Prohibition Against Certain Flights Within the Territory and Airspace of Somalia

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action prohibits flight operations below flight level 200 within the territory and airspace of Somalia by all: (1) U.S. air carriers; (2) U.S. commercial operators; (3) operators of U.S. registered aircraft except when such operators are foreign air carriers; and (4) persons exercising the privileges of a U.S. airman certificate except if the flight is on behalf of a foreign air carrier. The FAA finds this action necessary to prevent a potential hazard to persons and aircraft engaged in such flight operations.

EFFECTIVE DATE:

This action is effective March 30, 2007, shall remain in effect until further notice.

FOR FURTHER INFORMATION CONTACT:

David Catey, Air Transportation Division, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. Telephone: (202) 267-3732 or 267-8166.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. The FAA is responsible for the safety of flight in the United States and for the safety of U.S.-registered aircraft and U.S. operators throughout the world. Additionally, the FAA is responsible for issuing rules affecting the safety of air commerce and national security. Title 49 United States Code (U.S.C.) Section 40101(d)(1) provides that the Administrator shall consider the following, among others, as being in the public interest: assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Title 49 U.S.C. Section 44701(a)(5) provides the FAA with broad authority to prescribe regulations governing the practices, methods, and procedures the Administrator finds necessary for safety in air commerce and national security.

Background

The United States has aviation safety and national security interest concerns regarding the safety of flight operations in Somalia. In addition, it has concerns for the individuals affected by this SFAR who may overfly Somalia below flight level (FL) 200 or land anywhere in Somalia except when necessary due to an inflight emergency.

On 9 March, the fuselage of an IL-76 aircraft supporting the deployment of Ugandan peacekeeping forces to Somalia exploded and caught fire just above the landing gear while on final approach to Mogadishu International Airport. There is evidence to support the possibility that the aircraft may have been struck by a rocket propelled grenade (RPG) while 2.5-3 kilometers off the coast of Somalia at approximately 120 meters in altitude. The aircraft was able to land at Mogadishu, but was heavily damaged, although no serious injuries occurred to any crew or passengers. While there have been conflicting accounts regarding the cause of the explosion or fire, we believe that the attack on the IL-76 was probably caused by an RPG. We cannot rule out the possibility that some individuals also have access to man-portable air defense systems (MANPADS) that could be used against those persons covered by this SFAR. On 23 March, an IL-76 aircraft crashed after taking off from Mogadishu airport, killing all the passengers and crew. The aircraft brought engineers and parts to the IL-76 crippled in the 9 March incident. Although the cause of the crash is under investigation, there is a possibility the IL-76 was downed by a MANPADS missile or RPG. These incidents occurred days after unknown individuals mortared the airport at Mogadishu, causing minimal damage. Consequently, the FAA has determined that it is not safe to overfly Somali territory below FL 200. Furthermore, it is in the United States' national security interests for those covered by this SFAR not to engage in flight operations within the territory and airspace of Somalia.

Prohibition Against Certain Flights Within the Territory and Airspace of Somalia

On the basis of the above information, and in furtherance of my responsibilities to promote the safety of flight of civil aircraft in air commerce and to issue aviation rules in the national security interests of the United States, I have determined that action by the FAA is necessary to prevent the injury to U.S. operators or the loss of certain U.S.-registered aircraft conducting flights in the territory and airspace of Somalia below FL 200. Accordingly, I am ordering a prohibition on all flight operations within the territory and airspace of Somalia below FL 200 by all United States air carriers, U.S. commercial operators, and all persons exercising the privileges of an airman certificate issued by the FAA unless such a person is engaged in the operation of a U.S.-registered aircraft for a foreign air carrier. This prohibition also applies to the operation of U.S.-registered aircraft below FL 200 in the territory and airspace of Somalia except where the operator is a foreign air carrier. This action is necessary to prevent an undue hazard to aircraft and to protect persons and property on board those aircraft. SFAR 107 will remain in effect until further notice.

Because the circumstances described herein warrant immediate action by the FAA, I find that notice and public comment under 5 U.S.C. 553(b)(3)(B) are impracticable and contrary to the public interest. Further I find that good cause exists under 5 U.S.C. 553(d) for making this rule effective immediately upon issuance. I also find that this action is fully consistent with the obligations under Title 49 U.S.C. Section 40105 to ensure that I exercise my duties consistently with the obligations of the United States under international agreements.

Approval Based on Authorization Request of an Agency of the United States Government

If a department or agency of the U.S. Government determines that it has a critical need to engage any person covered under paragraph 1 of SFAR 107, including a U.S. air carrier or a commercial operator in a charter for transportation of civilian or military passengers or cargo where the total capacity of the aircraft is used solely for that charter while the aircraft operates within Somalia, the U.S. Government agency may request FAA approval of the operation on behalf of the person covered under paragraph 1 of the SFAR.

That request for approval must be made in writing, in the form of a letter under the signature of a senior official of that department or agency, and sent to the FAA Associate Administrator for Aviation Safety (AVS). That request for approval must include:

1. A written contract between the other U.S. Government agency and persons covered under paragraph 1 of SFAR 107 for specific flight operations, which includes terms and conditions detailing how the operations are to be conducted;

2. A plan approved by the U.S. Government agency describing how, in light of the need for and risk of the proposed operation, the threats to the operation will be mitigated, including the threats associated with MANPADS (FAA review of the plan does not constitute FAA acceptance or approval of the plan); and,

3. Any other information requested by the FAA.

The FAA will review the request for approval submitted by the U.S. Government agency to determine whether that agency has addressed the threats to the proposed operations, including the threats associated with MANPADS. If the FAA determines that the U.S. Government agency has addressed those issues, an approval may be issued as described under the “Approval Conditions” discussion that follows. FAA approval of the operation under paragraph 3 of SFAR 107 does not relieve the operator of the responsibility of ensuring compliance with all rules and regulations of other U.S. Government agencies that may apply to the operation, including, but not limited to the Transportation Security Regulations issued by the Transportation Security Administration, Department of Homeland Security.

Approval Conditions

If the FAA approves the requested operation, AVS will issue an approval directly to the carrier through the use of Operations Specifications (large air carriers) or a letter of authorization (general aviation operations). AVS will send a letter to the authorizing agency that stipulates the specific conditions under which the FAA approves the air carrier or other covered persons for the requested operations in Somalia. Specifically:

1. Any 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. Any approval will specify that the operation is not eligible for coverage through a premium war risk insurance policy issued by the FAA under section 44302 of chapter 443 of Title 49 of the United States Code. A request for such coverage will not be granted; and

3. If the operator already is covered by a premium war risk insurance policy issued by the FAA, the applicant will be required to request the FAA to issue an endorsement to its premium war risk insurance policy that specifically excludes coverage for any operations where the flight level will be lower than FL 200 over Somalia, including a flight plan that contemplates landing or taking off from Somali territory. The operator must expressly waive any claims against the U.S. Government in the event of injury, death or loss resulting from any such operation as a condition for an approval or an exemption issued in accordance with paragraph 3 of SFAR 107. If approved by the FAA, such an endorsement to the premium war risk insurance policy must be issued and effective prior to the effective date of the approval. Additionally, the operator must notify the FAA in writing of its agreement to release the U.S. Government from all claims and liabilities, as well as its agreement to indemnify the U.S. Government with respect to any third party claims and liabilities relating to any and all events arising from or related to any such operation.

If the operation includes the carriage of passengers, the operator must obtain signed statements from each passenger that—(1) contain a statement that the passenger knowingly accepts the risk of the operation and consents to that risk, and (2) releases the U.S. Government from all claims and liabilities relating to any and all events arising from or related to any such operation.

Regulatory Analysis

This rulemaking action is taken under an emergency situation within the meaning of Section 6(a)(3)(d) of Executive Order 12866, Regulatory Planning and Review. It also is considered an emergency regulation under Paragraph 11g of the Department of Transportation (DOT) Regulatory Policies and Procedures. It is not a significant rule within the meaning of the Executive Order and DOT's policies and procedures. No regulatory analysis or evaluation accompanies the rule.

The FAA certifies that this rule will not have a substantial impact on a substantial number of small entities as defined in the Regulatory Flexibility Act of 1980, as amended. It also will have no impact on international trade and creates no unfunded mandate for any entity.

Availability of This Final Rule

You can get an electronic copy using the Internet by:

(1) Searching the Department of Transportation's electronic Docket Management System (DMS) web page ( http://dms.dot.gov/search );

(2) Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies ; or

(3) Accessing the Government Printing Office's web page at http://www.gpoaccess.gov/fr/index.html.

You can also get a copy 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) 267-9680. Make sure to identify the docket number, notice number, or amendment number of this rulemaking.

Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. Therefore, any small entity that has a question regarding this document may contact their local FAA official. Internet users can find additional information on SBREFA in the FAA's Web page at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects in 14 CFR Part 91

• Air traffic control
• Aircraft
• Airmen
• Airports
• Aviation safety
• Freight
• Somalia

The Amendment

For the reasons set forth above, the Federal Aviation Administration amends 14 CFR part 91 as follows:

PART 91—GENERAL OPERATING AND FLIGHT RULES

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

Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531; Articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180).

2. In part 91, Special Federal Aviation Regulation (SFAR) No. 107 is added to read as follows:

Special Federal Aviation Regulation No. 107—Prohibition Against Certain Flights Within the Territory and Airspace of Somalia

1. Applicability. This rule applies to the following persons:

(a) All U.S. air carriers or commercial operators;

(b) All persons exercising the privileges of an airman certificate issued by the FAA except such persons operating U.S.-registered aircraft for a foreign air carrier; and

(c) All operators of aircraft registered in the United States except where the operator of such aircraft is a foreign air carrier.

2. Flight prohibition. Except as provided below, or in paragraphs 3 and 4 of this SFAR, no person described in paragraph 1 may conduct flight operations within the territory and airspace of Somalia below flight level (FL) 200.

(a) Overflights of Somalia may be conducted above FL 200 subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Somalia.

(b) Flights departing from countries adjacent to Somalia whose climb performance will not permit operation above FL 200 prior to entering Somali airspace may operate at altitudes below FL 200 within Somalia to the extent necessary to permit a climb above FL 200, subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Somalia.

3. Permitted operations. This SFAR does not prohibit persons described in section 1 from conducting flight operations within the territory and airspace below FL 200 of Somalia when such operations are authorized either by another agency of the United States Government with the approval of the FAA or by an exemption issued by the Administrator.

4. 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 SFAR to the extent required by that emergency. Except for U.S. air carriers and commercial operators that are subject to the requirements of Title 14 CFR parts 119, 121, or 135, each person who deviates from this rule must, within 10 days of the deviation, excluding Saturdays, Sundays, and Federal holidays, submit to the nearest FAA Flight Standards District 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.

5. Expiration. This Special Federal Aviation Regulation will remain in effect until further notice.