Rule2024-23785
Extension of the Prohibition Against Certain Flights in the Baghdad Flight Information Region (FIR) (ORBB)
Primary source
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Published
October 16, 2024
Effective
October 16, 2024
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This action extends the prohibition against certain flight operations in the Baghdad Flight Information Region (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, for an additional three years, from October 26, 2024, to October 26, 2027. The FAA finds this action necessary to address the unacceptable level of risk to the safety of U.S. civil aviation operations in the Baghdad FIR (ORBB) at altitudes below FL320 from Iranian-aligned militia groups' (IAMGs') activities and third-party military operations that are not likely to be effectively deconflicted with civil aviation. The FAA also republishes the approval process and exemption information for this Special Federal Aviation Regulation (SFAR), consistent with other recently published flight prohibition SFARs.
Full Text
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[Federal Register Volume 89, Number 200 (Wednesday, October 16, 2024)]
[Rules and Regulations]
[Pages 83421-83427]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23785]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 89, No. 200 / Wednesday, October 16, 2024 /
Rules and Regulations
[[Page 83421]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No.: FAA-2018-0927; Amdt. No. 91-353C]
RIN 2120-AL97
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 the prohibition against certain flight
operations in the Baghdad Flight Information Region (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, for an additional three years, from
October 26, 2024, to October 26, 2027. The FAA finds this action
necessary to address the unacceptable level of risk to the safety of
U.S. civil aviation operations in the Baghdad FIR (ORBB) at altitudes
below FL320 from Iranian-aligned militia groups' (IAMGs') activities
and third-party military operations that are not likely to be
effectively deconflicted with civil aviation. The FAA also republishes
the approval process and exemption information for this Special Federal
Aviation Regulation (SFAR), consistent with other recently published
flight prohibition SFARs.
DATES: This final rule is effective October 16, 2024.
FOR FURTHER INFORMATION CONTACT: Bill Petrak, Flight Standards Service,
through the Washington Operations Center, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591;
telephone (202) 267-3203; email <a href="/cdn-cgi/l/email-protection#1b22365d5a5a36546d7e69687e7a685d77727c736f4b6974737279726f727475685b7d7a7a357c746d"><span class="__cf_email__" data-cfemail="c6ffeb808787eb89b0a3b4b5a3a7b580aaafa1aeb296b4a9aeafa4afb2afa9a8b586a0a7a7e8a1a9b0">[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 (14 CFR) 91.1605, from October 26, 2024, to
October 26, 2027. SFAR No. 77, Sec. 91.1605, prohibits certain flight
operations in the Baghdad FIR (ORBB) at altitudes below 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 significant, unacceptable safety-of-
flight risks to U.S. civil aviation in the Baghdad FIR (ORBB) at
altitudes below FL320 due to IAMGs' activities and third-party military
operations that are not likely to be effectively deconflicted with
civil aviation. Consistent with other recently published flight
prohibition SFARs, this action also republishes the approval process
and exemption information for this flight prohibition SFAR.
II. Authority and Good Cause
A. Authority
The FAA is responsible for the safety of flight in the U.S. and for
the safety of U.S. civil operators, U.S.-registered civil aircraft, and
U.S.-certificated airmen throughout the world. Sections 106(f) and (g)
of title 49, U.S. Code (U.S.C.), subtitle I, establish the FAA
Administrator's authority to issue rules on aviation safety. Subtitle
VII of title 49, Aviation Programs, describes in more detail the scope
of the agency's authority. Section 40101(d)(1) provides that the
Administrator shall consider in the public interest, among other
matters, assigning, maintaining, and enhancing safety and security as
the highest 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 and the
delayed effective date because they would be impracticable and contrary
to the public interest.
Providing notice and the opportunity for the public to comment here
would be impracticable. The FAA's flight prohibitions, and any
amendments thereto, need to include appropriate boundaries that 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 or under-restricting U.S. operators' routing options.
However, 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 fighting, violent extremist and militant
activity, or periods of heightened tensions, particularly where weapons
capable of targeting or otherwise negatively affecting U.S. civil
aviation are or may
[[Page 83422]]
be present. This fluidity, and 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. The delay that would be occasioned by providing an
opportunity to comment on this action would significantly increase the
risk that the resulting final action would not accurately reflect the
current risks to U.S. civil aviation associated with the situation and
thus would not establish boundaries for the flight prohibition
commensurate with those risks.
While the FAA sought and responded to public comments, the
boundaries of the area in which unacceptable risks to the safety of
U.S. civil aviation existed might change due to: evolving military or
political circumstances; violent extremist and militant group activity;
the introduction, removal, or repositioning of more advanced anti-
aircraft weapon systems; or other factors. As a result, if the
situation improved while the FAA sought and responded to public
comments, the rule the FAA finalized might be over-restrictive,
unnecessarily limiting U.S. operators' routing options and potentially
causing them to incur unnecessary additional fuel and operations-
related costs, as well as potentially causing passengers to incur
unnecessarily some costs attributed to their time. Conversely, if the
situation deteriorated while the FAA sought and responded to public
comments, the rule the FAA finalized might be under-restrictive,
allowing U.S. civil aviation to continue operating in areas where
unacceptable risks to their safety had developed. Such an outcome would
endanger the safety of these aircraft, as well as their passengers and
crews, exposing them to unacceptable risks of death, injury, and
property damage that could occur if a U.S. operator's aircraft were
shot down (or otherwise damaged) while operating in the Baghdad FIR
(ORBB) at altitudes below FL320.
Alternatively, if the FAA made changes to the area in which U.S.
civil aviation operations would be prohibited between a notice of
proposed rulemaking and a final rule due to changed conditions, the
version of the rule the public commented on would no longer reflect the
FAA's current assessment of the risk environment for U.S. civil
aviation.
In addition, seeking comment would be contrary to the public
interest because some of the rational basis for the rulemaking is based
upon classified information and controlled unclassified information not
authorized for public release. In order to meaningfully provide comment
on a proposal, the public would need access to the basis for the
agency's decision-making, which the FAA cannot provide. Disclosing
classified information or controlled unclassified information not
authorized for public release in order to seek meaningful comment on
the proposal would harm the public interest. Accordingly, the FAA
meaningfully seeking comment on the proposal is contrary to the public
interest.
Therefore, providing notice and the opportunity for comment would
be impracticable as it would hinder the FAA's ability to maintain
appropriate flight prohibitions based on up-to-date risk assessments of
the risks to the safety of U.S. civil aviation operations in airspace
managed by other countries. It would also be contrary to the public
interest, as the FAA cannot protect classified information and
controlled unclassified information not authorized for public release
and meaningfully seek public comment.
For the same reasons discussed above, the potential safety impacts
and the need for prompt action on up-to-date information that is not
public would make delaying the effective date impracticable and
contrary to the public interest.
Accordingly, the FAA finds good cause exists to forgo notice and
comment and any delay in the effective date for this rule.
III. Background
On October 26, 2018, the FAA published a final rule in the Federal
Register reissuing, with amendments to reflect then-current conditions
in Iraq, SFAR No. 77, Sec. 91.1605.\1\ That rule prohibited certain
flight operations in the Baghdad FIR (ORBB) at altitudes below FL260.
On October 16, 2020, the FAA again extended and amended SFAR No. 77,
Sec. 91.1605, amending the flight prohibition from altitudes below
FL260 to altitudes below FL320, based on an assessment of the then-
current aviation safety risks.\2\ In its 2022 final rule extending the
prohibition against certain flights in the Baghdad FIR (ORBB) at
altitudes below FL320,\3\ the FAA assessed the situation in the Baghdad
FIR (ORBB) at altitudes below FL320 continued to present an
unacceptable risk to the safety of U.S. civil aviation. IAMGs had
publicly threatened to attack coalition forces remaining in Iraq after
December 31, 2020, and continued to demonstrate their capability and
intent to attack U.S. and international interests in Iraq, as well as
selected Iraqi government targets. That final rule described in more
detail a series of attacks and attempted attacks against locations in
Iraq, including but not limited to U.S. interests co-located with
Baghdad International Airport (ORBI).
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\1\ Prohibition Against Certain Flights in the Baghdad Flight
Information Region (FIR) (ORBB) final rule, 83 FR 53985 (Oct. 26,
2018).
\2\ Prohibition Against Certain Flights in the Baghdad Flight
Information Region (FIR) final rule, 85 FR 65686, (Oct. 16, 2020).
\3\ Extension of the Prohibition Against Certain Flights in the
Baghdad Flight Information Region (FIR) (ORBB) final rule, 87 FR
57384 (Sep. 20, 2022).
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IAMGs also had access to unmanned aircraft systems (UAS) and anti-
aircraft capable weapons systems, including the Iranian-produced 358
loitering hybrid surface-to-air missile (SAM) system, which presented
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 lacked the ability to conduct effective
target identification and airspace de-confliction, increasing the risk
of an accidental shootdown of a civil aircraft due to misidentification
or miscalculation.
In addition, at the time of the 2022 final rule, the FAA remained
concerned about cross-border military activity. Both Iran and
T[uuml]rkiye previously had 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 general, unannounced third-party cross-border
operations in the Baghdad FIR (ORBB) presented 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
posed an airspace de-confliction challenge. Additionally, there
continued to be an inadvertent risk to civil aviation operations in the
Baghdad FIR (ORBB) from global positioning system (GPS) jammers.
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. The security environment in Iraq remains
challenging due to the resumption of IAMGs' attack operations against
U.S. and coalition forces in the region and attempted long-range
attacks on Israeli interests originating from or transiting the Baghdad
FIR (ORBB) since the October 2023 start of the Israel-Gaza conflict. In
addition to the increased IAMG attack operations, third-party military
forces have conducted
[[Page 83423]]
operations striking targets in northern Iraq, as well as launching
weapons transiting the Baghdad FIR (ORBB) enroute to targets across the
region as Iran-Israel tensions spiked in 2024.
Following the October 2023 start of the Israel-Gaza conflict, IAMGs
operating from Iraq have launched numerous attacks targeting U.S. and
coalition forces located across the region using a variety of weapons,
from indirect fire weapons to weaponized UAS. Such attacks pose risks
to civil aviation operations during low altitude phases of flight and
to aircraft and infrastructure at targeted installations often
collocated at airports or airfields in Iraq. IAMGs have also claimed
responsibility for numerous attacks against Israel, launching missiles
and weaponized UAS from Iraq, underscoring continued safety-of-flight
risk concerns in the Baghdad FIR (ORBB) at altitudes below FL320.
Furthermore, IAMGs maintain access to a variety of anti-aircraft
weapons systems, including man-portable air defense systems (MANPADS)
and Iranian-produced loitering SAM systems. IAMGs claimed to have
downed a U.S.-operated MQ-9 surveillance platform in mid-January 2024,
likely using an Iranian-provided advanced anti-aircraft weapons system.
This incident highlights potential non-state actor use of an advanced
anti-aircraft weapons system, likely without full access to a complete
airspace picture. This likely lack of a complete airspace picture--
including civil aviation operations transiting north-south along
heavily traveled international air routes over eastern Iraq--coupled
with likely insufficient training on an advanced anti-aircraft weapons
system, demonstrates the potential for significant inadvertent risk
concerns for U.S. civil aviation operations in the Baghdad FIR (ORBB)
at altitudes below FL320.
Since the 2022 extension of the SFAR, uncoordinated and often
unannounced third-party military operations into Iraq or transiting the
Baghdad FIR (ORBB) have also continued, including Turkish counter-
Kurdistan Workers' Party (PKK) opposition operations in northern Iraq
incorporating a variety of weapons systems. Recent negotiations between
the Turkish and Iraqi governments may also pave the way for expanded
Turkish military operations into northern Iraq. In January 2024, Iran
launched attacks from western Iran on targets in northern Iraq and
launched attacks transiting the Baghdad FIR (ORBB) enroute to targets
in Syria. Prior to the Iranian cross-border operations, there was no
NOTAM issued advising operators of the potential risks to civil
aviation associated with the weapons activity, nor did Iraq issue a
NOTAM during the Iranian weapons activity. In mid-April 2024, Iran
launched hundreds of cruise and ballistic missiles and one-way attack
UAS during a massive attempted retaliatory strike on Israel, with some
of the launched weapons transiting the Baghdad FIR (ORBB) while enroute
to the intended targets in Israel. The FAA acknowledges Iraq issued a
NOTAM prior to the Iranian attempted strikes on Israel, mitigating the
risks to civil aviation operations in that particular instance.
However, Iraq has not consistently issued NOTAMs for previous third-
party operations into the Baghdad FIR (ORBB). Furthermore, images
posted to social media later in April appeared to show debris
discovered south of Baghdad, possibly associated with an alleged
Israeli counterstrike on Iran and underscoring the multifaceted risks
of cross-border military operations to civil aviation operations in the
Baghdad FIR (ORBB) at altitudes below FL320.
Therefore, as a result of the significant, continuing, unacceptable
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, 2024, until
October 26, 2027.
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.\4\ The FAA will not accept or consider requests for
approval from anyone other than the requesting U.S. Government
department, agency, or instrumentality. In addition, the senior
official signing the letter requesting FAA approval must be
sufficiently positioned within the requesting department, agency, or
instrumentality to demonstrate that the organization's senior
leadership supports the request for approval and is committed to taking
all necessary steps to minimize aviation safety and security risks to
the proposed flights. The senior official must also be in a position
to: (1) attest to the accuracy of all representations made to the FAA
in the request for approval, and (2) ensure that any support from the
requesting U.S. Government department, agency, or instrumentality
described in the request for approval is in fact brought to bear and is
maintained over time. Unless justified by exigent circumstances,
requesting U.S. Government departments, agencies, or instrumentalities
must submit requests for approval to the FAA no less than 30 calendar
days before the date on which the requesting department, agency, or
instrumentality wishes the operator(s) to commence the proposed
operation(s).
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\4\ 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
[[Page 83424]]
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 Washington Operations Center by telephone
at (202) 267-3203 or by email at <a href="/cdn-cgi/l/email-protection#af9682e9eeee82e0d9cadddccacedce9c3c6c8c7dbffddc0c7c6cdc6dbc6c0c1dcefc9cece81c8c0d9"><span class="__cf_email__" data-cfemail="4871650e090965073e2d3a3b2d293b0e24212f203c183a2720212a213c2127263b082e2929662f273e">[email protected]</span></a> for submission instructions. The
requestor must not submit its letter requesting FAA approval or related
supporting documentation to the Washington Operations Center. Rather,
the Washington Operations Center will refer the requestor to an
appropriate staff member of the Flight Standards Service for further
assistance.
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 contact the Washington Operations Center
by telephone at (202) 267-3203 or by email at <a href="/cdn-cgi/l/email-protection#0930244f484824467f6c7b7a6c687a4f65606e617d597b6661606b607d6066677a496f6868276e667f"><span class="__cf_email__" data-cfemail="675e4a2126264a2811021514020614210b0e000f133715080f0e050e130e0809142701060649000811">[email protected]</span></a> for instructions on how to submit
the names of additional operators the requestor wishes to add to an
existing approval to the FAA. The requestor must not submit the names
of additional operators it wishes to add to an existing approval to the
Washington Operations Center. Rather, the Washington Operations Center
will refer the requestor to an appropriate staff member of the Flight
Standards Service for further assistance.
If an approval request includes classified information or
controlled unclassified information not authorized for public release,
requestors may contact the Washington Operations Center for
instructions on submitting it to the FAA. The Washington Operations
Center's 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 described
in the approval process in the previous section. To determine whether a
petition for exemption from the prohibition this SFAR establishes
[[Page 83425]]
fulfills the standards described in 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
the Washington Operations Center for instructions on submitting it to
the FAA. The Washington Operations Center's contact information is
listed in the FOR FURTHER INFORMATION CONTACT section of this final
rule. Requestors must not submit their petitions for exemption or
related supporting documentation to the Washington Operations Center.
Rather, the Washington Operations Center will refer the requestor to
the appropriate staff member of the Flight Standards Service or the
Office of Rulemaking for further assistance.
VII. Severability
Congress authorized the FAA by statute to promote safe flight of
civil aircraft in air commerce by prescribing, among other things,
regulations and minimum standards for practices, methods, and
procedures the Administrator finds necessary for safety in air commerce
and national security. 49 U.S.C. 44701. Consistent with that mandate,
the FAA is prohibiting certain persons 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.
The purpose of this rule is to operate holistically in addressing a
range of hazards and needs in the Baghdad FIR (ORBB) at altitudes below
FL320. However, the FAA recognizes that certain provisions focus on
unique factors. Therefore, the FAA finds that the various provisions of
this final rule are severable and able to operate functionally if
severed from each other. In the event a court were to invalidate one or
more of this final rule's unique provisions, the remaining provisions
should stand, thus allowing the FAA to continue to fulfill its
Congressionally authorized role of promoting safe flight of civil
aircraft in air commerce.
VIII. Regulatory Notices and Analyses
Federal agencies consider the impacts of regulatory actions under a
variety of executive orders and other requirements. First, Executive
Orders 12866, 13563, and 14094, 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 amended by Executive Order 14094. 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 continues to prohibit U.S. civil flights in the Baghdad
FIR (ORBB) at altitudes below FL320 due to the significant hazards to
U.S. civil aviation described in this preamble. The alternative flight
routes result in some additional fuel and operations costs to the
operators, as well as some costs attributed to passenger time.
Accordingly, the incremental costs of the extension of this flight
prohibition SFAR are minimal. By prohibiting unsafe flights, the
benefits of this rule will exceed the minimal flight deviation costs.
Therefore, the FAA finds that the incremental costs of extending SFAR
No. 77, 14 CFR 91.1605, will be minimal and are exceeded by the
benefits of avoided risks of deaths, injuries, and property damage that
could occur if a U.S. operator's aircraft were shot down (or otherwise
damaged) while operating in the 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.
[[Page 83426]]
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.
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 $183 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.
IX. 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.
X. Additional Information
A. Electronic Access
Except for classified and controlled unclassified material not
authorized for public release, all documents the FAA considered in
developing this rule, including economic analyses and technical
reports, may be accessed from the internet through the docket for this
rulemaking.
Those documents may be viewed online at <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 on 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.
[[Page 83427]]
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, 47528-47531, 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,
2027. The FAA may amend, rescind, or extend this SFAR, as necessary.
Issued in Washington, DC, under the authority of 49 U.S.C. 106(f),
40101(d)(1), 40105(b)(1)(A), and 44701(a)(5).
Michael Gordon Whitaker,
Administrator.
[FR Doc. 2024-23785 Filed 10-15-24; 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.