Rule2024-14708
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 5, 2024
Effective
July 5, 2024
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
The Federal Aviation Administration (FAA) is issuing this final rule to permit 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, to operate transiting overflights of the Kabul Flight Information Region (FIR) (OAKX) on jet routes P500-G500 at altitudes at and above Flight Level (FL) 300, subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Afghanistan. The FAA became aware that certain U.S. operators were having difficulty using jet routes P500-G500 in the Kabul FIR (OAKX) at altitudes at and above FL320 due to aircraft performance issues under certain meteorological conditions. After consideration of Afghanistan's practice of publishing Notices to Air Missions (NOTAMs) regarding overflights on these jet routes, the lack of any reported security incidents posing safety-of-flight risks to civil aircraft overflights on these jet routes since the FAA issued this Special Federal Aviation Regulation (SFAR) in July 2023 or while the FAA flight prohibition NOTAM that preceded it was in effect, and the very brief period of time U.S. civil aviation overflights on these jet routes would be in the Kabul FIR (OAKX), the FAA has determined transiting U.S. civil aviation overflights operating on jet routes P500-G500 in the Kabul FIR (OAKX) at altitudes at and above FL300 present a low risk. The FAA continues to prohibit U.S. civil aviation operations in the remainder of the Kabul FIR (OAKX) at altitudes below FL320 due to hazards to persons and aircraft engaged in operations at those altitudes due to the risk posed by violent extremist and militant activity and the lack of adequate risk mitigation capabilities to counter such activity.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 129 (Friday, July 5, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 129 (Friday, July 5, 2024)]
[Rules and Regulations]
[Pages 55500-55507]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-14708]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. FAA-2023-1415; Amdt. No. 91-369A]
RIN 2120-AL99
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: The Federal Aviation Administration (FAA) is issuing this
final rule to permit 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, to operate transiting overflights of the Kabul Flight
Information Region (FIR) (OAKX) on jet routes P500-G500 at altitudes at
and above Flight Level (FL) 300, subject to the approval of, and in
accordance with the conditions established by, the appropriate
authorities of Afghanistan. The FAA became aware that certain U.S.
operators were having difficulty using jet routes P500-G500 in the
Kabul FIR (OAKX) at altitudes at and above FL320 due to aircraft
performance issues under certain meteorological conditions. After
consideration of Afghanistan's practice of publishing Notices to Air
Missions (NOTAMs) regarding overflights on these jet routes, the lack
of any reported security incidents posing safety-of-flight risks to
civil aircraft overflights on these jet routes since the FAA issued
this Special Federal Aviation Regulation (SFAR) in July 2023 or while
the FAA flight prohibition NOTAM that preceded it was in effect, and
the very brief period of time U.S. civil aviation overflights on these
jet routes would be in the Kabul FIR (OAKX), the FAA has determined
transiting U.S. civil aviation overflights operating on jet routes
P500-G500 in the Kabul FIR (OAKX) at altitudes at and above FL300
present a low risk. The FAA continues to prohibit U.S. civil aviation
operations in the remainder of the Kabul FIR (OAKX) at altitudes below
FL320 due to hazards to persons and aircraft engaged in operations at
those altitudes due to the risk posed by violent extremist and militant
activity and the lack of adequate risk mitigation capabilities to
counter such activity.
DATES: This final rule is effective on July 5, 2024.
FOR FURTHER INFORMATION CONTACT: Bill Petrak, Flight Standards Service,
through the Washington Operations Center, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591;
telephone (202) 267-3203; email <a href="/cdn-cgi/l/email-protection#9ba2b6dddadab6d4edfee9e8fefae8ddf7f2fcf3efcbe9f4f3f2f9f2eff2f4f5e8dbfdfafab5fcf4ed"><span class="__cf_email__" data-cfemail="b58c98f3f4f498fac3d0c7c6d0d4c6f3d9dcd2ddc1e5c7dadddcd7dcc1dcdadbc6f5d3d4d49bd2dac3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This action amends Special Federal Aviation Regulation (SFAR) No.
119, 14 CFR 91.1619, to permit U.S. civil aviation airmen and operators
to conduct transiting overflights of the Kabul FIR (OAKX) on jet routes
P500-G500 at altitudes at and above FL300, subject to the approval of,
and in accordance with the conditions established by, the appropriate
authorities of Afghanistan.
On July 25, 2023, the Federal Aviation Administration (FAA)
published a final rule in the Federal Register to prohibit 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. In that final
rule, the FAA determined that U.S. civil aviation overflights of the
Kabul FIR (OAKX) at altitudes at and above FL320 could resume due to
diminished risks to U.S. civil aviation operations at those altitudes.
Subsequently, the FAA became aware that certain U.S. operators were
having difficulty using jet routes P500-G500 in the Kabul FIR (OAKX) at
altitudes at and above FL320 due to aircraft performance issues under
certain meteorological conditions. After consideration of Afghanistan's
practice of publishing NOTAMs regarding overflights on these jet
routes, the lack of any reported security incidents posing safety-of-
flight risks to civil aircraft overflights on these jet routes since
the FAA issued SFAR No. 119, 14 CFR 91.1619, in July 2023 or while the
FAA flight prohibition NOTAM that preceded it was in effect, and the
very brief period of time U.S. civil aviation overflights on these jet
routes, on which the minimum en route altitude is FL300, would be in
the Kabul FIR (OAKX), the FAA assesses the risk to the safety of
transiting U.S. civil aviation overflights operating on jet routes
P500-G500 in the Kabul FIR (OAKX) at altitudes at and above FL300 is
low. Under the FAA flight prohibition NOTAM preceding the July 2023
final rule, the FAA had previously permitted U.S. civil aviation to
conduct transiting overflight operations in the Kabul FIR (OAKX) on jet
routes P500-G500. The FAA
[[Page 55501]]
continues to prohibit U.S. civil aviation operations in the remainder
of the Kabul FIR (OAKX) at altitudes below FL320 due to hazards to
persons and aircraft engaged in operations at those altitudes due to
the risk posed by violent extremist and militant activity and the lack
of adequate risk mitigation capabilities to counter such activity.
Therefore, the FAA is issuing this final rule to permit U.S. civil
aviation to operate transiting overflights of the Kabul FIR (OAKX) on
jet routes P500-G500 at altitudes at and above FL300, subject to the
approval of, and in accordance with the conditions established by, the
appropriate authorities of Afghanistan.
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
provides relief to U.S. civil aviation operators and airmen conducting
transiting overflights of the Kabul FIR (OAKX) on jet routes P500-G500,
permitting those persons to operate at altitudes at and above FL300,
instead of at altitudes at and above FL320, as is required for
operations conducted in the rest of the Kabul FIR (OAKX).
B. Good Cause for Immediate Adoption
Section 553(b)(B) of title 5, U.S. Code, authorizes agencies to
dispense with notice and comment procedures for rules when the agency
for ``good cause'' finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' Also, section 553(d)
permits agencies, upon a finding of good cause, to issue rules with an
effective date less than 30 days from the date of publication. In this
instance, the FAA finds good cause to forgo notice and comment and the
delayed effective date because they would be impracticable and contrary
to the public interest.
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 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 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).
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 the FAA cannot provide. Disclosing
classified or controlled unclassified information in order to seek
meaningful comment on the proposal would harm the public interest.
Accordingly, the 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 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 the
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
[[Page 55502]]
interest. Additionally, for transiting overflights of the Kabul FIR
(OAKX) on jet routes P500-G500 at altitudes at and above FL300, any
delay in the effective date of the rule would continue a prohibition on
U.S. civil aviation operations on these jet routes at altitudes at and
above FL300 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 on those jet routes.
Accordingly, the FAA finds good cause exists to forgo notice and
comment and any delay in the effective date for this rule.
III. Background and Discussion of the Final Rule
On August 30, 2021, the FAA issued NOTAM KICZ A0029/21 to address
the then-existing unacceptable risks 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. 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
all 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.
Following the Taliban takeover of Afghanistan, the International
Civil Aviation Organization (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
broadcasts 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 determined that U.S. civil aviation operations throughout the
Kabul FIR (OAKX) could resume at altitudes at and above FL320 due to
diminished risks to U.S. civil aviation operations at those altitudes.
On July 25, 2023, the FAA published in the Federal Register a final
rule, Prohibition Against Certain Flights in the Kabul Flight
Information Region (FIR) (OAKX), allowing U.S. civil overflights of the
Kabul FIR (OAKX) to resume at altitudes at and above FL320.\1\ However,
as described in more detail in the preamble to the July 2023 final
rule, the FAA continued to assess the situation in the Kabul FIR (OAKX)
at altitudes below FL320 as being hazardous for U.S. civil aviation and
prohibited U.S. civil aviation operations at those altitudes.
---------------------------------------------------------------------------
\1\ Prohibition Against Certain Flights in the Kabul Flight
Information Region (FIR) (OAKX) final rule, 88 FR 47765 (Jul. 25,
2023). The FAA had prohibited U.S. civil flight operations at all
altitudes in the Kabul FIR (OAKX) in NOTAM KICZ A0029/21, except for
transiting overflights on jet routes P500-G500. With the publication
of the July 2023 final rule, the FAA rescinded NOTAM KICZ A0029/21.
---------------------------------------------------------------------------
Although the FAA did not identify or assess that there existed any
increased safety-of-flight risks to transiting U.S. civil aviation
overflights operating on jet routes P500-G500 due to violent extremist
or militant activity, the FAA prohibited operations on those routes at
altitudes below FL320 in the July 2023 final rule because the Kabul FIR
Air Traffic Management Contingency Plan indicates that, as necessary,
FL300 may be reserved for military operations by NOTAM. Consequently,
the FAA decided to establish a minimum allowed overflight level of
FL320 for U.S. civil aviation operations in the entirety of the Kabul
FIR (OAKX) to help ensure aircraft separation between any military
operations being conducted in the Kabul FIR (OAKX) at FL300 and U.S.
civil aviation overflights.
Since it issued the July 2023 final rule, the FAA has received two
petitions for exemption from SFAR No. 119, Sec. 91.1619, from U.S. air
carriers requesting to operate on jet routes P500-G500 at altitudes at
and above FL300 instead of at altitudes at and above FL320 as required
by SFAR No. 119, Sec. 91.1619, due to aircraft performance issues
under certain meteorological conditions.<SUP>2 3</SUP>
---------------------------------------------------------------------------
\2\ American Airlines, docket FAA-2023-1985.
\3\ United Parcel Service, Co., docket FAA-2023-2065.
---------------------------------------------------------------------------
Since the publication of the Kabul FIR Air Traffic Management
Contingency Plan and continuing since the FAA issued the July 2023
final rule, Afghanistan has issued a series of NOTAMs permitting
overflight operations between waypoints FIRUZ and MOTMO on jet routes
P500-G500 at altitudes between FL300-FL510. The FAA is not aware of any
safety or security incidents experienced by civil aircraft operating on
jet routes P500-G500 in the Kabul FIR (OAKX) at altitudes at or above
FL300 due to military flight operations while FAA NOTAM KICZ A0029/21,
which permitted U.S. civil aviation operations on that route, was in
effect or since the July 2023 final rule. In addition, the FAA is not
aware of any active threats to U.S. civil aviation operations on jet
routes P500-G500 in the Kabul FIR (OAKX) from violent extremist and
militant activity and is not aware of any reports of security incidents
involving violent extremist and militant activity posing safety-of-
flight risks to civil aircraft overflights using these jet routes at
altitudes at or above FL300 in the Kabul FIR (OAKX), either while FAA
NOTAM KICZ A0029/21 was in effect or since the issuance of the July
2023 final rule. The very limited flight time in the Kabul FIR (OAKX)
minimizes both potential exposure to any military operations in the
Kabul FIR (OAKX) that might be operating at FL300 and to potential
opportunistic threats should a violent extremist observe or hear an
overflying aircraft. Specifically, the flight distance between
waypoints FIRUZ and MOTMO on jet routes P500-G500 is approximately 12
nautical miles, which takes approximately 95 seconds at cruising
speeds.
Consequently, the FAA has determined that U.S. civil aviation
overflights of the Kabul FIR (OAKX) at altitudes at and above FL300 on
jet routes P500-G500 present a low risk. Although violent extremists
and militants have access to weapons posing risks up to 25,000 feet,
and there is high terrain in the vicinity of jet routes P500-G500, the
FAA did not see such weapons used against civil aviation overflights on
these jet routes during approximately 20 years of U.S. military
presence in Afghanistan or since the coalition withdrawal in August of
2021.
Therefore, consistent with the foregoing, the FAA is amending SFAR
No. 119, Sec. 91.1619, to permit U.S. civil
[[Page 55503]]
aviation to conduct transiting overflights of the Kabul FIR (OAKX) on
jet routes P500-G500 at altitudes at and above FL300, subject to the
approval of, and in accordance with the conditions established by, the
appropriate authorities of Afghanistan.
However, this final rule continues to prohibit U.S. civil flight
operations at altitudes below FL320 throughout the rest of the Kabul
FIR (OAKX). Violent extremist and militant activities continue to pose
safety-of-flight risks to U.S. civil aviation at altitudes below FL320
throughout the rest of Afghanistan. Violent extremists and militants
are primarily armed with small arms, crew-served weapons, and field
rockets and may have access to legacy man-portable air defense systems
(MANPADS). Some MANPADS may be capable of reaching a maximum altitude
of up to 25,000 feet above ground level; 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, other than on jet
routes P500-G500, accounts for risks associated with the capabilities
of weapons systems potentially available to violent extremist
organizations and the terrain under other established international air
routes in the Kabul FIR (OAKX).\4\
---------------------------------------------------------------------------
\4\ 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.
---------------------------------------------------------------------------
Further amendments to SFAR No. 119, Sec. 91.1619, 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 Kabul FIR (OAKX).
The FAA also republishes the details concerning the approval and
exemption processes in sections V and VI of this preamble, consistent
with other recently published flight prohibition SFARs to enable
interested persons to refer to this final rule for comprehensive
information about requesting relief from the FAA from the provisions of
SFAR No. 119, Sec. 91.1619.
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). 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), except for transiting
overflights on jet routes P500-G500 at altitudes at and above FL300,
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.\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 Washington Operations Center by telephone
at (202) 267-3203 or by email at <a href="/cdn-cgi/l/email-protection#a89185eee9e985e7decddadbcdc9dbeec4c1cfc0dcf8dac7c0c1cac1dcc1c7c6dbe8cec9c986cfc7de"><span class="__cf_email__" data-cfemail="99a0b4dfd8d8b4d6effcebeafcf8eadff5f0fef1edc9ebf6f1f0fbf0edf0f6f7ead9fff8f8b7fef6ef">[email protected]</span></a> for submission instructions. The
requestor must not submit its letter requesting FAA approval or related
supporting documentation to the Washington Operations Center. Rather,
the Washington Operations Center will refer the requestor to an
appropriate staff member of the Flight Standards Service for further
assistance.
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) 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) 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
[[Page 55504]]
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), except for
operations in the Kabul FIR (OAKX) limited to transiting overflights on
jet routes P500-G500 at altitudes at and above FL300. 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 and/or at altitudes below FL300 on jet
routes P500-G500, as applicable. The approval conditions discussed
below apply to all operators. Requestors should contact the Washington
Operations Center by telephone at (202) 267-3203 or by email at <a href="/cdn-cgi/l/email-protection#162f3b5057573b5960736465737765507a7f717e624664797e7f747f627f7978655670777738717960"><span class="__cf_email__" data-cfemail="fbc2d6bdbabad6b48d9e89889e9a88bd97929c938fab8994939299928f92949588bb9d9a9ad59c948d">[email protected]</span></a> for instructions on how to submit
the names of additional operators the requestor wishes to add to an
existing approval to the FAA. The requestor must not submit the names
of additional operators it wishes to add to an existing approval to the
Washington Operations Center. Rather, the Washington Operations Center
will refer the requestor to an appropriate staff member of the Flight
Standards Service for further assistance.
If an approval request includes classified information or
controlled unclassified information not authorized for public release,
requestors may contact the Washington Operations Center for
instructions on submitting it to the FAA. The Washington Operations
Center's 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); and
(b) The operator's written agreement to indemnify the U.S.
Government with respect to any and all third-party damages, claims, and
liabilities, including without limitation legal fees and expenses,
relating to any event arising out of or related to the approved
operations in the Kabul FIR (OAKX).
(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. 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 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 Kabul FIR (OAKX) 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) 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. 119, Sec. 91.1619. 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.
[[Page 55505]]
If a petition for exemption includes information that is sensitive
for security reasons or proprietary information, requestors may contact
the Washington Operations Center for instructions on submitting it to
the FAA. The Washington Operations Center's contact information is
listed in the FOR FURTHER INFORMATION CONTACT section of this final
rule. Requestors must not submit their petitions for exemption or
related supporting documentation to the Washington Operations Center.
Rather, the Washington Operations Center will refer the requestor to
the appropriate staff member of the Air Transportation Division, Flight
Standards Service, or the Office of Rulemaking for further assistance.
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) below certain altitudes due to the
continuing hazards to the safety of U.S. civil flight operations at
those altitudes. The purpose of this rule is to operate holistically in
addressing a range of hazards and needs in the Kabul FIR (OAKX).
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, 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)(4) of Executive Order
12866 as amended by Executive Order 14094. 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 continues to prohibit U.S. civil flights in the Kabul FIR
(OAKX) at altitudes below FL320, except for transiting overflights on
jet routes P500-G500, due to the significant hazards to U.S. civil
aviation described in this preamble. The alternative flight routes
result in some additional fuel and operations costs to the affected
operators, as well as some costs attributed to passenger time. However,
this amendment of the SFAR provides relief to U.S. civil operators and
airmen wishing to conduct transiting overflight operations on jet
routes P500-G500 at altitudes at and above FL300, instead of requiring
them to operate at altitudes at and above FL320, as the SFAR previously
did.
For the reasons described in the Background and Discussion of the
Final Rule section of this preamble, the FAA has determined that U.S.
civil aviation overflights of the Kabul FIR (OAKX) at altitudes at and
above FL300 on jet routes P500-G500 present a low risk and that U.S.
operators and airmen may conduct such flights. However, as described in
more detail in the Background and Discussion of the Final Rule section
of this preamble, the FAA has also determined that U.S. civil aviation
operations in the remainder of the Kabul FIR (OAKX) at altitudes below
FL320 continue to pose unacceptable risks to the safety of U.S. civil
aviation due to the risks to such operations posed by violent extremist
and militant activity and the lack of adequate risk mitigation
capabilities to counter such activity. The rule allows for a lower
minimum flight level of FL300 on jet routes P500-G500, providing relief
and reducing the cost for overflights transiting P500-G500 while
continuing to prohibit unsafe flights in the remainder of 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
[[Page 55506]]
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), 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 $183 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.
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 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.
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="https://www.faa.gov/regulations_policies/rulemaking/sbre_act/">https://www.faa.gov/regulations_policies/rulemaking/sbre_act/</a>.
List of Subjects in 14 CFR Part 91
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:
[[Page 55507]]
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. 91.1619 by revising paragraph (c) 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).
* * * * *
(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) Permitted operations that do not require an approval or
exemption from the FAA. (i) 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.
(ii) Transiting overflights of the Kabul Flight Information Region
(FIR) (OAKX) may be conducted on jet routes P500-G500 at altitudes at
and above FL300, subject to the approval of, and in accordance with the
conditions established by, the appropriate authorities of Afghanistan.
(2) Operations permitted under an approval or exemption issued by
the FAA. 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.
* * * * *
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).
Michael Gordon Whitaker,
Administrator.
[FR Doc. 2024-14708 Filed 7-3-24; 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 5, 2024.
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.