Prohibition Against Certain Flights in the Baghdad Flight Information Region (FIR) (ORBB), 53985-53991 [2018-23398]
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Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations
(Lat. 32°53′35″ N, long. 81°57′55″ W)
That airspace extending upward from 700
feet above the surface within a 6.7-mile
radius of Burke County Airport, and within
a 7.4-mile radius of Millen Airport.
Issued in College Park, Georgia, on October
17, 2018.
Ken Brissenden,
Acting Manager, Operations Support Group,
Eastern Service Center, Air Traffic
Organization.
[FR Doc. 2018–23399 Filed 10–25–18; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No.: FAA–2018–0927; Amdt. No.
91–353]
RIN 2120–AL06
Prohibition Against Certain Flights in
the Baghdad Flight Information Region
(FIR) (ORBB)
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
This action reissues, with
modifications to reflect changed
conditions in Iraq, the Special Federal
Aviation Regulation (SFAR) that
prohibits certain flights in the Baghdad
Flight Information Region (FIR) (ORBB)
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
where the operator of such aircraft is a
foreign air carrier.
DATES: This final rule is effective on
October 26, 2018.
FOR FURTHER INFORMATION CONTACT:
Michael Filippell, Air Transportation
Division, Flight Standards Service,
Federal Aviation Administration, 800
Independence Avenue SW, Washington,
DC 20591; telephone (202) 267–8166;
email michael.e.filippell@faa.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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I. Executive Summary
This action reissues, with
modifications to address changed
conditions in Iraq, Special Federal
Aviation Regulation (SFAR) No. 77,
§ 91.1605, which prohibits certain flight
operations in the Baghdad FIR (ORBB)
by all: U.S. air carriers; U.S. commercial
operators; persons exercising the
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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
where the operator of such aircraft is a
foreign air carrier. The reissued rule
prohibits operations in the Baghdad FIR
(ORBB) below Flight Level (FL) 260,
except operations necessary to climb out
of, or descend into, the Kuwait FIR
(OKAC), subject to the approval of, and
in accordance with the conditions
established by, the appropriate
authorities of Iraq.
Conditions in Iraq have improved
since action was last taken on SFAR No.
77, § 91.1605 by the FAA in May 2015,
which expired on May 11, 2017.1 The
coalition of Iraqi security forces, allied
nations, and supporting militia elements
has successfully reduced the area under
Islamic State of Iraq and Ash-Sham
(ISIS) control. In addition, the
operational anti-aircraft-capable
weapons possessed by ISIS or other
anti-U.S. extremist/militant elements
are altitude-limited and would not pose
a risk to U.S. civil aviation overflights
at or above FL 260, provided that the
flights remain clear of areas where
fighting is likely to occur or re-emerge.
The appropriate authorities of Iraq have
taken steps to prohibit civil aviation
operations at or above FL 260 in such
areas. Therefore, on December 9, 2017,
the FAA issued KICZ NOTAM A0025/
17, amending its prohibition on U.S.
civil aviation operations in the Baghdad
FIR (ORBB) to allow overflights at or
above FL 260.
There continues to be an unacceptable
level of risk to U.S. civil aviation
operations in the Baghdad FIR (ORBB)
at altitudes below FL 260, as described
in this rule, resulting from the potential
for fighting in certain areas of Iraq and
ongoing concerns about the extremist/
militant threat to U.S. civil aviation
throughout Iraq. With limited
exceptions described in this final rule,
U.S. civil aviation operations in the
Baghdad FIR (ORBB) at altitudes below
FL 260 remain prohibited consistent
with KICZ NOTAM A0025/17.
Consequently, the FAA is reissuing the
modified SFAR to remain in effect until
October 26, 2018. The FAA finds this
action necessary due to continued
hazards to U.S. civil aviation operations
in the Baghdad FIR (ORBB) at altitudes
below FL 260.
1 Due to continuing hazards and to avoid
interruption of the flight prohibition, the FAA
issued KICZ NOTAM A0010/17 under the
Administrator’s emergency authority (49 U.S.C.
46105(c)) to temporarily continue the SFAR flight
prohibition until a final rule became effective.
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II. Legal Authority and Good Cause
A. Legal 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. The FAA
Administrator’s authority to issue rules
on aviation safety is found in title 49,
U.S. Code, Subtitle I, sections 106(f) and
(g). 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 his authority
consistently with the obligations of the
U.S. Government under international
agreements.
This rulemaking is promulgated
under the authority described in title 49,
U.S. Code, subtitle VII, Part A, subpart
III, section 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
FAA’s authority, because it prohibits the
persons described in paragraph (a) of
SFAR No. 77, § 91.1605, from
conducting flight operations in the
Baghdad FIR (ORBB) at altitudes below
FL 260, with limited exceptions, due to
the continued hazards to the safety of
U.S. civil flight operations, as described
in the preamble to this final rule.
The FAA also finds that this action is
fully consistent with the obligations
under 49 U.S.C. 40105(b)(1)(A) to
ensure that the FAA exercises its duties
consistently with the obligations of the
United States under international
agreements.
B. Good Cause for Immediate Adoption
Section 553(b)(3)(B) of title 5 of the
United States Code (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.’’ Section 553(d) also authorizes
agencies to forgo the delay in the
effective date of the final rule for good
cause found and published with the
rule. In this instance, the FAA finds
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good cause to forgo notice and comment
because notice and comment would be
impracticable and contrary to the public
interest. The FAA has identified an
immediate need to address the
continued hazardous situation for U.S.
civil aviation that exists in the Baghdad
FIR (ORBB) at altitudes below FL 260
due to the potential for fighting in
certain areas of Iraq and ongoing
concerns about the extremist/militant
threat to U.S. civil aviation throughout
Iraq. These hazards are further
described in the preamble to this rule.
To the extent that the rule is based upon
classified information, such information
is not permitted to be shared with the
general public. Also, threats to U.S. civil
aviation and intelligence regarding these
threats are fluid. As a result, the
agency’s original proposal could become
unsuitable for minimizing the hazards
to U.S. civil aviation in the affected
airspace during or after the notice and
comment process.
Additionally, it is contrary to the
public interest to delay the effective
date of this SFAR. This action reissues
SFAR No. 77, § 91.1605, with
appropriate modifications, to codify the
provisions of the FAA’s December 9,
2017, NOTAM, which will reduce the
potential for confusion over whether
certain overflights of Iraq by U.S.
operators and airmen are permitted.
For these reasons, the FAA finds good
cause to forgo notice and comment and
any delay in the effective date for this
rule.
III. Background
On October 9, 1996, the FAA issued
SFAR No. 77 to prohibit flight
operations over or within the territory of
Iraq by any U.S. air carrier or
commercial operator; by any person
exercising the privileges of an airman
certificate issued by the FAA, except
persons operating U.S.-registered
aircraft for a foreign air carrier; or by
any person operating an aircraft
registered in the U.S., unless the
operator of such aircraft was a foreign
air carrier. The FAA extended and
amended SFAR No. 77 several times to
respond to evolving circumstances and
their corresponding hazards to U.S. civil
operations.2 Most recently, on May 11,
2015, the FAA published a final rule
amending SFAR No. 77, § 91.1605, to
prohibit U.S. civil aviation operations in
the Baghdad FIR (ORBB) at all altitudes
due to the hazardous situation created
by armed conflict, which formalized a
flight prohibition NOTAM issued under
2 61 FR 54020. For a more comprehensive history
of SFAR 77, § 91.1605, see the final rule published
on May 11, 2015. 80 FR 26822, 26823–26824.
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the Administrator’s emergency
authority. 80 FR 26822. SFAR No. 77,
§ 91.1605, expired on May 11, 2017. On
May 10, 2017, the FAA issued KICZ
NOTAM A0010/17 under the
Administrator’s safety and emergency
authority (49 U.S.C. 40113(a) and
46105(c), respectively) to continue the
prohibition of certain flight operations
in the Baghdad FIR (ORBB) without
interruption due to the continuing
hazards to U.S. civil aviation operations.
The FAA continued to monitor
developments in Iraq relevant to the
safety of U.S. civil aviation after issuing
its May 10, 2017, NOTAM. The FAA
assessed that conditions in Iraq had
improved, as the coalition of Iraqi
security forces, allied nations, and
supporting militia elements had
successfully reduced the area under ISIS
control. In addition, the FAA assessed
that the operational anti-aircraft-capable
weapons possessed by ISIS or other
anti-U.S. extremist/militant elements
did not pose a risk to U.S. civil aviation
overflights at or above FL 260, provided
that the flights remain clear of areas
where fighting is likely to occur or reemerge. The appropriate authorities of
Iraq had taken steps to prohibit civil
aviation operations at or above FL 260
in such areas. As a result, the FAA
determined that the risk to U.S. civil
aviation at or above FL 260 in the
Baghdad FIR (ORBB) had been
sufficiently reduced to allow U.S. civil
aviation overflights at or above FL 260
to resume. The FAA also determined
that it was safe to allow limited
operations below FL 260 when
necessary due to climb performance.
On December 9, 2017, the FAA issued
a revised flight prohibition NOTAM
prohibiting U.S. civil operations within
the Baghdad FIR (ORBB) below FL 260
and thus permitting overflights above
FL 260. The NOTAM permitted, by
exception, U.S. civil operations
departing from countries adjacent to
Iraq to operate at altitudes below FL 260
in the Baghdad FIR (ORBB) to the extent
necessary to permit a climb to or above
FL 260, if the climb performance of the
aircraft does not permit it to attain FL
260 prior to entering the Baghdad FIR
(ORBB), subject to the approval of, and
in accordance with the conditions
established by, the appropriate
authorities of Iraq. This change
permitted U.S. operators to conduct
limited overflights of Iraq, potentially
saving travel time and operational costs
associated with alternate, less direct
routes in a region constrained by
multiple SFARs prohibiting operations.
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IV. Discussion of the Final Rule
The FAA continues to assess the
situation in the Baghdad FIR (ORBB) as
being hazardous for U.S. civil aviation
at altitudes below FL 260, subject to the
limited exceptions described in this
final rule. The risk to U.S. civil aviation
originates from the potential for fighting
in certain areas of northern and western
Iraq between the Islamic State of Iraq
and ash-Sham (ISIS), other extremist/
militant elements, Iraqi security forces
and other elements. ISIS and other
extremist/militant elements are known
to possess a variety of anti-aircraftcapable weapons, including manportable air defense systems, and have
fired on military aircraft during combat
operations in Iraq. This presents a
continued risk of anti-aircraft fire to
civil aircraft, particularly in areas where
fighting may occur. There is also a risk
of potential hostile activity by ISIS
elements or other anti-U.S. militants/
extremists elsewhere in Iraq.
The FAA assesses that the risk to U.S.
civil aviation operating in the Baghdad
FIR (ORBB) over southeastern Iraq has
been sufficiently reduced to allow
flights to operate at altitudes below FL
260 to the extent necessary to climb-out
from or descend into the Kuwait FIR
(OKAC). Southeastern Iraq has a lower
concentration of ISIS-affiliated and
other anti-U.S. extremists/militants, and
is at lower risk for fighting to occur,
than other parts of Iraq. The terrain in
southeastern Iraq is of very low
elevation, low enough to provide a
reasonable buffer against the remaining
risk from anti-aircraft-capable weapons
fired from the surface. Additionally,
aircraft climbing out of Kuwait are only
exposed to any of the remaining risks to
operations in the Baghdad FIR (ORBB)
at altitudes below FL 260 for the limited
time necessary to climb to FL 260, in
accordance with Iraqi air traffic control
instructions. Similarly, aircraft
descending toward Kuwait below FL
260, in accordance with Iraqi air traffic
control instructions, are also exposed to
such risks for only a limited period of
time.
Finally, the routine and expected
procedures for hand-offs between Iraqi
air traffic control and Kuwaiti air traffic
control require operators to cross the
Iraq-Kuwait border below FL 260. The
FAA has determined that the safety
risks of potential traffic conflicts
associated with continuing to require
U.S. operators and airmen to fly
different profiles than those normally
flown by civil air traffic in this very
busy airspace outweigh the previously
described residual risks to U.S. civil
aviation operating over southeastern
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Iraq from potential fighting and antiU.S. militant/extremist activity.
Upon further examination of the risks
to U.S. civil aviation in other areas of
Iraq, the FAA has determined that the
remaining risks to U.S. civil aviation
climbing out of or descending into the
other countries that border Iraq have not
been sufficiently reduced to permit
operations below FL 260. Therefore,
while KICZ NOTAM A0025/17 had
permitted flights departing from
countries adjacent to Iraq to operate at
altitudes below FL 260 in the Baghdad
FIR (ORBB) to the extent necessary to
permit a climb to or above FL 260,
under certain circumstances, this rule
does not permit such climbouts. The
reasons for not extending climbout relief
from the other bordering FIRs are
discussed in the following paragraphs.
Nevertheless, the FAA has determined
there are no operational impacts caused
by this change. Available information
indicates U.S. operators have not relied
upon the NOTAM’s exception to
transition from neighboring FIRs, other
than Kuwait, at altitudes below FL 260.
Iraq shares most of its western border
with Syria. The FAA currently prohibits
U.S. civil aviation operations in the
Damascus FIR (OSTT) at all altitudes,
including the entire country of Syria,
due to the presence of anti-aircraft
weapons controlled by non-state actors,
threats made by extremist groups, deconfliction concerns, and ongoing
fighting. In addition, the Iraqi border
region adjacent to Syria is susceptible to
extremist/militant cross-border activity
that poses a risk to U.S. civil aviation
operating below FL 260 within the
Baghdad FIR (ORBB). Areas of western
and southwestern Iraq near its borders
with Jordan and Saudi Arabia have a
higher concentration of ISIS-affiliated
and other anti-U.S. extremists/militants
than southeastern Iraq. The presence of,
or potential for, extremist/militant
activity within Iraq near its borders with
Jordan and Saudi Arabia poses a greater
risk to U.S. civil aviation operating
below FL 260 inside the Baghdad FIR
(ORBB) than that which exists for U.S.
civil aviation operating below FL 260 in
the Baghdad FIR (ORBB) near Iraq’s
border with Kuwait.
Iraq shares most of its eastern border
with Iran. In the region of Iraq bordering
Iran, there is a risk to U.S. civil aviation
operating in the Baghdad FIR (ORBB)
below FL 260 from potential crossborder extremist/militant activity and
inadequate de-confliction of civil and
military flights. The Iraq-Iran border
region also has areas of high elevation
terrain, in comparison to Iraq’s border
region with Kuwait, which could expose
U.S. civil aviation operating below FL
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260 over such terrain to greater risk
from possible ground-based anti-aircraft
weapons in comparison to Iraq’s border
region with Kuwait.
Iraq borders Turkey to the north.
There is a potential for a residual ISIS
presence, other extremist/militant
activity, and associated counterterrorism operations in the Iraq-Turkey
border region. This activity poses a risk
to U.S. civil aviation operating below FL
260 in the Baghdad FIR (ORBB),
particularly due to the higher elevation
terrain in this region, which could
expose U.S. civil aviation, operating
below FL 260 over such terrain, to
greater risk from ground-based antiaircraft weapons in comparison to Iraq’s
border region with Kuwait. The FAA
does not believe that there are
countervailing aviation safety
considerations, such as the air traffic
control considerations relative to
Kuwait, of sufficient magnitude to
outweigh these risks.
Therefore, as a result of the significant
continuing risk to the safety of U.S. civil
aviation in the Baghdad FIR (ORBB) at
altitudes below FL 260, the FAA
reissues SFAR No. 77, § 91.1605, with
an expiration date of October 26, 2020,
to maintain the prohibition on flight
operations at altitudes below FL 260,
with certain limited exceptions
described in the rule. This prohibition
applies to 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 where the operator
of such aircraft is a foreign air carrier.
The reissued SFAR No. 77, § 91.1605,
permits those subject to the rule to
operate at altitudes below FL 260 to the
extent necessary to climb out of, or
descend into, the Kuwait FIR (OKAC),
subject to the approval of, and in
accordance with the conditions
established by, the appropriate
authorities of Iraq. 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.
The FAA will continue to actively
monitor the situation and evaluate the
extent to which U.S. civil operators and
airmen may be able to operate safely in
the Baghdad FIR (ORBB) at altitudes
below FL 260 in the future. Further
amendments to SFAR No. 77, § 91.1605,
may be appropriate if the risk to
aviation safety and security changes.
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53987
The FAA may amend or rescind SFAR
No. 77, § 91.1605, as necessary, prior to
its expiration date.
V. Approval Process Based on a
Request From a Department, Agency, or
Instrumentality of the United States
Government
If a department, agency, or
instrumentality of the U.S. Government
determines that it has a critical need to
engage any person covered under SFAR
No. 77, § 91.1605, including a U.S. air
carrier or commercial operator, to
conduct a charter to transport civilian or
military passengers or cargo, or other
operations, in the Baghdad FIR (ORBB)
at altitudes below FL 260, that
department, agency, or instrumentality
may request that the FAA approve
persons covered under SFAR No. 77,
§ 91.1605(a), to conduct such
operations.
An approval request must be made
directly by the requesting department,
agency, or instrumentality of the U.S.
Government 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. The FAA
will not accept or consider requests for
approval submitted by anyone other
than the requesting department, agency,
or instrumentality. In addition, the
senior official signing the letter
requesting FAA approval on behalf of
the requesting department, agency, or
instrumentality must be sufficiently
positioned within the organization to
demonstrate that the senior leadership
of the requesting department, agency, or
instrumentality supports the request for
approval and is committed to taking all
necessary steps to minimize operational
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,
requests for approval must be submitted
to the FAA no less than 30 calendar
days before the date on which the
requesting department, agency, or
instrumentality intends to commence
the proposed operations.
The letter must be sent by the
requesting department, agency, or
instrumentality to the Associate
Administrator for Aviation Safety,
Federal Aviation Administration, 800
Independence Avenue SW, Washington,
DC 20591. Electronic submissions are
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acceptable, and the requesting entity
may request that the FAA notify it
electronically as to whether the
approval request is granted. 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 covered under
SFAR No. 77, § 91.1605, and/or for
multiple flight operations. To the extent
known, the letter must identify the
person(s) covered under the SFAR on
whose behalf the U.S. Government
department, agency, or instrumentality
is seeking FAA approval, and it must
describe—
• The proposed operation(s),
including the nature of the mission
being supported;
• The service to be provided by the
person(s) covered by the SFAR;
• To the extent known, the specific
locations in the Baghdad FIR (ORBB) at
altitudes below FL 260 where the
proposed operation(s) will be
conducted, including, but not limited
to, the flight path and altitude of the
aircraft while it is operating in the
Baghdad FIR (ORBB) at altitudes below
FL 260 and the airports, airfields and/
or landing zones at which the aircraft
will take-off and land; and
• The method by which the
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 premission 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
with whom its prime contractor has a
subcontract(s)) for specific flight
operations in the Baghdad FIR (ORBB)
at altitudes below FL 260. Additional
operators may be identified to the FAA
at any time after the FAA approval is
issued. However, all additional
operators must be identified to, and
obtain an Operations Specification
(OpSpec) or Letter of Authorization
(LOA), as appropriate, from the FAA for
operations in the Baghdad FIR (ORBB)
at altitudes below FL 260, before such
operators commence such operations.
The approval conditions discussed
below apply to any such additional
operators. Updated lists should be sent
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to the email address to be obtained from
the Air Transportation Division by
calling (202) 267–8166.
If an approval request includes
classified information, requestors may
contact Aviation Safety Inspector
Michael Filippell for instructions on
submitting it to the FAA. His contact
information is listed in the FOR FURTHER
INFORMATION CONTACT section of this
final rule.
FAA approval of an operation under
SFAR No. 77, § 91.1605, does not relieve
persons subject to this SFAR of their
responsibility to comply with all other
applicable FAA rules and regulations.
Operators of civil aircraft must also
comply with the conditions of their
certificate, OpSpecs, and LOAs, as
applicable. Operators must further
comply with all rules and regulations of
other U.S. Government departments and
agencies that may apply to the proposed
operations, including, but not limited
to, the regulations issued by the
Transportation Security Administration.
Approval Conditions
If the FAA approves the request, the
FAA’s Aviation Safety Organization will
send an approval letter to the requesting
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 Baghdad FIR (ORBB) at altitudes
below FL 260; and
(b) The operator’s 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 Baghdad FIR (ORBB)
at altitudes below FL 260.
(3) Other conditions that the FAA
may specify, including those that may
be imposed 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
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issued by the FAA under chapter 443 of
title 49, U.S. Code.
If the FAA approves the proposed
operation(s), the FAA will issue an
OpSpec or an LOA, as applicable, to the
operator(s) identified in the original
request authorizing them to conduct the
approved operation(s), and will notify
the department, agency, or
instrumentality that requested the
FAA’s approval of any additional
conditions beyond those contained in
the approval letter.
VI. Requests for Exemption
Any operations not conducted under
an approval issued by the FAA through
the approval process set forth
previously must be conducted under an
exemption from SFAR No. 77,
§ 91.1605. A petition for an exemption
must comply with 14 CFR part 11 and
requires exceptional circumstances
beyond those contemplated by the
approval process set forth in the
previous section. In addition to the
information required by 14 CFR 11.81,
at a minimum, the requestor must
describe in its submission to the FAA—
• The proposed operation(s),
including the nature of the operation;
• The service to be provided by the
person(s) covered by the SFAR;
• The specific locations in the
Baghdad FIR (ORBB) at altitudes below
FL 260 where the proposed operation(s)
will be conducted, including, but not
limited to, the flight path and altitude
of the aircraft while it is operating in the
Baghdad FIR (ORBB) at altitudes below
FL 260 and the airports, airfields and/
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 that the
operator will use to minimize the risks,
identified in the preamble, to the
proposed operations, so that granting
the exemption 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.
Additionally, the release and
agreement to indemnify, as referred to
previously, are required as a condition
of any exemption that may be issued
under SFAR No. 77, § 91.1605.
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The FAA recognizes that operations
that may be affected by SFAR No. 77,
§ 91.1605, may be planned for the
governments of other countries with the
support of the U.S. Government. While
these operations will not be permitted
through the approval process, the FAA
will consider exemption requests for
such operations on an expedited basis
and prior to any private exemption
requests.
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VII. Regulatory Notices and Analyses
Changes to Federal regulations must
undergo several economic analyses.
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),
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 that this final rule has
benefits that justify its costs and is a
‘‘significant regulatory action’’ as
defined in section 3(f) of Executive
Order 12866, because it raises novel
policy issues contemplated under that
Executive Order. As notice and
comment under 5 U.S.C. 553 are not
required for this final rule, the
regulatory flexibility analyses described
in 5 U.S.C. 603 and 604 regarding
impacts on small entities are not
required. This rule will not create
unnecessary obstacles to the foreign
commerce of the United States, and will
not impose an unfunded mandate on
State, local, or tribal governments, or on
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the private sector, by exceeding the
threshold identified previously.
A. Regulatory Evaluation
Due to a reduction in the level of risk
to U.S. civil aviation operations in the
Baghdad FIR (ORBB) at or above FL 260,
the FAA’s December 9, 2017, NOTAM
prohibited U.S. civil aviation operations
below FL 260, thus permitting
overflights above FL 260. Due to the
continued significant hazards to U.S.
civil aviation in the Baghdad FIR
(ORBB) at altitudes below FL 260
described in the preamble, the
December 9, 2017, NOTAM continued
the prohibition on U.S. civil aviation
operations in the Baghdad FIR (ORBB)
at altitudes below FL 260, with limited
exceptions. The reissued SFAR No. 77,
§ 91.1605, permits persons to climb out
of, or descend into, the Kuwait FIR
(OKAC) at altitudes below FL 260,
subject to the approval of, and in
accordance with the conditions
established by, the appropriate
authorities of Iraq.
The FAA believes there are very few
U.S. operators who wish to operate in
the Baghdad FIR (ORBB) at altitudes
below FL 260, where U.S. civil aviation
operations will continue to be
prohibited. The FAA has received three
requests for approval or exemption to
conduct flight operations in the
Baghdad FIR (ORBB) at altitudes below
FL 260 since May 11, 2015.
Consequently, the FAA estimates the
costs of this rule to be minimal. These
minimal costs are exceeded by the
benefits of avoided risks of deaths,
injuries, and property damage that
could result from a U.S. operator’s
aircraft being shot down (or otherwise
damaged) due to the hazards described
in the preamble. Consequently, the FAA
estimates that the benefits of this rule
will exceed the costs.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, in 5
U.S.C. 603, requires an agency to
prepare an initial regulatory flexibility
analysis describing impacts on small
entities whenever an agency is required
by 5 U.S.C. 553, or any other law, 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 being required by that section, or
any other law, to publish a general
notice of proposed rulemaking. The
FAA found good cause to forgo notice
and comment and any delay in the
effective date for this rule. As notice and
comment under 5 U.S.C. 553 are not
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53989
required in this situation, the regulatory
flexibility analyses described in 5 U.S.C.
603 and 604 are not required.
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 effect of
this final rule. The purpose of this rule
is to protect the safety of U.S. civil
aviation from hazards to their
operations in the Baghdad FIR (ORBB)
at altitudes below FL 260, a location
outside the U.S. Therefore, the rule is in
compliance 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
$155.0 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 that the
FAA consider the impact of paperwork
and other information collection
burdens imposed on the public. The
FAA has determined that there is no
new requirement for information
collection associated with this final
rule.
F. International Compatibility and
Cooperation
In keeping with U.S. obligations
under the Convention on International
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Civil Aviation, it is FAA’s policy to
conform to ICAO Standards and
Recommended Practices to the
maximum extent practicable. The FAA
has determined that there are no ICAO
Standards and Recommended Practices
that correspond to this regulation.
G. Environmental Analysis
The FAA has analyzed this action
under Executive Order 12114,
Environmental Effects Abroad of Major
Federal Actions (44 FR 1957, January 4,
1979), 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 that 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.
In accordance with FAA Order
1050.1F, ‘‘Environmental Impacts:
Policies and Procedures,’’ paragraph 8–
6(c), FAA has prepared a memorandum
for the record stating the reason(s) for
this determination; this memorandum
has been placed in the docket for this
rulemaking.
VIII. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this final rule
under the principles and criteria of
Executive Order 13132, Federalism. The
agency has determined that this action
would 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, and,
therefore, would not have Federalism
implications.
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B. Executive Order 13211, Regulations
That Significantly Affect Energy Supply,
Distribution, or Use
The FAA analyzed this final rule
under Executive Order 13211, Actions
Concerning Regulations that
Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The
agency has determined that it would not
be a ‘‘significant energy action’’ under
the executive order and would not be
likely to have a significant adverse effect
on the supply, distribution, or use of
energy.
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C. Executive Order 13609, Promoting
International Regulatory Cooperation
Executive Order 13609, Promoting
International Regulatory Cooperation,
(77 FR 26413, May 4, 2012) 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 would have no effect on
international regulatory cooperation.
D. Executive Order 13771, Reducing
Regulation and Controlling Regulatory
Costs
This rule is not subject to the
requirements of E.O. 13771 (82 FR 9339,
Feb. 3, 2017) because it is issued with
respect to a national security function of
the United States.
IX. Additional Information
A. Availability of Rulemaking
Documents
An electronic copy of rulemaking
documents may be obtained from the
internet by—
• Searching the Federal eRulemaking
Portal (https://www.regulations.gov);
• Visiting the FAA’s Regulations and
Policies web page at https://www.faa.
gov/regulations_policies; or
• Accessing the Government
Publishing Office’s web page at https://
www.fdsys.gov.
Copies may also be obtained by
sending a request (identified by
amendment or docket number of this
rulemaking) to the Federal Aviation
Administration, Office of Rulemaking,
800 Independence Avenue SW,
Washington, DC 20591, or by calling
(202) 267–9677. Please identify the
docket or amendment number of this
rulemaking in your request.
Except for classified material, all
documents the FAA considered in
developing this rule, including
economic analyses and technical
reports, may be accessed from the
internet through the Federal
eRulemaking Portal referenced above.
B. Small Business Regulatory
Enforcement Fairness Act
The Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA) 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
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Fmt 4700
Sfmt 4700
this document may contact its local
FAA official, or the person 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, Iraq.
The Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends chapter I of title 14, Code of
Federal Regulations, part 91, as follows:
PART 91—GENERAL OPERATING AND
FLIGHT RULES
1. The authority citation for part 91
continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g), 1155,
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).
2. In subpart M, add § 91.1605 to read
as follows:
■
§ 91.1605 Special Federal Aviation
Regulation No. 77—Prohibition Against
Certain Flights in the Baghdad Flight
Information Region (FIR) (ORBB).
(a) Applicability. This section applies
to the following persons:
(1) All U.S. air carriers and U.S.
commercial operators;
(2) All persons exercising the
privileges of an airman certificate issued
by the FAA, except such persons
operating U.S.-registered aircraft for a
foreign air carrier; and
(3) All operators of civil aircraft
registered in the United States, except
where the operator of such aircraft is a
foreign air carrier.
(b) Flight prohibition. Except as
provided in paragraphs (c) and (d) of
this section, no person may conduct
flight operations in the Baghdad Flight
Information Region (FIR) (ORBB) at
altitudes below FL 260.
(c) Permitted operations. This section
does not prohibit persons described in
paragraph (a) of this section from
conducting flight operations in the
Baghdad FIR (ORBB) at altitudes below
FL 260 in the following circumstances:
(1) Aircraft departing from the Kuwait
Flight Information Region (FIR) (OKAC)
may operate at altitudes below FL 260
in the Baghdad FIR (ORBB) to the extent
necessary to permit a climb during
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takeoff to or above FL 260, subject to the
approval of and in accordance with the
conditions established by, the
appropriate authorities of Iraq; or
(2) Aircraft descending into the
Kuwait FIR (OKAC) may operate at
altitudes below FL 260 in the Baghdad
FIR (ORBB) to the extent necessary to
permit descent for landing within the
Kuwait FIR (OKAC), subject to the
approval of and in accordance with the
conditions established by, the
appropriate authorities of Iraq; or
(3) The flight operations in the
Baghdad FIR (ORBB) at altitudes below
FL 260 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 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.
(d) Emergency situations. In an
emergency that requires immediate
decision and action for the safety of the
flight, the pilot in command of an
aircraft may deviate from this section to
the extent required by that emergency.
Except for U.S. air carriers and
commercial operators that are subject to
the requirements of part 119, 121, 125,
or 135 of this chapter, each person who
deviates from this section must, within
10 days of the deviation, excluding
Saturdays, Sundays, and Federal
holidays, submit to the responsible
Flight Standards office a complete
report of the operations of the aircraft
involved in the deviation, including a
description of the deviation and the
reasons for it.
(e) Expiration. This SFAR will remain
in effect until October 26, 2020. The
FAA may amend, rescind, or extend this
SFAR, as necessary.
Issued under the authority provided by 49
U.S.C. 106(f) and (g), 40101(d)(1),
40105(b)(1)(A), and 44701(a)(5), in
Washington, DC, on October 18, 2018.
Daniel K. Elwell,
Acting Administrator.
[FR Doc. 2018–23398 Filed 10–25–18; 8:45 am]
BILLING CODE 4910–13–P
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Chapter II
Airline Reporting of Data on
Mishandled Baggage, Wheelchairs,
and Scooters
Office of Aviation Enforcement
and Proceedings, Office of the Secretary,
U.S. Department of Transportation
(Department).
ACTION: Notification of enforcement.
AGENCY:
This document addresses the
obligations of large U.S. airlines to
report to the Department mishandled
baggage, wheelchairs, and scooters data
following the enactment of the FAA
Reauthorization Act of 2018.
DATES: This enforcement notification is
applicable on October 26, 2018.
FOR FURTHER INFORMATION CONTACT: John
Wood, Senior Attorney, Office of
Aviation Enforcement and Proceedings
(C–70), U.S. Department of
Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590,
202–366–9342 (telephone), john.wood@
dot.gov (email).
SUPPLEMENTARY INFORMATION: On
November 2, 2016, the Department
published a final rule in the Federal
Register titled ‘‘Reporting of Data for
Mishandled Baggage and Wheelchairs
and Scooters Transported in Aircraft
Cargo Compartments.’’ 81 FR 76300.
This November 2 final rule changed the
methodology that airlines are required
to use in reporting to the Department
their mishandled baggage data, from the
number of mishandled baggage reports
(MBRs) filed with the airline and the
number of domestic passenger
enplanements to the number of
mishandled bags and the number of
enplaned bags.1 The rule also requires
airlines to report separate statistics for
mishandled wheelchairs and scooters.
On November 3, 2016, the Department
published another final rule titled
‘‘Enhancing Airline Passenger
Protections III,’’ 81 FR 76826, that,
among other things, lowered the
reporting carrier threshold for
SUMMARY:
1 Currently, airlines report the number of MBRs
filed by passengers with the airline. One MBR
might cover more than one bag because a single
MBR could be submitted by a family—or even an
individual—with multiple mishandled bags. Under
the new methodology, airlines report the number of
bags that were mishandled as opposed to the
number of MBRs filed by passengers. Also, today,
airlines report the number of passenger
enplanements. Under the new methodology, U.S.
airlines will report the number of checked bags
enplaned (including bags checked at the gate and
‘‘valet’’ bags) rather than the number of passenger
enplanements.
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53991
mishandled baggage from at least 1
percent of domestic scheduled
passenger revenues to at least 0.5
percent. The November 3 final rule
further requires reporting carriers that
market domestic scheduled codeshare
flights to file separate mishandled
baggage data for codeshare flights that
carry only one U.S. carrier’s code. In
March 2017, the Department provided
that carriers would be required to
comply with the changes to mishandled
baggage reporting requirements made by
these two final rules with respect to air
transportation occurring on or after
January 1, 2019. See 82 FR 14437
(March 21, 2017); 82 FR 14604 (March
22, 2017).
On October 5, 2018, the President
signed the FAA Reauthorization Act of
2018 (FAA Act) into law. See Public
Law 115–254. Section 441 of the FAA
Act states that ‘‘[t]he compliance date of
the final rule, dated November 2, 2016,
on the reporting of data for mishandled
baggage and wheelchairs in aircraft
cargo compartments (81 FR 76300) shall
be effective not later than 60 days after
the date of enactment of this Act.’’ 2
By this notification, the Office of
Aviation Enforcement and Proceedings
(Enforcement Office) is providing
guidance to affected U.S. carriers on
compliance with mishandled baggage,
wheelchair, and scooter reporting
requirements following the enactment of
the FAA Act. Section 441 of the FAA
Act provides that the compliance date
for the November 2, 2016 final rule shall
be effective not later than 60 days after
2 The FAA Act also includes another section
related to mishandled baggage reporting. Section
410 of the FAA Act states that ‘‘[n]ot later than 6
months after the date of enactment of this Act, the
Secretary of Transportation shall study and
publicize for comment a cost-benefit analysis to air
carriers and consumers of changing the baggage
reporting requirements of section 234.6 of title 14,
Code of Federal Regulations, before implementation
of such requirements . . .’’ The Department must
also report to Congress on the findings of the costbenefit analysis. The Department does not view
sections 441 and 410 as inconsistent with each
other, because it interprets section 410 as applying
only to prospective changes, and as not applying to
the changes made by the final rules issued
November 2, 2016 and November 3, 2016. In June
2018, the Department announced its initiation of a
rulemaking, Reporting of Data for Mishandled
Baggage and Wheelchairs and Scooters
Transportation in Aircraft Cargo Compartments II
(RIN #2105–AE77), ‘‘to address substantial
challenges in accurately reporting, under the
mishandled baggage reporting final rules published
in November 2016, data for bags handled by
multiple airlines and bags that traveled on both
reportable domestic segments and nonreportable
international segments.’’ See https://
www.transportation.gov/regulations/report-onsignificant-rulemakings. The Department will
conduct a cost-benefit analysis for proposed
changes to the baggage reporting requirements of 14
CFR 234.6 and report to Congress as required by
section 410 of the FAA Act.
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Agencies
[Federal Register Volume 83, Number 208 (Friday, October 26, 2018)]
[Rules and Regulations]
[Pages 53985-53991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23398]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No.: FAA-2018-0927; Amdt. No. 91-353]
RIN 2120-AL06
Prohibition Against Certain Flights in the Baghdad Flight
Information Region (FIR) (ORBB)
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action reissues, with modifications to reflect changed
conditions in Iraq, the Special Federal Aviation Regulation (SFAR) that
prohibits certain flights in the Baghdad Flight Information Region
(FIR) (ORBB) 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 where the operator of such aircraft is a foreign
air carrier.
DATES: This final rule is effective on October 26, 2018.
FOR FURTHER INFORMATION CONTACT: Michael Filippell, Air Transportation
Division, 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 reissues, with modifications to address changed
conditions in Iraq, Special Federal Aviation Regulation (SFAR) No. 77,
Sec. 91.1605, which prohibits certain flight operations in the Baghdad
FIR (ORBB) 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 where the operator of such aircraft is a foreign
air carrier. The reissued rule prohibits operations in the Baghdad FIR
(ORBB) below Flight Level (FL) 260, except operations necessary to
climb out of, or descend into, the Kuwait FIR (OKAC), subject to the
approval of, and in accordance with the conditions established by, the
appropriate authorities of Iraq.
Conditions in Iraq have improved since action was last taken on
SFAR No. 77, Sec. 91.1605 by the FAA in May 2015, which expired on May
11, 2017.\1\ The coalition of Iraqi security forces, allied nations,
and supporting militia elements has successfully reduced the area under
Islamic State of Iraq and Ash-Sham (ISIS) control. In addition, the
operational anti-aircraft-capable weapons possessed by ISIS or other
anti-U.S. extremist/militant elements are altitude-limited and would
not pose a risk to U.S. civil aviation overflights at or above FL 260,
provided that the flights remain clear of areas where fighting is
likely to occur or re-emerge. The appropriate authorities of Iraq have
taken steps to prohibit civil aviation operations at or above FL 260 in
such areas. Therefore, on December 9, 2017, the FAA issued KICZ NOTAM
A0025/17, amending its prohibition on U.S. civil aviation operations in
the Baghdad FIR (ORBB) to allow overflights at or above FL 260.
---------------------------------------------------------------------------
\1\ Due to continuing hazards and to avoid interruption of the
flight prohibition, the FAA issued KICZ NOTAM A0010/17 under the
Administrator's emergency authority (49 U.S.C. 46105(c)) to
temporarily continue the SFAR flight prohibition until a final rule
became effective.
---------------------------------------------------------------------------
There continues to be an unacceptable level of risk to U.S. civil
aviation operations in the Baghdad FIR (ORBB) at altitudes below FL
260, as described in this rule, resulting from the potential for
fighting in certain areas of Iraq and ongoing concerns about the
extremist/militant threat to U.S. civil aviation throughout Iraq. With
limited exceptions described in this final rule, U.S. civil aviation
operations in the Baghdad FIR (ORBB) at altitudes below FL 260 remain
prohibited consistent with KICZ NOTAM A0025/17. Consequently, the FAA
is reissuing the modified SFAR to remain in effect until October 26,
2018. The FAA finds this action necessary due to continued hazards to
U.S. civil aviation operations in the Baghdad FIR (ORBB) at altitudes
below FL 260.
II. Legal Authority and Good Cause
A. Legal 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. The FAA Administrator's
authority to issue rules on aviation safety is found in title 49, U.S.
Code, Subtitle I, sections 106(f) and (g). 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 his authority consistently with the
obligations of the U.S. Government under international agreements.
This rulemaking is promulgated under the authority described in
title 49, U.S. Code, subtitle VII, Part A, subpart III, section 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 FAA's authority, because it
prohibits the persons described in paragraph (a) of SFAR No. 77, Sec.
91.1605, from conducting flight operations in the Baghdad FIR (ORBB) at
altitudes below FL 260, with limited exceptions, due to the continued
hazards to the safety of U.S. civil flight operations, as described in
the preamble to this final rule.
The FAA also finds that this action is fully consistent with the
obligations under 49 U.S.C. 40105(b)(1)(A) to ensure that the FAA
exercises its duties consistently with the obligations of the United
States under international agreements.
B. Good Cause for Immediate Adoption
Section 553(b)(3)(B) of title 5 of the United States Code (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.'' Section 553(d) also authorizes agencies to forgo the
delay in the effective date of the final rule for good cause found and
published with the rule. In this instance, the FAA finds
[[Page 53986]]
good cause to forgo notice and comment because notice and comment would
be impracticable and contrary to the public interest. The FAA has
identified an immediate need to address the continued hazardous
situation for U.S. civil aviation that exists in the Baghdad FIR (ORBB)
at altitudes below FL 260 due to the potential for fighting in certain
areas of Iraq and ongoing concerns about the extremist/militant threat
to U.S. civil aviation throughout Iraq. These hazards are further
described in the preamble to this rule. To the extent that the rule is
based upon classified information, such information is not permitted to
be shared with the general public. Also, threats to U.S. civil aviation
and intelligence regarding these threats are fluid. As a result, the
agency's original proposal could become unsuitable for minimizing the
hazards to U.S. civil aviation in the affected airspace during or after
the notice and comment process.
Additionally, it is contrary to the public interest to delay the
effective date of this SFAR. This action reissues SFAR No. 77, Sec.
91.1605, with appropriate modifications, to codify the provisions of
the FAA's December 9, 2017, NOTAM, which will reduce the potential for
confusion over whether certain overflights of Iraq by U.S. operators
and airmen are permitted.
For these reasons, the FAA finds good cause to forgo notice and
comment and any delay in the effective date for this rule.
III. Background
On October 9, 1996, the FAA issued SFAR No. 77 to prohibit flight
operations over or within the territory of Iraq by any U.S. air carrier
or commercial operator; by any person exercising the privileges of an
airman certificate issued by the FAA, except persons operating U.S.-
registered aircraft for a foreign air carrier; or by any person
operating an aircraft registered in the U.S., unless the operator of
such aircraft was a foreign air carrier. The FAA extended and amended
SFAR No. 77 several times to respond to evolving circumstances and
their corresponding hazards to U.S. civil operations.\2\ Most recently,
on May 11, 2015, the FAA published a final rule amending SFAR No. 77,
Sec. 91.1605, to prohibit U.S. civil aviation operations in the
Baghdad FIR (ORBB) at all altitudes due to the hazardous situation
created by armed conflict, which formalized a flight prohibition NOTAM
issued under the Administrator's emergency authority. 80 FR 26822. SFAR
No. 77, Sec. 91.1605, expired on May 11, 2017. On May 10, 2017, the
FAA issued KICZ NOTAM A0010/17 under the Administrator's safety and
emergency authority (49 U.S.C. 40113(a) and 46105(c), respectively) to
continue the prohibition of certain flight operations in the Baghdad
FIR (ORBB) without interruption due to the continuing hazards to U.S.
civil aviation operations.
---------------------------------------------------------------------------
\2\ 61 FR 54020. For a more comprehensive history of SFAR 77,
Sec. 91.1605, see the final rule published on May 11, 2015. 80 FR
26822, 26823-26824.
---------------------------------------------------------------------------
The FAA continued to monitor developments in Iraq relevant to the
safety of U.S. civil aviation after issuing its May 10, 2017, NOTAM.
The FAA assessed that conditions in Iraq had improved, as the coalition
of Iraqi security forces, allied nations, and supporting militia
elements had successfully reduced the area under ISIS control. In
addition, the FAA assessed that the operational anti-aircraft-capable
weapons possessed by ISIS or other anti-U.S. extremist/militant
elements did not pose a risk to U.S. civil aviation overflights at or
above FL 260, provided that the flights remain clear of areas where
fighting is likely to occur or re-emerge. The appropriate authorities
of Iraq had taken steps to prohibit civil aviation operations at or
above FL 260 in such areas. As a result, the FAA determined that the
risk to U.S. civil aviation at or above FL 260 in the Baghdad FIR
(ORBB) had been sufficiently reduced to allow U.S. civil aviation
overflights at or above FL 260 to resume. The FAA also determined that
it was safe to allow limited operations below FL 260 when necessary due
to climb performance.
On December 9, 2017, the FAA issued a revised flight prohibition
NOTAM prohibiting U.S. civil operations within the Baghdad FIR (ORBB)
below FL 260 and thus permitting overflights above FL 260. The NOTAM
permitted, by exception, U.S. civil operations departing from countries
adjacent to Iraq to operate at altitudes below FL 260 in the Baghdad
FIR (ORBB) to the extent necessary to permit a climb to or above FL
260, if the climb performance of the aircraft does not permit it to
attain FL 260 prior to entering the Baghdad FIR (ORBB), subject to the
approval of, and in accordance with the conditions established by, the
appropriate authorities of Iraq. This change permitted U.S. operators
to conduct limited overflights of Iraq, potentially saving travel time
and operational costs associated with alternate, less direct routes in
a region constrained by multiple SFARs prohibiting operations.
IV. Discussion of the Final Rule
The FAA continues to assess the situation in the Baghdad FIR (ORBB)
as being hazardous for U.S. civil aviation at altitudes below FL 260,
subject to the limited exceptions described in this final rule. The
risk to U.S. civil aviation originates from the potential for fighting
in certain areas of northern and western Iraq between the Islamic State
of Iraq and ash-Sham (ISIS), other extremist/militant elements, Iraqi
security forces and other elements. ISIS and other extremist/militant
elements are known to possess a variety of anti-aircraft-capable
weapons, including man-portable air defense systems, and have fired on
military aircraft during combat operations in Iraq. This presents a
continued risk of anti-aircraft fire to civil aircraft, particularly in
areas where fighting may occur. There is also a risk of potential
hostile activity by ISIS elements or other anti-U.S. militants/
extremists elsewhere in Iraq.
The FAA assesses that the risk to U.S. civil aviation operating in
the Baghdad FIR (ORBB) over southeastern Iraq has been sufficiently
reduced to allow flights to operate at altitudes below FL 260 to the
extent necessary to climb-out from or descend into the Kuwait FIR
(OKAC). Southeastern Iraq has a lower concentration of ISIS-affiliated
and other anti-U.S. extremists/militants, and is at lower risk for
fighting to occur, than other parts of Iraq. The terrain in
southeastern Iraq is of very low elevation, low enough to provide a
reasonable buffer against the remaining risk from anti-aircraft-capable
weapons fired from the surface. Additionally, aircraft climbing out of
Kuwait are only exposed to any of the remaining risks to operations in
the Baghdad FIR (ORBB) at altitudes below FL 260 for the limited time
necessary to climb to FL 260, in accordance with Iraqi air traffic
control instructions. Similarly, aircraft descending toward Kuwait
below FL 260, in accordance with Iraqi air traffic control
instructions, are also exposed to such risks for only a limited period
of time.
Finally, the routine and expected procedures for hand-offs between
Iraqi air traffic control and Kuwaiti air traffic control require
operators to cross the Iraq-Kuwait border below FL 260. The FAA has
determined that the safety risks of potential traffic conflicts
associated with continuing to require U.S. operators and airmen to fly
different profiles than those normally flown by civil air traffic in
this very busy airspace outweigh the previously described residual
risks to U.S. civil aviation operating over southeastern
[[Page 53987]]
Iraq from potential fighting and anti-U.S. militant/extremist activity.
Upon further examination of the risks to U.S. civil aviation in
other areas of Iraq, the FAA has determined that the remaining risks to
U.S. civil aviation climbing out of or descending into the other
countries that border Iraq have not been sufficiently reduced to permit
operations below FL 260. Therefore, while KICZ NOTAM A0025/17 had
permitted flights departing from countries adjacent to Iraq to operate
at altitudes below FL 260 in the Baghdad FIR (ORBB) to the extent
necessary to permit a climb to or above FL 260, under certain
circumstances, this rule does not permit such climbouts. The reasons
for not extending climbout relief from the other bordering FIRs are
discussed in the following paragraphs. Nevertheless, the FAA has
determined there are no operational impacts caused by this change.
Available information indicates U.S. operators have not relied upon the
NOTAM's exception to transition from neighboring FIRs, other than
Kuwait, at altitudes below FL 260.
Iraq shares most of its western border with Syria. The FAA
currently prohibits U.S. civil aviation operations in the Damascus FIR
(OSTT) at all altitudes, including the entire country of Syria, due to
the presence of anti-aircraft weapons controlled by non-state actors,
threats made by extremist groups, de-confliction concerns, and ongoing
fighting. In addition, the Iraqi border region adjacent to Syria is
susceptible to extremist/militant cross-border activity that poses a
risk to U.S. civil aviation operating below FL 260 within the Baghdad
FIR (ORBB). Areas of western and southwestern Iraq near its borders
with Jordan and Saudi Arabia have a higher concentration of ISIS-
affiliated and other anti-U.S. extremists/militants than southeastern
Iraq. The presence of, or potential for, extremist/militant activity
within Iraq near its borders with Jordan and Saudi Arabia poses a
greater risk to U.S. civil aviation operating below FL 260 inside the
Baghdad FIR (ORBB) than that which exists for U.S. civil aviation
operating below FL 260 in the Baghdad FIR (ORBB) near Iraq's border
with Kuwait.
Iraq shares most of its eastern border with Iran. In the region of
Iraq bordering Iran, there is a risk to U.S. civil aviation operating
in the Baghdad FIR (ORBB) below FL 260 from potential cross-border
extremist/militant activity and inadequate de-confliction of civil and
military flights. The Iraq-Iran border region also has areas of high
elevation terrain, in comparison to Iraq's border region with Kuwait,
which could expose U.S. civil aviation operating below FL 260 over such
terrain to greater risk from possible ground-based anti-aircraft
weapons in comparison to Iraq's border region with Kuwait.
Iraq borders Turkey to the north. There is a potential for a
residual ISIS presence, other extremist/militant activity, and
associated counter-terrorism operations in the Iraq-Turkey border
region. This activity poses a risk to U.S. civil aviation operating
below FL 260 in the Baghdad FIR (ORBB), particularly due to the higher
elevation terrain in this region, which could expose U.S. civil
aviation, operating below FL 260 over such terrain, to greater risk
from ground-based anti-aircraft weapons in comparison to Iraq's border
region with Kuwait. The FAA does not believe that there are
countervailing aviation safety considerations, such as the air traffic
control considerations relative to Kuwait, of sufficient magnitude to
outweigh these risks.
Therefore, as a result of the significant continuing risk to the
safety of U.S. civil aviation in the Baghdad FIR (ORBB) at altitudes
below FL 260, the FAA reissues SFAR No. 77, Sec. 91.1605, with an
expiration date of October 26, 2020, to maintain the prohibition on
flight operations at altitudes below FL 260, with certain limited
exceptions described in the rule. This prohibition applies to 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 where
the operator of such aircraft is a foreign air carrier. The reissued
SFAR No. 77, Sec. 91.1605, permits those subject to the rule to
operate at altitudes below FL 260 to the extent necessary to climb out
of, or descend into, the Kuwait FIR (OKAC), subject to the approval of,
and in accordance with the conditions established by, the appropriate
authorities of Iraq. 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.
The FAA will continue to actively monitor the situation and
evaluate the extent to which U.S. civil operators and airmen may be
able to operate safely in the Baghdad FIR (ORBB) at altitudes below FL
260 in the future. Further amendments to SFAR No. 77, Sec. 91.1605,
may be appropriate if the risk to aviation safety and security changes.
The FAA may amend or rescind SFAR No. 77, Sec. 91.1605, as necessary,
prior to its expiration date.
V. Approval Process Based on a Request From a Department, Agency, or
Instrumentality of the United States Government
If a department, agency, or instrumentality of the U.S. Government
determines that it has a critical need to engage any person covered
under SFAR No. 77, Sec. 91.1605, including a U.S. air carrier or
commercial operator, to conduct a charter to transport civilian or
military passengers or cargo, or other operations, in the Baghdad FIR
(ORBB) at altitudes below FL 260, that department, agency, or
instrumentality may request that the FAA approve persons covered under
SFAR No. 77, Sec. 91.1605(a), to conduct such operations.
An approval request must be made directly by the requesting
department, agency, or instrumentality of the U.S. Government 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. The FAA will not accept or consider requests for
approval submitted by anyone other than the requesting department,
agency, or instrumentality. In addition, the senior official signing
the letter requesting FAA approval on behalf of the requesting
department, agency, or instrumentality must be sufficiently positioned
within the organization to demonstrate that the senior leadership of
the requesting department, agency, or instrumentality supports the
request for approval and is committed to taking all necessary steps to
minimize operational 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, requests for approval must be submitted to the
FAA no less than 30 calendar days before the date on which the
requesting department, agency, or instrumentality intends to commence
the proposed operations.
The letter must be sent by the requesting department, agency, or
instrumentality to the Associate Administrator for Aviation Safety,
Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 20591. Electronic submissions are
[[Page 53988]]
acceptable, and the requesting entity may request that the FAA notify
it electronically as to whether the approval request is granted. 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 covered under SFAR No. 77, Sec. 91.1605, and/or for multiple
flight operations. To the extent known, the letter must identify the
person(s) covered under the SFAR on whose behalf the U.S. Government
department, agency, or instrumentality is seeking FAA approval, and it
must describe--
The proposed operation(s), including the nature of the
mission being supported;
The service to be provided by the person(s) covered by the
SFAR;
To the extent known, the specific locations in the Baghdad
FIR (ORBB) at altitudes below FL 260 where the proposed operation(s)
will be conducted, including, but not limited to, the flight path and
altitude of the aircraft while it is operating in the Baghdad FIR
(ORBB) at altitudes below FL 260 and the airports, airfields and/or
landing zones at which the aircraft will take-off and land; and
The method by which the 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 with whom its prime contractor has a
subcontract(s)) for specific flight operations in the Baghdad FIR
(ORBB) at altitudes below FL 260. Additional operators may be
identified to the FAA at any time after the FAA approval is issued.
However, all additional operators must be identified to, and obtain an
Operations Specification (OpSpec) or Letter of Authorization (LOA), as
appropriate, from the FAA for operations in the Baghdad FIR (ORBB) at
altitudes below FL 260, before such operators commence such operations.
The approval conditions discussed below apply to any such additional
operators. Updated lists should be sent to the email address to be
obtained from the Air Transportation Division by calling (202) 267-
8166.
If an approval request includes classified information, requestors
may contact Aviation Safety Inspector Michael Filippell for
instructions on submitting it to the FAA. His contact information is
listed in the For Further Information Contact section of this final
rule.
FAA approval of an operation under SFAR No. 77, Sec. 91.1605, does
not relieve persons subject to this SFAR of their responsibility to
comply with all other applicable FAA rules and regulations. Operators
of civil aircraft must also comply with the conditions of their
certificate, OpSpecs, and LOAs, as applicable. Operators must further
comply with all rules and regulations of other U.S. Government
departments and agencies that may apply to the proposed operations,
including, but not limited to, the regulations issued by the
Transportation Security Administration.
Approval Conditions
If the FAA approves the request, the FAA's Aviation Safety
Organization will send an approval letter to the requesting 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 Baghdad FIR (ORBB) at altitudes below FL
260; and
(b) The operator's 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
Baghdad FIR (ORBB) at altitudes below FL 260.
(3) Other conditions that the FAA may specify, including those that
may be imposed 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 issued by the FAA under chapter 443 of title 49, U.S. Code.
If the FAA approves the proposed operation(s), the FAA will issue
an OpSpec or an LOA, as applicable, to the operator(s) identified in
the original request authorizing them to conduct the approved
operation(s), and will notify the department, agency, or
instrumentality that requested the FAA's approval of any additional
conditions beyond those contained in the approval letter.
VI. Requests for Exemption
Any operations not conducted under an approval issued by the FAA
through the approval process set forth previously must be conducted
under an exemption from SFAR No. 77, Sec. 91.1605. A petition for an
exemption must comply with 14 CFR part 11 and requires exceptional
circumstances beyond those contemplated by the approval process set
forth in the previous section. In addition to the information required
by 14 CFR 11.81, at a minimum, the requestor must describe in its
submission to the FAA--
The proposed operation(s), including the nature of the
operation;
The service to be provided by the person(s) covered by the
SFAR;
The specific locations in the Baghdad FIR (ORBB) at
altitudes below FL 260 where the proposed operation(s) will be
conducted, including, but not limited to, the flight path and altitude
of the aircraft while it is operating in the Baghdad FIR (ORBB) at
altitudes below FL 260 and the airports, airfields and/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 that the operator will use to
minimize the risks, identified in the preamble, to the proposed
operations, so that granting the exemption 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.
Additionally, the release and agreement to indemnify, as referred
to previously, are required as a condition of any exemption that may be
issued under SFAR No. 77, Sec. 91.1605.
[[Page 53989]]
The FAA recognizes that operations that may be affected by SFAR No.
77, Sec. 91.1605, may be planned for the governments of other
countries with the support of the U.S. Government. While these
operations will not be permitted through the approval process, the FAA
will consider exemption requests for such operations on an expedited
basis and prior to any private exemption requests.
VII. Regulatory Notices and Analyses
Changes to Federal regulations must undergo several economic
analyses. 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), 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 that this
final rule has benefits that justify its costs and is a ``significant
regulatory action'' as defined in section 3(f) of Executive Order
12866, because it raises novel policy issues contemplated under that
Executive Order. As notice and comment under 5 U.S.C. 553 are not
required for this final rule, the regulatory flexibility analyses
described in 5 U.S.C. 603 and 604 regarding impacts on small entities
are not required. This rule will not create unnecessary obstacles to
the foreign commerce of the United States, and 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
Due to a reduction in the level of risk to U.S. civil aviation
operations in the Baghdad FIR (ORBB) at or above FL 260, the FAA's
December 9, 2017, NOTAM prohibited U.S. civil aviation operations below
FL 260, thus permitting overflights above FL 260. Due to the continued
significant hazards to U.S. civil aviation in the Baghdad FIR (ORBB) at
altitudes below FL 260 described in the preamble, the December 9, 2017,
NOTAM continued the prohibition on U.S. civil aviation operations in
the Baghdad FIR (ORBB) at altitudes below FL 260, with limited
exceptions. The reissued SFAR No. 77, Sec. 91.1605, permits persons to
climb out of, or descend into, the Kuwait FIR (OKAC) at altitudes below
FL 260, subject to the approval of, and in accordance with the
conditions established by, the appropriate authorities of Iraq.
The FAA believes there are very few U.S. operators who wish to
operate in the Baghdad FIR (ORBB) at altitudes below FL 260, where U.S.
civil aviation operations will continue to be prohibited. The FAA has
received three requests for approval or exemption to conduct flight
operations in the Baghdad FIR (ORBB) at altitudes below FL 260 since
May 11, 2015. Consequently, the FAA estimates the costs of this rule to
be minimal. These minimal costs are exceeded by the benefits of avoided
risks of deaths, injuries, and property damage that could result from a
U.S. operator's aircraft being shot down (or otherwise damaged) due to
the hazards described in the preamble. Consequently, the FAA estimates
that the benefits of this rule will exceed the costs.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, in 5 U.S.C. 603, requires an agency
to prepare an initial regulatory flexibility analysis describing
impacts on small entities whenever an agency is required by 5 U.S.C.
553, or any other law, 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 being required by
that section, or any other law, to publish a general notice of proposed
rulemaking. The FAA found good cause to forgo notice and comment and
any delay in the effective date for this rule. As notice and comment
under 5 U.S.C. 553 are not required in this situation, the regulatory
flexibility analyses described in 5 U.S.C. 603 and 604 are not
required.
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 effect of this final rule. The purpose of
this rule is to protect the safety of U.S. civil aviation from hazards
to their operations in the Baghdad FIR (ORBB) at altitudes below FL
260, a location outside the U.S. Therefore, the rule is in compliance
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 $155.0 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
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there is no new requirement for information collection associated with
this final rule.
F. International Compatibility and Cooperation
In keeping with U.S. obligations under the Convention on
International
[[Page 53990]]
Civil Aviation, it is FAA's policy to conform to ICAO Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to this regulation.
G. Environmental Analysis
The FAA has analyzed this action under Executive Order 12114,
Environmental Effects Abroad of Major Federal Actions (44 FR 1957,
January 4, 1979), 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 that
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.
In accordance with FAA Order 1050.1F, ``Environmental Impacts:
Policies and Procedures,'' paragraph 8-6(c), FAA has prepared a
memorandum for the record stating the reason(s) for this determination;
this memorandum has been placed in the docket for this rulemaking.
VIII. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. The agency has
determined that this action would 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, and, therefore, would not have
Federalism implications.
B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The agency has determined that it
would not be a ``significant energy action'' under the executive order
and would 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, Promoting International Regulatory
Cooperation, (77 FR 26413, May 4, 2012) 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 would have no effect on international regulatory
cooperation.
D. Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs
This rule is not subject to the requirements of E.O. 13771 (82 FR
9339, Feb. 3, 2017) because it is issued with respect to a national
security function of the United States.
IX. Additional Information
A. Availability of Rulemaking Documents
An electronic copy of rulemaking documents may be obtained from the
internet by--
Searching the Federal eRulemaking Portal (https://www.regulations.gov);
Visiting the FAA's Regulations and Policies web page at
https://www.faa.gov/regulations_policies; or
Accessing the Government Publishing Office's web page at
https://www.fdsys.gov.
Copies may also be obtained by sending a request (identified by
amendment or docket number of this rulemaking) to the Federal Aviation
Administration, Office of Rulemaking, 800 Independence Avenue SW,
Washington, DC 20591, or by calling (202) 267-9677. Please identify the
docket or amendment number of this rulemaking in your request.
Except for classified material, all documents the FAA considered in
developing this rule, including economic analyses and technical
reports, may be accessed from the internet through the Federal
eRulemaking Portal referenced above.
B. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) 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 person 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, Iraq.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends chapter I of title 14, Code of Federal
Regulations, part 91, 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), 1155, 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. In subpart M, add Sec. 91.1605 to read as follows:
Sec. 91.1605 Special Federal Aviation Regulation No. 77--Prohibition
Against Certain Flights in the Baghdad Flight Information Region (FIR)
(ORBB).
(a) Applicability. This section applies to the following persons:
(1) All U.S. air carriers and U.S. commercial operators;
(2) All persons exercising the privileges of an airman certificate
issued by the FAA, except such persons operating U.S.-registered
aircraft for a foreign air carrier; and
(3) All operators of civil aircraft registered in the United
States, except where the operator of such aircraft is a foreign air
carrier.
(b) Flight prohibition. Except as provided in paragraphs (c) and
(d) of this section, no person may conduct flight operations in the
Baghdad Flight Information Region (FIR) (ORBB) at altitudes below FL
260.
(c) Permitted operations. This section does not prohibit persons
described in paragraph (a) of this section from conducting flight
operations in the Baghdad FIR (ORBB) at altitudes below FL 260 in the
following circumstances:
(1) Aircraft departing from the Kuwait Flight Information Region
(FIR) (OKAC) may operate at altitudes below FL 260 in the Baghdad FIR
(ORBB) to the extent necessary to permit a climb during
[[Page 53991]]
takeoff to or above FL 260, subject to the approval of and in
accordance with the conditions established by, the appropriate
authorities of Iraq; or
(2) Aircraft descending into the Kuwait FIR (OKAC) may operate at
altitudes below FL 260 in the Baghdad FIR (ORBB) to the extent
necessary to permit descent for landing within the Kuwait FIR (OKAC),
subject to the approval of and in accordance with the conditions
established by, the appropriate authorities of Iraq; or
(3) The flight operations in the Baghdad FIR (ORBB) at altitudes
below FL 260 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
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.
(d) Emergency situations. In an emergency that requires immediate
decision and action for the safety of the flight, the pilot in command
of an aircraft may deviate from this section to the extent required by
that emergency. Except for U.S. air carriers and commercial operators
that are subject to the requirements of part 119, 121, 125, or 135 of
this chapter, each person who deviates from this section must, within
10 days of the deviation, excluding Saturdays, Sundays, and Federal
holidays, submit to the responsible Flight Standards office a complete
report of the operations of the aircraft involved in the deviation,
including a description of the deviation and the reasons for it.
(e) Expiration. This SFAR will remain in effect until October 26,
2020. The FAA may amend, rescind, or extend this SFAR, as necessary.
Issued under the authority provided by 49 U.S.C. 106(f) and (g),
40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), in Washington, DC, on
October 18, 2018.
Daniel K. Elwell,
Acting Administrator.
[FR Doc. 2018-23398 Filed 10-25-18; 8:45 am]
BILLING CODE 4910-13-P