2024-31188. Extension of the Prohibition Against Certain Flights in Specified Areas of the Sanaa Flight Information Region (FIR) (OYSC)

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Department of Transportation

Federal Aviation Administration

1. 14 CFR Part 91
2. Docket No. FAA-2015-8672; Amdt. No. 91-340E]
3. RIN 2120-AL96

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This action extends the prohibition against certain flight operations in specified areas of the Sanaa Flight Information Region (FIR) (OYSC) 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, for an additional three years, from January 7, 2025, until January 7, 2028. The FAA finds this action necessary to address significant, unacceptable safety-of-flight risks to U.S. civil aviation operations in the specified areas of the Sanaa FIR (OYSC) stemming from heightened regional tensions associated with Houthi weapons employment and operational activities. Most recently, Houthi forces have engaged in increased weapons employment and operational activities related to the Israel-Gaza Conflict, leading in some cases to air defense responses. The FAA also takes into account the Houthis' recent history of having conducted long-range attacks emanating from the Sanaa FIR (OYSC) in other directions, notably against Saudi Arabia and the United Arab Emirates (UAE) in 2022. The FAA also republishes the approval process and exemption information for this Special Federal Aviation Regulation (SFAR), consistent with other recently published flight prohibition SFARs.

DATES:

This final rule is effective on December 30, 2024.

FOR FURTHER INFORMATION CONTACT:

Bill Petrak, Flight Standards Service, through the Washington Operations Center, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone [phone]; email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

This action extends the expiration date of SFAR No. 115, title 14 Code of Federal Regulations (14 CFR) 91.1611, from January 7, 2025, until January 7, 2028. SFAR No. 115 prohibits certain flight operations in the specified areas of the Sanaa FIR (OYSC) 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. Since the start of the Israel-Gaza Conflict, Houthi forces have launched numerous long-range weaponized unmanned aircraft systems (UAS), missiles, and rockets out of Houthi-controlled territories in Yemen toward intended targets in Israel, the Red Sea, the Gulf of Aden, and the Arabian Sea. These attacks have been likely attempts to strike Israel and hold maritime shipping in the Red Sea, the Gulf of Aden, and the Arabian Sea at risk. Prior to the 2022 UN brokered ceasefire, ( print page 106302) which has expired, the Houthis conducted similar long-range attacks against Saudi Arabia and the UAE. Additionally, Houthi forces armed with advanced anti-aircraft weapons systems capable of targeting aircraft at or above standard cruising altitudes have successfully engaged Western intelligence and surveillance aircraft operating over Houthi-controlled territory in Yemen and over the Red Sea.

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. Section 106(f) of title 49, U.S. Code (U.S.C.), subtitle I, establishes 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 U.S. 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. 115, § 91.1611, from conducting flight operations in the specified areas of the Sanaa FIR (OYSC) due to the continuing significant 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.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 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 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 specified areas of the Sanaa FIR (OYSC).

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 the FAA cannot provide. Disclosing classified information or controlled unclassified information not authorized for public release in order to seek meaningful comment on the proposal would harm the public interest. Accordingly, the 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. It would also be contrary to the public interest, as the FAA cannot protect classified information and controlled unclassified information not authorized for public release 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. ( print page 106303)

Accordingly, the FAA finds good cause exists to forgo notice and comment and any delay in the effective date for this rule.

III. Background

In its most recent extension of the prohibition against certain flights in specified areas of the Sanaa FIR (OYSC),^[1 2] the FAA continued to assess the situation in the specified areas of the Sanaa FIR (OYSC) as presenting significant, continuing safety-of-flight risks for U.S. civil aviation due to the ongoing conflict between the Saudi-led Coalition (SLC) and Houthi forces and the enduring extremist or militant threat to U.S. civil aviation operations in those areas. Houthi forces had continued to develop, acquire, and employ advanced weapons capabilities, including and nontraditional air defense capabilities, UAS, and missile capabilities. Collectively, such capabilities posed risks to U.S. civil aviation operations at all altitudes in the specified areas of the Sanaa FIR (OYSC) and at airports in Yemen.

Houthi forces operated multiple air defense systems capable of targeting aircraft at various altitudes. They had employed increasingly capable Iranian-supplied surface-to-air missiles (SAMs) and electro-optical/infrared seeker air-to-air missiles modified for use as SAMs to engage aircraft. Houthi air defense capabilities posed an inadvertent risk to U.S. civil aviation operations due to the potential for misidentification or miscalculation by irregular forces using advanced air defense capabilities for which they may not have received adequate training and may not have had adequate air surveillance information to distinguish accurately between civil aircraft and potential airborne threats. In the preamble to the December 2021 final rule, the FAA stated that it continued to assess, at that time, that Houthi forces in Yemen did not possess functional medium-/long-range strategic SAM capabilities. Houthi forces have subsequently acquired longer range anti-aircraft weapon systems.

Additionally, as described in the preamble to the December 2021 final rule, Houthi forces had targeted international airports in the region using weaponized UAS, ballistic, and cruise missiles. Although the FAA noted that some Houthi offensive weapons systems had range capabilities that would allow them to reach the limited areas of the Sanaa FIR (OYSC) in which the FAA permits U.S. civil aviation to operate, Houthi forces had not demonstrated an intent to conduct weaponized UAS or missile attacks in those areas. Instead, they had focused these types of attacks primarily on targets in Saudi Arabia and in contested areas of Yemen. In addition, in the preamble to the December 2021 final rule, the FAA assessed Houthi weaponized UAS operations would only present a safety-of-flight hazard to civil aircraft operating off the Yemeni coast if such aircraft were operating below cruising altitudes.

Besides the safety-of-flight risks associated with the SLC-Houthi conflict, in the preamble to the December 7, 2021 final rule, the FAA assessed extremist or militant groups operating in Yemen likely had access to anti-aircraft-capable weapons, including man-portable air defense systems (MANPADS), which pose risks up to 25,000 feet. Al-Qa'ida in the Arabian Peninsula (AQAP) continued to operate in Yemen and historically had attempted to attack Western civil aviation through novel improvised explosive devices, including the failed 2009 underwear bombing attempt on a U.S.-bound flight and the 2010 printer cartridge plot that targeted U.S.-bound cargo flights. Additionally, Islamic State of Iraq and ash-Sham (ISIS) cells remained active in Yemen.

IV. Discussion of the Final Rule

The FAA has assessed the situation in the specified areas of the Sanaa FIR (OYSC) and determined that it continues to be hazardous for U.S. civil aviation. Since the beginning of the Israel-Gaza Conflict in October 2023, Houthi forces have launched numerous attacks likely targeting Israel and maritime shipping in the Red Sea, the Gulf of Aden, and the Arabian Sea using a variety of weapons including cruise missiles, anti-ship ballistic missiles, and weaponized UAS. Such attacks present significant risks to safety-of-flight of U.S. civil aviation in the specified areas of the Sanaa FIR (OYSC) addressed by this flight prohibition SFAR. Although the majority of these attacks primarily pose low-altitude risks, Houthi-launched ballistic missiles pose risks to aircraft operating at or above standard cruising altitudes, as ballistic missile trajectories may ascend through or over established air routes. Additionally, ballistic missile operations can negatively affect flight safety in the event of a missile failure, as falling debris may descend through air routes.

Houthi forces are also equipped with a variety of advanced anti-aircraft weapons—including various MANPADS, SAMs, and Iranian-proliferated loitering munition systems—capable of targeting aircraft at or above standard cruising altitudes. In 2023 and 2024, the Houthis used these systems to successfully intercept multiple U.S. intelligence, surveillance, and reconnaissance UAS over Yemen and the Red Sea. These weapon systems pose risks to civil aviation operations over Houthi-controlled territory in Yemen, with ranges extending beyond the specified areas of the Sanaa FIR (OYSC). For example, in November 2023, the Houthis claimed responsibility for having allegedly shot down a MQ-9 Reaper off the western coast of Yemen. Additionally, in late May 2024, the Houthis claimed responsibility for shooting down another MQ-9 near Marib, Yemen. Houthi air defense operations have continued over Houthi-controlled territory in Yemen and off Yemen's west coast, in likely attempts to intercept Western military reconnaissance operations. The FAA remains concerned that Houthi forces operating advanced anti-aircraft weapons may not have adequate training or adequate air surveillance information to distinguish accurately between civil aircraft and potential airborne threats. There are concerns that Houthi forces may now possess functional medium-range SAMs. These circumstances present an unacceptable inadvertent risk of aircraft misidentification, which could result in the accidental shoot down of a civil aircraft, in the specified areas of the Sanaa FIR (OYSC).

Additionally, AQAP and ISIS have remained active in Yemen and likely have access to a variety of weapons, including small arms; small commercially-available UAS, which can be weaponized; and potentially legacy MANPADS, posing risks to aircraft up to 25,000 feet.

Collectively, the various threat actors' existing capabilities, coupled with their demonstrated intent to use these weapons, presents a continued, significant, and unacceptable level of risk to U.S. civil aviation operations at ( print page 106304) all altitudes in the specified areas of the Sanaa FIR (OYSC). Houthi cross-border attacks into Saudi Arabia and the UAE ceased following an April 2022 United Nations (UN)-brokered temporary ceasefire between the Houthis and the SLC, even though the temporary ceasefire expired in the fall of 2022 without the Houthis and the SLC agreeing to a longer-term formal ceasefire. However, SLC-Houthi cross-border attacks could resume with little or no warning—a risk that has significantly increased since the start of the Israel-Gaza Conflict in October 2023 due to increased regional volatility.

Therefore, the FAA extends the expiration date of SFAR No. 115, § 91.1611, from January 7, 2025, until January 7, 2028, without any changes to the boundaries of the SFAR.

If the risk to U.S. civil aviation safety and security decreases to an acceptable level, then further amendments to SFAR No. 115, § 91.1611, might be appropriate. 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 specified areas of the Sanaa FIR (OYSC).

The FAA also 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. 115, § 91.1611.

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 specified areas of the Sanaa FIR (OYSC). 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. 115, § 91.1611, including a U.S. air carrier or commercial operator, to transport civilian or military passengers or cargo or conduct other operations in the specified areas of the Sanaa FIR (OYSC), that department, agency, or instrumentality may request the FAA to approve persons described in paragraph (a) of SFAR No. 115, § 91.1611, 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.^[3] 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).

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 Washington Operations Center by telephone at [phone] or by email at [e-mail] for submission instructions. The requestor must not submit its letter requesting FAA approval or related supporting documentation to the Washington Operations Center. Rather, the Washington Operations Center will refer the requestor to an appropriate staff member of the Flight Standards Service for further assistance.

A single letter may request approval from the FAA for multiple persons described in SFAR No. 115, § 91.1611, 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 specified areas of the Sanaa FIR (OYSC) 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 specified areas of the Sanaa FIR (OYSC) 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 specified areas of the Sanaa FIR (OYSC). 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 specified areas of the Sanaa FIR (OYSC). The approval conditions discussed below apply to all operators. Requestors should contact the Washington Operations Center by telephone at [phone] or by email at [e-mail] for instructions on how to submit the names of additional ( print page 106305) operators the requestor wishes to add to an existing approval to the FAA. The requestor must not submit the names of additional operators it wishes to add to an existing approval to the Washington Operations Center. Rather, the Washington Operations Center will refer the requestor to an appropriate staff member of the Flight Standards Service for further assistance.

If an approval request includes classified information or controlled unclassified information not authorized for public release, requestors may contact the Washington Operations Center for instructions on submitting it to the FAA. The Washington Operations Center's contact information appears in the FOR FURTHER INFORMATION CONTACT section of this final rule.

FAA approval of an operation under SFAR No. 115, § 91.1611, 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 specified areas of the Sanaa FIR (OYSC); and

(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 specified areas of the Sanaa FIR (OYSC).

(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. 115, § 91.1611. 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 specified areas of the Sanaa FIR (OYSC) 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 specified areas of the Sanaa FIR (OYSC) 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. 115, § 91.1611. 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. 115, § 91.1611.

If a petition for exemption includes information that is sensitive for security reasons or proprietary information, requestors may contact the Washington Operations Center for instructions on submitting it to the FAA. The Washington Operations Center's contact information is listed in the FOR FURTHER INFORMATION CONTACT section of this final rule. Requestors must not submit their petitions for exemption or related supporting documentation to the Washington Operations Center. Rather, the Washington Operations Center will refer the requestor to the appropriate staff member of the Flight Standards Service or the Office of Rulemaking for further assistance.

VII. Regulatory Notices and Analyses

Federal agencies consider the impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866, Executive Order 13563, and 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 ( print page 106306) intended regulation justify the costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $183 million using the most current (2023) Implicit Price Deflator for the Gross Domestic Product. 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)(4) of Executive Order 12866 as amended by Executive Order 14094. 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 specified areas of the Sanaa FIR (OYSC) due to the significant hazards to U.S. civil aviation described in this preamble. 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 extension 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 extending SFAR No. 115, 14 CFR 91.1611, 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 specified areas of the Sanaa FIR (OYSC).

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 specified areas of the Sanaa FIR (OYSC), 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 $183 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. ( print page 106307)

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 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 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 [phone].

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
• Yemen

The Amendment

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

PART 91—GENERAL OPERATING AND FLIGHT RULES

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

Authority: 49 U.S.C. 106(f), 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); Sec. 828 of Pub. L. 118-63, 138 Stat. 1330 (49 U.S.C. 44703 note); articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).

2. Amend § 91.1611 by revising paragraph (e) to read as follows:

§ 91.1611

Special Federal Aviation Regulation No. 115—Prohibition against certain flights in specified areas of the Sanaa Flight Information Region (FIR) (OYSC).

* * * * *

(e) Expiration. This SFAR will remain in effect until January 7, 2028. 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), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5).

Michael G. Whitaker,

Administrator.

Footnotes

1.   Extension of the Prohibition Against Certain Flights in Specified Areas of the Sanaa Flight Information Region (FIR) (OYSC) final rule, 86 FR 69167 (Dec. 7, 2021).

2.  Subsequent to the publication of the 2021 final rule, the FAA became aware the International Civil Aviation Organization (ICAO) Middle East Air Navigation Planning and Implementation Regional Group approved an update to the Regional Air Navigation Plan to amend certain waypoints. Some of the amendments affected waypoints used by the FAA to demarcate the boundary between the airspace in which U.S. operators are prohibited from conducting operations and the airspace in which U.S. operators are permitted to operate. To address the amendments of waypoints, on September 22, 2023, the FAA published a technical amendment in the Federal Register identifying the new waypoint names and locations to clarify where U.S. operators are prohibited from conducting operations due to flight safety risks associated with the conflict in Yemen and where they are permitted to operate. 88 FR 65319.

3.  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.