[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Rules and Regulations]
[Pages 16236-16239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6942]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. FAA-2011-0246; Amendment No. 91-321; SFAR No. 112]
RIN 2120-AJ93
Prohibition Against Certain Flights Within the Tripoli (HLLL)
Flight Information Region (FIR)
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This action prohibits flight operations within the Tripoli
(HLLL) Flight Information Region (FIR) by all U.S. air carriers; U.S.
commercial operators; persons exercising the privileges of a U.S.
airman certificate, except when such persons are operating a U.S.-
registered aircraft for a foreign air carrier; and operators of U.S.-
registered civil aircraft, except when such operators are foreign air
carriers. The FAA finds this action necessary to prevent a potential
hazard to persons and aircraft engaged in such flight operations.
DATES: This action is effective March 21, 2011.
FOR FURTHER INFORMATION CONTACT: For technical questions about this
final rule, contact: David Catey, William Gonzalez, or Steven Laurenzo,
Air Transportation Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591.
Telephone: 202-267-3732, 202-267-4080, and 202-267-8772, respectively.
For legal questions contact: Lorna John, Office of the Chief Counsel,
AGC-200, Federal
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Aviation Administration, 800 Independence Avenue, SW., Washington, DC
20591; telephone (202) 267-3921.
SUPPLEMENTARY INFORMATION:
Authority for This Rulemaking
The FAA is responsible for the safety of flight in the United
States (U.S.) and for the safety of U.S. civil operators, U.S.-
registered aircraft, and U.S.-certificated airmen throughout the world.
Also, the FAA is responsible for issuing rules affecting the safety of
air commerce and national security. The FAA's authority to issue rules
for aviation safety is found in Title 49 of the United States Code.
Subtitle I, section 106(g), describes the authority of the FAA
Administrator. Subtitle VII, Aviation Programs, describes in more
detail the scope of the agency's authority. Section 40101(d)(1)
provides that the Administrator shall consider in the public interest,
among other matters, assigning, maintaining, and enhancing safety and
security as the highest priorities in air commerce. Section
40105(b)(1)(A) requires the Administrator to exercise his authority
consistently with the obligations of the United States Government under
international agreements. Furthermore, the FAA has broad authority
under section 44701(a)(5) to prescribe regulations governing the
practices, methods, and procedures the Administrator finds necessary
for safety in air commerce and national security.
I. Background
The FAA has safety and national security concerns regarding flight
operations in the Tripoli FIR (HLLL). An armed conflict is ongoing in
Libya and presents a potential hazard to civil aviation. The runways at
Libya's international airports, including the main international
airports serving Benghazi (HLLB) and Tripoli (HLLT) may be damaged or
degraded. Air navigation services in the Tripoli (HLLL) FIR may also be
unavailable or degraded. In addition, the proliferation of air defense
weapons, including Man-Portable Air-Defense Systems (MANPADS), and the
presence of military operations, including Libyan aerial bombardments
and unplanned military flights entering and departing the Tripoli FIR
(HLLL), pose a potential hazard to U.S. operators, U.S.-registered
aircraft, and FAA-certificated airmen that might operate within the
Tripoli FIR (HLLL).
On March 18, 2011, the UN Security Council adopted Resolution 1973.
Paragraph 6 of that Resolution mandates a ban on all flights in the
airspace of Libya, with certain exceptions detailed in Paragraph 7.
Paragraph 7 also requires that any flights in Libya be coordinated with
any mechanism established under Paragraph 8 of the Resolution.
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 49 U.S.C. 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, agency, or instrumentality of the U.S. Government
determines that it has a critical need to engage any person covered
under SFAR No. 112, Sec. 91.1603(a), including a U.S. air carrier or a
U.S. commercial operator for a charter to transport civilian or
military passengers or cargo, the U.S. Government department, agency,
or instrumentality may request the FAA approve persons covered under
SFAR No. 112, Sec. 91.1603(a) to conduct such operations.
An approval request must be made in a letter signed by an
appropriate senior official of the requesting department, agency, or
instrumentality of the U.S. Government; the letter must be sent to the
Associate Administrator for Aviation Safety (AVS-1), Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591.
Electronic submissions are acceptable, and the requesting agency may
request an electronic copy of the FAA's response. Electronic
submissions to the FAA should be sent to [email protected]. A single
letter may request approval from the FAA for multiple persons covered
under SFAR No. 112, Sec. 91.1603(a), and/or for multiple flight
operations. To the extent known, the letter must identify the person(s)
expected to be covered under the SFAR on whose behalf the U.S.
Government department, agency, or instrumentality is seeking FAA
approval, and it must describe--
The proposed operation(s), including the nature of the
mission being supported;
The service to be provided by the person(s) covered by the
SFAR;
To the extent known, the specific locations within the
Tripoli (HLLL) FIR where the proposed operation(s) will be conducted;
The request for approval must also include a list of operators,
including subcontractors, with whom the U.S. Government department,
agency, or instrumentality requesting FAA approval has a current
contract(s), grant(s), or cooperative agreement(s) for specific flight
operations in the Tripoli (HLLL) FIR. Additional contracted operators
may be identified to the FAA at any time after the FAA approval is
issued. Updated lists should be sent to [email protected].
If an approval request includes classified information, you may
contact Aviation Safety Inspectors David Catey, William Gonzalez, or
Steven Laurenzo for instructions on submitting it to the FAA. Their
contact information is listed in the FOR FURTHER INFORMATION CONTACT
section of this final rule.
FAA approval of the operation under SFAR No. 112, Sec. 91.1603(c),
does not relieve persons subject to the SFAR of their responsibility to
comply with all applicable FAA rules and regulations. Operators of
civil aircraft will have to comply with the conditions of their
certificate and Operations Specifications (OpSpecs). In addition,
operators will have to comply with all rules and regulations of other
U.S. Government departments or 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
When the FAA approves the request, the FAA's Aviation Safety
Organization (AVS) will send a letter to the requesting department,
agency, or instrumentality confirming that the FAA's approval is
subject to 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) Any approval will specify that the operation is not eligible
for coverage under a premium war risk insurance policy issued by the
FAA under section 44302 of chapter 443 of title 49, United States Code.
(3) If the operator is already covered by a premium war risk
insurance policy issued by the FAA,\1\ the FAA will issue
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an endorsement to the operator's premium war risk insurance policy that
specifically excludes coverage for any operations in the Tripoli (HLLL)
FIR, including operations under a flight plan that contemplates landing
in or taking off from Libyan territory. The endorsement to the premium
war risk insurance policy will take effect before the approval's
effective date. The operator must further establish that it has
obtained substitute war risk coverage for operations in the Tripoli
FIR. Additionally, before any approval takes effect, the operator must
submit to the FAA a written release of the U.S. Government from all
claims and liabilities, and its agreement to indemnify the U.S.
Government with respect to any and all third-party claims and
liabilities relating to any event arising from or related to the
approved operations in the Tripoli (HLLL) FIR. This waiver of claims
does not preclude an operator from raising a claim under an effective
non-premium war risk insurance policy issued by the FAA.
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\1\ Coverage under FAA premium war risk insurance policies is
suspended as a condition of the premium war risk policy at any time
an operation is covered by non-premium war risk insurance through a
contract with a department, agency, or instrumentality of the U.S.
Government under 49 U.S.C. 44305.
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(4) Other conditions as determined by the FAA.
The FAA will issue OpSpecs to the certificate holder authorizing
these operations. The FAA may impose additional conditions on operators
through Operations Specifications or letters of authorization. The FAA
will notify requesting departments or agencies of FAA approval of civil
operations under agreement with a U.S. government agency of any
additional conditions beyond those contained in the approval letter.
Request for Exemptions
Any operations not conducted under the approval process discussed
above must be conducted under an exemption to this SFAR. A request by
any person covered under SFAR No. 112, Sec. 91.1603(a) for an
exemption must comply with 14 CFR part 11, and will require exceptional
circumstances beyond those contemplated by the approval process set
forth in this SFAR. Additionally, the endorsement of any premium war
risk insurance policy and a waiver and indemnification agreement will
also be required as a condition of any exemption issued under SFAR No.
112, Sec. 91.1603(c). The FAA recognizes that there may be operations
conducted by other States with the support of the U.S. government.
These operations would not be permitted under the approval process;
however, the FAA will process these exemption requests on an expedited
basis and prior to any private exemption requests.
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. In addition, it is a significant
rule within the meaning of the Executive Order and DOT's policies and
procedures. The FAA expects there will be some costs associated with
this emergency rule, but is unable to quantify those costs at this
time. However, the FAA also expects that few, if any, operators subject
to this SFAR are actually operating in the Tripoli (HLLL) FIR given the
current state of affairs. Accordingly, the costs of this SFAR would be
minimal.
As the FAA Administrator I certify that this rule will not have a
significant economic impact on a substantial number of small entities
as defined in Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as
amended. Because the rule is being issued for aviation safety, it is
not considered an unnecessary obstacle to international trade under the
Trade Agreements Act of 1979 (Pub. L. 96-39) and does not create an
unfunded mandate for any entity.
Availability of Rulemaking Documents
You can get an electronic copy of rulemaking documents using the
Internet by--
1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
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 Federal Digital
System at: http://www.gpo.gov/fdsys/.
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 amendment or docket number of this rulemaking.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. If you are a small entity and you have a question
regarding this document, you may contact your local FAA official, or
the person listed under the FOR FURTHER INFORMATION CONTACT heading at
the beginning of the preamble. You can find out more about SBREFA on
the Internet 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, 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(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).
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2. In part 91, add Subpart M, consisting of Sec. 91.1603 to read as
follows:
Subpart M--Special Federal Aviation Regulations
Sec. 91.1603 Special Federal Aviation Regulation No. 112--Prohibition
Against Certain Flights Within the Tripoli (HLLL) Flight Information
Region (FIR).
(a) Applicability. This section 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 a U.S.-
registered aircraft for a foreign air carrier; and
(3) All operators of U.S.-registered civil aircraft, except
operators of such aircraft that are foreign air carriers.
(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 within the Tripoli (HLLL) FIR.
(c) Permitted operations. This section does not prohibit persons
described in paragraph (a) of this section from conducting flight
operations within the Tripoli (HLLL) FIR under the following
conditions:
(1) Flight operations are conducted under a contract, grant or
cooperative agreement with another department,
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agency, or instrumentality of the United States Government with the
approval of the FAA, or by an exemption issued by the Administrator.
The FAA will process requests for approval or exemption in a timely
manner, with an order of preference first for those operations in
support of U.S. government-sponsored activities, second for those
operations in support of government-sponsored activities of another
State with the support of a U.S. government agency, and third for all
other operations.
(2) Flight operations are coordinated with any mechanism
established by paragraph 8 of U.N. Security Council Resolution 1973
(2011).
(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 parts 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 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.
(e) Expiration. This Special Federal Aviation Regulation will
remain in effect for 3 years from the effective date. The FAA may
amend, rescind, or extend this Special Federal Aviation Regulation as
necessary.
Issued in Washington, DC on March 20, 2011.
J. Randolph Babbitt,
Administrator.
[FR Doc. 2011-6942 Filed 3-21-11; 4:15 pm]
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