of flight, and while on the ground at
targeted airports and airfields. Possible VEO use of shoulder-fired
MANPADS also remains a concern. While the stockpile of MANPADS in
Afghanistan remains limited, VEOs continue to seek to acquire this
capability. Some MANPADS may be capable of reaching a maximum altitude
of 25,000 feet AGL; however, in the context of Afghanistan, the FAA
must also account for the high altitude of some of the country's
terrain. Allowing U.S. civil aviation operations in the Kabul FIR
(OAKX) only at altitudes at or above FL320 accounts for risks
associated with the capabilities of weapons systems potentially
available to VEOs and the terrain under established international air
routes in the Kabul FIR (OAKX).\3\
---------------------------------------------------------------------------
\3\ As defined in 14 CFR 1.1, ``Flight level means a level of
constant atmospheric pressure related to a reference datum of 29.92
inches of mercury.'' Flight level, in this context, is
differentiated from above-ground-level (AGL), which is altitude
expressed in feet measured above ground level.
---------------------------------------------------------------------------
In addition, VEOs active in Afghanistan have increased cross-border
attacks into Pakistan, drawing Pakistani air strikes against targets in
Afghanistan in response. In mid-April 2022, Pakistani airstrikes in
eastern Afghanistan reportedly killed 47 civilians. Pakistan likely
does not coordinate cross-border tactical military airstrikes with the
Afghan civil aviation authority to de-conflict them with civil air
traffic. Pakistan likely conducts such tactical military operations at
altitudes below FL320.
Therefore, as a result of the remaining unacceptable risks to U.S.
civil aviation operations in the Kabul FIR (OAKX) at altitudes below
FL320 and the likelihood the risk concerns will endure, the FAA
promulgates this final rule to incorporate a prohibition on U.S. civil
aviation operations at those altitudes into the Code of Federal
Regulations (CFR). The FAA will continue to monitor the situation and
evaluate the extent to which U.S. civil operators and airmen might be
able to operate safely in the Kabul FIR (OAKX) at altitudes below
FL320. Amendments to SFAR No. 119, Sec. 91.1619, could be appropriate
if the risk to aviation safety and security changes. The FAA may amend
or rescind SFAR No. 119, Sec. 91.1619, as necessary, prior to its
expiration date.
The FAA is also publishing the details concerning the approval and
exemption processes in Sections V and VI of this preamble to enable
interested persons to refer to this final rule for all relevant
information about seeking relief from SFAR No. 119, Sec. 91.1619.
[[Page 47768]]
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 Kabul FIR (OAKX) at altitudes below FL320. 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. 119, Sec. 91.1619, including a U.S. air
carrier or commercial operator, to transport civilian or military
passengers or cargo or conduct other operations in the Kabul FIR (OAKX)
at altitudes below FL320, that department, agency, or instrumentality
may request the FAA to approve persons described in paragraph (a) of
SFAR No. 119, Sec. 91.1619, to conduct such operations.
The requesting U.S. Government department, agency, or
instrumentality must submit the request for approval to the FAA's
Associate Administrator for Aviation Safety in a letter signed by an
appropriate senior official of the requesting department, agency, or
instrumentality.\4\ The FAA will not accept or consider requests for
approval from anyone other than the requesting U.S. Government
department, agency, or instrumentality. In addition, the senior
official signing the letter requesting FAA approval must be
sufficiently positioned within the requesting department, agency, or
instrumentality to demonstrate that the organization's senior
leadership supports the request for approval and is committed to taking
all necessary steps to minimize aviation safety and security risks to
the proposed flights. The senior official must also be in a position to
(1) attest to the accuracy of all representations made to the FAA in
the request for approval and (2) ensure that any support from the
requesting U.S. Government department, agency, or instrumentality
described in the request for approval is in fact brought to bear and is
maintained over time. Unless justified by exigent circumstances,
requesting U.S. Government departments, agencies, or instrumentalities
must submit requests for approval to the FAA no less than 30 calendar
days before the date on which the requesting department, agency, or
instrumentality wishes the operator(s) to commence the proposed
operation(s).
---------------------------------------------------------------------------
\4\ This approval procedure applies to U.S. Government
departments, agencies, or instrumentalities; it does not apply to
the public. The FAA describes this procedure in the interest of
providing transparency with respect to the FAA's process for
interacting with U.S. Government departments, agencies, or
instrumentalities that seek to engage U.S. civil aviation to operate
in the area in which this SFAR would prohibit their operations in
the absence of specific FAA approval.
---------------------------------------------------------------------------
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. 119, Sec. 91.1619, 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 Kabul
FIR (OAKX) at altitudes below FL320 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 Kabul FIR (OAKX) at
altitudes below FL320 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 Kabul FIR (OAKX) at altitudes
below FL320. 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 Kabul FIR (OAKX) at altitudes below FL320. 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 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. 119, Sec. 91.1619,
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 Kabul FIR (OAKX) at altitudes below FL320;
and
(b) The operator's written agreement to indemnify the U.S.
Government with respect to any and all third-party
[[Page 47769]]
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 Kabul FIR (OAKX) at altitudes below
FL320.
(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. 119, Sec. 91.1619. A
petition for exemption must comply with 14 CFR part 11. The FAA will
consider whether exceptional circumstances exist beyond those the
approval process described in the previous section contemplates. 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 Kabul FIR (OAKX) at
altitudes below FL320 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 Kabul FIR (OAKX) at altitudes
below FL320 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 the exemption
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 SFAR No.
119, Sec. 91.1619, affects. 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. 119, Sec. 91.1619.
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 Kabul FIR (OAKX) at altitudes below FL320 due to the
continuing significant risks 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 Kabul FIR (OAKX) at
altitudes below FL320. 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.
VII. Regulatory Notices and Analyses
Federal agencies consider impacts of regulatory actions under a
variety of executive orders and other requirements. First, Executive
Order 12866 and Executive Order 13563, as amended by Executive Order
14094 (``Modernizing Regulatory Review''), direct that each Federal
agency shall propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354),
as codified in 5 U.S.C. 603 et seq., requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act of 1979 (Pub. L. 96-39), as codified in 19 U.S.C.
chapter 13, prohibits agencies from setting standards that create
unnecessary obstacles to the foreign commerce of the United States. In
developing U.S. standards, the Trade Agreements Act requires agencies
to consider international standards and, where appropriate, that they
be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform
Act of 1995 (Pub. L. 104-4), as codified in 2 U.S.C. chapter 25,
requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
Tribal governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation with base year of
1995). This portion of the preamble summarizes the FAA's analysis of
the economic impacts of this final rule.
In conducting these analyses, the FAA has determined this final
rule has benefits that justify its costs. This rule is a significant
regulatory action, as defined in section 3(f) of Executive Order 12866,
as it raises novel policy issues contemplated under that
[[Page 47770]]
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 Kabul FIR (OAKX) at
altitudes below FL320 as a result of the continuing significant risks
to U.S. civil aviation detailed in the preamble of this final rule.
Overflights of the Kabul FIR (OAKX) may be conducted at altitudes at
and above FL320. The FAA acknowledges this flight prohibition may
result in additional costs to some U.S. operators, such as increased
fuel costs and other operational-related costs, as well as some costs
attributed to passenger time. However, the FAA expects the benefits of
this action to exceed the costs because it will result in the avoidance
of risks of fatalities, injuries, and property damage that could result
from a U.S. operator's aircraft being shot down (or otherwise damaged)
while operating in the Kabul FIR (OAKX) at altitudes below FL320.
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 Kabul FIR (OAKX) at
altitudes below FL320, a location outside the United States. 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 $165 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
that 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 ICAO
Standards and Recommended Practices to the maximum extent practicable.
The FAA has determined no ICAO Standards and Recommended Practices
correspond to this regulation. The FAA finds this action is fully
consistent with the obligations under 49 U.S.C. 40105(b)(1)(A) to
ensure the FAA exercises its duties consistent with the obligations of
the United States under international agreements.
While the FAA's flight prohibition does not apply to foreign air
carriers, DOT codeshare authorizations prohibit foreign air carriers
from carrying a U.S. codeshare partner's code on a flight segment that
operates in airspace for which the FAA has issued a flight prohibition
for U.S. civil aviation. In addition, foreign air carriers and other
foreign operators may choose to avoid, or be advised or directed by
their civil aviation authorities to avoid, airspace for which the FAA
has issued a flight prohibition for U.S. civil aviation.
G. Environmental Analysis
The FAA has analyzed this action under Executive Order 12114,
Environmental Effects Abroad of Major Federal Actions, and DOT Order
5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be
informed of environmental considerations and take those considerations
into account when making decisions on major Federal actions that could
have environmental impacts anywhere beyond the borders of the United
States. The FAA has determined this action is exempt pursuant to
Section 2-5(a)(i) of Executive Order 12114 because it does not have the
potential for a significant effect on the environment outside the
United States.
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
[[Page 47771]]
significant adverse effect on the supply, distribution, or use of
energy.
C. Executive Order 13609, Promoting International Regulatory
Cooperation
Executive Order 13609 promotes international regulatory cooperation
to meet shared challenges involving health, safety, labor, security,
environmental, and other issues and to reduce, eliminate, or prevent
unnecessary differences in regulatory requirements. The FAA has
analyzed this action under the policies and agency responsibilities of
Executive Order 13609 and has determined that this action will have no
effect on international regulatory cooperation.
IX. Additional Information
A. Electronic Access
Except for classified 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 on 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.
Interested persons must identify the docket or amendment 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
Afghanistan, Air traffic control, Aircraft, Airmen, Airports,
Aviation safety, Freight.
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. Add Sec. 91.1619 to read as follows:
Sec. 91.1619 Special Federal Aviation Regulation No. 119--Prohibition
Against Certain Flights in the Kabul Flight Information Region (FIR)
(OAKX).
(a) Applicability. This Special Federal Aviation Regulation (SFAR)
applies to the following persons:
(1) All U.S. air carriers and U.S. commercial operators;
(2) All 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
(3) All operators of U.S.-registered civil aircraft, except when
the operator of such aircraft is a foreign air carrier.
(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 Kabul Flight Information
Region (FIR) (OAKX).
(c) Permitted operations. This section does not prohibit persons
described in paragraph (a) of this section from conducting flight
operations in the Kabul Flight Information Region (FIR) (OAKX) under
the following circumstances:
(1) Overflights of the Kabul Flight Information Region (FIR) (OAKX)
may be conducted at altitudes at and above Flight Level (FL) 320,
subject to the approval of, and in accordance with the conditions
established by, the appropriate authorities of Afghanistan.
(2) Flight operations may be conducted in the Kabul Flight
Information Region (FIR) (OAKX) at altitudes below FL320, 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
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.
(d) Emergency situations. In an emergency that requires immediate
decision and action for the safety of the flight, the pilot in command
of an aircraft may deviate from this section to the extent required by
that emergency. Except for U.S. air carriers and commercial operators
that are subject to the requirements of 14 CFR part 119, 121, 125, or
135, each person who deviates from this section must, within 10 days of
the deviation, excluding Saturdays, Sundays, and Federal holidays,
submit to the responsible Flight Standards Office a complete report of
the operations of the aircraft involved in the deviation, including a
description of the deviation and the reasons for it.
(e) Expiration. This SFAR will remain in effect until July 25,
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).
Polly Trottenberg,
Acting Administrator.
[FR Doc. 2023-15635 Filed 7-24-23; 8:45 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 July 25, 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.