2010-17762. Prohibition Against Certain Flights Within the Territory and Airspace of Afghanistan; Supplemental Regulatory Flexibility Analysis

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Proposed rule; Notice of availability and request for comments.

SUMMARY:

This document announces the availability of and request for comments on the Supplemental Regulatory Flexibility Analysis for the previously published proposed rule entitled, Prohibition Against Certain Flights Within the Territory and Airspace of Afghanistan.

DATES:

Comments must be received on or before August 4, 2010.

ADDRESSES:

You may send comments identified by Docket Number FAA-2010-0289 using any of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your comments electronically.
• Mail: Send comments to Docket Operations, M-30; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.
• Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Fax: Fax comments to Docket Operations at 202-493-2251.

For more information on the rulemaking process, see the Additional Information section of this document.

Privacy: We will post all comments we receive, without change, to http://www.regulations.gov,, including any personal information you provide. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any of our dockets, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://DocketsInfo.dot.gov.

Docket: To read background documents or comments received, go to http://www.regulations.gov at any time and follow the online instructions for accessing the docket or Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Michael Lukacs, APO-300, Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591; telephone number: [phone].

SUPPLEMENTARY INFORMATION:

Later in this preamble under the Additional Information section, we discuss how you can comment on this action and how we will handle your comments. Included in this discussion is related information about the docket, privacy, and the handling of proprietary or confidential business information. We also discuss how you can get a copy of related rulemaking documents.

Background

On May 26, 2010, the FAA published in the Federal Register the Notice of Proposed Rulemaking (NPRM) entitled Prohibition Against Certain Flights Within the Territory and Airspace of Afghanistan.^[1] The comment period for the NPRM closed on June 10, 2010. The FAA received several comments about the agency's economic assessment of the proposed rule. Specifically, some commenters did not agree with the FAA's determination that the NPRM would not have a significant economic impact on a substantial number of small entities. To address these concerns, the FAA is publishing the below Supplemental Regulatory Flexibility Analysis for comment.

Supplemental Regulatory Flexibility Analysis

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

Based on the comments received following publication of the NPRM, we have re-evaluated our certification under the RFA that the proposed rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. Based on our re-evaluation, we have determined that the proposed rule will, if promulgated, have a significant economic impact on a substantial number of small entities. Consequently, we have completed a Supplemental Regulatory Flexibility Analysis and request comments from affected small entities. The purpose of this analysis is to identify the number of small entities affected, assess the economic impact of the proposed regulation on them, and consider less burdensome alternatives and still meet the agency's statutory objectives. Under Section 603(b) and 603(c) of the RFA, the analysis must address:

1. A description of the reasons why the action by the agency is being considered.

2. A succinct statement of the objectives of, and legal basis for, the proposed rule.

3. A description—and, where feasible, an estimate of the number—of small entities to which the proposed rule will apply.

4. A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the types of professional skills necessary for preparation of the report or record.

5. An identification, to the extent practicable, of all relevant federal rules that may duplicate, overlap, or conflict with the proposed rule.

6. Significant alternatives.

1. Description of the reasons why the action by the agency is being considered.

This action would permit certain U.S. civil flight operations below flight level (FL) 160 within the territory and airspace of Afghanistan, when approved by the FAA or when authorized by exemption by the FAA. Otherwise, flight operations below FL 160 within the territory and airspace of Afghanistan would be prohibited for all U.S. air carriers; U.S. commercial operators; persons exercising the privileges of a U.S. airman certificate, except when that person is operating a U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered aircraft, except when such operators are foreign air carriers.

The FAA is considering this action because insurgent activity in Afghanistan has increased and threatens the safety of U.S. civil aircraft and operators operating within Afghan airspace and overflying the territory of Afghanistan. This insurgent activity has adversely affected the safety of airfield operations for these flights. The Afghan insurgents, armed with various weapons, pose a serious threat to U.S. civil aircraft and operators at local airports and to these aircraft on approach to and departing from these airports. Insurgents with small arms fire capabilities have been targeting airfields with rockets and have fired on aircraft at these airfields. While U.S. civil aircraft have not yet specifically been targeted, there have been several reported events of these aircraft being hit by small arms fire. Also, foreign civil aircraft that support the North Atlantic Treaty Organization (NATO) have been shot down by small arms and rocket-propelled grenade fire.

2. Objectives and legal basis for the proposed rule.

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. Also, the FAA is responsible for issuing rules affecting the safety of air commerce and national security. The FAA's authority to issue the rules on 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. Further, 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.

The FAA finds the proposed rule necessary to prevent a potential hazard to persons and aircraft engaged in Afghanistan flight operations. The nature of the hazard that the FAA seeks to address is described in the preceding section, “Description of the reasons why the action by the agency is being considered.”

3. Description and Estimate of small entities.

There are currently no operational restrictions in Afghanistan. The proposed rule would affect U.S. operators, operators of U.S.-registered aircraft (except foreign air carriers), and U.S-certificated airmen (except those U.S. certificated airmen engaged in the operation of U.S.-registered aircraft for foreign air carriers) who operate in Afghanistan below FL 160.

In view of the threat escalation in the territory and airspace of Afghanistan, and in furtherance of the FAA Administrator's responsibilities to promote the safe flight of U.S. civil aircraft in air commerce and to issue aviation rules in the interest of national security of the United States, the Administrator has determined that the potential hazard to U.S-registered aircraft and U.S.-certificated airmen must be mitigated. Therefore, the FAA proposes to issue an SFAR to restrict flight below FL 160 within the airspace and territory of Afghanistan, except in compliance with the procedures set forth in the proposed rule.

We expect as many as 25 small entities would seek authorization from the FAA to operate in Afghanistan under this proposed rule. Depending on the characteristics of the existing flight operations, the number of flights could be affected. The operators currently operating are all-cargo, and all have less than 1,500 employees. Generally, these operators provide niche market services and have available capacity to provide military support. We are unable from the comments we received to the NPRM to determine the magnitude of the economic impact of the proposed rule on these operators. Separately, we are also unable to document and publish the revenue and number of operations per operator.

4. Compliance requirements.

The proposed rule would allow flights below FL 160 in the territory or airspace of Afghanistan only with the approval of the FAA or by an exemption issued by the FAA. The required documentation for the affected entities to be in compliance with this proposed rule would take each operator one hour to fill out, endorse and file the required paperwork. As such, the cost for a one-year period would be $94 (1 hour × $94 per hour).

In addition to the paperwork that would be required as a result of this proposal, it is expected that some flight operations would not be authorized. Without authorization from the FAA to conduct these flights, the operator's inability to conduct such operations would result in a significant economic impact.

The FAA has used Department of Transportation Form 41 data for the total operating revenue per flight for international cargo operations of U.S. Operators. In 2009, the reported median revenue estimate was approximately $70,000 per flight, although the profit would be substantially less. As the number of flights currently operating would continue for the foreseeable future, operators who eliminate flights as a result of the proposed rule would incur a significant economic loss. The proposal would affect “more than just a few” operators who fly in Afghanistan. As such, we believe flights would be eliminated for a substantial number of operators.

The requirements of this proposal would have a significant economic impact on a substantial number of small entities.

5. Relevant federal rules that may duplicate, overlap, or conflict with the proposed rule.

The FAA is unaware that the rule would overlap, duplicate, or conflict with existing federal rules.

6. Significant Alternatives Considered.

Maintain the status quo: Continue to allow all flights to occur without requiring steps to manage the risks to these operations from insurgent activity or an approval or exemption from the FAA.

The FAA is responsible for both the safety of flight in the United States and for the safety of U.S.-registered aircraft and U.S. operators throughout the world. The FAA rejected this alternative and has not identified any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.

The FAA has determined that the proposed rule would have a significant economic impact on a substantial number of small entities. Therefore, we have prepared the above Supplemental Regulatory Flexibility Analysis. We solicit comments on this determination. We also solicit comments on the analysis of the number of small entities that would be affected, the economic impact of the proposed regulation on these small entities, and whether there are any less burdensome alternatives that still meet the agency's statutory objectives.

Additional Information

Comments Invited

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments will reference a specific portion of the Supplemental Regulatory Flexibility Analysis or related rulemaking document, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, please submit a single copy of your written or electronic comments only one time.

All comments we receive will be filed in the docket, as well as a report summarizing each substantive public contact with FAA personnel concerning the proposed rulemaking. Before acting on the proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may make changes to the proposal in light of the comments we receive.

Proprietary or Confidential Business Information

Do not file in the docket information that you consider to be proprietary or confidential business information. Send or deliver this information directly to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. You must mark the information that you consider proprietary or confidential. If you send the information on a disk or CD-ROM, mark the outside of the disk or CD-ROM and also identify electronically within the disk or CD-ROM the specific information that is proprietary or confidential.

Under 14 CFR 11.35(b), when we are aware of proprietary information filed with a comment, we do not place it in the docket. We hold it in a separate file to which the public does not have access, and we place a note in the docket that we have received it. If we receive a request to examine or copy this information, we treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). We process such a request under the DOT procedures found in 49 CFR part 7.

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 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 [phone]. Make sure to identify the docket or SFAR number of this rulemaking.

You may access all documents the FAA considered in developing the proposed rule, including economic analyses and technical reports, from the internet through the Federal eRulemaking Portal referenced in paragraph (1).

Issued in Washington, DC, on July 15, 2010.

Pamela Hamilton-Powell,

Director, Office of Rulemaking.

Footnotes

1.  Prohibition Against Certain Flights Within the Territory and Airspace of Afghanistan: 75 FR 29466; May 26, 2010.