Prohibition Against Certain Flights in the Kabul Flight Information Region (FIR) (OAKX), 47765-47771 [2023-15635]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 88, Number 141 (Tuesday, July 25, 2023)]
[Rules and Regulations]
[Pages 47765-47771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15635]



[[Page 47765]]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2023-1415; Amdt. No. 91-369]
RIN 2120-AL71


Prohibition Against Certain Flights in the Kabul Flight 
Information Region (FIR) (OAKX)

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

ACTION: Final rule.

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SUMMARY: This action prohibits certain flight operations in the Kabul 
Flight Information Region (FIR) (OAKX) at altitudes below Flight Level 
(FL) 320 by all: U.S. air carriers; U.S. commercial operators; persons 
exercising the privileges of an airman certificate issued by the FAA, 
except when such persons are operating U.S.-registered aircraft for a 
foreign air carrier; and operators of U.S.-registered civil aircraft, 
except when the operator of such aircraft is a foreign air carrier. The 
FAA finds this action necessary to address hazards to persons and 
aircraft engaged in such flight operations due to the risk posed by 
violent extremist and militant activity and the lack of adequate risk 
mitigation capabilities to counter such activity. However, the FAA has 
determined that U.S. civil overflights of the Kabul FIR (OAKX) at 
altitudes at and above FL320 may resume due to diminished risks to U.S. 
civil aviation operations at those altitudes. This action also provides 
information regarding the approval and exemption processes for this 
Special Federal Aviation Regulation (SFAR), consistent with other 
recently published flight prohibition SFARs.

DATES: This final rule is effective on July 25, 2023.

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

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    This action prohibits certain flight operations in the Kabul FIR 
(OAKX) at altitudes below FL320 by all: U.S. air carriers; U.S. 
commercial operators; persons exercising the privileges of an airman 
certificate issued by the FAA, except when such persons are operating 
U.S.-registered aircraft for a foreign air carrier; and operators of 
U.S.-registered civil aircraft, except when the operator of such 
aircraft is a foreign air carrier. The FAA finds this action necessary 
to address continuing significant hazards to persons and aircraft 
engaged in such flight operations due to the risk posed by violent 
extremist and militant activity and the lack of adequate risk 
mitigation capabilities to counter such activity.
    However, the FAA has determined that U.S. civil overflights of the 
Kabul FIR (OAKX) at altitudes at and above FL320 may resume due to 
diminished risks to U.S. civil aviation operations at those altitudes. 
The FAA previously prohibited civil overflights of the Kabul FIR (OAKX) 
at all altitudes, except for the use of jet routes P500-G500, under 
Notice to Air Missions (NOTAM) KICZ A0029/21. Afghanistan has 
promulgated contingency measures based upon internationally recognized 
flight procedures and its published contingency plan. Afghanistan 
developed this contingency plan in consultation with the International 
Civil Aviation Organization (ICAO) and neighboring States. Consistent 
with other recently published flight prohibition SFARs, this action 
provides information about how to seek relief from this SFAR through 
the approval and exemption processes, as applicable. This rule expires 
on July 25, 2025.

II. Authority and Good Cause

A. Authority

    The FAA is responsible for the safety of flight in the United 
States and for the safety of U.S. civil operators, U.S.-registered 
civil aircraft, and U.S.-certificated airmen throughout the world. 
Sections 106(f) and (g) of title 49, U.S. Code (U.S.C.), subtitle I, 
establish the FAA Administrator's authority to issue rules on aviation 
safety. Subtitle VII of title 49, Aviation Programs, describes in more 
detail the scope of the agency's authority. Section 40101(d)(1) 
provides that the Administrator shall consider, in the public interest, 
among other matters, assigning, maintaining, and enhancing safety and 
security as the highest priorities in air commerce. Section 
40105(b)(1)(A) requires the Administrator to exercise this authority 
consistently with the obligations of the U.S. Government under 
international agreements.
    The FAA is promulgating this rule under the authority described in 
49 U.S.C. 44701, General Requirements. Under that section, the FAA is 
charged broadly with promoting safe flight of civil aircraft in air 
commerce by prescribing, among other things, regulations and minimum 
standards for practices, methods, and procedures that the Administrator 
finds necessary for safety in air commerce and national security. This 
regulation is within the scope of the FAA's authority because it 
prohibits the persons described in paragraph (a) of SFAR No. 119, Sec.  
91.1619, from conducting flight operations in the Kabul FIR (OAKX) at 
altitudes below FL320 due to the continuing significant hazards to the 
safety of U.S. civil flight operations at those altitudes, as described 
in the preamble to this final rule.

B. Good Cause for Immediate Adoption

    Section 553(b)(B) of title 5, U.S.C., authorizes agencies to 
dispense with notice and comment procedures for rules when the agency 
for ``good cause'' finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' Also, section 553(d) 
permits agencies, upon a finding of good cause, to issue rules with an 
effective date less than 30 days from the date of publication. In this 
instance, the FAA finds good cause to forgo notice and comment and the 
delayed effective date because they would be impracticable and contrary 
to the public interest.
    Providing notice and the opportunity for the public to comment here 
would be impracticable. The FAA's flight prohibitions, and any 
amendments thereto, need to include appropriate boundaries that reflect 
the agency's current understanding of the risk environment for U.S. 
civil aviation. This allows the FAA to protect the safety of U.S. 
operators' aircraft and the lives of their passengers and crews without 
over-restricting or under-restricting U.S. operators' routing options. 
However, the risk environment for U.S. civil aviation in airspace 
managed by other countries with respect to the safety of flight is 
fluid in circumstances involving fighting, violent extremist and 
militant activity, or periods of heightened tensions, particularly 
where weapons capable of targeting or otherwise negatively affecting 
U.S. civil aviation are or may be present. This fluidity, and the 
potential for rapid changes in the risks to U.S. civil aviation, 
significantly limits how far in advance of a new or amended flight 
prohibition the FAA can usefully assess the risk environment. The delay 
that would be occasioned by providing an opportunity to comment on this 
action would significantly increase the risk that the resulting final 
action would not accurately reflect the current risks to U.S. civil 
aviation associated with the situation and thus would not establish 
boundaries for the

[[Page 47766]]

flight prohibition commensurate with those risks.
    While the FAA sought and responded to public comments, the 
boundaries of the area in which unacceptable risks to the safety of 
U.S. civil aviation existed might change due to: evolving military or 
political circumstances; violent extremist and militant group activity; 
the introduction, removal, or repositioning of more advanced anti-
aircraft weapon systems; or other factors. As a result, if the 
situation improved while the FAA sought and responded to public 
comments, the rule the FAA finalized might be over-restrictive, 
unnecessarily limiting U.S. operators' routing options and potentially 
causing them to incur unnecessary additional fuel and operations-
related costs, as well as potentially causing passengers to incur 
unnecessarily some costs attributed to their time. Conversely, if the 
situation deteriorated while the FAA sought and responded to public 
comments, the rule the FAA finalized might be under-restrictive, 
allowing U.S. civil aviation to continue operating in areas where 
unacceptable risks to their safety had developed. Such an outcome would 
endanger the safety of these aircraft, as well as their passengers and 
crews, exposing them to unacceptable risks of death, injury, and 
property damage that could occur if a U.S. operator's aircraft were 
shot down (or otherwise damaged) while operating in the Kabul FIR 
(OAKX) at altitudes below FL320.
    Alternatively, if the FAA made changes to the area in which U.S. 
civil aviation operations would be prohibited between a notice of 
proposed rulemaking and a final rule due to changed conditions, the 
version of the rule the public commented on would no longer reflect the 
FAA's current assessment of the risk environment for U.S. civil 
aviation.
    In addition, seeking comment would be contrary to the public 
interest because some of the rational basis for the rulemaking is based 
upon classified information and controlled unclassified information not 
authorized for public release. In order to meaningfully provide comment 
on a proposal, the public would need access to the basis for the 
agency's decision-making, which FAA cannot provide. Disclosing 
classified or controlled unclassified information in order to seek 
meaningful comment on the proposal would harm the public interest. 
Accordingly, FAA meaningfully seeking comment on the proposal is 
contrary to the public interest.
    Therefore, providing notice and the opportunity for comment would 
be impracticable as it would hinder the FAA's ability to maintain 
appropriate flight prohibitions based on up-to-date risk assessments of 
the risks to the safety of U.S. civil aviation operations in airspace 
managed by other countries and contrary to the public interest as FAA 
cannot protect classified and controlled unclassified information and 
meaningfully seek public comment.
    For the same reasons discussed above, the potential safety impacts 
and the need for prompt action on up-to-date information that is not 
public would make delaying the effective date impracticable and 
contrary to the public interest. For altitudes at and above FL320 in 
the Kabul FIR (OAKX), except for transiting overflights on jet routes 
P500-G500, any delay in the effective date of the rule would continue a 
prohibition on U.S. civil aviation operations at those altitudes that 
the FAA has determined is no longer needed for the safety of U.S. civil 
aviation and would thus unnecessarily restrict U.S. operators' routing 
options at those altitudes.
    Accordingly, the FAA finds good cause exists to forgo notice and 
comment and any delay in the effective date for this rule.

III. Background

    The Taliban's takeover of Afghanistan and the ongoing threat of 
violent extremist organization (VEO) terrorist attacks, coupled with 
the coalition force withdrawal from Kabul International Airport (ICAO: 
OAKB),\1\ resulted in a substantially degraded safety and security 
environment for U.S. civil aviation operations in the Kabul FIR (OAKX), 
including at Kabul International Airport (OAKB). The withdrawal of 
United States and coalition forces resulted in the removal of 
associated risk mitigation capabilities previously deployed at Kabul 
International Airport (OAKB). In addition, the absence of a functioning 
civil aviation authority and air navigation service provider created an 
unacceptable level of aviation safety risk for U.S. civil aviation 
operations in the Kabul FIR (OAKX) at all altitudes, with the exception 
of transiting overflight operations on jet routes P500-G500.
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    \1\ Between 2014 and late 2021, Kabul International Airport was 
known as Hamid Karzai International Airport (ICAO code: OAKB). The 
FAA has used the currently-recognized airport name throughout this 
document, although certain references are to historical events that 
occurred while the airport was named Hamid Karzai International 
Airport.
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    After the Taliban took over the country, the security environment 
in Afghanistan remained tenuous and complex and presented an enduring 
safety and security risk to U.S. civil aviation operating in the Kabul 
FIR (OAKX) at altitudes below FL260.\2\ Thousands of individuals had 
been released from Afghan prisons, and various groups, including VEOs 
outside of Taliban control, had seized large quantities of military 
equipment. In addition, some VEOs operating in Afghanistan had 
demonstrated their capability and willingness to target civil aviation, 
as shown by attacks against Kabul International Airport (OAKB) during 
late August 2021 and previous instances of surface-to-air fire against 
U.S. Government-contracted aircraft over the course of the nearly 20-
year U.S. presence in Afghanistan. On August 26, 2021, the Islamic 
State in Iraq and ash-Sham in Khorasan (ISIS-K) conducted a complex 
attack against Kabul International Airport (OAKB), killing hundreds, 
and, on August 30, 2021, ISIS-K employed indirect fire to target 
evacuation operations at the airport. Additionally, ISIS-K conducted an 
IED attack on a military security gate at Kabul International Airport 
(OAKB) on January 1, 2023, killing several people. Military and civil 
aircraft operating at lower altitudes had previously encountered 
weapons activity, and the FAA was concerned further incidents might 
occur from deliberate or inadvertent targeting that might endanger 
flight operations.
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    \2\ While the background notice the FAA published for NOTAM KICZ 
A0029/21 (available at https://www.faa.gov/air_traffic/publications/us_restrictions/#restrictAF) refers to FL260 in discussing these 
threats, that reference did not take into account the high altitude 
of some of Afghanistan's terrain. As described later in this 
preamble, the use of FL320 in this final rule accounts for risks 
associated with the capabilities of weapons systems potentially 
available to VEOs and the terrain under established international 
air routes in the Kabul FIR (OAKX).
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    The FAA assessed that civil aircraft operating at lower altitudes 
might encounter direct or indirect surface-to-air fire threats, 
including small-arms fire, rocket-propelled grenades, and low-altitude 
anti-aircraft fire. The Taliban, ISIS-K, and other VEOs likely had 
access to weapons, including small arms, automatic machine guns, anti-
aircraft artillery (AAA), anti-tank guided missiles (ATGMs), and 
unmanned aircraft systems (UAS), which posed a risk to aircraft during 
low-altitude flight operations, including the arrival and departure 
phases of flight, and while on the ground at targeted airports and 
airfields.
    A limited threat also existed from the possible use of shoulder-
fired man-portable air defense systems (MANPADS), which may be capable 
of reaching a maximum altitude of 25,000

[[Page 47767]]

feet above ground level (AGL). While the stockpile of MANPADS in 
Afghanistan was limited, there were VEOs seeking to acquire this 
capability. In the recent past, civil aircraft in Afghanistan had not 
been targeted with MANPADS. Military aircraft had been infrequently 
targeted with MANPADS since coalition operations in Afghanistan began 
in 2001. Although the FAA assessed it was unlikely the Taliban would 
target civil aviation in the Kabul FIR (OAKX) now that they had taken 
over the country, ISIS-K and some other VEOs operating in Afghanistan 
remained outside of Taliban control. The FAA assessed that ISIS-K and 
other VEOs had varying capabilities, including potentially having 
access to anti-aircraft weapons, including MANPADS.
    In addition to the noted security risks, there was also an 
increased safety risk to U.S. civil aviation operations in the Kabul 
FIR (OAKX) at all altitudes. The Taliban takeover resulted in the lack 
of a functioning civil aviation authority and air navigation service 
provider. This included a lack of air traffic services (ATS) 
capabilities necessary to support en-route services for overflight 
operations without the implementation of appropriate contingency 
measures to enable safe flight operations under those conditions. In 
the immediate aftermath of the Taliban takeover, such contingency 
measures were not in place.
    Taken together, these circumstances posed an unacceptable risk to 
the safety of U.S. civil aviation operations in the Kabul FIR (OAKX) at 
all altitudes, except for transiting overflight operations on jet 
routes P500-G500. To address these risks, on August 30, 2021, the FAA 
issued NOTAM KICZ A0029/21. This NOTAM prohibited, with certain limited 
exceptions, U.S. civil aviation operations in the Kabul FIR (OAKX) at 
all altitudes by all: U.S. air carriers; U.S. commercial operators; 
persons exercising the privileges of an airman certificate issued by 
the FAA, except when such persons are operating U.S.-registered 
aircraft for a foreign air carrier; and operators of U.S.-registered 
civil aircraft, except when the operator of such aircraft is a foreign 
air carrier, due to the risk posed by violent extremist and militant 
activity, lack of adequate risk mitigation capabilities, and disruption 
to air traffic services. The NOTAM allowed U.S. civil aviation 
overflights to transit the Kabul FIR (OAKX) on jet routes P500-G500, as 
such operations are only in the Kabul FIR (OAKX) very briefly.

IV. Discussion of the Final Rule

    Following the Taliban takeover of Afghanistan, the ICAO Asia-
Pacific Office made contact with Afghanistan's civil aviation authority 
and stood up a contingency coordination team (CCT) composed of 
Afghanistan and neighboring air navigation service providers, as well 
as International Air Transport Association (IATA) representation. 
Afghanistan's civil aviation authority and the CCT worked with 
neighboring air navigation service providers to establish a contingency 
plan for the safe resumption of civil overflights in the Kabul FIR 
(OAKX).
    Subsequently, Afghanistan issued a series of NOTAMs delineating 
overflight procedures and established altitude blocks for specific 
categories of flight operations across various regions. The overflight 
procedures rely upon internationally-recognized traffic information by 
aircraft (TIBA) procedures, which pilots use in areas around the world 
where air traffic services are very limited or unavailable to maintain 
safe separation between aircraft. Consequently, the FAA has determined 
that U.S. civil aviation operations in the Kabul FIR (OAKX) may resume 
at altitudes at or above FL320 due to diminished risks to U.S. civil 
aviation operations at those altitudes.
    However, the FAA continues to assess the situation in the Kabul FIR 
(OAKX) at altitudes below FL320 as being hazardous for U.S. civil 
aviation. Following the Taliban takeover of the country and the 
withdrawal of coalition forces, the Taliban have struggled to ensure 
security throughout Afghanistan. The Taliban face increasing attacks 
from ISIS-K, who have also threatened Western and international 
interests in the country. During the first half of 2022, ISIS-K 
conducted multiple attacks, in part in an effort to frustrate Taliban 
attempts to normalize relations with the international community. One 
incident of note took place in June 2022, in which ISIS-K attacked a 
bus serving Mazar-I-Sharif Airport (ICAO: OAMS), killing two airport 
workers.
    The Taliban, ISIS-K, and other VEOs likely had and potentially 
maintain access to a variety of weapons, including small arms, 
automatic machine guns, AAA, ATGMs, and UAS, posing an ongoing risk to 
civil aircraft during low-altitude flight operations, including the 
arrival and departure phases of flight, and while on the ground at 
targeted airports and airfields. Possible VEO use of shoulder-fired 
MANPADS also remains a concern. While the stockpile of MANPADS in 
Afghanistan remains limited, VEOs continue to seek to acquire this 
capability. Some MANPADS may be capable of reaching a maximum altitude 
of 25,000 feet AGL; however, in the context of Afghanistan, the FAA 
must also account for the high altitude of some of the country's 
terrain. Allowing U.S. civil aviation operations in the Kabul FIR 
(OAKX) only at altitudes at or above FL320 accounts for risks 
associated with the capabilities of weapons systems potentially 
available to VEOs and the terrain under established international air 
routes in the Kabul FIR (OAKX).\3\
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    \3\ As defined in 14 CFR 1.1, ``Flight level means a level of 
constant atmospheric pressure related to a reference datum of 29.92 
inches of mercury.'' Flight level, in this context, is 
differentiated from above-ground-level (AGL), which is altitude 
expressed in feet measured above ground level.
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    In addition, VEOs active in Afghanistan have increased cross-border 
attacks into Pakistan, drawing Pakistani air strikes against targets in 
Afghanistan in response. In mid-April 2022, Pakistani airstrikes in 
eastern Afghanistan reportedly killed 47 civilians. Pakistan likely 
does not coordinate cross-border tactical military airstrikes with the 
Afghan civil aviation authority to de-conflict them with civil air 
traffic. Pakistan likely conducts such tactical military operations at 
altitudes below FL320.
    Therefore, as a result of the remaining unacceptable risks to U.S. 
civil aviation operations in the Kabul FIR (OAKX) at altitudes below 
FL320 and the likelihood the risk concerns will endure, the FAA 
promulgates this final rule to incorporate a prohibition on U.S. civil 
aviation operations at those altitudes into the Code of Federal 
Regulations (CFR). The FAA will continue to monitor the situation and 
evaluate the extent to which U.S. civil operators and airmen might be 
able to operate safely in the Kabul FIR (OAKX) at altitudes below 
FL320. Amendments to SFAR No. 119, Sec.  91.1619, could be appropriate 
if the risk to aviation safety and security changes. The FAA may amend 
or rescind SFAR No. 119, Sec.  91.1619, as necessary, prior to its 
expiration date.
    The FAA is also publishing the details concerning the approval and 
exemption processes in Sections V and VI of this preamble to enable 
interested persons to refer to this final rule for all relevant 
information about seeking relief from SFAR No. 119, Sec.  91.1619.

[[Page 47768]]

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

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

    In some instances, U.S. Government departments, agencies, or 
instrumentalities may need to engage U.S. civil aviation to support 
their activities in the Kabul FIR (OAKX) at altitudes below FL320. If a 
department, agency, or instrumentality of the U.S. Government 
determines that it has a critical need to engage any person described 
in paragraph (a) of SFAR No. 119, Sec.  91.1619, including a U.S. air 
carrier or commercial operator, to transport civilian or military 
passengers or cargo or conduct other operations in the Kabul FIR (OAKX) 
at altitudes below FL320, that department, agency, or instrumentality 
may request the FAA to approve persons described in paragraph (a) of 
SFAR No. 119, Sec.  91.1619, to conduct such operations.
    The requesting U.S. Government department, agency, or 
instrumentality must submit the request for approval to the FAA's 
Associate Administrator for Aviation Safety in a letter signed by an 
appropriate senior official of the requesting department, agency, or 
instrumentality.\4\ The FAA will not accept or consider requests for 
approval from anyone other than the requesting U.S. Government 
department, agency, or instrumentality. In addition, the senior 
official signing the letter requesting FAA approval must be 
sufficiently positioned within the requesting department, agency, or 
instrumentality to demonstrate that the organization's senior 
leadership supports the request for approval and is committed to taking 
all necessary steps to minimize aviation safety and security risks to 
the proposed flights. The senior official must also be in a position to 
(1) attest to the accuracy of all representations made to the FAA in 
the request for approval and (2) ensure that any support from the 
requesting U.S. Government department, agency, or instrumentality 
described in the request for approval is in fact brought to bear and is 
maintained over time. Unless justified by exigent circumstances, 
requesting U.S. Government departments, agencies, or instrumentalities 
must submit requests for approval to the FAA no less than 30 calendar 
days before the date on which the requesting department, agency, or 
instrumentality wishes the operator(s) to commence the proposed 
operation(s).
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    \4\ This approval procedure applies to U.S. Government 
departments, agencies, or instrumentalities; it does not apply to 
the public. The FAA describes this procedure in the interest of 
providing transparency with respect to the FAA's process for 
interacting with U.S. Government departments, agencies, or 
instrumentalities that seek to engage U.S. civil aviation to operate 
in the area in which this SFAR would prohibit their operations in 
the absence of specific FAA approval.
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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. 119, Sec.  91.1619, or for multiple 
flight operations. To the extent known, the letter must identify the 
person(s) the requester expects the SFAR to cover on whose behalf the 
U.S. Government department, agency, or instrumentality seeks FAA 
approval, and it must describe--
     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 Kabul 
FIR (OAKX) at altitudes below FL320 where the proposed operation(s) 
will occur, including, but not limited to, the flight path and altitude 
of the aircraft while it is operating in the Kabul FIR (OAKX) at 
altitudes below FL320 and the airports, airfields, or landing zones at 
which the aircraft will take off and land; and
     The method by which the requesting department, agency, or 
instrumentality will provide, or how the operator will otherwise 
obtain, current threat information and an explanation of how the 
operator will integrate this information into all phases of the 
proposed operations (i.e., the pre-mission planning and briefing, in-
flight, and post-flight phases).
    The request for approval must also include a list of operators with 
whom the U.S. Government department, agency, or instrumentality 
requesting FAA approval has a current contract(s), grant(s), or 
cooperative agreement(s) (or its prime contractor has a subcontract(s)) 
for specific flight operations in the Kabul FIR (OAKX) at altitudes 
below FL320. The requestor may identify additional operators to the FAA 
at any time after the FAA issues its approval. Neither the operators 
listed in the original request nor any operators the requestor 
subsequently seeks to add to the approval may commence operations under 
the approval until the FAA issues them an Operations Specification 
(OpSpec) or Letter of Authorization (LOA), as appropriate, for 
operations in the Kabul FIR (OAKX) at altitudes below FL320. The 
approval conditions discussed below apply to all operators. Requestors 
should send updated lists to the email address they obtained from the 
Air Transportation Division by calling (202) 267-8166.
    If an approval request includes classified information or 
controlled unclassified information not authorized for public release, 
requestors may contact Aviation Safety Inspector Bill Petrak for 
instructions on submitting it to the FAA. His contact information 
appears in the FOR FURTHER INFORMATION CONTACT section of this final 
rule.
    FAA approval of an operation under SFAR No. 119, Sec.  91.1619, 
does not relieve persons subject to this SFAR of the responsibility to 
comply with all other applicable FAA rules and regulations. Operators 
of civil aircraft must comply with the conditions of their 
certificates, OpSpecs, and LOAs, as applicable. Operators must also 
comply with all rules and regulations of other U.S. Government 
departments, agencies, or instrumentalities that may apply to the 
proposed operation(s), including, but not limited to, regulations 
issued by the Transportation Security Administration.

B. Approval Conditions

    If the FAA approves the request, the FAA's Aviation Safety 
organization will send an approval letter to the requesting U.S. 
Government department, agency, or instrumentality informing it that the 
FAA's approval is subject to all of the following conditions:
    (1) The approval will stipulate those procedures and conditions 
that limit, to the greatest degree possible, the risk to the operator 
while still allowing the operator to achieve its operational 
objectives.
    (2) Before any approval takes effect, the operator must submit to 
the FAA:
    (a) A written release of the U.S. Government from all damages, 
claims, and liabilities, including without limitation legal fees and 
expenses, relating to any event arising out of or related to the 
approved operations in the Kabul FIR (OAKX) at altitudes below FL320; 
and
    (b) The operator's written agreement to indemnify the U.S. 
Government with respect to any and all third-party

[[Page 47769]]

damages, claims, and liabilities, including without limitation legal 
fees and expenses, relating to any event arising out of or related to 
the approved operations in the Kabul FIR (OAKX) at altitudes below 
FL320.
    (3) Other conditions the FAA may specify, including those the FAA 
might impose in OpSpecs or LOAs, as applicable.
    The release and agreement to indemnify do not preclude an operator 
from raising a claim under an applicable non-premium war risk insurance 
policy the FAA issues under 49 U.S.C. chapter 443.
    If the FAA approves the proposed operation(s), the FAA will issue 
an OpSpec or LOA, as applicable, to the operator(s) identified in the 
original request and any operators the requestor subsequently adds to 
the approval, authorizing them to conduct the approved operation(s). In 
addition, as stated in paragraph (3) of this section V.B., the FAA 
notes that it may include additional conditions beyond those contained 
in the approval letter in any OpSpec or LOA associated with a 
particular operator operating under this approval, as necessary in the 
interests of aviation safety. U.S. Government departments, agencies, 
and instrumentalities requesting FAA approval on behalf of entities 
with which they have a contract or subcontract, grant, or cooperative 
agreement should request a copy of the relevant OpSpec or LOA directly 
from the entity with which they have any of the foregoing types of 
arrangements, if desired.

VI. Information Regarding Petitions for Exemption

    Any operations not conducted under an approval the FAA issues 
through the approval process set forth previously may only occur in 
accordance with an exemption from SFAR No. 119, Sec.  91.1619. A 
petition for exemption must comply with 14 CFR part 11. The FAA will 
consider whether exceptional circumstances exist beyond those the 
approval process described in the previous section contemplates. To 
determine whether a petition for exemption from the prohibition this 
SFAR establishes fulfills the standards described in 14 CFR 11.81, the 
FAA consistently finds necessary the following information:
     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 Kabul FIR (OAKX) at 
altitudes below FL320 where the proposed operation(s) will occur, 
including, but not limited to, the flight path and altitude of the 
aircraft while it is operating in the Kabul FIR (OAKX) at altitudes 
below FL320 and the airports, airfields, or landing zones at which the 
aircraft will take off and land;
     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 the exemption 
would not adversely affect safety or would provide a level of safety at 
least equal to that provided by this SFAR. The FAA has found 
comprehensive, organized plans and procedures of this nature to be 
helpful in facilitating the agency's safety evaluation of petitions for 
exemption from flight prohibition SFARs.
    The FAA includes, as a condition of each such exemption it issues, 
a release and agreement to indemnify, as described previously.
    The FAA recognizes that, with the support of the U.S. Government, 
the governments of other countries could plan operations that SFAR No. 
119, Sec.  91.1619, affects. While the FAA will not permit these 
operations through the approval process, the FAA will consider 
exemption requests for such operations on an expedited basis and in 
accordance with the order of preference set forth in paragraph (c) of 
SFAR No. 119, Sec.  91.1619.
    If a petition for exemption includes information that is sensitive 
for security reasons or proprietary information, requestors may contact 
Aviation Safety Inspector Bill Petrak for instructions on submitting it 
to the FAA. His contact information is listed in the FOR FURTHER 
INFORMATION CONTACT section of this final rule.

VII. Severability

    Congress authorized the FAA by statute to promote safe flight of 
civil aircraft in air commerce by prescribing, among other things, 
regulations and minimum standards for practices, methods, and 
procedures the Administrator finds necessary for safety in air commerce 
and national security. 49 U.S.C. 44701. Consistent with that mandate, 
the FAA is prohibiting certain persons from conducting flight 
operations in the Kabul FIR (OAKX) at altitudes below FL320 due to the 
continuing significant risks to the safety of U.S. civil flight 
operations. The purpose of this rule is to operate holistically in 
addressing a range of hazards and needs in the Kabul FIR (OAKX) at 
altitudes below FL320. However, the FAA recognizes that certain 
provisions focus on unique factors. Therefore, the FAA finds that the 
various provisions of this final rule are severable and able to operate 
functionally if severed from each other. In the event a court were to 
invalidate one or more of this final rule's unique provisions, the 
remaining provisions should stand, thus allowing the FAA to continue to 
fulfill its congressionally authorized role of promoting safe flight of 
civil aircraft in air commerce.

VII. Regulatory Notices and Analyses

    Federal agencies consider impacts of regulatory actions under a 
variety of executive orders and other requirements. First, Executive 
Order 12866 and Executive Order 13563, as amended by Executive Order 
14094 (``Modernizing Regulatory Review''), direct that each Federal 
agency shall propose or adopt a regulation only upon a reasoned 
determination that the benefits of the intended regulation justify its 
costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), 
as codified in 5 U.S.C. 603 et seq., requires agencies to analyze the 
economic impact of regulatory changes on small entities. Third, the 
Trade Agreements Act of 1979 (Pub. L. 96-39), as codified in 19 U.S.C. 
chapter 13, prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the United States. In 
developing U.S. standards, the Trade Agreements Act requires agencies 
to consider international standards and, where appropriate, that they 
be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform 
Act of 1995 (Pub. L. 104-4), as codified in 2 U.S.C. chapter 25, 
requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
Tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this final rule.
    In conducting these analyses, the FAA has determined this final 
rule has benefits that justify its costs. This rule is a significant 
regulatory action, as defined in section 3(f) of Executive Order 12866, 
as it raises novel policy issues contemplated under that

[[Page 47770]]

Executive order. As 5 U.S.C. 553 does not require notice and comment 
for this final rule, 5 U.S.C. 603 and 604 do not require regulatory 
flexibility analyses regarding impacts on small entities. This rule 
will not create unnecessary obstacles to the foreign commerce of the 
United States. This rule will not impose an unfunded mandate on State, 
local, or Tribal governments, or on the private sector, by exceeding 
the threshold identified previously.

A. Regulatory Evaluation

    This rule prohibits U.S. civil flights in the Kabul FIR (OAKX) at 
altitudes below FL320 as a result of the continuing significant risks 
to U.S. civil aviation detailed in the preamble of this final rule. 
Overflights of the Kabul FIR (OAKX) may be conducted at altitudes at 
and above FL320. The FAA acknowledges this flight prohibition may 
result in additional costs to some U.S. operators, such as increased 
fuel costs and other operational-related costs, as well as some costs 
attributed to passenger time. However, the FAA expects the benefits of 
this action to exceed the costs because it will result in the avoidance 
of risks of fatalities, injuries, and property damage that could result 
from a U.S. operator's aircraft being shot down (or otherwise damaged) 
while operating in the Kabul FIR (OAKX) at altitudes below FL320.

B. Regulatory Flexibility Act

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

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to this Act, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards.
    The FAA has assessed the potential effect of this final rule and 
determined that its purpose is to protect the safety of U.S. civil 
aviation from risks to their operations in the Kabul FIR (OAKX) at 
altitudes below FL320, a location outside the United States. Therefore, 
the rule complies with the Trade Agreements Act of 1979.

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and Tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $165 million in lieu of $100 
million.
    This final rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Act do not apply.

E. Paperwork Reduction Act

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

F. International Compatibility and Cooperation

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

G. Environmental Analysis

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

VIII. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of 
Executive Order 13132. The agency has determined this action will not 
have a substantial direct effect on the States, or the relationship 
between the Federal Government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, this rule will not have federalism implications.

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

    The FAA analyzed this rule under Executive Order 13211. The agency 
has determined it is not a ``significant energy action'' under the 
Executive order and will not be likely to have a

[[Page 47771]]

significant adverse effect on the supply, distribution, or use of 
energy.

C. Executive Order 13609, Promoting International Regulatory 
Cooperation

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

IX. Additional Information

A. Electronic Access

    Except for classified and controlled unclassified material not 
authorized for public release, all documents the FAA considered in 
developing this rule, including economic analyses and technical 
reports, may be accessed from the internet through the docket for this 
rulemaking.
    Those documents may be viewed online at 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 on 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. 
Interested persons must identify the docket or amendment number of this 
rulemaking.

B. Small Business Regulatory Enforcement Fairness Act

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

List of Subjects in 14 CFR Part 91

    Afghanistan, Air traffic control, Aircraft, Airmen, Airports, 
Aviation safety, Freight.

The Amendment

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

PART 91--GENERAL OPERATING AND FLIGHT RULES

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

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


0
2. Add Sec.  91.1619 to read as follows:


Sec.  91.1619  Special Federal Aviation Regulation No. 119--Prohibition 
Against Certain Flights in the Kabul Flight Information Region (FIR) 
(OAKX).

    (a) Applicability. This Special Federal Aviation Regulation (SFAR) 
applies to the following persons:
    (1) All U.S. air carriers and U.S. commercial operators;
    (2) All persons exercising the privileges of an airman certificate 
issued by the FAA, except when such persons are operating U.S.-
registered aircraft for a foreign air carrier; and
    (3) All operators of U.S.-registered civil aircraft, except when 
the operator of such aircraft is a foreign air carrier.
    (b) Flight prohibition. Except as provided in paragraphs (c) and 
(d) of this section, no person described in paragraph (a) of this 
section may conduct flight operations in the Kabul Flight Information 
Region (FIR) (OAKX).
    (c) Permitted operations. This section does not prohibit persons 
described in paragraph (a) of this section from conducting flight 
operations in the Kabul Flight Information Region (FIR) (OAKX) under 
the following circumstances:
    (1) Overflights of the Kabul Flight Information Region (FIR) (OAKX) 
may be conducted at altitudes at and above Flight Level (FL) 320, 
subject to the approval of, and in accordance with the conditions 
established by, the appropriate authorities of Afghanistan.
    (2) Flight operations may be conducted in the Kabul Flight 
Information Region (FIR) (OAKX) at altitudes below FL320, provided that 
such flight operations occur under a contract, grant, or cooperative 
agreement with a department, agency, or instrumentality of the U.S. 
Government (or under a subcontract between the prime contractor of the 
U.S. Government department, agency, or instrumentality and the person 
described in paragraph (a) of this section) with the approval of the 
FAA or under an exemption issued by the FAA. The FAA will consider 
requests for approval or exemption in a timely manner, with the order 
of preference being: first, for those operations in support of U.S. 
Government-sponsored activities; second, for those operations in 
support of government-sponsored activities of a foreign country with 
the support of a U.S. Government department, agency, or 
instrumentality; and third, for all other operations.
    (d) Emergency situations. In an emergency that requires immediate 
decision and action for the safety of the flight, the pilot in command 
of an aircraft may deviate from this section to the extent required by 
that emergency. Except for U.S. air carriers and commercial operators 
that are subject to the requirements of 14 CFR part 119, 121, 125, or 
135, each person who deviates from this section must, within 10 days of 
the deviation, excluding Saturdays, Sundays, and Federal holidays, 
submit to the responsible Flight Standards Office a complete report of 
the operations of the aircraft involved in the deviation, including a 
description of the deviation and the reasons for it.
    (e) Expiration. This SFAR will remain in effect until July 25, 
2025. The FAA may amend, rescind, or extend this SFAR as necessary.

    Issued in Washington, DC, under the authority of 49 U.S.C. 
106(f) and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5).
Polly Trottenberg,
Acting Administrator.
[FR Doc. 2023-15635 Filed 7-24-23; 8:45 am]
BILLING CODE 4910-13-P