Prohibition Against Certain Flights in the Baghdad Flight Information Region (FIR) (ORBB), 53985-53991 [2018-23398]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[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]


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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.

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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.
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    \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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    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.
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    \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.
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    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