[Federal Register Volume 83, Number 208 (Friday, October 26, 2018)]
[Rules and Regulations]
[Pages 53985-53991]
[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

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

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

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<PHONE_NUMBER> 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.

    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

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 (http://www.regulations.gov);
     Visiting the FAA's Regulations and Policies web page at
http://www.faa.gov/regulations_policies; or
     Accessing the Government Publishing Office's web page at
http://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<PHONE_NUMBER>. 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 http://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

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