Rule2022-20318
Extension of the Prohibition Against Certain Flights in the Baghdad Flight Information Region (FIR) (ORBB)
Primary source
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Published
September 20, 2022
Effective
September 20, 2022
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This action extends, for an additional two years, the prohibition against certain flight operations in the Baghdad FIR (ORBB) at altitudes below Flight Level 320 (FL320) by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when the operator of such aircraft is a foreign air carrier. The FAA finds this action necessary to address continuing hazards to persons and aircraft engaged in such flight operations due to the complex security environment that currently exists in the Baghdad FIR (ORBB) and the associated safety- of-flight hazards, as described in the preamble to this final rule. The FAA also republishes, with minor administrative revisions, the approval process and exemption information for this Special Federal Aviation Regulation (SFAR), consistent with other recently published flight prohibition SFARs.
Full Text
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<title>Federal Register, Volume 87 Issue 181 (Tuesday, September 20, 2022)</title>
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[Federal Register Volume 87, Number 181 (Tuesday, September 20, 2022)]
[Rules and Regulations]
[Pages 57384-57390]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20318]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. FAA-2018-0927; Amdt. No. 91-353B]
RIN 2120-AL76
Extension of the 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 extends, for an additional two years, the
prohibition against certain flight operations in the Baghdad FIR (ORBB)
at altitudes below Flight Level 320 (FL320) by all: U.S. air carriers;
U.S. commercial operators; persons exercising the privileges of an
airman certificate issued by the FAA, except when such persons are
operating U.S.-registered aircraft for a foreign air carrier; and
operators of U.S.-registered civil aircraft, except when the operator
of such aircraft is a foreign air carrier. The FAA finds this action
necessary to address continuing hazards to persons and aircraft engaged
in such flight operations due to the complex security environment that
currently exists in the Baghdad FIR (ORBB) and the associated safety-
of-flight hazards, as described in the preamble to this final rule. The
FAA also republishes, with minor administrative revisions, the approval
process and exemption information for this Special Federal Aviation
Regulation
[[Page 57385]]
(SFAR), consistent with other recently published flight prohibition
SFARs.
DATES: This final rule is effective on September 20, 2022.
FOR FURTHER INFORMATION CONTACT: Bill Petrak, Flight Standards Service,
Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 20591; telephone 202-267-8166; email
<a href="/cdn-cgi/l/email-protection#45272c29296b35203137242e052324246b222a33"><span class="__cf_email__" data-cfemail="2f4d464343015f4a5b5d4e446f494e4e01484059">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This action extends the expiration date of SFAR No. 77, title 14
Code of Federal Regulations (CFR), 91.1605, from October 26, 2022,
until October 26, 2024. SFAR No. 77 prohibits certain flight operations
in the Baghdad FIR (ORBB) at altitudes below Flight Level (FL) 320 by
all: U.S. air carriers; U.S. commercial operators; persons exercising
the privileges of an airman certificate issued by the FAA, except when
such persons are operating U.S.-registered aircraft for a foreign air
carrier; and operators of U.S.-registered civil aircraft, except when
the operator of such aircraft is a foreign air carrier. Consistent with
other recently published flight prohibition SFARs, this action also
republishes, with minor administrative revisions, the approval process
and exemption information for this flight prohibition SFAR.
II. Authority and Good Cause
A. Authority
The FAA is responsible for the safety of flight in the U.S. and for
the safety of U.S. civil operators, U.S.-registered civil aircraft, and
U.S.-certificated airmen throughout the world. Sections 106(f) and (g)
of title 49, U.S. Code (U.S.C.), subtitle I, establish the FAA
Administrator's authority to issue rules on aviation safety. Subtitle
VII of title 49, Aviation Programs, describes in more detail the scope
of the agency's authority. Section 40101(d)(1) provides that the
Administrator shall consider in the public interest, among other
matters, assigning, maintaining, and enhancing safety and security as
the highest priorities in air commerce. Section 40105(b)(1)(A) requires
the Administrator to exercise this authority consistently with the
obligations of the U.S. Government under international agreements.
The FAA is promulgating this rule under the authority described in
49 U.S.C. 44701, General requirements. Under that section, the FAA is
charged broadly with promoting safe flight of civil aircraft in air
commerce by prescribing, among other things, regulations and minimum
standards for practices, methods, and procedures that the Administrator
finds necessary for safety in air commerce and national security. This
regulation is within the scope of the FAA's authority because it
continues to prohibit the persons described in paragraph (a) of SFAR
No. 77, Sec. 91.1605, from conducting flight operations in the Baghdad
FIR (ORBB) at altitudes below FL320 due to the continuing hazards to
the safety of U.S. civil flight operations, as described in the
preamble to this final rule.
B. Good Cause for Immediate Adoption
Section 553(b)(B) of title 5, U.S. Code, authorizes agencies to
dispense with notice and comment procedures for rules when the agency
for ``good cause'' finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' Also, section 553(d)
permits agencies, upon a finding of good cause, to issue rules with an
effective date less than 30 days from the date of publication. In this
instance, the FAA finds good cause to forgo notice and comment because
notice and comment would be impracticable and contrary to the public
interest. In addition, it is contrary to the public interest to allow
this SFAR to expire.
The risk environment for U.S. civil aviation in airspace managed by
other countries with respect to safety of flight is fluid in
circumstances involving weapons capable of targeting or otherwise
negatively affecting U.S. civil aviation, as well as other hazards to
U.S. civil aviation associated with fighting, extremist and militant
activity, or heightened tensions. This fluidity and the need for the
FAA to rely upon classified information in assessing these risks makes
providing notice and opportunity to comment impracticable and contrary
to the public interest. The potential for rapid changes in the risks to
U.S. civil aviation significantly limits how far in advance of a new or
amended flight prohibition the FAA can usefully assess the risk
environment. Furthermore, to the extent that these rules and any
amendments are based upon classified information, the FAA cannot share
such information with the general public. As a result, engaging in
notice and comment would be impracticable.
Additionally, it is crucial that the FAA's flight prohibitions, and
any amendments thereto, reflect the agency's current understanding of
the risk environment for U.S. civil aviation. This allows the FAA to
protect the safety of U.S. operators' aircraft and the lives of their
passengers and crews without over-restricting U.S. operators' routing
options. The delay that would be occasioned by providing an opportunity
to comment on this action would mean that the resulting final action
would not be based on the latest information about aviation risk in a
fluid environment.
As described in the preamble to this rule, extending the flight
prohibition for U.S. civil aviation operations in the Baghdad FIR
(ORBB) at altitudes below FL320 is necessary due to continuing safety-
of-flight hazards associated with multiple state and non-state actors
conducting attacks in the Baghdad FIR (ORBB) in pursuit of various
objectives. These attacks include military activity by state actors, as
well as ongoing militia and terrorist attacks against the Government of
Iraq and against U.S. and coalition interests co-located with civilian
airports. Accordingly, the FAA finds good cause exists to forgo notice
and comment and any delay in the effective date for this rule.
III. Background
On October 16, 2020, due to the complex security environment that
existed in Iraq, 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 altitudes below FL320.\1\ Additionally, given
that the security environment in Iraq remained fluid and tense, the FAA
was concerned about the safety of U.S. civil aviation operations in the
Baghdad FIR (ORBB) at altitudes at and above FL320. As a result, NOTAM
KICZ A0036/20, which prohibited U.S. civil aviation operations in the
Baghdad FIR (ORBB) at all altitudes remained in effect following
publication of the October 16, 2020 final rule. This approach
maintained flexibility for the FAA to revisit the all-altitude flight
prohibition as necessary to determine whether U.S. civil aviation
operations could occur safely in the Baghdad FIR (ORBB) at altitudes at
or above FL320.
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\1\ See Prohibition Against Certain Flights in the Baghdad
Flight Information Region (FIR) (ORBB) final rule, 85 FR 65686, Oct.
16, 2020, for an in-depth discussion of the security environment in
the Baghdad FIR (ORBB) at that time and the FAA's analysis of the
associated risks to U.S. civil aviation operations.
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The FAA continued to monitor the security environment in the
Baghdad FIR (ORBB) and associated risks to civil aviation safety. By
October 2021, the FAA assessed the safety risks to U.S. civil aviation
in the Baghdad FIR (ORBB) at altitudes at or above FL320 had diminished
sufficiently that U.S. civil aviation could safely resume operations at
those altitudes. Since the FAA issued NOTAM KICZ A0036/20 in March
2020, there had been no known
[[Page 57386]]
threats or attempted attacks against aircraft operating at altitudes at
or above FL320. Although ground-based attacks against U.S. and
coalition forces in Iraq continued, and incidents involving weaponized
unmanned aircraft systems (UAS) had risen significantly, those attacks
posed no direct threat to civil aircraft overflying the Baghdad FIR
(ORBB) at altitudes at or above FL320. Therefore, on October 22, 2021,
the FAA rescinded NOTAM KICZ A0036/20. SFAR No. 77, 14 CFR 91.1605,
remained in effect and continued to prohibit U.S. civil aviation
operations in the Baghdad FIR (ORBB) at altitudes below FL320 due to
the continued unacceptable risk to the safety of U.S. civil aviation
operations at those altitudes.
IV. Discussion of the Final Rule
The FAA continues to assess the situation in the Baghdad FIR (ORBB)
at altitudes below FL320 as presenting an unacceptable risk to the
safety of U.S. civil aviation. Iranian-aligned militia groups (IAMGs)
publicly threatened to attack coalition forces remaining in Iraq after
December 31, 2020, and continue to demonstrate their capability and
intent to attack U.S. and international interests in Iraq, as well as
selected Iraqi government targets. On November 7, 2021, militants
conducted a weaponized UAS attack against Iraqi Prime Minister Mustafa
al-Kadhimi's residence in Baghdad. In January 2022, IAMGs conducted a
series of attempted attacks that were likely intended to commemorate
the second anniversary of the deaths of Iranian Revolutionary Guard
Corps (IRGC) Quds Forces Commander Qassem Soleimani and Iraqi Popular
Mobilization Units Deputy Head Abu Mahdi al-Muhandis in a U.S.
airstrike in January 2020. On January 3, 2022, IAMGs attempted to
attack U.S. interests co-located with Baghdad International Airport
(ORBI) with two weaponized UAS. Defensive counter-rocket, artillery,
and mortar (C-RAM) systems thwarted the attack, with no reported
casualties or damage. On January 4, 2022, militants unsuccessfully
attempted an attack with two weaponized UAS against Ayn Al Asad Air
Base (ORAA). On January 5, 2022, indirect rocket fire impacted the
runway at Baghdad International Airport (ORBI) but did not cause any
casualties.
IAMGs have access to UAS and anti-aircraft capable weapons systems,
including the Iranian-produced 358 loitering hybrid surface-to-air
missile (SAM)/UAS system, which present inadvertent risks to the safety
of U.S. civil aviation operations in the Baghdad FIR (ORBB) at
altitudes below FL320 and at potentially targeted airports. IAMGs
likely lack the ability to conduct effective target identification and
airspace de-confliction, increasing the risk of an accidental shoot
down of a civil aircraft due to misidentification or misperception.
In addition, the FAA remains concerned about cross-border military
activity. Both Iran and Turkey have previously conducted various no-
notice, cross-border operations striking targets in northern Iraq using
a variety of weapons, including short-range ballistic missiles,
rockets, and weaponized UAS. In a recent example, on March 12, 2022, up
to twelve Fateh-110 surface-to-surface ballistic missiles launched from
western Iran and impacted near the construction site of the new U.S.
consulate in Erbil, Iraq, and Erbil International Airport (ORER).
Iranian officials claimed responsibility for the ballistic missile
attack, allegedly carried out in response to the loss of two IRGC
officials in an alleged third-party airstrike in Syria. The missile
attack damaged surrounding buildings, but there were no reported
casualties, according to the Kurdish Interior Ministry. The assessed
points of impact were approximately 14km east/northeast of Erbil
International Airport (ORER), based on available open-source reporting.
While this attack did not pose a direct threat to the airport, the
missile trajectories possibly presented an inadvertent risk to aircraft
in flight that might have been operating at low altitude in the
vicinity of Erbil International Airport (ORER) during the time of the
attack. In general, unannounced third-party cross-border operations in
the Baghdad FIR (ORBB) present a low altitude safety-of-flight risk for
aircraft flying in the vicinity of the targeted location(s) and for
aircraft on the ground at airports co-located with, or in close
proximity to, the intended targets. These activities also pose an
airspace de-confliction challenge. Additionally, there continues to be
an inadvertent risk to civil aviation operations in the Baghdad FIR
(ORBB) from global positioning system (GPS) jammers.
Therefore, as a result of the significant, continuing risks to the
safety of U.S. civil aviation operations in the Baghdad FIR (ORBB) at
altitudes below FL320, the FAA extends the expiration date of SFAR No.
77, Sec. 91.1605, from October 26, 2022, until October 26, 2024.
Further amendments to SFAR No. 77, Sec. 91.1605, might be
appropriate if the risk to U.S. civil aviation safety and security
changes. In this regard, the FAA will continue to monitor the situation
and evaluate the extent to which persons described in paragraph (a) of
this rule might be able to operate safely in the Baghdad FIR (ORBB) at
altitudes below FL320.
The FAA also republishes the details concerning the approval and
exemption processes in Sections V and VI of this preamble, consistent
with other recently published flight prohibition SFARs, to enable
interested persons to refer to this final rule for comprehensive
information about requesting relief from the FAA from the provisions of
SFAR No. 77, Sec. 91.1605.
V. Approval Process Based on a Request From a Department, Agency, or
Instrumentality of the United States Government
A. Approval Process Based on an Authorization Request From a
Department, Agency, or Instrumentality of the United States Government
In some instances, U.S. Government departments, agencies, or
instrumentalities may need to engage U.S. civil aviation to support
their activities in the Baghdad FIR (ORBB) at altitudes below FL320. If
a department, agency, or instrumentality of the U.S. Government
determines that it has a critical need to engage any person described
in paragraph (a) of SFAR No. 77, Sec. 91.1605, including a U.S. air
carrier or commercial operator, to transport civilian or military
passengers or cargo or conduct other operations in the Baghdad FIR
(ORBB) at altitudes below FL320, that department, agency, or
instrumentality may request the FAA to approve persons described in
paragraph (a) of SFAR No. 77, Sec. 91.1605, to conduct such
operations.
The requesting U.S. Government department, agency, or
instrumentality must submit the request for approval to the FAA's
Associate Administrator for Aviation Safety in a letter signed by an
appropriate senior official of the requesting department, agency, or
instrumentality.\2\ The FAA will not accept or consider requests for
approval from anyone other than the requesting U.S. Government
department, agency, or instrumentality. In addition, the senior
official signing the letter requesting FAA approval must be
sufficiently
[[Page 57387]]
positioned within the requesting department, agency, or instrumentality
to demonstrate that the organization's senior leadership supports the
request for approval and is committed to taking all necessary steps to
minimize aviation safety and security risks to the proposed flights.
The senior official must also be in a position to: (1) attest to the
accuracy of all representations made to the FAA in the request for
approval, and (2) ensure that any support from the requesting U.S.
Government department, agency, or instrumentality described in the
request for approval is in fact brought to bear and is maintained over
time. Unless justified by exigent circumstances, requesting U.S.
Government departments, agencies, or instrumentalities must submit
requests for approval to the FAA no less than 30 calendar days before
the date on which the requesting department, agency, or instrumentality
wishes the operator(s) to commence the proposed operation(s).
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\2\ This approval procedure applies to U.S. Government
departments, agencies, or instrumentalities; it does not apply to
the public. The FAA describes this procedure in the interest of
providing transparency with respect to the FAA's process for
interacting with U.S. Government departments, agencies, or
instrumentalities that seek to engage U.S. civil aviation to operate
in the area in which this SFAR would prohibit their operations in
the absence of specific FAA approval.
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The requestor must send the request to the Associate Administrator
for Aviation Safety, Federal Aviation Administration, 800 Independence
Avenue SW, Washington, DC 20591. Electronic submissions are acceptable,
and the requesting entity may request that the FAA notify it
electronically as to whether the FAA grants the request for approval.
If a requestor wishes to make an electronic submission to the FAA, the
requestor should contact the Air Transportation Division, Flight
Standards Service, at (202) 267-8166, to obtain the appropriate email
address. A single letter may request approval from the FAA for multiple
persons described in SFAR No. 77, Sec. 91.1605, or for multiple flight
operations. To the extent known, the letter must identify the person(s)
the requester expects the SFAR to cover on whose behalf the U.S.
Government department, agency, or instrumentality seeks FAA approval,
and it must describe--
<bullet> The proposed operation(s), including the nature of the
mission being supported;
<bullet> The service the person(s) covered by the SFAR will
provide;
<bullet> To the extent known, the specific locations in the Baghdad
FIR (ORBB) at altitudes below FL320 where the proposed operation(s)
will occur, including, but not limited to, the flight path and altitude
of the aircraft while it is operating in the Baghdad FIR (ORBB) at
altitudes below FL320 and the airports, airfields, or landing zones at
which the aircraft will take off and land; and
<bullet> The method by which the requesting department, agency, or
instrumentality will provide, or how the operator will otherwise
obtain, current threat information and an explanation of how the
operator will integrate this information into all phases of the
proposed operations (i.e., the pre-mission planning and briefing, in-
flight, and post-flight phases).
The request for approval must also include a list of operators with
whom the U.S. Government department, agency, or instrumentality
requesting FAA approval has a current contract(s), grant(s), or
cooperative agreement(s) (or its prime contractor has a subcontract(s))
for specific flight operations in the Baghdad FIR (ORBB) at altitudes
below FL320. The requestor may identify additional operators to the FAA
at any time after the FAA issues its approval. Neither the operators
listed in the original request, nor any operators the requestor
subsequently seeks to add to the approval, may commence operations
under the approval until the FAA issues them an Operations
Specification (OpSpec) or Letter of Authorization (LOA), as
appropriate, for operations in the Baghdad FIR (ORBB) at altitudes
below FL320. The approval conditions discussed below apply to all
operators. Requestors should send updated lists to the email address
they obtain from the Air Transportation Division by calling (202) 267-
8166.
If an approval request includes classified information, requestors
may contact Aviation Safety Inspector Bill Petrak for instructions on
submitting it to the FAA. His contact information appears in the FOR
FURTHER INFORMATION CONTACT section of this final rule.
FAA approval of an operation under SFAR No. 77, Sec. 91.1605, does
not relieve persons subject to this SFAR of the responsibility to
comply with all other applicable FAA rules and regulations. Operators
of civil aircraft must comply with the conditions of their
certificates, OpSpecs, and LOAs, as applicable. Operators must also
comply with all rules and regulations of other U.S. Government
departments, agencies, or instrumentalities that may apply to the
proposed operation(s), including, but not limited to, regulations
issued by the Transportation Security Administration.
B. Approval Conditions
If the FAA approves the request, the FAA's Aviation Safety
organization will send an approval letter to the requesting U.S.
Government department, agency, or instrumentality informing it that the
FAA's approval is subject to all of the following conditions:
(1) The approval will stipulate those procedures and conditions
that limit, to the greatest degree possible, the risk to the operator,
while still allowing the operator to achieve its operational
objectives.
(2) Before any approval takes effect, the operator must submit to
the FAA:
(a) A written release of the U.S. Government from all damages,
claims, and liabilities, including without limitation legal fees and
expenses, relating to any event arising out of or related to the
approved operations in the Baghdad FIR (ORBB) at altitudes below FL320;
and
(b) The operator's written agreement to indemnify the U.S.
Government with respect to any and all third-party damages, claims, and
liabilities, including without limitation legal fees and expenses,
relating to any event arising out of or related to the approved
operations in the Baghdad FIR (ORBB) at altitudes below FL320.
(3) Other conditions the FAA may specify, including those the FAA
might impose in OpSpecs or LOAs, as applicable.
The release and agreement to indemnify do not preclude an operator
from raising a claim under an applicable non-premium war risk insurance
policy the FAA issues under chapter 443 of title 49, U.S. Code.
If the FAA approves the proposed operation(s), the FAA will issue
an OpSpec or LOA, as applicable, to the operator(s) identified in the
original request and any operators the requestor subsequently adds to
the approval, authorizing them to conduct the approved operation(s). In
addition, as stated in paragraph (3) of this section V.B., the FAA
notes that it may include additional conditions beyond those contained
in the approval letter in any OpSpec or LOA associated with a
particular operator operating under this approval, as necessary in the
interests of aviation safety. U.S. Government departments, agencies,
and instrumentalities requesting FAA approval on behalf of entities
with which they have a contract or subcontract, grant, or cooperative
agreement should request a copy of the relevant OpSpec or LOA directly
from the entity with which they have any of the foregoing types of
arrangements, if desired.
VI. Information Regarding Petitions for Exemption
Any operations not conducted under an approval the FAA issues
through the approval process set forth previously may only occur in
accordance with an exemption from SFAR No. 77, Sec. 91.1605. A
petition for exemption must comply with 14 CFR part 11. The FAA will
consider whether exceptional circumstances exist beyond those
[[Page 57388]]
described in the approval process in the previous section. To determine
whether a petition for exemption from the prohibition this SFAR
establishes fulfills the standard of 14 CFR 11.81, the FAA consistently
finds necessary the following information:
<bullet> The proposed operation(s), including the nature of the
operation;
<bullet> The service the person(s) covered by the SFAR will
provide;
<bullet> The specific locations in the Baghdad FIR (ORBB) at
altitudes below FL320 where the proposed operation(s) will occur,
including, but not limited to, the flight path and altitude of the
aircraft while it is operating in the Baghdad FIR (ORBB) at altitudes
below FL320 and the airports, airfields, or landing zones at which the
aircraft will take off and land;
<bullet> 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
<bullet> The plans and procedures the operator will use to minimize
the risks identified in this preamble to the proposed operations, to
support the relief sought and demonstrate that granting such relief
would not adversely affect safety or would provide a level of safety at
least equal to that provided by this SFAR. The FAA has found
comprehensive, organized plans and procedures of this nature to be
helpful in facilitating the agency's safety evaluation of petitions for
exemption from flight prohibition SFARs.
The FAA includes, as a condition of each such exemption it issues,
a release and agreement to indemnify, as described previously.
The FAA recognizes that, with the support of the U.S. Government,
the governments of other countries could plan operations that may be
affected by SFAR No. 77, Sec. 91.1605. While the FAA will not permit
these operations through the approval process, the FAA will consider
exemption requests for such operations on an expedited basis and in
accordance with the order of preference set forth in paragraph (c) of
SFAR No. 77, Sec. 91.1605.
If a petition for exemption includes information that is sensitive
for security reasons or proprietary information, requestors may contact
Aviation Safety Inspector Bill Petrak for instructions on submitting it
to the FAA. His contact information is listed in the FOR FURTHER
INFORMATION CONTACT section of this final rule.
VII. Regulatory Notices and Analyses
Federal agencies consider impacts of regulatory actions under a
variety of executive orders and other requirements. First, Executive
Orders 12866 and 13563 direct that each Federal agency shall propose or
adopt a regulation only upon a reasoned determination that the benefits
of the intended regulation justify its costs. Second, the Regulatory
Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603
et seq., requires agencies to analyze the economic impact of regulatory
changes on small entities. Third, the Trade Agreements Act of 1979
(Pub. L. 96-39), as codified in 19 U.S.C. Chapter 13, prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, the Trade Agreements Act requires agencies to consider
international standards and, where appropriate, that they be the basis
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4), as codified in 2 U.S.C. Chapter 25, requires agencies
to prepare a written assessment of the costs, benefits, and other
effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation with base year of
1995). This portion of the preamble summarizes the FAA's analysis of
the economic impacts of this final rule.
In conducting these analyses, the FAA has determined this final
rule has benefits that justify its costs. This rule is a significant
regulatory action, as defined in section 3(f) of Executive Order 12866,
as it raises novel policy issues contemplated under that Executive
order. As 5 U.S.C. 553 does not require notice and comment for this
final rule, 5 U.S.C. 603 and 604 do not require regulatory flexibility
analyses regarding impacts on small entities. This rule will not create
unnecessary obstacles to the foreign commerce of the United States.
This rule will not impose an unfunded mandate on State, local, or
tribal governments, or on the private sector, by exceeding the
threshold identified previously.
A. Regulatory Evaluation
This rule prohibits U.S. civil flights in the Baghdad FIR (ORBB) at
altitudes below FL320, due to the significant, continuing hazards to
U.S. civil aviation detailed in the preamble of this final rule. This
action also extends the expiration date of this rule for an additional
two years.
The FAA acknowledges this flight prohibition might result in
additional costs to some U.S. operators, such as increased fuel costs
and other operational-related costs. However, the FAA expects the
benefits of this action exceed the costs because it will result in the
avoidance of risks of fatalities, injuries, and property damage that
could occur if a U.S. operator's aircraft were shot down (or otherwise
damaged) while operating in the Baghdad FIR (ORBB) at altitudes below
FL320.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an
agency to prepare an initial regulatory flexibility analysis describing
impacts on small entities whenever 5 U.S.C. 553 or any other law
requires an agency to publish a general notice of proposed rulemaking
for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to
prepare a final regulatory flexibility analysis when an agency issues a
final rule under 5 U.S.C. 553 after that section or any other law
requires publication of a general notice of proposed rulemaking. The
FAA concludes good cause exists to forgo notice and comment and to not
delay the effective date for this rule. As 5 U.S.C. 553 does not
require notice and comment in this situation, 5 U.S.C. 603 and 604
similarly do not require regulatory flexibility analyses.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to this Act, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
The FAA has assessed the potential effect of this final rule and
determined that its purpose is to protect the safety of U.S. civil
aviation from risks to their operations in the Baghdad FIR (ORBB) at
altitudes below FL320, a location outside the U.S. Therefore, the rule
complies with the Trade Agreements Act of 1979.
[[Page 57389]]
D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(in 1995 dollars) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $155 million in lieu of $100
million.
This final rule does not contain such a mandate. Therefore, the
requirements of Title II of the Act do not apply.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
the FAA to consider the impact of paperwork and other information
collection burdens it imposes on the public. The FAA has determined no
new requirement for information collection is associated with this
final rule.
F. International Compatibility and Cooperation
In keeping with U.S. obligations under the Convention on
International Civil Aviation, the FAA's policy is to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined no ICAO Standards and Recommended Practices correspond to
this regulation. The FAA finds this action is fully consistent with the
obligations under 49 U.S.C. 40105(b)(1)(A) to ensure the FAA exercises
its duties consistently with the obligations of the United States under
international agreements.
While the FAA's flight prohibition does not apply to foreign air
carriers, DOT codeshare authorizations prohibit foreign air carriers
from carrying a U.S. codeshare partner's code on a flight segment that
operates in airspace for which the FAA has issued a flight prohibition
for U.S. civil aviation. In addition, foreign air carriers and other
foreign operators may choose to avoid, or be advised or directed by
their civil aviation authorities to avoid, airspace for which the FAA
has issued a flight prohibition for U.S. civil aviation.
G. Environmental Analysis
The FAA has analyzed this action under Executive Order 12114,
Environmental Effects Abroad of Major Federal Actions, and DOT Order
5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be
informed of environmental considerations and take those considerations
into account when making decisions on major Federal actions that could
have environmental impacts anywhere beyond the borders of the United
States. The FAA has determined this action is exempt pursuant to
Section 2-5(a)(i) of Executive Order 12114 because it does not have the
potential for a significant effect on the environment outside the
United States.
In accordance with FAA Order 1050.1F, Environmental Impacts:
Policies and Procedures, paragraph 8-6(c), the FAA has prepared a
memorandum for the record stating the reason(s) for this determination
and has placed it in the docket for this rulemaking.
VIII. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this rule under the principles and criteria of
Executive Order 13132. The agency has determined this action will not
have a substantial direct effect on the States, or the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, this rule will not have federalism implications.
B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this rule under Executive Order 13211. The agency
has determined it is not a ``significant energy action'' under the
executive order and will not be likely to have a significant adverse
effect on the supply, distribution, or use of energy.
C. Executive Order 13609, Promoting International Regulatory
Cooperation
Executive Order 13609 promotes international regulatory cooperation
to meet shared challenges involving health, safety, labor, security,
environmental, and other issues and to reduce, eliminate, or prevent
unnecessary differences in regulatory requirements. The FAA has
analyzed this action under the policies and agency responsibilities of
Executive Order 13609 and has determined that this action will have no
effect on international regulatory cooperation.
IX. Additional Information
A. Electronic Access
Except for classified material, all documents the FAA considered in
developing this rule, including economic analyses and technical
reports, may be accessed from the internet through the docket for this
rulemaking.
Those documents may be viewed online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
using the docket number listed above. A copy of this rule will be
placed in the docket. Electronic retrieval help and guidelines are
available on the website. It is available 24 hours each day, 365 days
each year. An electronic copy of this document may also be downloaded
from the Office of the Federal Register's website at <a href="https://www.federalregister.gov">https://www.federalregister.gov</a> and the Government Publishing Office's website
at <a href="https://www.govinfo.gov">https://www.govinfo.gov</a>. A copy may also be found at the FAA's
Regulations and Policies website at <a href="https://www.faa.gov/regulations_policies">https://www.faa.gov/regulations_policies</a>.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.
Interested persons must identify the docket or amendment number of this
rulemaking.
B. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601)
requires FAA to comply with small entity requests for information or
advice about compliance with statutes and regulations within its
jurisdiction. A small entity with questions regarding this document may
contact its local FAA official, or the persons listed under the FOR
FURTHER INFORMATION CONTACT heading at the beginning of the preamble.
To find out more about SBREFA on the internet, visit <a href="http://www.faa.gov/regulations_policies/rulemaking/sbre_act/">http://www.faa.gov/regulations_policies/rulemaking/sbre_act/</a>.
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, as follows:
PART 91--GENERAL OPERATING AND FLIGHT RULES
0
1. The authority citation for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40113,
40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715,
44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122,
47508, 47528-
[[Page 57390]]
47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 44703 note);
articles 12 and 29 of the Convention on International Civil Aviation
(61 Stat. 1180), (126 Stat. 11).
0
2. Amend Sec. 91.1605 by revising paragraph (e) 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).
* * * * *
(e) Expiration. This SFAR will remain in effect until October 26,
2024. The FAA may amend, rescind, or extend this SFAR, as necessary.
Issued in Washington, DC, under the authority of 49 U.S.C.
106(f) and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), on or
about September 22, 2022.
Billy Nolen,
Acting Administrator.
[FR Doc. 2022-20318 Filed 9-19-22; 8:45 am]
BILLING CODE 4910-13-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.