Extension of the Prohibition Against Certain Flights in the Territory and Airspace of Somalia, 58546-58551 [2017-26847]
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standards district office/certificate holding
district office.
(2) Contacting the Manufacturer: For any
requirement in this AD to obtain corrective
actions from a manufacturer, the action must
be accomplished using a method approved
by the Manager, International Section,
Transport Standards Branch, FAA; or the
European Aviation Safety Agency (EASA); or
´
ATR–GIE Avions de Transport Regional’s
EASA Design Organization Approval (DOA).
If approved by the DOA, the approval must
include the DOA-authorized signature.
(i) Related Information
(1) Refer to Mandatory Continuing
Airworthiness Information (MCAI) EASA AD
2016–0046, dated March 9, 2016, for related
information. You may examine the MCAI on
the internet at https://www.regulations.gov by
searching for and locating Docket No. FAA–
2017–1101.
(2) For more information about this AD,
contact Shahram Daneshmandi, Aerospace
Engineer, International Section, Transport
Standards Branch, FAA, 1601 Lind Avenue
SW, Renton, WA 98057–3356; telephone
425–227–1112; fax 425–227–1149.
(j) Material Incorporated by Reference
None.
Issued in Renton, Washington, on
December 4, 2017.
Jeffrey E. Duven,
Director, System Oversight Division, Aircraft
Certification Service.
[FR Doc. 2017–26621 Filed 12–12–17; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
RIN 2120–AL28
Extension of the Prohibition Against
Certain Flights in the Territory and
Airspace of Somalia
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
This action extends the
expiration date for the Special Federal
Aviation Regulation (SFAR) that
prohibits certain flights in the territory
and airspace of Somalia at altitudes
below flight level (FL) 260 by all: United
States (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
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I. Executive Summary
This action extends the prohibition of
flight operations in the territory and
airspace of Somalia at altitudes below
FL260 by all: U.S. air carriers; U.S.
commercial operators; persons
exercising the privileges of an airman
certificate issued by the FAA, except
when such persons are operating U.S.registered aircraft for a foreign air
carrier; and operators of U.S.-registered
civil aircraft, except where the operator
of such aircraft is a foreign air carrier.
The FAA finds this action necessary due
to continued hazards to persons and
aircraft engaged in such flight
operations resulting from terrorist and
militant activity, as described in the
Background section of this rule.
II. Legal Authority and Good Cause
[Docket No.: FAA–2007–27602; Amdt. No.
91–339A]
SUMMARY:
civil aircraft, except where the operator
of such aircraft is a foreign air carrier.
The FAA is taking this action because
it has determined that there continues to
be an unacceptable risk to U.S. civil
aviation operating in the territory and
airspace of Somalia at altitudes below
FL260 resulting from terrorist and
militant activity. The FAA also
republishes, with minor revisions, the
approval process and exemption
information for this SFAR.
DATES: This final rule is effective on
December 13, 2017.
FOR FURTHER INFORMATION CONTACT:
Michael Filippell, Air Transportation
Division, Flight Standards Service,
Federal Aviation Administration, 800
Independence Avenue SW, Washington,
DC 20591; telephone (202) 267–8166;
email michael.e.filippell@faa.gov.
SUPPLEMENTARY INFORMATION:
A. Legal 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 civil
airmen throughout the world. The
FAA’s authority to issue rules on
aviation safety is found in title 49, U.S.
Code. Subtitle I, sections 106(f) and (g),
describe the authority of the FAA
Administrator. 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 his authority
consistently with the obligations of the
U.S. Government under international
agreements.
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This rulemaking is promulgated
under the authority described in
Subtitle VII, Part A, subpart III, section
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 under the statutes
cited previously, because it continues to
prohibit the persons described in
paragraph (a) of SFAR No. 107, title 14
Code of Federal Regulations (CFR)
91.1613, from conducting flight
operations in the territory and airspace
of Somalia at altitudes below FL260 due
to the continued hazards to the safety of
such persons’ flight operations, as
described in the Background section of
this final rule.
B. Good Cause for Immediate Adoption
Title 5 U.S.C. 553(b)(3)(B) authorizes
agencies to dispense with notice and
comment procedures for rules when the
agency for ‘‘good cause’’ finds that those
procedures are ‘‘impracticable,
unnecessary, or contrary to the public
interest.’’ Section 553(d) also authorizes
agencies to forgo the delay in the
effective date of the final rule for good
cause found and published with the
rule. In this instance, the FAA finds
good cause to forgo notice and
comment, because notice and comment
would be impracticable and contrary to
the public interest. To the extent that
the rule is based upon classified
information, such information is not
permitted to be shared with the general
public. Also, threats to U.S. civil
aviation and intelligence regarding these
threats are fluid. As a result, the
agency’s original proposal could become
unsuitable for minimizing the hazards
to U.S. civil aviation in the affected
airspace during or after the notice and
comment process. The FAA further
finds an immediate need to address the
continued hazard to U.S. civil aviation
that exists in the territory and airspace
of Somalia at altitudes below FL260
from terrorist and militant activity. This
hazard is further described in the
Background section of this rule.
For the reasons described previously,
the FAA finds good cause to forgo
notice and comment and any delay in
the effective date for this rule. The FAA
also finds that this action is fully
consistent with the obligations under 49
U.S.C. 40105(b)(1)(A) to ensure that the
FAA exercises its duties consistently
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with the obligations of the United States
under international agreements.
III. Background
On January 7, 2016, the FAA
expanded its existing prohibition of U.S.
civil aviation operations in the territory
and airspace of Somalia, after
determining that the risk from terrorist
and militant activity made it unsafe for
U.S. civil flights to operate in the
territory and airspace of Somalia at
altitudes below FL260. 81 FR 721. In
taking that action, the FAA determined
that international civil air routes that
transit Somali airspace and aircraft
operating to and from Somali airports
remained at risk from terrorist and
militant groups potentially employing
anti-aircraft weapons, including manportable air defense systems
(MANPADS), small-arms fire and
indirect fire from mortars and rockets
targeting airports. Some of the weapons
that the FAA was concerned about have
the capability to target aircraft upon
approach and departure and aircraft at
higher altitudes. The terrorist group alShabaab remained active in Somalia and
had demonstrated the capability and
intent to target U.S. and Western
interests, including aviation. AlShabaab had conducted multiple attacks
against civil aviation, including attacks
on two IL–76 aircraft near Aden Adde
International Airport (then known as
Mogadishu International Airport)
(HCMM) in March 2007, likely using
MANPADS. These attacks had formed
part of the basis for the original SFAR.
Al-Shabaab had also conducted ground
assaults against Aden Adde
International Airport (then known as
Mogadishu International Airport)
(HCMM), the most recent of which had
occurred in December 2014. As stated in
the January 2016 final rule, in the FAA’s
view, attacks against aircraft in-flight or
Somali airports could occur with little
or no warning.
Since January 2016, al-Shabaab has
continued to directly target civil
aviation using concealed improvised
explosive devices (IEDs) in an effort to
bypass security screening at Aden Adde
International Airport (HCMM) to
detonate the device onboard an aircraft.
This was demonstrated when alShabaab claimed responsibility for the
onboard detonation of a concealed IED
on a Daallo Airlines Flight 159, which
originated from Aden Adde
International Airport (HCMM) in
February 2016. Al-Shabaab has also
conducted frequent terror attacks in
close proximity to the airport and has
conducted indirect fire attacks targeting
facilities within the perimeter of the
airport. Al-Shabaab has also conducted
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ground assaults against Aden Adde
International Airport (formerly known
as Mogadishu International Airport)
(HCMM), the most recent of which
included a vehicle-borne improvised
explosive device in January 2017. Other
extremists, to include elements of the
Islamic State of Iraq and ash Sham
(ISIS), also operate in Somalia and are
capable of threatening civil aviation.
With the unsettled security environment
in Somalia, along with the continuing
threat to civil aviation from al-Shabaab
and/or ISIS-associated activity, the FAA
continues to believe that attacks against
aircraft in-flight or Somali airports can
occur with little or no warning.
Therefore, as a result of the significant
continuing risk to the safety of U.S. civil
aviation in the territory and airspace of
Somalia at altitudes below FL260, the
FAA extends the expiration date of
SFAR No. 107, § 91.1613, from January
7, 2018, to January 7, 2020, and
maintains the prohibition on flight
operations in the territory and airspace
of Somalia at altitudes below FL260 by
all: U.S. air carriers; U.S. commercial
operators; persons exercising the
privileges of an airman certificate issued
by the FAA, except when such persons
are operating U.S.-registered aircraft for
a foreign air carrier; and operators of
U.S.-registered civil aircraft, except
where the operator of such aircraft is a
foreign air carrier.
The FAA will continue to actively
monitor the situation and evaluate the
extent to which U.S. civil operators may
be able to safely operate in the territory
and airspace of Somalia at altitudes
below FL260 in the future. Amendments
to SFAR No. 107, § 91.1613, may be
appropriate if the risk to aviation safety
and security changes. The FAA may
amend or rescind SFAR No. 107,
§ 91.1613, as necessary, prior to its
expiration date.
The FAA also republishes, with minor
revisions, the approval process and
exemption information for this SFAR, so
that persons described in paragraph (a)
of the rule will be able to refer to this
final rule, rather than having to search
through previous final rules to find the
relevant approval process and
exemption information. This approval
process and exemption information is
consistent with other similar SFARs and
recent agency practice.
IV. Approval Process Based on a
Request From a Department, Agency, or
Instrumentality of the United States
Government
If a department, agency, or
instrumentality of the U.S. Government
determines that it has a critical need to
engage any person covered under SFAR
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No. 107, § 91.1613, including a U.S. air
carrier or a U.S. commercial operator, to
conduct a charter to transport civilian or
military passengers or cargo, or other
operations, in the territory and airspace
of Somalia at altitudes below FL260,
that department, agency, or
instrumentality may request that the
FAA approve persons covered under
SFAR No. 107, § 91.1613, to conduct
such operations. An approval request
must be made directly by the requesting
department, agency or instrumentality
of the U.S. Government 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. Requests for approval
submitted to the FAA by anyone other
than the requesting department, agency,
or instrumentality will not be accepted
and will not be processed. In addition,
the senior official signing the letter
requesting FAA approval on behalf of
the requesting department, agency, or
instrumentality must be sufficiently
highly placed within the organization to
demonstrate that the senior leadership
of the requesting department, agency, or
instrumentality supports the request for
approval and is committed to taking all
necessary steps to minimize operational
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,
requests for approval must be submitted
to the FAA no less than 30 calendar
days before the date on which the
requesting department, agency, or
instrumentality wishes the proposed
operations, if approved by the FAA, to
commence.
The letter must be sent by the
requesting department, agency, or
instrumentality 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
approval request is granted. 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
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letter may request approval from the
FAA for multiple persons covered under
SFAR No. 107, § 91.1613, and/or for
multiple flight operations. To the extent
known, the letter must identify the
person(s) covered under the SFAR on
whose behalf the U.S. Government
department, agency, or instrumentality
is seeking FAA approval, and it must
describe—
• The proposed operation(s),
including the nature of the mission
being supported;
• The service to be provided by the
person(s) covered by the SFAR;
• To the extent known, the specific
locations in the territory and airspace of
Somalia at altitudes below FL260 where
the proposed operation(s) will be
conducted, including, but not limited
to, the flight path and altitude of the
aircraft while it is operating in the
territory and airspace of Somalia at
altitudes below FL260 and the airports,
airfields and/or landing zones at which
the aircraft will take-off and land; and
• The method by which the
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 (e.g., the premission 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
with whom its prime contractor has a
subcontract(s)) for specific flight
operations in the territory and airspace
of Somalia at altitudes below FL260.
Additional operators may be identified
to the FAA at any time after the FAA
approval is issued. However, all
additional operators must be identified
to, and obtain an Operations
Specification (OpSpec) or Letter of
Authorization (LOA), as appropriate,
from the FAA for operations in the
territory and airspace of Somalia at
altitudes below FL260, before such
operators commence such operations.
The approval conditions discussed
below will apply to any such additional
operators. Updated lists should be sent
to the email address to be obtained from
the Air Transportation Division by
calling (202) 267–8166.
If an approval request includes
classified information, requestors may
contact Aviation Safety Inspector
Michael Filippell for instructions on
submitting it to the FAA. His contact
information is listed in the FOR FURTHER
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section of this
final rule.
FAA approval of an operation under
SFAR No. 107, § 91.1613, does not
relieve persons subject to this SFAR of
their responsibility to comply with all
other applicable FAA rules and
regulations. Operators of civil aircraft
must also comply with the conditions of
their certificate, OpSpecs, and LOAs, as
applicable. Operators must further
comply with all rules and regulations of
other U.S. Government departments and
agencies that may apply to the proposed
operations, including, but not limited
to, the Transportation Security
Regulations issued by the
Transportation Security Administration,
Department of Homeland Security.
INFORMATION CONTACT
Approval Conditions
If the FAA approves the request, the
FAA’s Aviation Safety Organization
(AVS) will send an approval letter to the
requesting department, agency, or
instrumentality informing it that the
FAA’s approval is subject to all of the
following conditions:
(1) The approval will stipulate those
procedures and conditions that limit, to
the greatest degree possible, the risk to
the operator, while still allowing the
operator to achieve its operational
objectives.
(2) Before any approval takes effect,
the operator must submit to the FAA:
(a) A written release of the U.S.
Government from all damages, claims,
and liabilities, including without
limitation legal fees and expenses,
relating to any event arising out of or
related to the approved operations in
the territory and airspace of Somalia at
altitudes below FL260; and
(b) the operator’s agreement to
indemnify the U.S. Government with
respect to any and all third-party
damages, claims, and liabilities,
including without limitation legal fees
and expenses, relating to any event
arising out of or related to the approved
operations in the territory and airspace
of Somalia at altitudes below FL260.
(3) Other conditions that the FAA
may specify, including those that may
be imposed 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
issued by the FAA under chapter 443 of
title 49, United States Code.
If the proposed operation(s) is
approved, the FAA will issue an
OpSpec or an LOA, as applicable, to the
operator(s) identified in the original
request authorizing them to conduct the
approved operation(s), and will notify
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the department, agency, or
instrumentality that requested the
FAA’s approval of any additional
conditions beyond those contained in
the approval letter. The requesting
department, agency, or instrumentality
must have a contract, grant, or
cooperative agreement (or its prime
contractor must have a subcontract)
with the person(s) described in
paragraph (a) of this SFAR No. 107,
§ 91.1613, on whose behalf the
department, agency, or instrumentality
requests FAA approval.
V. Requests for Exemption
Any operations not conducted under
an approval issued by the FAA through
the approval process set forth
previously must be conducted under an
exemption from SFAR No. 107,
§ 91.1613. A request by any person
covered under SFAR No. 107, § 91.1613,
for an exemption must comply with 14
CFR part 11, and will require
exceptional circumstances beyond those
contemplated by the approval process
set forth above. In addition to the
information required by 14 CFR 11.81,
at a minimum, the requestor must
describe in its submission to the FAA—
• The proposed operation(s),
including the nature of the operation;
• The service to be provided by the
person(s) covered by the SFAR;
• The specific locations in the
territory and airspace of Somalia at
altitudes below FL260 where the
proposed operation(s) will be
conducted, including, but not limited
to, the flight path and altitude of the
aircraft while it is operating in the
territory and airspace of Somalia at
altitudes below FL260 and the airports,
airfields and/or landing zones at which
the aircraft will take-off and land;
• 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 (e.g.,
the pre-mission planning and briefing,
in-flight, and post-flight phases); and
• The plans and procedures that the
operator will use to minimize the risks,
identified in the Background section of
this rule, to the proposed operations, so
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 other flight prohibition SFARs.
Additionally, the release and
agreement to indemnify, as referred to
above, will be required as a condition of
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any exemption that may be issued under
SFAR No. 107, § 91.1613.
The FAA recognizes that operations
that may be affected by SFAR No. 107,
§ 91.1613, including this amendment,
may be planned for the governments of
other countries with the support of the
U.S. Government. While these
operations will not be permitted
through the approval process, the FAA
will process exemption requests for
such operations on an expedited basis
and prior to any private exemption
requests.
VI. Regulatory Notices and Analyses
Changes to Federal regulations must
undergo several economic analyses.
First, Executive Orders 12866 and 13563
direct that each Federal agency shall
propose or adopt a regulation only upon
a reasoned determination that the
benefits of the intended regulation
justify its costs. Second, the Regulatory
Flexibility Act of 1980 (Pub. L. 96–354),
as codified in 5 U.S.C. 603 et seq.,
requires agencies to analyze the
economic impact of regulatory changes
on small entities. Third, the Trade
Agreements Act of 1979 (Pub. L. 96–39),
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 that this final rule has
benefits that justify its costs and is a
‘‘significant regulatory action’’ as
defined in section 3(f) of Executive
Order 12866, because it raises novel
policy issues contemplated under that
Executive Order. The rule is also
‘‘significant’’ as defined in DOT’s
Regulatory Policies and Procedures. The
final rule will not have a significant
economic impact on a substantial
number of small entities, will not create
unnecessary obstacles to the foreign
commerce of the United States, and will
not impose an unfunded mandate on
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State, local, or tribal governments, or on
the private sector, by exceeding the
threshold identified previously.
A. Regulatory Evaluation
Department of Transportation Order
2100.5 prescribes policies and
procedures for simplification, analysis,
and review of regulations. If the
expected cost impact is so minimal that
a proposed or final rule does not
warrant a full evaluation, this order
permits a statement to that effect and
the basis for it to be included in the
preamble if a full regulatory evaluation
of the costs and benefits is not prepared.
Such a determination has been made for
this final rule. The reasoning for this
determination follows.
Due to the significant hazards to U.S.
civil aviation described in the
Background section of this rule, this
rule extends the prohibition against U.S.
civil flights in the territory and airspace
of Somalia at altitudes below FL260.
The FAA believes there are very few, if
any, U.S. operators who wish to overfly
Somalia at altitudes below FL260 or
operate to, from, or within Somalia.
Since January 7, 2016, the FAA has
received very few requests for approval
or exemption to conduct flight
operations in the territory and airspace
of Somalia at altitudes below FL260,
and at least one was abandoned by the
requestor before FAA processing was
completed.
Consequently, the FAA estimates the
costs of this rule to be minimal. These
minimal costs are exceeded by the
benefits of avoided deaths, injuries, and
property damage that could result from
a U.S. operator’s aircraft being shot
down (or otherwise damaged) due to the
hazards described in the Background
section of this final rule.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980
(Pub. L. 96–354) (RFA) establishes ‘‘as a
principle of regulatory issuance that
agencies shall endeavor, consistent with
the objectives of the rule and of
applicable statutes, to fit regulatory and
informational requirements to the scale
of the businesses, organizations, and
governmental jurisdictions subject to
regulation. To achieve this principle,
agencies are required to solicit and
consider flexible regulatory proposals
and to explain the rationale for their
actions to assure that such proposals are
given serious consideration.’’ The RFA
covers a wide range of small entities,
including small businesses, not-forprofit organizations, and small
governmental jurisdictions.
Agencies must perform a review to
determine whether a rule will have a
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58549
significant economic impact on a
substantial number of small entities. If
the agency determines that it will, the
agency must prepare a regulatory
flexibility analysis as described in the
RFA. However, if an agency determines
that a rule is not expected to have a
significant economic impact on a
substantial number of small entities,
section 605(b) of the RFA provides that
the head of the agency may so certify
and a regulatory flexibility analysis is
not required. The certification must
include a statement providing the
factual basis for this determination, and
the reasoning should be clear.
As noted previously, the FAA
estimates that the costs of this rule will
be minimal and that very few small
entities will be adversely affected.
Therefore, as provided in section 605(b),
the head of the FAA certifies that this
rulemaking will not have a significant
economic impact on a substantial
number of small entities.
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 effect of
this final rule and determined that its
purpose is to protect the safety of U.S.
civil aviation from a hazard to their
operations in the territory and airspace
of Somalia at altitudes below FL 260, a
location outside the U.S. Therefore, the
rule is in compliance with the Trade
Agreements Act.
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
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Federal Register / Vol. 82, No. 238 / Wednesday, December 13, 2017 / Rules and Regulations
regulatory action.’’ The FAA currently
uses an inflation-adjusted value of
$155.0 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 that the
FAA consider the impact of paperwork
and other information collection
burdens imposed on the public. The
FAA has determined that there is no
new requirement for information
collection associated with this final
rule.
F. International Compatibility and
Cooperation
In keeping with U.S. obligations
under the Convention on International
Civil Aviation, it is FAA’s policy to
conform to International Civil Aviation
Organization (ICAO) Standards and
Recommended Practices to the
maximum extent practicable. The FAA
has determined that there are no ICAO
Standards and Recommended Practices
that correspond to this regulation.
G. Environmental Analysis
The FAA has analyzed this action
under Executive Order 12114,
Environmental Effects Abroad of Major
Federal Actions (44 FR 1957, January 4,
1979), 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 that 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), FAA has prepared a memorandum
for the record stating the reasons for this
determination, which has been placed
in the docket for this rulemaking.
sradovich on DSK3GMQ082PROD with RULES
VII. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this final rule
under the principles and criteria of
Executive Order 13132, Federalism. The
agency has determined that this action
would not have a substantial direct
effect on the States, or the relationship
between the Federal Government and
the States, or on the distribution of
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power and responsibilities among the
various levels of government, and,
therefore, would not have Federalism
implications.
B. Executive Order 13211, Regulations
That Significantly Affect Energy Supply,
Distribution, or Use
The FAA analyzed this final rule
under Executive Order 13211, Actions
Concerning Regulations that
Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The
agency has determined that it would not
be a ‘‘significant energy action’’ under
the executive order and would 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, Promoting
International Regulatory Cooperation,
(77 FR 26413, May 4, 2012) 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 would have no effect on
international regulatory cooperation.
D. Executive Order 13771, Reducing
Regulation and Controlling Regulatory
Costs
This rule is not subject to the
requirements of EO 13771 (82 FR 9339,
February 3, 2017) because it is issued
with respect to a national security
function of the United States.
VIII. Additional Information
A. Availability of Rulemaking
Documents
An electronic copy of rulemaking
documents may be obtained from the
internet by—
• Searching the Federal eRulemaking
Portal (https://www.regulations.gov);
• Visiting the FAA’s Regulations and
Policies web page at https://
www.faa.gov/regulations_policies or
• Accessing the Government
Publishing Office’s web page at https://
www.fdsys.gov.
Copies may also be obtained by
sending a request (identified by
amendment or docket number of this
rulemaking) to the Federal Aviation
Administration, Office of Rulemaking,
ARM–1, 800 Independence Avenue SW,
Washington, DC 20591, or by calling
(202) 267–9677. Please identify the
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
docket or amendment number of this
rulemaking in your request.
Except for classified material, all
documents the FAA considered in
developing this rule, including
economic analyses and technical
reports, may be accessed from the
internet through the Federal
eRulemaking Portal referenced above.
B. Small Business Regulatory
Enforcement Fairness Act
The Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA) 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 person listed under
the FOR FURTHER INFORMATION CONTACT
heading at the beginning of the
preamble. To find out more about
SBREFA on the internet, visit https://
www.faa.gov/regulations_policies/
rulemaking/sbre_act/.
List of Subjects in 14 CFR Part 91
Air traffic control, Aircraft, Airmen,
Airports, Aviation safety, Freight,
Somalia.
The Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends chapter I of title 14, Code of
Federal Regulations as follows:
PART 91—GENERAL OPERATING AND
FLIGHT RULES
1. The authority citation for part 91
continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g), 1155,
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).
2. Revise paragraph (e) in § 91.1613 to
read as follows:
■
§ 91.1613 Special Federal Aviation
Regulation No. 107—Prohibition Against
Certain Flights in the Territory and Airspace
of Somalia.
*
*
*
*
*
(e) Expiration. This SFAR will remain
in effect until January 7, 2020. 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),
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Federal Register / Vol. 82, No. 238 / Wednesday, December 13, 2017 / Rules and Regulations
40101(d)(1), 40105(b)(1)(A), and 44701(a)(5),
on December 6, 2017.
Michael P. Huerta,
Administrator.
[FR Doc. 2017–26847 Filed 12–12–17; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF COMMERCE
Bureau of Economic Analysis
15 CFR Part 801
[Docket No. 170322304–7557–01]
RIN 0691–AA86
Direct Investment Surveys: BE–12,
Benchmark Survey of Foreign Direct
Investment in the United States
Bureau of Economic Analysis,
Commerce.
ACTION: Final rule.
AGENCY:
This final rule amends
regulations of the Department of
Commerce’s Bureau of Economic
Analysis (BEA) to set forth the reporting
requirements for the 2017 BE–12,
Benchmark Survey of Foreign Direct
Investment in the United States. The
BE–12 survey is conducted every five
years; the prior survey covered 2012.
The benchmark survey covers the
universe of foreign direct investment in
the United States and is BEA’s most
detailed survey of such investment. For
the 2017 benchmark survey, BEA will
make changes in data items collected,
the design of the survey forms, and the
reporting requirements for the survey to
satisfy changing data needs and to
improve data quality and the
effectiveness and efficiency of data
collection.
DATES: This final rule is effective
January 12, 2018.
FOR FURTHER INFORMATION CONTACT:
Patricia Abaroa, Chief, Direct
Investment Division (BE–49), Bureau of
Economic Analysis, U.S. Department of
Commerce, 4600 Silver Hill Road,
Washington, DC 20233; phone (301)
278–9591; or via email at
Patricia.Abaroa@bea.gov.
SUPPLEMENTARY INFORMATION: On July
27, 2017, BEA published a notice of
proposed rulemaking that set forth
revised reporting criteria for the BE–12,
Benchmark Survey of Foreign Direct
Investment in the United States (82 FR
34894). No comments on the proposed
rule were received.
This final rule amends 15 CFR part
801 to set forth the reporting
requirements for the BE–12, Benchmark
Survey of Foreign Direct Investment in
the United States.
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SUMMARY:
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BEA conducts the BE–12 survey once
every five years under the authority of
the International Investment and Trade
in Services Survey Act (22 U.S.C. 3101–
3108).
In 2012, BEA issued a rule (77 FR
24373) that established guidelines for
collecting data on international trade in
services and direct investment through
notices, rather than through rulemaking.
Persons are required to respond to other
BEA surveys conducted under these
guidelines only when they are contacted
by BEA. Under this final rule, however,
persons subject to the reporting
requirements of the BE–12, Benchmark
Survey of Foreign Direct Investment in
the United States, will be required to
respond whether or not they are
contacted by BEA.
The benchmark survey covers the
universe of foreign direct investment in
the United States in terms of value and
is BEA’s most detailed survey of such
investment. Foreign direct investment
in the United States is defined as the
ownership or control, directly or
indirectly, by one foreign person
(foreign parent) of 10 percent or more of
the voting securities of an incorporated
U.S. business enterprise or an
equivalent interest in an unincorporated
U.S. business enterprise, including a
branch.
The purpose of the benchmark survey
is to obtain universe data on the
financial and operating characteristics
of U.S. affiliates and on positions and
transactions between U.S. affiliates and
their foreign parent groups (which are
defined to include all foreign parents
and foreign affiliates of foreign parents).
These data are needed to measure the
size and economic significance of
foreign direct investment in the United
States, measure changes in such
investment, and assess its impact on the
U.S. economy. Such data are generally
found in enterprise-level accounting
records of respondent companies. These
data are used to derive current universe
estimates of direct investment from
sample data collected in other BEA
surveys in non-benchmark years. In
particular, they serve as benchmarks for
the quarterly direct investment
estimates included in the U.S.
international transactions, international
investment position, and national
income and product accounts, and for
annual estimates of the foreign direct
investment position in the United States
and of the activities of the U.S. affiliates
of foreign companies.
Description of Changes
This final rule amends the regulations
(15 CFR part 801) and the survey forms
for the BE–12 benchmark survey. These
PO 00000
Frm 00019
Fmt 4700
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58551
amendments include changes in data
items collected, the design of the survey
forms, and the reporting requirements
for the survey.
BEA changes the reporting
requirements for certain private funds
that file the BE–12 survey. BEA, in
cooperation with the U.S. Department of
the Treasury, instructs reporters of
investments in private funds that meet
the definition of direct investment (that
is, ownership by one person of 10
percent or more of the voting interest of
a business enterprise) but display
characteristics of portfolio investment
(specifically, investors who do not
intend to control or influence the
management of an operating company)
to report through the Treasury
International Capital (TIC) reporting
system, where other related portfolio
investments are already being reported,
and not to report on BEA’s direct
investment surveys. Direct investment
in operating companies, including
investment by and through private
funds, will continue to be reported to
BEA.
BEA adds, deletes, and modifies some
items on the benchmark survey forms.
The following items are added to the
benchmark survey:
(1) Expand sales of services
breakdown on the BE–12A form to
include sales of services to other U.S.
affiliates of the same affiliated foreign
group, sales to unaffiliated U.S. persons
or entities, sales to the affiliated foreign
group, sales to foreign affiliates owned
by the U.S. affiliate responding to the
survey, and sales to all other foreign
persons or entities.
(2) Expand state-level data items on
the BE–12A and BE–12B forms to
include manufacturing employment;
gross book value of property, plant, and
equipment; and the portion of the gross
book value that is commercial property.
(3) Add state of location to the
BE–12C form, Part I.
(4) Add a question to collect the 20digit Legal Entity Identifier of the U.S.
affiliate on the BE–12A and
BE–12B forms.
(5) Add a question asking whether the
U.S. affiliate is a publicly traded
company, and if it is, collect the stock
exchange on which it is listed and the
ticker symbol on the BE–12A and BE–
12B forms.
(6) Add questions separating
payables, receivables, interest payments,
and interest receipts by foreign parents
and foreign affiliates of foreign parents
(FAFPs) on the BE–12B form.
(7) Add a Part III to the BE–12C form
to expand information collected on
foreign ownership to better align the
data collected on the BE–12 benchmark
E:\FR\FM\13DER1.SGM
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]]>Agencies
[Federal Register Volume 82, Number 238 (Wednesday, December 13, 2017)]
[Rules and Regulations]
[Pages 58546-58551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26847]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No.: FAA-2007-27602; Amdt. No. 91-339A]
RIN 2120-AL28
Extension of the Prohibition Against Certain Flights in the
Territory and Airspace of Somalia
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action extends the expiration date for the Special
Federal Aviation Regulation (SFAR) that prohibits certain flights in
the territory and airspace of Somalia at altitudes below flight level
(FL) 260 by all: United States (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 where the operator of such aircraft
is a foreign air carrier. The FAA is taking this action because it has
determined that there continues to be an unacceptable risk to U.S.
civil aviation operating in the territory and airspace of Somalia at
altitudes below FL260 resulting from terrorist and militant activity.
The FAA also republishes, with minor revisions, the approval process
and exemption information for this SFAR.
DATES: This final rule is effective on December 13, 2017.
FOR FURTHER INFORMATION CONTACT: Michael Filippell, Air Transportation
Division, Flight Standards Service, Federal Aviation Administration,
800 Independence Avenue SW, Washington, DC 20591; telephone (202) 267-
8166; email [email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This action extends the prohibition of flight operations in the
territory and airspace of Somalia at altitudes below FL260 by all: U.S.
air carriers; U.S. commercial operators; persons exercising the
privileges of an airman certificate issued by the FAA, except when such
persons are operating U.S.-registered aircraft for a foreign air
carrier; and operators of U.S.-registered civil aircraft, except where
the operator of such aircraft is a foreign air carrier. The FAA finds
this action necessary due to continued hazards to persons and aircraft
engaged in such flight operations resulting from terrorist and militant
activity, as described in the Background section of this rule.
II. Legal Authority and Good Cause
A. Legal 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 civil airmen throughout the world. The FAA's
authority to issue rules on aviation safety is found in title 49, U.S.
Code. Subtitle I, sections 106(f) and (g), describe the authority of
the FAA Administrator. 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
his authority consistently with the obligations of the U.S. Government
under international agreements.
This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, subpart III, section 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 under
the statutes cited previously, because it continues to prohibit the
persons described in paragraph (a) of SFAR No. 107, title 14 Code of
Federal Regulations (CFR) 91.1613, from conducting flight operations in
the territory and airspace of Somalia at altitudes below FL260 due to
the continued hazards to the safety of such persons' flight operations,
as described in the Background section of this final rule.
B. Good Cause for Immediate Adoption
Title 5 U.S.C. 553(b)(3)(B) authorizes agencies to dispense with
notice and comment procedures for rules when the agency for ``good
cause'' finds that those procedures are ``impracticable, unnecessary,
or contrary to the public interest.'' Section 553(d) also authorizes
agencies to forgo the delay in the effective date of the final rule for
good cause found and published with the rule. In this instance, the FAA
finds good cause to forgo notice and comment, because notice and
comment would be impracticable and contrary to the public interest. To
the extent that the rule is based upon classified information, such
information is not permitted to be shared with the general public.
Also, threats to U.S. civil aviation and intelligence regarding these
threats are fluid. As a result, the agency's original proposal could
become unsuitable for minimizing the hazards to U.S. civil aviation in
the affected airspace during or after the notice and comment process.
The FAA further finds an immediate need to address the continued hazard
to U.S. civil aviation that exists in the territory and airspace of
Somalia at altitudes below FL260 from terrorist and militant activity.
This hazard is further described in the Background section of this
rule.
For the reasons described previously, the FAA finds good cause to
forgo notice and comment and any delay in the effective date for this
rule. The FAA also finds that this action is fully consistent with the
obligations under 49 U.S.C. 40105(b)(1)(A) to ensure that the FAA
exercises its duties consistently
[[Page 58547]]
with the obligations of the United States under international
agreements.
III. Background
On January 7, 2016, the FAA expanded its existing prohibition of
U.S. civil aviation operations in the territory and airspace of
Somalia, after determining that the risk from terrorist and militant
activity made it unsafe for U.S. civil flights to operate in the
territory and airspace of Somalia at altitudes below FL260. 81 FR 721.
In taking that action, the FAA determined that international civil air
routes that transit Somali airspace and aircraft operating to and from
Somali airports remained at risk from terrorist and militant groups
potentially employing anti-aircraft weapons, including man-portable air
defense systems (MANPADS), small-arms fire and indirect fire from
mortars and rockets targeting airports. Some of the weapons that the
FAA was concerned about have the capability to target aircraft upon
approach and departure and aircraft at higher altitudes. The terrorist
group al-Shabaab remained active in Somalia and had demonstrated the
capability and intent to target U.S. and Western interests, including
aviation. Al-Shabaab had conducted multiple attacks against civil
aviation, including attacks on two IL-76 aircraft near Aden Adde
International Airport (then known as Mogadishu International Airport)
(HCMM) in March 2007, likely using MANPADS. These attacks had formed
part of the basis for the original SFAR. Al-Shabaab had also conducted
ground assaults against Aden Adde International Airport (then known as
Mogadishu International Airport) (HCMM), the most recent of which had
occurred in December 2014. As stated in the January 2016 final rule, in
the FAA's view, attacks against aircraft in-flight or Somali airports
could occur with little or no warning.
Since January 2016, al-Shabaab has continued to directly target
civil aviation using concealed improvised explosive devices (IEDs) in
an effort to bypass security screening at Aden Adde International
Airport (HCMM) to detonate the device onboard an aircraft. This was
demonstrated when al-Shabaab claimed responsibility for the onboard
detonation of a concealed IED on a Daallo Airlines Flight 159, which
originated from Aden Adde International Airport (HCMM) in February
2016. Al-Shabaab has also conducted frequent terror attacks in close
proximity to the airport and has conducted indirect fire attacks
targeting facilities within the perimeter of the airport. Al-Shabaab
has also conducted ground assaults against Aden Adde International
Airport (formerly known as Mogadishu International Airport) (HCMM), the
most recent of which included a vehicle-borne improvised explosive
device in January 2017. Other extremists, to include elements of the
Islamic State of Iraq and ash Sham (ISIS), also operate in Somalia and
are capable of threatening civil aviation. With the unsettled security
environment in Somalia, along with the continuing threat to civil
aviation from al-Shabaab and/or ISIS-associated activity, the FAA
continues to believe that attacks against aircraft in-flight or Somali
airports can occur with little or no warning.
Therefore, as a result of the significant continuing risk to the
safety of U.S. civil aviation in the territory and airspace of Somalia
at altitudes below FL260, the FAA extends the expiration date of SFAR
No. 107, Sec. 91.1613, from January 7, 2018, to January 7, 2020, and
maintains the prohibition on flight operations in the territory and
airspace of Somalia at altitudes below FL260 by all: U.S. air carriers;
U.S. commercial operators; persons exercising the privileges of an
airman certificate issued by the FAA, except when such persons are
operating U.S.-registered aircraft for a foreign air carrier; and
operators of U.S.-registered civil aircraft, except where the operator
of such aircraft is a foreign air carrier.
The FAA will continue to actively monitor the situation and
evaluate the extent to which U.S. civil operators may be able to safely
operate in the territory and airspace of Somalia at altitudes below
FL260 in the future. Amendments to SFAR No. 107, Sec. 91.1613, may be
appropriate if the risk to aviation safety and security changes. The
FAA may amend or rescind SFAR No. 107, Sec. 91.1613, as necessary,
prior to its expiration date.
The FAA also republishes, with minor revisions, the approval
process and exemption information for this SFAR, so that persons
described in paragraph (a) of the rule will be able to refer to this
final rule, rather than having to search through previous final rules
to find the relevant approval process and exemption information. This
approval process and exemption information is consistent with other
similar SFARs and recent agency practice.
IV. Approval Process Based on a Request From a Department, Agency, or
Instrumentality of the United States Government
If a department, agency, or instrumentality of the U.S. Government
determines that it has a critical need to engage any person covered
under SFAR No. 107, Sec. 91.1613, including a U.S. air carrier or a
U.S. commercial operator, to conduct a charter to transport civilian or
military passengers or cargo, or other operations, in the territory and
airspace of Somalia at altitudes below FL260, that department, agency,
or instrumentality may request that the FAA approve persons covered
under SFAR No. 107, Sec. 91.1613, to conduct such operations. An
approval request must be made directly by the requesting department,
agency or instrumentality of the U.S. Government 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. Requests for approval submitted to the FAA by anyone
other than the requesting department, agency, or instrumentality will
not be accepted and will not be processed. In addition, the senior
official signing the letter requesting FAA approval on behalf of the
requesting department, agency, or instrumentality must be sufficiently
highly placed within the organization to demonstrate that the senior
leadership of the requesting department, agency, or instrumentality
supports the request for approval and is committed to taking all
necessary steps to minimize operational 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, requests for approval
must be submitted to the FAA no less than 30 calendar days before the
date on which the requesting department, agency, or instrumentality
wishes the proposed operations, if approved by the FAA, to commence.
The letter must be sent by the requesting department, agency, or
instrumentality 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 approval request is granted. 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
[[Page 58548]]
letter may request approval from the FAA for multiple persons covered
under SFAR No. 107, Sec. 91.1613, and/or for multiple flight
operations. To the extent known, the letter must identify the person(s)
covered under the SFAR on whose behalf the U.S. Government department,
agency, or instrumentality is seeking FAA approval, and it must
describe--
The proposed operation(s), including the nature of the
mission being supported;
The service to be provided by the person(s) covered by the
SFAR;
To the extent known, the specific locations in the
territory and airspace of Somalia at altitudes below FL260 where the
proposed operation(s) will be conducted, including, but not limited to,
the flight path and altitude of the aircraft while it is operating in
the territory and airspace of Somalia at altitudes below FL260 and the
airports, airfields and/or landing zones at which the aircraft will
take-off and land; and
The method by which the 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 (e.g., 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 with whom its prime contractor has a
subcontract(s)) for specific flight operations in the territory and
airspace of Somalia at altitudes below FL260. Additional operators may
be identified to the FAA at any time after the FAA approval is issued.
However, all additional operators must be identified to, and obtain an
Operations Specification (OpSpec) or Letter of Authorization (LOA), as
appropriate, from the FAA for operations in the territory and airspace
of Somalia at altitudes below FL260, before such operators commence
such operations. The approval conditions discussed below will apply to
any such additional operators. Updated lists should be sent to the
email address to be obtained from the Air Transportation Division by
calling (202) 267-8166.
If an approval request includes classified information, requestors
may contact Aviation Safety Inspector Michael Filippell for
instructions on submitting it to the FAA. His contact information is
listed in the For Further Information Contact section of this final
rule.
FAA approval of an operation under SFAR No. 107, Sec. 91.1613,
does not relieve persons subject to this SFAR of their responsibility
to comply with all other applicable FAA rules and regulations.
Operators of civil aircraft must also comply with the conditions of
their certificate, OpSpecs, and LOAs, as applicable. Operators must
further comply with all rules and regulations of other U.S. Government
departments and agencies that may apply to the proposed operations,
including, but not limited to, the Transportation Security Regulations
issued by the Transportation Security Administration, Department of
Homeland Security.
Approval Conditions
If the FAA approves the request, the FAA's Aviation Safety
Organization (AVS) will send an approval letter to the requesting
department, agency, or instrumentality informing it that the FAA's
approval is subject to all of the following conditions:
(1) The approval will stipulate those procedures and conditions
that limit, to the greatest degree possible, the risk to the operator,
while still allowing the operator to achieve its operational
objectives.
(2) Before any approval takes effect, the operator must submit to
the FAA:
(a) A written release of the U.S. Government from all damages,
claims, and liabilities, including without limitation legal fees and
expenses, relating to any event arising out of or related to the
approved operations in the territory and airspace of Somalia at
altitudes below FL260; and
(b) the operator's agreement to indemnify the U.S. Government with
respect to any and all third-party damages, claims, and liabilities,
including without limitation legal fees and expenses, relating to any
event arising out of or related to the approved operations in the
territory and airspace of Somalia at altitudes below FL260.
(3) Other conditions that the FAA may specify, including those that
may be imposed 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 issued by the FAA under chapter 443 of title 49, United States
Code.
If the proposed operation(s) is approved, the FAA will issue an
OpSpec or an LOA, as applicable, to the operator(s) identified in the
original request authorizing them to conduct the approved operation(s),
and will notify the department, agency, or instrumentality that
requested the FAA's approval of any additional conditions beyond those
contained in the approval letter. The requesting department, agency, or
instrumentality must have a contract, grant, or cooperative agreement
(or its prime contractor must have a subcontract) with the person(s)
described in paragraph (a) of this SFAR No. 107, Sec. 91.1613, on
whose behalf the department, agency, or instrumentality requests FAA
approval.
V. Requests for Exemption
Any operations not conducted under an approval issued by the FAA
through the approval process set forth previously must be conducted
under an exemption from SFAR No. 107, Sec. 91.1613. A request by any
person covered under SFAR No. 107, Sec. 91.1613, for an exemption must
comply with 14 CFR part 11, and will require exceptional circumstances
beyond those contemplated by the approval process set forth above. In
addition to the information required by 14 CFR 11.81, at a minimum, the
requestor must describe in its submission to the FAA--
The proposed operation(s), including the nature of the
operation;
The service to be provided by the person(s) covered by the
SFAR;
The specific locations in the territory and airspace of
Somalia at altitudes below FL260 where the proposed operation(s) will
be conducted, including, but not limited to, the flight path and
altitude of the aircraft while it is operating in the territory and
airspace of Somalia at altitudes below FL260 and the airports,
airfields and/or landing zones at which the aircraft will take-off and
land;
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
(e.g., the pre-mission planning and briefing, in-flight, and post-
flight phases); and
The plans and procedures that the operator will use to
minimize the risks, identified in the Background section of this rule,
to the proposed operations, so 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 other flight prohibition SFARs.
Additionally, the release and agreement to indemnify, as referred
to above, will be required as a condition of
[[Page 58549]]
any exemption that may be issued under SFAR No. 107, Sec. 91.1613.
The FAA recognizes that operations that may be affected by SFAR No.
107, Sec. 91.1613, including this amendment, may be planned for the
governments of other countries with the support of the U.S. Government.
While these operations will not be permitted through the approval
process, the FAA will process exemption requests for such operations on
an expedited basis and prior to any private exemption requests.
VI. Regulatory Notices and Analyses
Changes to Federal regulations must undergo several economic
analyses. First, Executive Orders 12866 and 13563 direct that each
Federal agency shall propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354),
as codified in 5 U.S.C. 603 et seq., requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act of 1979 (Pub. L. 96-39), 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 that this
final rule has benefits that justify its costs and is a ``significant
regulatory action'' as defined in section 3(f) of Executive Order
12866, because it raises novel policy issues contemplated under that
Executive Order. The rule is also ``significant'' as defined in DOT's
Regulatory Policies and Procedures. The final rule will not have a
significant economic impact on a substantial number of small entities,
will not create unnecessary obstacles to the foreign commerce of the
United States, and 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
Department of Transportation Order 2100.5 prescribes policies and
procedures for simplification, analysis, and review of regulations. If
the expected cost impact is so minimal that a proposed or final rule
does not warrant a full evaluation, this order permits a statement to
that effect and the basis for it to be included in the preamble if a
full regulatory evaluation of the costs and benefits is not prepared.
Such a determination has been made for this final rule. The reasoning
for this determination follows.
Due to the significant hazards to U.S. civil aviation described in
the Background section of this rule, this rule extends the prohibition
against U.S. civil flights in the territory and airspace of Somalia at
altitudes below FL260. The FAA believes there are very few, if any,
U.S. operators who wish to overfly Somalia at altitudes below FL260 or
operate to, from, or within Somalia. Since January 7, 2016, the FAA has
received very few requests for approval or exemption to conduct flight
operations in the territory and airspace of Somalia at altitudes below
FL260, and at least one was abandoned by the requestor before FAA
processing was completed.
Consequently, the FAA estimates the costs of this rule to be
minimal. These minimal costs are exceeded by the benefits of avoided
deaths, injuries, and property damage that could result from a U.S.
operator's aircraft being shot down (or otherwise damaged) due to the
hazards described in the Background section of this final rule.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA covers a wide range of small entities,
including small businesses, not-for-profit organizations, and small
governmental jurisdictions.
Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities,
section 605(b) of the RFA provides that the head of the agency may so
certify and a regulatory flexibility analysis is not required. The
certification must include a statement providing the factual basis for
this determination, and the reasoning should be clear.
As noted previously, the FAA estimates that the costs of this rule
will be minimal and that very few small entities will be adversely
affected. Therefore, as provided in section 605(b), the head of the FAA
certifies that this rulemaking will not have a significant economic
impact on a substantial number of small entities.
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 effect of this final rule and determined
that its purpose is to protect the safety of U.S. civil aviation from a
hazard to their operations in the territory and airspace of Somalia at
altitudes below FL 260, a location outside the U.S. Therefore, the rule
is in compliance with the Trade Agreements Act.
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
[[Page 58550]]
regulatory action.'' The FAA currently uses an inflation-adjusted value
of $155.0 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
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there is no new requirement for information collection associated with
this final rule.
F. International Compatibility and Cooperation
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA's policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to this regulation.
G. Environmental Analysis
The FAA has analyzed this action under Executive Order 12114,
Environmental Effects Abroad of Major Federal Actions (44 FR 1957,
January 4, 1979), 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 that
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), FAA has prepared a
memorandum for the record stating the reasons for this determination,
which has been placed in the docket for this rulemaking.
VII. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. The agency has
determined that this action would 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, and, therefore, would not have
Federalism implications.
B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The agency has determined that it
would not be a ``significant energy action'' under the executive order
and would 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, Promoting International Regulatory
Cooperation, (77 FR 26413, May 4, 2012) 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 would have no effect on international regulatory
cooperation.
D. Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs
This rule is not subject to the requirements of EO 13771 (82 FR
9339, February 3, 2017) because it is issued with respect to a national
security function of the United States.
VIII. Additional Information
A. Availability of Rulemaking Documents
An electronic copy of rulemaking documents may be obtained from the
internet by--
Searching the Federal eRulemaking Portal (https://www.regulations.gov);
Visiting the FAA's Regulations and Policies web page at
https://www.faa.gov/regulations_policies or
Accessing the Government Publishing Office's web page at
https://www.fdsys.gov.
Copies may also be obtained by sending a request (identified by
amendment or docket number of this rulemaking) to the Federal Aviation
Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue
SW, Washington, DC 20591, or by calling (202) 267-9677. Please identify
the docket or amendment number of this rulemaking in your request.
Except for classified material, all documents the FAA considered in
developing this rule, including economic analyses and technical
reports, may be accessed from the internet through the Federal
eRulemaking Portal referenced above.
B. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) 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 person listed under
the FOR FURTHER INFORMATION CONTACT heading at the beginning of the
preamble. To find out more about SBREFA on the internet, visit https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.
List of Subjects in 14 CFR Part 91
Air traffic control, Aircraft, Airmen, Airports, Aviation safety,
Freight, Somalia.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends chapter I of title 14, Code of Federal
Regulations as follows:
PART 91--GENERAL OPERATING AND FLIGHT RULES
0
1. The authority citation for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 1155, 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. Revise paragraph (e) in Sec. 91.1613 to read as follows:
Sec. 91.1613 Special Federal Aviation Regulation No. 107--
Prohibition Against Certain Flights in the Territory and Airspace of
Somalia.
* * * * *
(e) Expiration. This SFAR will remain in effect until January 7,
2020. 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),
[[Page 58551]]
40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), on December 6, 2017.
Michael P. Huerta,
Administrator.
[FR Doc. 2017-26847 Filed 12-12-17; 8:45 am]
BILLING CODE 4910-13-P
