Prohibition Against Certain Flights in the Territory and Airspace of Libya, 16871-16878 [2023-05390]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 88, Number 54 (Tuesday, March 21, 2023)]
[Rules and Regulations]
[Pages 16871-16878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05390]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2011-0246; Amdt. No. 91-321F]
RIN 2120-AL79


Prohibition Against Certain Flights in the Territory and Airspace 
of Libya

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This action amends, with modifications to reflect changed 
conditions in the Tripoli Flight Information Region (FIR) (HLLL) and 
the associated risks to U.S. civil aviation safety, the prohibition 
against certain flight operations in the Tripoli FIR (HLLL) by all: 
U.S. air carriers; U.S. commercial operators; persons exercising the 
privileges of an airman certificate issued by the FAA, except when such 
persons are operating U.S.-registered aircraft for a foreign air 
carrier; and operators of U.S.-registered civil aircraft, except when 
the operator of such aircraft is a foreign air carrier. Specifically, 
with this final rule, the FAA removes the prohibition against U.S. 
civil aviation operations at altitudes below Flight Level (FL) 300 in

[[Page 16872]]

those portions of the Tripoli FIR (HLLL) that are outside the territory 
and airspace of Libya. The FAA also republishes the approval process 
and exemption information for this SFAR consistent with other recently 
published flight prohibition SFARs. The FAA also modifies the title of 
the relevant section of the Code of Federal Regulations to reflect that 
the geographic scope of FAA's flight prohibition for U.S. civil 
aviation is now limited to the territory and airspace of Libya.

DATES: This final rule is effective on March 17, 2023.

FOR FURTHER INFORMATION CONTACT: Bill Petrak, Flight Standards Service, 
Federal Aviation Administration, 800 Independence Avenue SW, 
Washington, DC 20591; telephone (202) 267-8166; email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    This action amends SFAR No. 112, title 14 Code of Federal 
Regulations (CFR), 91.1603, which currently prohibits certain U.S. 
civil flight operations in the Tripoli FIR (HLLL) \1\ by all: U.S. air 
carriers; U.S. commercial operators; persons exercising the privileges 
of an airman certificate issued by the FAA, except when such persons 
are operating U.S.-registered aircraft for a foreign air carrier; and 
operators of U.S.-registered civil aircraft, except when the operator 
of such aircraft is a foreign air carrier. This final rule contains 
modifications to reflect changed conditions in the Tripoli FIR (HLLL) 
and the associated risks to U.S. civil aviation safety. Specifically, 
with this final rule, the FAA removes the prohibition against U.S. 
civil aviation operations at altitudes below Flight Level (FL) 300 in 
those portions of the Tripoli FIR (HLLL) that are outside the territory 
and airspace of Libya. However, the FAA continues to prohibit U.S. 
civil aviation operations at all altitudes in the territory and 
airspace of Libya due to the significant, continuing unacceptable risks 
to the safety of such operations from various armed groups' access to 
advanced anti-aircraft weapon systems, airspace de-confliction 
challenges, and ongoing, intermittent violence in Libya.
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    \1\ Articles 1 and 2 of the Convention on International Civil 
Aviation (the ``Chicago Convention''), done at Chicago, December 7, 
1944, and to which nearly all countries around the world are 
parties, recognize that every country has complete and exclusive 
sovereignty of the airspace above its territory, and defines the 
term ``territory,'' for purposes of the Convention, as ``the land 
areas and territorial waters adjacent thereto under the sovereignty, 
suzerainty, protection or mandate of such [country].'' While there 
are many potential nuances depending upon local geographic factors, 
in most cases, the territorial sea of a country extends 12 nautical 
miles from the coastal baselines of that country drawn in accordance 
with international law. The Tripoli FIR (HLLL) includes the entire 
territory and airspace of Libya, and extends north into 
international airspace above the Gulf of Sidra. It also extends 
south into a portion of the territory and airspace of Chad.
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    The FAA also extends the expiration date of this Special Federal 
Aviation Regulation (SFAR) from March 20, 2023 until March 20, 2025. 
Consistent with other recently published flight prohibition SFARs, this 
action also republishes the approval process and exemption information 
for this flight prohibition SFAR.

II. Authority and Good Cause

A. Authority

    The FAA is responsible for the safety of flight in the U.S. and for 
the safety of U.S. civil operators, U.S.-registered civil aircraft, and 
U.S.-certificated airmen throughout the world. Sections 106(f) and (g) 
of title 49, U.S. Code (U.S.C.), subtitle I, establish the FAA 
Administrator's authority to issue rules on aviation safety. Subtitle 
VII of title 49, Aviation Programs, describes in more detail the scope 
of the agency's authority. Section 40101(d)(1) provides that the 
Administrator shall consider in the public interest, among other 
matters, assigning, maintaining, and enhancing safety and security as 
the highest priorities in air commerce. Section 40105(b)(1)(A) requires 
the Administrator to exercise this authority consistently with the 
obligations of the U.S. Government under international agreements.
    The FAA is promulgating this rule under the authority described in 
49 U.S.C. 44701, General requirements. Under that section, the FAA is 
charged broadly with promoting safe flight of civil aircraft in air 
commerce by prescribing, among other things, regulations and minimum 
standards for practices, methods, and procedures that the Administrator 
finds necessary for safety in air commerce and national security.
    This regulation is within the scope of the FAA's authority because 
it continues to prohibit the persons described in paragraph (a) of SFAR 
No. 112, 14 CFR 91.1603, from conducting flight operations in the 
territory and airspace of Libya due to the continuing hazards to the 
safety of U.S. civil flight operations, as described in the preamble to 
this final rule.

B. Good Cause for Immediate Adoption

    Section 553(b)(B) of title 5, U.S. Code, authorizes agencies to 
dispense with notice and comment procedures for rules when the agency 
for ``good cause'' finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' Also, section 553(d) 
permits agencies, upon a finding of good cause, to issue rules with an 
effective date less than 30 days from the date of publication. In this 
instance, the FAA finds good cause to forgo notice and comment and the 
delayed effective date because they would be impracticable, 
unnecessary, and contrary to the public interest.
    Providing notice and the opportunity for the public to comment here 
would be contrary to the public interest. The FAA's flight 
prohibitions, and any amendments thereto, need to include appropriate 
boundaries that reflect the agency's current understanding of the risk 
environment for U.S. civil aviation. This allows the FAA to protect the 
safety of U.S. operators' aircraft and the lives of their passengers 
and crews without over-restricting or under-restricting U.S. operators' 
routing options. However, the risk environment for U.S. civil aviation 
in airspace managed by other countries with respect to safety of flight 
is fluid in circumstances involving fighting, extremist and militant 
activity, or periods of heightened tensions, particularly where weapons 
capable of targeting or otherwise negatively affecting U.S. civil 
aviation are or may be present. This fluidity, and the potential for 
rapid changes in the risks to U.S. civil aviation, significantly limits 
how far in advance of a new or amended flight prohibition the FAA can 
usefully assess the risk environment. The delay that would be 
occasioned by providing an opportunity to comment on this action would 
significantly increase the risk that the resulting final action would 
not accurately reflect the current risks to U.S. civil aviation 
associated with the situation and thus would not establish boundaries 
for the flight prohibition commensurate with those risks.
    While the FAA sought and responded to public comments, the 
boundaries of the area in which unacceptable risks to the safety of 
U.S. civil aviation existed might change due to: evolving military or 
political circumstances; extremist and militant group activity; the 
introduction, removal, or repositioning of more advanced anti-aircraft 
weapon systems; or other factors. As a result, if the situation 
improved while the FAA sought and responded to public comments, the 
rule the FAA finalized might be over-restrictive, unnecessarily 
limiting U.S. operators' routing options and potentially causing them 
to incur unnecessary additional fuel and operations-related costs, as 
well as

[[Page 16873]]

potentially causing passengers to incur unnecessarily some costs 
attributed to their time. Conversely, if the situation deteriorated 
while the FAA sought and responded to public comments, the rule the FAA 
finalized might be under-restrictive, allowing U.S. civil aviation to 
continue operating in areas where unacceptable risks to their safety 
had developed. Such an outcome would endanger the safety of these 
aircraft, as well as their passengers and crews, exposing them to 
unacceptable risks of death, injury, and property damage that could 
occur if a U.S. operator's aircraft were shot down (or otherwise 
damaged) while operating in the territory and airspace of Libya.
    Alternatively, if the FAA made changes to the area in which U.S. 
civil aviation operations would be prohibited between a notice of 
proposed rulemaking and a final rule due to changed conditions, the 
version of the rule the public commented on would no longer reflect the 
FAA's current assessment of the risk environment for U.S. civil 
aviation. In addition, some or all of the rationale for such changes 
during the course of the rulemaking might be based upon classified 
information or controlled unclassified information not authorized for 
public release. The FAA's ability to notify the public of its reasoning 
and respond to comments would necessarily be limited--thus rendering 
such proceedings impracticable, unnecessary, and contrary to the public 
interest.
    Therefore, providing notice and the opportunity for comment would 
be contrary to the public interest, as it would hinder FAA's ability to 
maintain appropriate flight prohibitions based on up-to-date risk 
assessments of the risks to the safety of U.S. civil aviation 
operations in airspace managed by other countries.
    For the same reasons discussed above, the potential safety impacts 
and the need for prompt action on up-to-date information that is not 
public would make delaying the effective date impracticable and 
contrary to the public interest. For altitudes at or below FL300 in 
those portions of the Tripoli FIR (HLLL) that are outside the territory 
and airspace of Libya, any delay in the effective date of the rule 
would continue a prohibition on U.S. civil aviation operations at those 
altitudes that the FAA has determined is no longer needed for the 
safety of U.S. civil aviation and would thus unnecessarily restrict 
U.S. operators' routing options at those altitudes.
    Accordingly, the FAA finds good cause exists to forgo notice and 
comment and any delay in the effective date for this rule.

III. Background

    On July 27, 2020, the FAA published a final rule in the Federal 
Register prohibiting U.S. civil flight operations in the entirety of 
the territory and airspace of Libya. That rule also prohibited U.S. 
civil flight operations in those portions of the Tripoli FIR (HLLL) 
outside the territory and airspace of Libya at altitudes below 
FL300.\2\ The FAA assessed the area of unacceptable inadvertent risk to 
U.S. civil aviation operations at all altitudes had spread to the 
entire territory and airspace of Libya. This spread was due to the 
geographic expansion of the ongoing conflict between the Tripoli-based 
Government of National Accord (GNA) and the Tobruk-based Libyan 
National Army (LNA) for control over Libya's government, territory, and 
resources.
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    \2\ Prohibition Against Certain Flights in the Tripoli Flight 
Information Region (FIR) (HLLL) final rule, 85 FR 45084 (Jul. 27, 
2020).
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    Foreign state actors continued to provide material and technical 
assistance to both the GNA and the LNA. This support involved third 
party forces, as well as the deployment of advanced weapons, including 
advanced fighter aircraft, weaponized unmanned aircraft systems (UAS), 
surface-to-air missile (SAM) systems, and, likely, jammers. Both sides 
had conducted air strikes, utilizing tactical combat aircraft and long-
range, armed UAS, to target airport infrastructure and aircraft on the 
ground at airports. In May 2020, Russia deployed multiple fighter 
aircraft to Libya to provide close air support to its private military 
contractors and the LNA and protect their operations from attacks by 
manned aircraft and weaponized UAS. The foreign states supporting the 
LNA and GNA also deployed anti-aircraft weapons and self-protection 
jamming systems to mitigate the air threat. The combination of these 
activities posed airspace de-confliction concerns and an inadvertent 
risk of in-flight engagement of civil aircraft as a result of possible 
misidentification or miscalculation.
    More advanced, higher-altitude air defense systems had also been 
deployed to Libya. In addition to an SA-22 SAM system, a foreign 
sponsor associated with the GNA had reportedly deployed multiple 
variants of anti-aircraft weapons to provide a layered air defense in 
Tripoli. This deployment included a medium range I-Hawk SAM and a 
Korkut 35mm air defense gun.
    The activities of the GNA and the LNA also presented risks to U.S. 
civil aviation in the territory and airspace of Libya. Both the GNA and 
the LNA possessed anti-aircraft artillery and MANPADS, some of which 
have a maximum altitude of up to 25,000 feet (7,620 meters). As a 
result of weapons activity posing a risk to civil aviation, the GNA 
closed Mitiga International Airport (HLLM) on multiple occasions during 
January and February 2020. LNA leader General Haftar announced on 
January 23, 2020, that LNA forces would engage any military or civil 
aircraft operating from Mitiga International Airport (HLLM). The FAA 
was also concerned the GNA and the LNA might augment their air defense 
operations with increased Global Positioning System (GPS) and radio 
frequency jamming.
    Collectively, the FAA assessed that the escalating fighting, 
increased foreign intervention, and deployment of additional air 
defense capabilities presented an increasing risk to U.S. civil 
aviation operations in the territory and airspace of Libya at all 
altitudes. For these reasons, the July 27, 2020 final rule incorporated 
the flight prohibition on U.S civil aviation operations in the 
territory and airspace of Libya at all altitudes, previously contained 
in NOTAM KICZ A0026/19, into SFAR No. 112, Sec.  91.1603.
    In addition, the FAA assessed that the hazards to the safety of 
U.S. civil aviation operations at altitudes below FL 300 described in 
the preamble to the March 2019 final rule remained of concern in those 
portions of the Tripoli FIR (HLLL) that are outside the territory and 
airspace of Libya.\3\ The FAA noted that foreign military manned and 
unmanned tactical aircraft might operate or approach targets from off 
the northern coast, presenting airspace de-confliction challenges at 
altitudes below FL300. Additionally, there was the potential for GPS 
interference bleed over that might impact flights operating over the 
southern Mediterranean Sea in the Tripoli FIR (HLLL). For these 
reasons, the July 27, 2020 final rule also continued the prohibition 
against all flights by U.S. civil operators and airmen at altitudes 
below FL300 in those portions of the Tripoli FIR (HLLL) outside the 
territory and airspace of Libya.\4\
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    \3\ Amendment of the Prohibition Against Certain Flights in the 
Tripoli Flight Information Region (FIR) (HLLL) final rule, 84 FR at 
9952-9953 (Mar. 19, 2019).
    \4\ For all of the reasons described in the preamble to the July 
27, 2020 final rule, the FAA also extended the expiration date of 
SFAR No. 112, Sec.  91.1603, until March 20, 2023. See Prohibition 
Against Certain Flights in the Tripoli Flight Information Region 
(FIR) (HLLL) final rule, 85 FR 45084 (Jul. 27, 2020).

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[[Page 16874]]

IV. Discussion of the Final Rule

    The FAA continues to assess the situation in the territory and 
airspace of Libya as hazardous for U.S. civil aviation. Representatives 
of the Libyan Army of the GNA and the LNA General Command of the Armed 
Forces signed a United Nations-backed ceasefire agreement on October 
23, 2020. Among other things, the October 23, 2020 ceasefire provided 
for: an immediate ceasefire, effective upon signature of the agreement; 
the departure of all mercenaries and foreign fighters from Libya, 
including its land, air, and sea territory, within three months; and 
the suspension of all military training agreements and departure of all 
training crews until a new unified government assumed its functions.
    Since the October 23, 2020 ceasefire agreement, combat operations 
in Libya have significantly decreased, with only intermittent ground 
clashes between opposing factions. In addition, Russian-backed Vagner 
Group (also referred to as private military company (PMC) Wagner) has 
reduced the number of its air defense systems and forces deployed in 
Libya, with more than 1,300 Vagner personnel having departed the 
country. However, protests and intermittent clashes between the various 
armed factions in Libya continue. Unrest in the capital, in particular, 
has been driven by militia infighting and multiple failed attempts by 
the Government of National Stability (GNS) to enter Tripoli, and has 
contributed to the lack of progress on key milestones set forth in the 
ceasefire agreement. In particular, the provisions of the ceasefire 
agreement relating to departure of all mercenaries and foreign fighters 
from Libya and the suspension of all military training agreements and 
departure of all training crews until the Government of National Unity 
(GNU) assumed its functions have not been fully implemented. In June 
and August 2022, the GNS attempted to enter Tripoli to seize control of 
government offices and were met with protests and violence, including 
armed clashes that resulted in the temporary suspension of flight 
operations at Mitiga International Airport (HLLM).
    Airspace de-confliction challenges also remain a safety-of-flight 
concern in the territory and airspace of Libya. Various armed groups 
operating in Libya continue to have access to advanced anti-aircraft 
weapons systems. These groups likely lack comprehensive airspace 
awareness sufficient to enable effective aircraft identification and 
de-confliction of civil and military flights. These circumstances 
create the potential for localized operational control and use of anti-
aircraft systems, rather than a coordinated air defense command and 
control structure, posing an enduring inadvertent risk to civil 
aviation operations in the territory and airspace of Libya. Forces 
aligned with GNA and LNA can quickly increase force protection 
measures, such as GPS jamming, air strikes, and the deployment of SAM 
systems capable of reaching as high as 49,000 feet. In addition to 
foreign-operated air defense capabilities, both GNA and LNA forces have 
access to anti-aircraft artillery and advanced MANPADS, some of which 
have a maximum altitude of 25,000 feet.
    On August 22, 2022, LNA air defense forces claimed to have shot 
down a U.S. MQ-9 UAS operating in the vicinity of Benghazi during a 
period of increased tensions and threats of renewed violence between 
competing militias vying for control of Tripoli. The MQ-9 was operating 
in support of diplomatic engagements, and the operator had conducted 
pre-mission coordination with Libyan authorities. While this incident 
involved a military UAS, it is illustrative of the potential for 
inadequate aircraft identification and de-confliction procedures 
leading to an inadvertent shoot down, resulting in significant 
casualties, and loss of an aircraft, if a civil aircraft carrying 
passengers were mistakenly engaged.
    In addition, despite a reduction in foreign presence, tensions in 
Libya remain elevated, and warring factions in Libya and their 
affiliated foreign sponsors maintain access to advanced weapons. 
Tensions over the implementation of a unity government spiked violently 
in March, June, and August 2022 in conjunction with GNU attempts to 
enter Tripoli and assume control of national government functions. The 
ensuing clashes between Libya's various armed factions included small 
arms and indirect fire exchanges, causing temporary disruptions to 
airport operations in the capital region. Within their respective 
strongholds in various areas of the country, Libya's armed factions 
have either gained access to, or have foreign sponsors equipped with, 
tactical aircraft, long-range weaponized UAS, air defense systems, and 
GPS jammers. Given the current tenuous security environment in Libya, 
the FAA remains concerned about the continued risk of rapid escalation 
involving these systems during spikes in tensions, which would pose 
safety-of-flight risks to U.S. civil aviation outside the capital 
region.
    As a result of the significant, continuing unacceptable risks to 
the safety of U.S. civil aviation operations at all altitudes in the 
territory and airspace of Libya, the FAA maintains the prohibition on 
U.S. civil aviation operations at all altitudes in the territory and 
airspace of Libya and extends the expiration date of SFAR No. 112, 14 
CFR 91.1603, from March 20, 2023, until March 20, 2025. Further 
amendments to SFAR No. 112, 14 CFR 91.1603, might be appropriate if the 
risk to U.S. civil aviation safety and security changes. In this 
regard, the FAA will continue to monitor the situation and evaluate the 
extent to which persons described in paragraph (a) of this rule might 
be able to operate safely in the territory and airspace of Libya.
    The FAA assesses the risk to U.S. civil aviation operations in the 
portions of the Tripoli FIR (HLLL) outside the territory and airspace 
of Libya at altitudes below FL300 has diminished and the situation has 
stabilized sufficiently to permit U.S. civil aviation operations to 
resume in that airspace. Since the October 2020 ceasefire agreement, 
foreign actors have significantly reduced weapons shipments and 
military activities off the coast of Libya. Previously, these 
activities included targeting suspected weapons shipments destined for 
the opposing side or their foreign sponsors. As a result, the risk of 
either side or their foreign sponsors misidentifying civil aircraft 
operations in the overwater portion of the Tripoli FIR as carrying 
weapons shipments destined for the other side or their foreign sponsors 
and mistakenly targeting them has diminished. The reduction of 
widespread conflict has also reduced the risk to U.S. civil aviation 
operations in the small portion of the Tripoli FIR (HLLL) that extends 
into Chad's territorial airspace. Therefore, due to the diminished 
risks to the safety of U.S. civil aviation operations and stabilized 
situation in those portions of the Tripoli FIR (HLLL) outside the 
territory and airspace of Libya, the FAA amends SFAR No. 112, 14 CFR 
91.1603, to remove the prohibition on U.S. civil aviation operations in 
those areas.
    The FAA republishes the details concerning the approval and 
exemption processes in Sections V and VI of this preamble, consistent 
with other recently published flight prohibition SFARs to enable 
interested persons to refer to this final rule for comprehensive 
information about requesting relief from the FAA from the provisions of 
SFAR No. 112, Sec.  91.1603. The FAA also modifies the heading of SFAR 
No. 112, 14 CFR 91.1603, in the CFR, to reflect the change in the 
geographic scope of the FAA's flight prohibition for U.S.

[[Page 16875]]

civil aviation, which is now limited to the territory and airspace of 
Libya.

V. Approval Process Based on a Request From a Department, Agency, or 
Instrumentality of the United States Government

A. Approval Process Based on an Authorization Request From a 
Department, Agency, or Instrumentality of the United States Government

    In some instances, U.S. Government departments, agencies, or 
instrumentalities may need to engage U.S. civil aviation to support 
their activities in the territory and airspace of Libya. If a 
department, agency, or instrumentality of the U.S. Government 
determines that it has a critical need to engage any person described 
in paragraph (a) of SFAR No. 112, 14 CFR 91.1603, including a U.S. air 
carrier or commercial operator, to transport civilian or military 
passengers or cargo or conduct other operations in the territory and 
airspace of Libya, that department, agency, or instrumentality may 
request the FAA to approve persons described in paragraph (a) of SFAR 
No. 112, 14 CFR 91.1603, to conduct such operations.
    The requesting U.S. Government department, agency, or 
instrumentality must submit the request for approval to the FAA's 
Associate Administrator for Aviation Safety in a letter signed by an 
appropriate senior official of the requesting department, agency, or 
instrumentality.\5\ The FAA will not accept or consider requests for 
approval from anyone other than the requesting U.S. Government 
department, agency, or instrumentality. In addition, the senior 
official signing the letter requesting FAA approval must be 
sufficiently positioned within the requesting department, agency, or 
instrumentality to demonstrate that the organization's senior 
leadership supports the request for approval and is committed to taking 
all necessary steps to minimize aviation safety and security risks to 
the proposed flights. The senior official must also be in a position 
to: (1) attest to the accuracy of all representations made to the FAA 
in the request for approval, and (2) ensure that any support from the 
requesting U.S. Government department, agency, or instrumentality 
described in the request for approval is in fact brought to bear and is 
maintained over time. Unless justified by exigent circumstances, 
requesting U.S. Government departments, agencies, or instrumentalities 
must submit requests for approval to the FAA no less than 30 calendar 
days before the date on which the requesting department, agency, or 
instrumentality wishes the operator(s) to commence the proposed 
operation(s).
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    \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.
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    The requestor must send the request to the Associate Administrator 
for Aviation Safety, Federal Aviation Administration, 800 Independence 
Avenue SW, Washington, DC 20591. Electronic submissions are acceptable, 
and the requesting entity may request that the FAA notify it 
electronically as to whether the FAA grants the request for approval. 
If a requestor wishes to make an electronic submission to the FAA, the 
requestor should contact the Air Transportation Division, Flight 
Standards Service, at (202) 267-8166, to obtain the appropriate email 
address. A single letter may request approval from the FAA for multiple 
persons described in SFAR No. 112, 14 CFR 91.1603, or for multiple 
flight operations. To the extent known, the letter must identify the 
person(s) the requester expects the SFAR to cover on whose behalf the 
U.S. Government department, agency, or instrumentality seeks FAA 
approval, and it must describe--
     The proposed operation(s), including the nature of the 
mission being supported;
     The service the person(s) covered by the SFAR will 
provide;
     To the extent known, the specific locations in the 
territory and airspace of Libya where the proposed operation(s) will 
occur, including, but not limited to, the flight path and altitude of 
the aircraft while it is operating in the territory and airspace of 
Libya and the airports, airfields, or landing zones at which the 
aircraft will take off and land; and
     The method by which the requesting department, agency, or 
instrumentality will provide, or how the operator will otherwise 
obtain, current threat information and an explanation of how the 
operator will integrate this information into all phases of the 
proposed operations (i.e., the pre-mission planning and briefing, in-
flight, and post-flight phases).
    The request for approval must also include a list of operators with 
whom the U.S. Government department, agency, or instrumentality 
requesting FAA approval has a current contract(s), grant(s), or 
cooperative agreement(s) (or its prime contractor has a subcontract(s)) 
for specific flight operations in the territory and airspace of Libya. 
The requestor may identify additional operators to the FAA at any time 
after the FAA issues its approval. Neither the operators listed in the 
original request, nor any operators the requestor subsequently seeks to 
add to the approval, may commence operations under the approval until 
the FAA issues them an Operations Specification (OpSpec) or Letter of 
Authorization (LOA), as appropriate, for operations in the territory 
and airspace of Libya. The approval conditions discussed below apply to 
all operators. Requestors should send updated lists to the email 
address they obtained from the Air Transportation Division by calling 
(202) 267-8166.
    If an approval request includes classified information or 
controlled unclassified material not authorized for public release, 
requestors may contact Aviation Safety Inspector Bill Petrak for 
instructions on submitting it to the FAA. His contact information 
appears in the FOR FURTHER INFORMATION CONTACT section of this final 
rule.
    FAA approval of an operation under SFAR No. 112, 14 CFR 91.1603, 
does not relieve persons subject to this SFAR of the responsibility to 
comply with all other applicable FAA rules and regulations. Operators 
of civil aircraft must comply with the conditions of their 
certificates, OpSpecs, and LOAs, as applicable. Operators must also 
comply with all rules and regulations of other U.S. Government 
departments, agencies, or instrumentalities that may apply to the 
proposed operation(s), including, but not limited to, regulations 
issued by the Transportation Security Administration.

B. Approval Conditions

    If the FAA approves the request, the FAA's Aviation Safety 
organization will send an approval letter to the requesting U.S. 
Government department, agency, or instrumentality informing it that the 
FAA's approval is subject to all of the following conditions:
    (1) The approval will stipulate those procedures and conditions 
that limit, to the greatest degree possible, the risk to the operator, 
while still allowing the operator to achieve its operational 
objectives.
    (2) Before any approval takes effect, the operator must submit to 
the FAA:
    (a) A written release of the U.S. Government from all damages, 
claims, and liabilities, including without limitation legal fees and 
expenses, relating to any event arising out of or related to the 
approved operations in the territory and airspace of Libya; and

[[Page 16876]]

    (b) The operator's written agreement to indemnify the U.S. 
Government with respect to any and all third-party damages, claims, and 
liabilities, including without limitation legal fees and expenses, 
relating to any event arising out of or related to the approved 
operations in the territory and airspace of Libya.
    (3) Other conditions the FAA may specify, including those the FAA 
might impose in OpSpecs or LOAs, as applicable.
    The release and agreement to indemnify do not preclude an operator 
from raising a claim under an applicable non-premium war risk insurance 
policy the FAA issues under chapter 443 of title 49, U.S. Code.
    If the FAA approves the proposed operation(s), the FAA will issue 
an OpSpec or LOA, as applicable, to the operator(s) identified in the 
original request and any operators the requestor subsequently adds to 
the approval, authorizing them to conduct the approved operation(s). In 
addition, as stated in paragraph (3) of this section V.B., the FAA 
notes that it may include additional conditions beyond those contained 
in the approval letter in any OpSpec or LOA associated with a 
particular operator operating under this approval, as necessary in the 
interests of aviation safety. U.S. Government departments, agencies, 
and instrumentalities requesting FAA approval on behalf of entities 
with which they have a contract or subcontract, grant, or cooperative 
agreement should request a copy of the relevant OpSpec or LOA directly 
from the entity with which they have any of the foregoing types of 
arrangements, if desired.

VI. Information Regarding Petitions for Exemption

    Any operations not conducted under an approval the FAA issues 
through the approval process set forth previously may only occur in 
accordance with an exemption from SFAR No. 112, 14 CFR 91.1603. A 
petition for exemption must comply with 14 CFR part 11. The FAA will 
consider whether exceptional circumstances exist beyond those described 
in the approval process in the previous section. To determine whether a 
petition for exemption from the prohibition this SFAR establishes 
fulfills the standards described in 14 CFR 11.81, the FAA consistently 
finds necessary the following information:
     The proposed operation(s), including the nature of the 
operation;
     The service the person(s) covered by the SFAR will 
provide;
     The specific locations in the territory and airspace of 
Libya where the proposed operation(s) will occur, including, but not 
limited to, the flight path and altitude of the aircraft while it is 
operating in the territory and airspace of Libya and the airports, 
airfields, or landing zones at which the aircraft will take off and 
land;
     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
     The plans and procedures the operator will use to minimize 
the risks identified in this preamble to the proposed operations, to 
support the relief sought and demonstrate that granting such relief 
would not adversely affect safety or would provide a level of safety at 
least equal to that provided by this SFAR. The FAA has found 
comprehensive, organized plans and procedures of this nature to be 
helpful in facilitating the agency's safety evaluation of petitions for 
exemption from flight prohibition SFARs.
    The FAA includes, as a condition of each such exemption it issues, 
a release and agreement to indemnify, as described previously.
    The FAA recognizes that, with the support of the U.S. Government, 
the governments of other countries could plan operations that may be 
affected by SFAR No. 112, 14 CFR 91.1603. While the FAA will not permit 
these operations through the approval process, the FAA will consider 
exemption requests for such operations on an expedited basis and in 
accordance with the order of preference set forth in paragraph (c) of 
SFAR No. 112, 14 CFR 91.1603.
    If a petition for exemption includes information that is sensitive 
for security reasons or proprietary information, requestors may contact 
Aviation Safety Inspector Bill Petrak for instructions on submitting it 
to the FAA. His contact information is listed in the FOR FURTHER 
INFORMATION CONTACT section of this final rule.

VII. Severability

    Congress authorized the FAA by statute to promote safe flight of 
civil aircraft in air commerce by prescribing, among other things, 
regulations and minimum standards for practices, methods, and 
procedures the Administrator finds necessary for safety in air commerce 
and national security. 49 U.S.C. 44701. Consistent with that mandate, 
the FAA is prohibiting certain persons from conducting flight 
operations in the territory and airspace of Libya due to the continuing 
hazards to the safety of U.S. civil flight operations. The purpose of 
this rule is to operate holistically in addressing a range of hazards 
and needs in the territory and airspace of Libya. However, the FAA 
recognizes that certain provisions focus on unique factors. Therefore, 
the FAA finds that the various provisions of this final rule are 
severable and able to operate functionally if severed from each other. 
In the event a court were to invalidate one or more of this final 
rule's unique provisions, the remaining provisions should stand, thus 
allowing the FAA to continue to fulfill its Congressionally authorized 
role of promoting safe flight of civil aircraft in air commerce.

VIII. Regulatory Notices and Analyses

    Federal agencies consider impacts of regulatory actions under a 
variety of executive orders and other requirements. First, Executive 
Orders 12866 and 13563 direct that each Federal agency shall propose or 
adopt a regulation only upon a reasoned determination that the benefits 
of the intended regulation justify its costs. Second, the Regulatory 
Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603 
et seq., requires agencies to analyze the economic impact of regulatory 
changes on small entities. Third, the Trade Agreements Act of 1979 
(Pub. L. 96-39), as codified in 19 U.S.C. Chapter 13, prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, the Trade Agreements Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4), as codified in 2 U.S.C. Chapter 25, requires agencies 
to prepare a written assessment of the costs, benefits, and other 
effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this final rule.
    In conducting these analyses, the FAA has determined this final 
rule has benefits that justify its costs. This rule is a significant 
regulatory action, as defined in section 3(f) of Executive Order 12866, 
as it raises novel policy issues contemplated under that Executive 
order. As 5 U.S.C. 553 does

[[Page 16877]]

not require notice and comment for this final rule, 5 U.S.C. 603 and 
604 do not require regulatory flexibility analyses regarding impacts on 
small entities. This rule will not create unnecessary obstacles to the 
foreign commerce of the United States. This rule will not impose an 
unfunded mandate on State, local, or tribal governments, or on the 
private sector, by exceeding the threshold identified previously.

A. Regulatory Evaluation

    This action amends, with modifications to reflect changed 
conditions in the Tripoli FIR (HLLL) and the associated risks to U.S. 
civil aviation safety, the SFAR prohibiting certain U.S. civil flight 
operations in the Tripoli FIR (HLLL). This action also extends the 
expiration date of the SFAR for an additional two years. As a result of 
this rule, U.S. civil operators and airmen may operate in those 
portions of the Tripoli FIR (HLLL) outside the territory and airspace 
of Libya at all altitudes, instead of being limited to conducting 
flight operations in those portions of the Tripoli FIR (HLLL) outside 
the territory and airspace of Libya at altitudes at or above FL300. 
U.S. civil aviation operations in the territory and airspace of Libya 
remain prohibited at all altitudes.
    The alternative flight routes result in some additional fuel and 
operations costs to the operators, as well as some costs attributed to 
passenger time. Accordingly, the incremental costs of the amendment of 
this flight prohibition SFAR are minimal. By prohibiting unsafe 
flights, the benefits of this rule will exceed the minimal flight 
deviation costs. Therefore, the FAA finds that the incremental costs of 
amending and extending SFAR No. 112, 14 CFR 91.1603, will be minimal 
and are exceeded by the benefits of avoided risks of deaths, injuries, 
and property damage that could occur if a U.S. operator's aircraft were 
shot down (or otherwise damaged) while operating in the territory and 
airspace of Libya.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an 
agency to prepare an initial regulatory flexibility analysis describing 
impacts on small entities whenever 5 U.S.C. 553 or any other law 
requires an agency to publish a general notice of proposed rulemaking 
for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to 
prepare a final regulatory flexibility analysis when an agency issues a 
final rule under 5 U.S.C. 553 after that section or any other law 
requires publication of a general notice of proposed rulemaking. The 
FAA concludes good cause exists to forgo notice and comment and to not 
delay the effective date for this rule. As 5 U.S.C. 553 does not 
require notice and comment in this situation, 5 U.S.C. 603 and 604 
similarly do not require regulatory flexibility analyses.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to this Act, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards.
    The FAA has assessed the potential effect of this final rule and 
determined that its purpose is to protect the safety of U.S. civil 
aviation from risks to their operations in the territory and airspace 
of Libya, a location outside the U.S. Therefore, the rule complies with 
the Trade Agreements Act of 1979.

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $155 million in lieu of $100 
million.
    This final rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Act do not apply.

E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
the FAA to consider the impact of paperwork and other information 
collection burdens it imposes on the public. The FAA has determined no 
new requirement for information collection is associated with this 
final rule.

F. International Compatibility and Cooperation

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, the FAA's policy is to conform to 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
determined no ICAO Standards and Recommended Practices correspond to 
this regulation. The FAA finds this action is fully consistent with the 
obligations under 49 U.S.C. 40105(b)(1)(A) to ensure the FAA exercises 
its duties consistently with the obligations of the United States under 
international agreements.
    While the FAA's flight prohibition does not apply to foreign air 
carriers, DOT codeshare authorizations prohibit foreign air carriers 
from carrying a U.S. codeshare partner's code on a flight segment that 
operates in airspace for which the FAA has issued a flight prohibition 
for U.S. civil aviation. In addition, foreign air carriers and other 
foreign operators may choose to avoid, or be advised or directed by 
their civil aviation authorities to avoid, airspace for which the FAA 
has issued a flight prohibition for U.S. civil aviation.

G. Environmental Analysis

    The FAA has analyzed this action under Executive Order 12114, 
Environmental Effects Abroad of Major Federal Actions, and DOT Order 
5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be 
informed of environmental considerations and take those considerations 
into account when making decisions on major Federal actions that could 
have environmental impacts anywhere beyond the borders of the United 
States. The FAA has determined this action is exempt pursuant to 
Section 2-5(a)(i) of Executive Order 12114 because it does not have the 
potential for a significant effect on the environment outside the 
United States.
    The FAA has determined that this action will not have a significant 
environmental effect abroad. In accordance with FAA Order 1050.1F, 
Environmental Impacts: Policies and Procedures, paragraph 8-6(c), the 
FAA has prepared a memorandum for the record stating the reason(s) for 
this determination and has placed it in the docket for this rulemaking.

IX. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of 
Executive Order 13132. The agency has

[[Page 16878]]

determined this action will not have a substantial direct effect on the 
States, or the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, this rule will not have 
federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

    The FAA analyzed this rule under Executive Order 13211. The agency 
has determined it is not a ``significant energy action'' under the 
executive order and will not be likely to have a significant adverse 
effect on the supply, distribution, or use of energy.

C. Executive Order 13609, Promoting International Regulatory 
Cooperation

    Executive Order 13609 promotes international regulatory cooperation 
to meet shared challenges involving health, safety, labor, security, 
environmental, and other issues and to reduce, eliminate, or prevent 
unnecessary differences in regulatory requirements. The FAA has 
analyzed this action under the policies and agency responsibilities of 
Executive Order 13609 and has determined that this action will have no 
effect on international regulatory cooperation.

X. Additional Information

A. Electronic Access

    Except for classified and controlled unclassified material not 
authorized for public release, all documents the FAA considered in 
developing this rule, including economic analyses and technical 
reports, may be accessed from the internet through the docket for this 
rulemaking.
    Those documents may be viewed online at https://www.regulations.gov 
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 https://www.federalregister.gov and the Government Publishing Office's website 
at https://www.govinfo.gov. A copy may also be found at the FAA's 
Regulations and Policies website at https://www.faa.gov/regulations_policies.
    Copies may also be obtained by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. 
Commenters must identify the docket or notice number of this 
rulemaking.

B. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601) 
requires FAA to comply with small entity requests for information or 
advice about compliance with statutes and regulations within its 
jurisdiction. A small entity with questions regarding this document may 
contact its local FAA official, or the persons listed under the FOR 
FURTHER INFORMATION CONTACT heading at the beginning of the preamble. 
To find out more about SBREFA on the internet, visit 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, Libya.

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends chapter I of title 14, Code of Federal 
Regulations, as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

0
1. The authority citation for part 91 continues to read as follows:

    Authority: 49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40113, 
40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 
44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 
47508, 47528-47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 
44703 note); articles 12 and 29 of the Convention on International 
Civil Aviation (61 Stat. 1180), (126 Stat. 11).


0
2. Amend Sec.  91.1603 by revising the section heading and paragraphs 
(b), (c), and (e) to read as follows:


Sec.  91.1603  Special Federal Aviation Regulation No. 112--Prohibition 
Against Certain Flights in the Territory and Airspace of Libya.

* * * * *
    (b) Flight prohibition. Except as provided in paragraphs (c) and 
(d) of this section, no person described in paragraph (a) of this 
section may conduct flight operations in the territory and airspace of 
Libya.
    (c) Permitted operations. This section does not prohibit persons 
described in paragraph (a) of this section from conducting flight 
operations in the territory and airspace of Libya, provided that such 
flight operations occur under a contract, grant, or cooperative 
agreement with a department, agency, or instrumentality of the U.S. 
Government (or under a subcontract between the prime contractor of the 
department, agency, or instrumentality and the person described in 
paragraph (a) of this section), with the approval of the FAA, or under 
an exemption issued by the FAA. The FAA will consider requests for 
approval or exemption in a timely manner, with the order of preference 
being: First, for those operations in support of U.S. Government-
sponsored activities; second, for those operations in support of 
government-sponsored activities of a foreign country with the support 
of a U.S. Government department, agency, or instrumentality; and third, 
for all other operations.
* * * * *
    (e) Expiration. This SFAR will remain in effect until March 20, 
2025. The FAA may amend, rescind, or extend this SFAR, as necessary.

    Issued in Washington, DC, under the authority of 49 U.S.C. 
106(f) and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), on or 
about March 13, 2023.
Billy Nolen,
Acting Administrator.
[FR Doc. 2023-05390 Filed 3-17-23; 11:15 am]
BILLING CODE 4910-13-P