[Federal Register Volume 87, Number 247 (Tuesday, December 27, 2022)]
[Rules and Regulations]
[Pages 79239-79245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28134]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2007-27602; Amdt. No. 91-339C]
RIN 2120-AL78


Prohibition Against Certain Flights in the Territory and Airspace 
of Somalia

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This action amends and extends the prohibition against certain 
flight operations in the territory and airspace of Somalia at altitudes 
below Flight Level 260 (FL260) by all: U.S. air carriers; U.S. 
commercial operators; persons exercising the privileges of an airman 
certificate issued by the FAA, except when such persons are operating 
U.S.-registered aircraft for a foreign air carrier; and operators of 
U.S.-registered civil aircraft, except when the operator of such 
aircraft is a foreign air carrier. The FAA is amending the flight 
prohibition to permit overwater operations in the territory and 
airspace of Somalia at altitudes below FL260 to the extent necessary 
for climb-outs from, and descents into, Djibouti Ambouli International 
Airport (HDAM) in the Addis Ababa Flight Information Region (FIR) 
(HAAA), subject to the approval of, and in accordance with the 
conditions established by, the appropriate authorities of Djibouti and 
consistent with air traffic control instructions. Operators climbing 
out of or descending into Djibouti Ambouli International Airport (HDAM) 
must remain overwater while operating in the territorial airspace of 
Somalia at altitudes below FL260 and must operate either on a published 
instrument procedure or under the direction of air traffic control. The 
FAA determined the risk to the safety of such operations is low. 
However, due to increasing safety-of-flight risks to U.S. civil 
aviation in the rest of the territory and airspace of Somalia at 
altitudes below FL260 from extremist and militant activity, the FAA 
also extends the expiration date of this rule from January 7, 2023, 
until January 7, 2027. 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 27, 2022.

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

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

    This action amends and extends SFAR No. 107, title 14 Code of 
Federal Regulations (CFR) 91.1613, which prohibits certain flight 
operations in the territory and airspace of Somalia at altitudes below 
FL260 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. 
Specifically, the FAA is amending the flight prohibition to permit 
overwater operations in the territory and airspace of Somalia at 
altitudes below FL260 necessary for climb-outs from, or descents into, 
Djibouti Ambouli International Airport (HDAM) in the Addis Ababa FIR 
(HAAA). These operations are subject to the approval of the appropriate 
authorities of Djibouti and must be conducted in accordance with the 
conditions established by those authorities and consistent with air 
traffic control instructions. Operators climbing out of or descending 
into Djibouti Ambouli International Airport (HDAM) must remain 
overwater while operating in the territory and airspace of Somalia at 
altitudes below FL260 and must be either on a published instrument 
procedure or under the direction of air traffic control. Because 
weapons systems to which extremist and/or militant groups active in 
Somalia likely have access have minimal ranges from the coastline, and 
aircraft using these approaches and departures would only briefly be 
present in the territory and airspace of Somalia at altitudes below 
FL260, the FAA determined such operations present a low risk.
    However, the FAA has determined increasing safety-of-flight risks 
exist for U.S. civil aviation operations in the rest of the territory 
and airspace of Somalia at altitudes below FL260 from extremist and 
militant activity, as described in the Discussion of the Final Rule 
section of this preamble. For this reason, the FAA extends the 
expiration date of this rule from January 7, 2023, until January 7, 
2027. 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. Sections 106(f) and (g) 
of title 49, U.S. Code (U.S.C.), subtitle I, establish the FAA 
Administrator's authority to issue rules on aviation safety. Subtitle 
VII of title 49, Aviation Programs, describes in more detail the scope 
of the agency's authority. Section 40101(d)(1) provides that the 
Administrator shall consider in the public interest, among other 
matters, assigning, maintaining, and enhancing safety and security as 
the highest

[[Page 79240]]

priorities in air commerce. Section 40105(b)(1)(A) requires the 
Administrator to exercise this authority consistently with the 
obligations of the U.S. Government under international agreements.
    The FAA is promulgating this rule under the authority described in 
49 U.S.C. 44701, General requirements. Under that section, the FAA is 
charged broadly with promoting safe flight of civil aircraft in air 
commerce by prescribing, among other things, regulations and minimum 
standards for practices, methods, and procedures that the Administrator 
finds necessary for safety in air commerce and national security.
    This regulation is within the scope of the FAA's authority because 
it continues to prohibit the persons described in paragraph (a) of SFAR 
No. 107, Sec.  91.1613, from conducting flight operations in the 
territory and airspace of Somalia at altitudes below FL260 due to the 
increasing 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. Code, 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.
    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 weapons capable of targeting or otherwise 
negatively affecting U.S. civil aviation, as well as other hazards to 
U.S. civil aviation associated with fighting, extremist and militant 
activity, or periods of heightened tensions. This fluidity and the need 
for the FAA to rely upon classified information and controlled 
unclassified information not authorized for public release in assessing 
these risks make providing notice and opportunity to comment 
impracticable. 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. Furthermore, to the extent these rules and any amendments 
are based upon classified information or controlled unclassified 
information not authorized for public release, the FAA cannot share 
such information with the general public. As a result, engaging in 
notice and comment would be impracticable.
    Additionally, it is in the public interest for the FAA's flight 
prohibitions, and any amendments thereto, to reflect the agency's 
current understanding of the risk environment for U.S. civil aviation 
and set appropriate boundaries for the flight prohibition to minimize 
such risks. 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. 
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; extremist and militant group activity; the 
introduction, removal, or repositioning of more advanced anti-aircraft 
weapons 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 territory and airspace of Somalia at 
altitudes below FL260.
    For the reasons previously described, engaging in notice and 
comment for this rule would be impracticable and contrary to the public 
interest. Similarly, 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. Accordingly, the FAA finds good cause exists to forgo notice 
and comment and any delay in the effective date for this rule.

III. Background

    When the FAA last extended the rule prohibiting certain U.S. civil 
flight operations in the territory and airspace of Somalia at altitudes 
below FL260 in 2019,\1\ it assessed that the situation in the territory 
and airspace of Somalia at altitudes below FL260 remained hazardous for 
U.S. civil aviation operations due to the poor security environment and 
fragile governance structure in Somalia, as well as the threat posed by 
al-Shabaab, an al-Qa'ida-aligned extremist group, and other extremists/
militants. Al-Shabaab had demonstrated an intent and capabilities to 
target civil aviation operations in the territory and airspace of 
Somalia at altitudes below FL260 through a variety of means, including 
the use of an insider to smuggle a concealed improvised explosive 
device (IED) onto a civil aircraft, use of anti-aircraft-capable 
weapons, and direct and indirect attacks on Somali airports. Al-Shabaab 
had frequently targeted Aden Adde International Airport (HCMM) with 
attacks using indirect fire, small-arms fire, and vehicle-borne IEDs.
---------------------------------------------------------------------------

    \1\ Extension of the Prohibition Against Certain Flights in the 
Territory and Airspace of Somalia, 84 FR 67665, December 11, 2019.
---------------------------------------------------------------------------

    In addition, al-Shabaab also frequently conducted vehicle-borne IED 
attacks targeting Western interests and public venues in Mogadishu, 
including detonating vehicle-borne IEDs near malls (February 2019), 
hotels (November 2018), and near a security checkpoint close to Aden 
Adde International Airport (HCMM) (June 2019). Al-Shabaab was also 
assessed to have access to anti-aircraft-capable weapons presenting a 
risk to U.S. civil aviation operations at altitudes below FL260. 
Furthermore, the Islamic State of Iraq and ash-Sham (ISIS) had a cell 
trying to gain influence in Somalia, which presented another extremist 
threat to Western interests, including civil aviation. The FAA was 
concerned ISIS elements in Somalia might have access to anti-aircraft-
capable weapons.
    In February 2019, the African Union Mission in Somalia (AMISOM) 
began to draw down its forces, as its mandate was set to expire in 
2020, and began

[[Page 79241]]

transferring security responsibilities back to Somalia. During the 
AMISOM drawdown, the FAA assessed that al-Shabaab might attempt to 
exploit vulnerabilities in Somali security and increase attacks on 
remaining AMISOM bases and Western interests. For these reasons, the 
FAA was concerned the risk to U.S. civil aviation operations might 
increase as AMISOM continued its scheduled drawdown. As a result of the 
significant continuing risks to the safety of U.S. civil aviation in 
the territory and airspace of Somalia at altitudes below FL260, the FAA 
extended the expiration date of SFAR No. 107, Sec.  91.1613, from 
January 7, 2020 until January 7, 2023.

IV. Discussion of the Final Rule

    While developing this final rule, the FAA became aware that certain 
approaches and departures into and out of Djibouti Ambouli 
International Airport (HDAM) in the Addis Ababa FIR (HAAA) require 
flights using those approaches and departures to briefly transit 
overwater portions of Somalia's territorial airspace \2\ at altitudes 
below FL260. The FAA assessed the flightpaths used to conduct these 
operations and determined the brief presence of U.S. civil aviation 
overwater in the territory and airspace of Somalia at altitudes below 
FL260 necessary to use these approaches and departures would present a 
low risk. The risks to U.S. civil aviation operations in the territory 
and airspace of Somalia at altitudes below FL260 from extremist and 
militant activity are concentrated primarily on and over the land 
territory of Somalia. Weapons systems to which extremist/militant 
groups active in Somalia likely have access have minimal ranges from 
the coastline. Therefore, the FAA is amending SFAR No. 107, Sec.  
91.1613, to permit U.S. civil aviation operations to operate overwater 
in the territory and airspace of Somalia at altitudes below FL260 to 
the extent necessary to climb out of, or descend into, Djibouti Ambouli 
International Airport (HDAM) in the Addis Ababa FIR (HAAA). These 
operations are subject to the approval of the appropriate authorities 
of Djibouti and must be conducted in accordance with the conditions 
established by those authorities and consistent with air traffic 
control instructions. Operators climbing out of or descending into 
Djibouti Ambouli International Airport (HDAM) must remain overwater 
while operating in the territory and airspace of Somalia at altitudes 
below FL260 and must be either on a published instrument procedure or 
under the direction of air traffic control.
---------------------------------------------------------------------------

    \2\ As a general matter, a country's territorial waters extend 
12 nautical miles from its coastal baselines determined in 
accordance with international law, and the airspace above a 
country's territorial waters forms part of that country's 
territorial airspace.
---------------------------------------------------------------------------

    The FAA assesses the situation in the rest of the territory and 
airspace of Somalia at altitudes below FL260 as being increasingly 
hazardous for U.S. civil aviation. Since mid-2020, the number, 
lethality, and complexity of militant and/or extremist attacks has 
continued to increase, posing increased risk concerns for U.S. civil 
aviation operations in the territory and airspace of Somalia at 
altitudes below FL260. The Government of Somalia remains challenged in 
establishing security and governance in the country amidst economic 
constraints and faces increased threats from militant and/or extremist 
groups, particularly al-Shabaab.
    Since the December 2019 final rule, AMISOM has reduced its forces 
in Somalia and continues the process of restructuring its presence into 
the African Union Transition Mission in Somalia (ATMIS). Al-Shabaab, 
the primary threat to U.S. civil aviation operations in the territory 
and airspace of Somalia at altitudes below FL260, has taken advantage 
of security transitions and drawdowns to expand its influence and 
attack operations. Al-Shabaab continues to demonstrate its intent and 
various capabilities to conduct attacks on targets often collocated 
with airports and against civil aviation. In 2022, al-Shabaab conducted 
multiple high-profile attacks demonstrating its increasing capacity and 
capability to conduct complex attacks throughout Somalia.
    For example, during the first half of 2022, al-Shabaab frequently 
targeted international forces and Government of Somalia electoral 
venues located at Aden Adde International Airport (HCMM) using a 
variety of capabilities and tactics, including rocket fire, small-arms 
fire, and IEDs. These attacks often resulted in temporary flight 
disruptions at Aden Adde International Airport (HCMM). In May 2022, al-
Shabaab successfully overran an African Union base at El Baraf, 
resulting in significant casualties and al-Shabaab's seizure of various 
weapons, including light anti-aircraft artillery weapon systems. In 
August 2022, al-Shabaab claimed responsibility for an attack on a hotel 
complex in Mogadishu frequented by Somali government officials.
    Al-Shabaab and ISIS factions operating in Somalia likely have 
access to a variety of weapons, including man-portable air defense 
systems (MANPADS), heavy machine guns, rocket-propelled grenades 
(RPGs), and small-arms. Some MANPADS may be capable of reaching a 
maximum altitude of 25,000 feet above ground level (AGL), presenting a 
risk to U.S. civil aviation operations in the territory and airspace of 
Somalia at altitudes below FL260.
    Additionally, al-Shabaab is working to further develop its 
capabilities, including a weaponized unmanned aircraft systems (UAS) 
capability. If this effort is successful, it would present further 
increased safety-of-flight risks to aircraft operating at lower 
altitudes in the vicinity of potentially targeted airports and 
airfields and to aircraft on the ground at these locations, both as a 
collision hazard and as a weapon system. Al-Shabaab has also expanded 
its weapons procurement efforts and indigenous production of weapons, 
increasing the quantity of weapons available for use in attacks.
    In addition to extremist/militant activity, third-party forces--
operating in Somalia without adequate coordination with Somali aviation 
authorities and a complete air picture present inadvertent risks to 
U.S. civil aviation operations in the territory and airspace of Somalia 
at altitudes below FL260. For example, international forces operating 
in Somalia engaged civil aircraft with small-arms fire on at least two 
occasions in 2020.
    The FAA has determined, based on the enduring risks to U.S. civil 
aviation operations in the territory and airspace of Somalia at 
altitudes below FL260 described in this preamble, that four years is an 
appropriate duration for this SFAR. Therefore, as a result of the 
increasing unacceptable risk to the safety of U.S. civil aviation 
operations in the territory and airspace of Somalia at altitudes below 
FL260, the FAA extends the expiration date of SFAR No. 107, Sec.  
91.1613, from January 7, 2023, until January 7, 2027.
    Further amendments to SFAR No. 107, Sec.  91.1613, might be 
appropriate if the risk to U.S. civil aviation safety and security 
changes. In this regard, 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 territory and airspace 
of Somalia at altitudes below FL260.
    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. 107, Sec.  91.1613.

[[Page 79242]]

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 territory and airspace of Somalia at altitudes 
below FL260. 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. 107, Sec.  91.1613, including a 
U.S. air carrier or commercial operator, to transport civilian or 
military passengers or cargo or conduct other operations in the 
territory and airspace of Somalia at altitudes below FL260, that 
department, agency, or instrumentality may request the FAA approve 
persons described in paragraph (a) of SFAR No. 107, Sec.  91.1613, 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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    The requestor must send the request to the Associate Administrator 
for Aviation Safety, Federal Aviation Administration, 800 Independence 
Avenue SW, Washington, DC 20591. Electronic submissions are acceptable, 
and the requesting entity may request that the FAA notify it 
electronically as to whether the FAA grants the request for approval. 
If a requestor wishes to make an electronic submission to the FAA, the 
requestor should contact the Air Transportation Division, Flight 
Standards Service, at (202) 267-8166, to obtain the appropriate email 
address. A single letter may request approval from the FAA for multiple 
persons described in SFAR No. 107, Sec.  91.1613, 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 
territory and airspace of Somalia at altitudes below FL260 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 
territory and airspace of Somalia at altitudes below FL260 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 territory and airspace of Somalia 
at altitudes below FL260. 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 territory and airspace of Somalia at 
altitudes below FL260. The approval conditions discussed below apply to 
all operators. Requestors should send updated lists to the email 
address they obtain from the Air Transportation Division by calling 
(202) 267-8166.
    If an approval request includes classified information or 
controlled unclassified information not authorized for public release, 
requestors may contact Aviation Safety Inspector Bill Petrak for 
instructions on submitting it to the FAA. His contact information 
appears in the FOR FURTHER INFORMATION CONTACT section of this final 
rule.
    FAA approval of an operation under SFAR No. 107, Sec.  91.1613, 
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 territory and airspace of Somalia at 
altitudes below FL260, unless climbing

[[Page 79243]]

out of or descending into Djibouti Ambouli International Airport while 
remaining overwater in the territory and airspace of Somalia at 
altitudes below FL260 and either on a published instrument procedure or 
under the direction of air traffic control; 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 territory and airspace of Somalia at altitudes below 
FL260, unless climbing out of or descending into Djibouti Ambouli 
International Airport while remaining overwater in the territory and 
airspace of Somalia at altitudes below FL260 and either on a published 
instrument procedure or under the direction of air traffic control.
    (3) Other conditions the FAA may specify, including those the FAA 
might impose in OpSpecs or LOAs, as applicable.
    The release and agreement to indemnify do not preclude an operator 
from raising a claim under an applicable non-premium war risk insurance 
policy the FAA issues under 49 U.S.C. chapter 443.
    If the FAA approves the proposed operation(s), the FAA will issue 
an OpSpec or LOA, as applicable, to the operator(s) identified in the 
original request and any operators the requestor subsequently adds to 
the approval, authorizing them to conduct the approved operation(s). In 
addition, as stated in paragraph (3) of this section V.B., the FAA 
notes that it may include additional conditions beyond those contained 
in the approval letter in any OpSpec or LOA associated with a 
particular operator operating under this approval, as necessary in the 
interests of aviation safety. U.S. Government departments, agencies, 
and instrumentalities requesting FAA approval on behalf of entities 
with which they have a contract or subcontract, grant, or cooperative 
agreement should request a copy of the relevant OpSpec or LOA directly 
from the entity with which they have any of the foregoing types of 
arrangements, if desired.

VI. Information Regarding Petitions for Exemption

    Any operations not conducted under an approval the FAA issues 
through the approval process set forth previously may only occur in 
accordance with an exemption from SFAR No. 107, Sec.  91.1613. 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 standard of 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 territory and airspace of 
Somalia at altitudes below FL260 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 territory and airspace of 
Somalia at altitudes below FL260 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. 107, Sec.  91.1613. 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. 107, Sec.  91.1613.
    If a petition for exemption includes information that is sensitive 
for security reasons or proprietary information, requestors may contact 
Aviation Safety Inspector Bill Petrak for instructions on submitting it 
to the FAA. His contact information is listed in the FOR FURTHER 
INFORMATION CONTACT section of this final rule.

VII. Regulatory Notices and Analyses

    Federal agencies consider impacts of regulatory actions under a 
variety of Executive orders and other requirements. First, Executive 
Orders 12866 and 13563 direct that each Federal agency shall propose or 
adopt a regulation only upon a reasoned determination that the benefits 
of the intended regulation justify its costs. Second, the Regulatory 
Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603 
et seq., requires agencies to analyze the economic impact of regulatory 
changes on small entities. Third, the Trade Agreements Act of 1979 
(Pub. L. 96-39), as codified in 19 U.S.C. chapter 13, prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, the Trade Agreements Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4), as codified in 2 U.S.C. chapter 25, requires agencies 
to prepare a written assessment of the costs, benefits, and other 
effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this final rule.
    In conducting these analyses, the FAA has determined this final 
rule has benefits that justify its costs. This rule is a significant 
regulatory action, as defined in section 3(f) of Executive Order 12866, 
as it raises novel policy issues contemplated under that Executive 
order. As 5 U.S.C. 553 does not require notice and comment for this 
final rule, 5 U.S.C. 603 and 604 do not require regulatory flexibility 
analyses regarding impacts on small entities. This rule will not create 
unnecessary obstacles to the foreign commerce of the United States. 
This rule will not impose an unfunded mandate on State, local, or 
tribal governments, or on the private sector, by exceeding the 
threshold identified previously.

A. Regulatory Evaluation

    This rule prohibits U.S. civil flights in the territory and 
airspace of Somalia at altitudes below FL260 due to the significant, 
increasing risks to the safety of U.S. civil aviation described in this

[[Page 79244]]

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 SFAR are minimal. By continuing to prohibit 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. 107, Sec.  91.1613, will be minimal and are exceeded by the 
benefits of avoided risk 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 territory and airspace of Somalia at 
altitudes below FL260.

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 territory and airspace 
of Somalia at altitudes below FL260, 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 $155 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.
    The FAA has determined that this action will not have a significant 
environmental effect abroad. In accordance with FAA Order 1050.1F, 
Environmental Impacts: Policies and Procedures, paragraph 8-6(c), the 
FAA has prepared a memorandum for the record stating the reason(s) for 
this determination and has placed it in the docket for this rulemaking.

VIII. Executive Order Determinations

A. Executive Order 13132, Federalism

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

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

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

[[Page 79245]]

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 (202) 267-9677. 
Commenters must identify the docket or notice number of this 
rulemaking.

B. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601) 
requires the 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 section 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, Somalia.

The Amendment

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

PART 91--GENERAL OPERATING AND FLIGHT RULES

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

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


0
2. Amend Sec.  91.1613 by revising paragraphs (c) and (e) to read as 
follows:


Sec.  91.1613  Special Federal Aviation Regulation No. 107--Prohibition 
Against Certain Flights in the Territory and Airspace of Somalia.

* * * * *
    (c) Permitted operations. This section does not prohibit persons 
described in paragraph (a) of this section from conducting flight 
operations in the territory and airspace of Somalia under the following 
circumstances:
    (1) Overflights of Somalia may be conducted at altitudes at or 
above FL260 subject to the approval of, and in accordance with the 
conditions established by, the appropriate authorities of Somalia.
    (2) Aircraft departing from Djibouti Ambouli International Airport 
(International Civil Aviation Organization (ICAO) code: HDAM) may 
operate overwater in the territory and airspace of Somalia at altitudes 
below FL260 only to the extent necessary to permit a climb during 
takeoff if the operator of that aircraft:
    (i) Receives any necessary approval from the appropriate 
authorities of Djibouti;
    (ii) Conducts operations that comply with applicable conditions 
established by the appropriate authorities of Djibouti and air traffic 
control instructions; and
    (iii) Is either on a published instrument procedure or under the 
direction of air traffic control.
    (3) Aircraft descending into Djibouti Ambouli International Airport 
(HDAM) may operate overwater at altitudes below FL260 in the territory 
and airspace of Somalia only to the extent necessary to permit descent 
for landing at Djibouti Ambouli International Airport (HDAM), if the 
operator of that aircraft:
    (i) Receives any necessary approval from the appropriate 
authorities of Djibouti;
    (ii) Conducts operations that comply with applicable conditions 
established by the appropriate authorities of Djibouti and air traffic 
control instructions; and
    (iii) Is either on a published instrument procedure or under the 
direction of air traffic control.
    (4) Flight operations may be conducted in the territory and 
airspace of Somalia at altitudes below FL260 if such flight operations 
are conducted under a contract, grant, or cooperative agreement with a 
department, agency, or instrumentality of the U.S. Government (or under 
a subcontract between the prime contractor of the U.S. Government 
department, agency, or instrumentality and the person described in 
paragraph (a) of this section) with the approval of the FAA or under an 
exemption issued by the FAA. The FAA will consider requests for 
approval or exemption in a timely manner, with the order of preference 
being: First, for those operations in support of U.S. Government-
sponsored activities; second, for those operations in support of 
government-sponsored activities of a foreign country with the support 
of a U.S. Government department, agency, or instrumentality; and third, 
for all other operations.
* * * * *
    (e) Expiration. This SFAR will remain in effect until January 7, 
2027. The FAA may amend, rescind, or extend this SFAR, as necessary.
    Issued in Washington, DC, under the authority of 49 U.S.C. 106(f) 
and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5).

Billy Nolen,
Acting Administrator.
[FR Doc. 2022-28134 Filed 12-23-22; 8:45 am]
BILLING CODE 4910-13-P


