[Federal Register Volume 85, Number 201 (Friday, October 16, 2020)]
[Rules and Regulations]
[Pages 65686-65693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23047]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No.: FAA-2018-0927; Amdt. No. 91-353A]
RIN 2120-AL56


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 amends and extends, with modifications to reflect 
conditions in Iraq and the risks to U.S. civil aviation, the Special 
Federal Aviation Regulation (SFAR) prohibiting certain flight 
operations 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 when 
the operator of such aircraft is a foreign air carrier. The FAA finds 
this action necessary to address the risks to the safety of persons and 
aircraft engaged in such flight operations. Specifically, this action 
amends the SFAR to prohibit U.S. civil aviation operations in the 
Baghdad FIR (ORBB) at altitudes below Flight Level (FL) 320. This rule 
amends the SFAR prohibition from altitudes below FL260 to altitudes 
below FL320, based on an assessment of the current aviation safety 
risks. This action also extends the expiration date of the SFAR from 
October 26, 2020, to October 26, 2022. Additionally, the FAA 
republishes the approval process and exemption information for this 
SFAR, consistent with other recently published flight prohibition 
SFARs, and makes minor administrative revisions.

DATES: This final rule is effective on October 16, 2020.

FOR FURTHER INFORMATION CONTACT: Stephen Moates, Air Transportation 
Division, Flight Standards Service, Federal Aviation Administration, 
800 Independence Avenue SW, Washington, DC 20591; telephone 202-267-
4147; email stephen.moates@faa.gov.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    This action amends, with modifications to reflect conditions in 
Iraq and the risks to U.S. civil aviation, the prohibition against 
certain U.S. civil 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 when 
the operator of such aircraft is a foreign air carrier. Specifically, 
this amendment prohibits all persons described in paragraph (a) of

[[Page 65687]]

SFAR No. 77, Sec.  91.1605 of title 14, Code of Federal Regulations 
(CFR), from conducting civil flight operations in the Baghdad FIR 
(ORBB) at altitudes below FL320. NOTAM KICZ A0036/20, which prohibits 
U.S. civil aviation operations in the entire Baghdad FIR (ORBB) at all 
altitudes, will remain in effect following publication of this final 
rule. This approach maintains flexibility for the FAA to revisit the 
all-altitude flight prohibition as necessary to determine whether U.S. 
civil aviation operations can occur safely in the Baghdad FIR (ORBB) at 
altitudes at or above FL320.
    This action also makes several other amendments to the SFAR. This 
action extends the expiration date of this SFAR from October 26, 2020, 
to October 26, 2022; republishes the approval process and exemption 
information for this SFAR, consistent with other recently published 
flight prohibition SFARs; and makes minor administrative revisions.

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. 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 rulemaking 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 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 FL320 due to the 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)(3)(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.'' 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 exists to forgo notice and comment 
because notice and comment would be impracticable and contrary to the 
public interest. In addition, it is contrary to the public interest to 
delay the effective date of this SFAR.
    The risk environment for U.S. civil aviation in airspace other 
countries manage with respect to safety of flight is fluid because of 
the risks posed by weapons capable of targeting, or otherwise 
negatively affecting, U.S. civil aviation, as well as other hazards to 
U.S. civil aviation associated with fighting, extremist or militant 
activity, or heightened tensions. This fluidity and the need for the 
FAA to rely upon classified information in assessing these risks make 
issuing notice and seeking comments impracticable and contrary to the 
public interest. With respect to the impracticability of notice and 
comment procedures, the potential for rapid changes in the risks to 
U.S. civil aviation significantly limits how far in advance of a new or 
amended flight prohibition the FAA can usefully assess the risk 
environment. Furthermore, to the extent that these rules and any 
amendments to them are based upon classified information, the FAA is 
not legally permitted to share such information with the general 
public, who cannot comment meaningfully on information to which they 
are not legally allowed access.
    Under these conditions, public interest considerations favor not 
providing notice and seeking comment for this rule. While there is a 
public interest in having an opportunity for the public to comment on 
agency action, there is a greater public interest in having the FAA's 
flight prohibitions, and any amendments thereto, reflect the Agency's 
current understanding of the risk environment for U.S. civil aviation. 
This allows the FAA to protect the safety of U.S. operators' aircraft 
and the lives of their passengers and crews without overrestricting 
U.S. operators' routing options.
    Based on concerns for safety of the operations of persons described 
in paragraph (a) of SFAR No. 77, Sec.  91.1605, in the Baghdad FIR 
(ORBB) at altitudes below FL320, this rule is necessary and its 
effective date should not be subject to delay. Good cause exists for 
not delaying the effective date, based on the current risk assessment 
of the environment in which this SFAR prohibits U.S. civil aviation 
operations. As such, public interest favors not subjecting this rule to 
public comment and not delaying the effective date. The FAA maintains 
NOTAM KICZ A0036/20's all-altitude prohibition on U.S. civil aviation 
operations in the Baghdad FIR (ORBB), but does not incorporate the 
portion of that prohibition that applies to U.S. civil aviation 
operations at altitudes at or above FL320 into the CFR. This course of 
action is consistent with the FAA's approach of making decisions based 
on risk and will provide flexibility.
    Based on the foregoing, 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 reissued SFAR No. 77, Sec.  91.1605. 
As reissued, SFAR No. 77, Sec.  91.1605, prohibited U.S. civil flight 
operations in the Baghdad FIR (ORBB) at altitudes below FL260, subject 
to certain limited exceptions described in the 2018 final rule.\1\ The 
reissued SFAR No. 77, Sec.  91.1605, permitted the persons described in 
paragraph (a) of the rule to operate at altitudes below FL260 in the 
Baghdad FIR (ORBB) 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. The 2018 final rule also included an expiration 
date of October 26, 2020.
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    \1\ Prohibition Against Certain Flights in the Baghdad Flight 
Information Region (FIR) (ORBB) final rule, 83 FR 53985, October 26, 
2018.
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    In issuing the 2018 final rule, the FAA stated it had determined 
the situation in the Baghdad FIR (ORBB) remained hazardous for U.S. 
civil aviation at altitudes below FL260, subject to limited 
exceptions.\2\ A continuing risk to U.S. civil aviation existed 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 or militant elements, Iraqi security forces, and other 
elements. ISIS and other extremist or militant elements possessed a 
variety of

[[Page 65688]]

anti-aircraft-capable weapons, including man-portable air defense 
systems (MANPADS), and had fired on military aircraft during combat 
operations in Iraq. This presented a continued risk of anti-aircraft 
fire against civil aircraft, particularly in areas where fighting might 
occur. A risk of potential hostile activity by ISIS elements or other 
anti-U.S. militants or extremists elsewhere in Iraq also existed.
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    \2\ Id.
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    Following the 2018 final rule, the FAA continued to monitor the 
risks to U.S. civil aviation in the Baghdad FIR (ORBB). After the 
United States withdrew from the Joint Comprehensive Plan for Action 
(the ``Iran Nuclear Agreement'') in May 2018 and designated Iran's 
Islamic Revolutionary Guard Corps (IRGC) as a Foreign Terrorist 
Organization in April 2019, Iran took a series of steps that heightened 
regional tensions. Specifically, Iran began posturing military 
capabilities on its southern coast to project strength and influence in 
the Persian Gulf and Gulf of Oman region. Additionally, the United 
States assessed Iran to have been responsible for sabotage attacks on 
multiple merchant vessels in the region in May 2019. On June 19, 2019, 
Universal Coordinated Time (UTC), IRGC elements shot down a U.S. 
military Global Hawk unmanned aircraft operating in airspace over the 
Gulf of Oman with a surface-to-air missile (SAM) system. The successful 
intercept of the unmanned aircraft followed a June 13, 2019, UTC, 
failed intercept attempt of a U.S. unmanned aircraft conducting 
observation of damaged oil tankers in the Gulf of Oman. In mid-
September 2019, the United States assessed Iranian forces to have been 
responsible for conducting a complex attack using unmanned aircraft 
systems (UAS) and missiles to target Saudi Aramco's energy 
infrastructure. In late-December 2019, IRGC-aligned militia groups 
conducted a rocket attack targeting U.S. forces located at a coalition 
base near Kirkuk, Iraq, resulting in casualties and precipitating U.S. 
retaliatory airstrikes on IRGC-aligned militia-associated facilities in 
Iraq and Syria.
    On January 2, 2020, UTC, U.S. forces conducted an airstrike near 
Baghdad International Airport (ORBI) in Iraq, which killed IRGC Quds 
Force Commander Qassem Soleimani. In a televised address, Iranian 
Supreme Leader Ali Khamenei stated Iran would engage in ``harsh 
retaliation'' for Soleimani's death.
    On January 7, 2020, UTC, Iran conducted retaliatory ballistic 
missile strikes targeting U.S. air bases in Iraq. To address immediate 
safety-of-flight hazards following this event, the FAA issued NOTAMs 
KICZ A0001/20, A0002/20, and A0003/20, which prohibited U.S. civil 
flight operations in the Baghdad FIR (ORBB), the Tehran FIR (OIIX), and 
the overwater airspace above the Persian Gulf and the Gulf of Oman, 
respectively.\3\
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    \3\ To be clear, the scope of the rulemaking action taken here 
is limited to the Baghdad FIR (ORBB).
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    By February 2020, regional military activity had de-escalated, and 
regional political tensions, although still elevated, had diminished. 
As a result, the FAA assessed U.S. civil aviation operations in the 
Baghdad FIR (ORBB) at altitudes at or above FL320 and determined such 
operations could resume safely. However, the FAA determined there 
remained an unacceptable level of risk to U.S. civil aviation 
operations in the Baghdad FIR (ORBB) at altitudes below FL320, due to 
heightened IRGC-aligned militia activities and continued elevated 
tensions in the region. As a result, on February 27, 2020, UTC, the FAA 
issued NOTAM KICZ A0032/20, which replaced NOTAM KICZ A0001/20 and 
allowed U.S. civil aviation operations in the Baghdad FIR (ORBB) to 
resume at altitudes at or above FL320. NOTAM KICZ A0032/20 continued to 
prohibit U.S. civil aviation operations in the Baghdad FIR (ORBB) at 
altitudes below FL320, including descents into and departures from the 
Kuwait FIR (OKAC).
    Following the issuance of NOTAM KICZ A0032/20, the FAA continued to 
monitor the situation closely, given the fluid and tense security 
environment in Iraq. On March 11, 2020, UTC, likely IRGC-aligned 
militia elements conducted a rocket attack against Taji Military 
Complex, resulting in the death of two U.S. soldiers and one British 
soldier. Following this event, on March 12, 2020, UTC, the FAA issued 
NOTAM KICZ A0036/20, prohibiting U.S. civil aviation operations in the 
Baghdad FIR (ORBB) at all altitudes once again due to heightened 
militia activities and increased tensions in Iraq, which presented an 
inadvertent risk to U.S. civil aviation operations due to the potential 
for miscalculation or misidentification.

IV. Discussion of the Final Rule

    The FAA has determined the situation in the Baghdad FIR (ORBB) 
continues to present an unacceptable level of risk for U.S. civil 
aviation, especially for operations that occur below FL320. Shortly 
after the FAA issued NOTAM KICZ A0036/20, on March 14, 2020, UTC, a 
second rocket attack against Taji Military Complex occurred, resulting 
in at least five injuries. Additionally, on April 6, 2020, UTC, an 
indirect fire attack occurred in close proximity to a U.S. energy 
company facility in southern Iraq. Even though no reported damage or 
casualties occurred as a result of the April 6, 2020, UTC, attack, this 
event demonstrates the risk to U.S. interests in Iraq. Although the 
perpetrators of the recent attacks against the Taji Military Complex 
and the attack near the U.S. energy company facility in southern Iraq 
remain unidentified, Iranian-backed militia groups targeting U.S. 
interests in Iraq likely committed the attacks. In late May 2020, an 
IRGC-aligned militia group claimed to have fired MANPADS targeting a 
U.S. military helicopter operating south of Baghdad on April 17, 2020. 
IRGC-aligned militia groups continued to conduct harassing indirect 
fire attacks targeting U.S. forces and interests in Iraq, including 
multiple incidents directed at U.S. interests collocated at Baghdad 
International Airport (ORBI). The latest such incident took place on 
September 10, 2020, when three rockets impacted near Baghdad 
International Airport (ORBI), with one round hitting the airport 
parking garage.
    During 2019 and 2020, the security environment in Iraq evolved such 
that the primary sources of risk to U.S. civil aviation operations 
below FL320 in the Baghdad FIR (ORBB) include not just the ISIS threat 
but also IRGC-aligned militia attacks on, and threats against, U.S. 
interests in Iraq. In addition to the previously described attacks on 
Taji Military Complex and the U.S. energy company facility in southern 
Iraq, IRGC-aligned militia groups continue to call for the expulsion of 
U.S. and other coalition armed forces from Iraq. IRGC-aligned militia 
groups are also likely responsible for multiple indirect fire attacks 
targeting U.S. and other coalition armed forces, as well as ongoing, 
intermittent rocket attacks targeting the U.S. Embassy and Baghdad 
International Airport (ORBI). Such attacks pose a risk to airports and 
airbases, aircraft on the ground, and aircraft operating at low 
altitudes, including during the arrival and departure phases of flight.
    In addition, the FAA is concerned about risks to aviation safety 
that anti-U.S. IRGC-aligned militia groups might present. Such groups, 
armed with various anti-aircraft capabilities, including light anti-
aircraft artillery and MANPADS, have publicly threatened to defend 
their locations, following a string of third party airstrikes in 2019. 
These groups might respond similarly in the

[[Page 65689]]

event that U.S. or other coalition forces conduct retaliatory 
airstrikes.
    The FAA considered several other factors in assessing risk to U.S. 
civil aviation safety in the Baghdad FIR (ORBB). For example, Iran has 
a history of proliferating advanced weapons capabilities, including 
advanced anti-aircraft weapons, to its proxy groups, and the FAA 
remains concerned Iran may provide IRGC-aligned militia groups with 
advanced anti-aircraft weapons capable of engaging aircraft at 
altitudes below FL320. Moreover, both Iran and Turkey recently 
conducted small-scale attacks along and across the northern and eastern 
borders of Iraq with little or no warning. Finally, fielded GPS jammers 
pose a continuing potential inadvertent risk to U.S. civil aviation 
operations in the Baghdad FIR (ORBB). Taken as a whole, the complex 
security environment in Iraq makes it challenging to de-conflict 
military activities from civil air traffic, increasing the risk of an 
accidental shoot down of a civil aircraft due to miscalculation or 
misidentification.
    The FAA's concerns for the safety of U.S. civil aviation operations 
in the Baghdad FIR (ORBB) include operations to descend into, or depart 
from, the Kuwait FIR (OKAC), given the evolution in the sources of risk 
to U.S. civil aviation to include IRGC-aligned militia attacks on, and 
threats against, U.S. interests. The FAA has determined potential IRGC-
aligned militia activity in southern Iraq presents an unacceptable risk 
to U.S. civil aviation operations in the Baghdad FIR (ORBB) at 
altitudes below FL320, including flights departing from, or descending 
into, the Kuwait FIR (OKAC).
    The FAA is cognizant of the fact that, in May 2020, Iraq formed a 
new government, led by Prime Minister Mustafa al-Kadhimi. The newly 
formed Government of Iraq has worked with the U.S. Government to reduce 
risks to civil aviation operations in the Baghdad FIR (ORBB). The newly 
formed Government of Iraq has publicly declared its intent to rein in 
non-state actors and has already initiated steps toward eliminating the 
influence of IRGC-aligned militia groups at Baghdad International 
Airport (ORBI). If successful in curbing harassing attacks on U.S. 
interests in Iraq, these efforts may reduce the risk of further 
escalation, thereby reducing the inadvertent risk to U.S. civil 
aviation overflights from anti-aircraft weapons activity.
    The FAA appreciates the Government of Iraq's expressed intent to 
improve the safety of civil aviation in the Baghdad FIR (ORBB), as well 
as the continuing diplomatic and technical engagements between the 
Government of the United States and the Government of Iraq on this 
matter. While the FAA welcomes the Government of Iraq's efforts to 
reduce aviation safety risks, the Government of Iraq currently has not 
sufficiently abated risks to the safety in the Baghdad FIR (ORBB) at 
altitudes below FL320 for U.S. civil flights to resume at those 
altitudes, given the complex security environment in Iraq. Amending 
SFAR No. 77, Sec.  91.1605, to prohibit U.S. civil aviation operations 
in the Baghdad FIR (ORBB) at altitudes below FL320 is necessary to 
protect U.S. civil aviation. Therefore, based on the foregoing 
discussion, the final rule prohibits U.S. civil flight operations in 
the Baghdad FIR (ORBB) at altitudes below FL320. Additionally, given 
that the security environment in Iraq currently remains fluid and 
tense, the FAA remains concerned about the safety of U.S. civil 
aviation operations in the Baghdad FIR (ORBB). As a result, NOTAM KICZ 
A0036/20 will remain in effect following publication of this SFAR. This 
approach maintains flexibility for the FAA to revisit the all-altitude 
flight prohibition as necessary to determine whether U.S. civil 
aviation operations can occur safely in the Baghdad FIR (ORBB) at 
altitudes at or above FL320.
    Further, the FAA extends the expiration date of SFAR No. 77, Sec.  
91.1605, from October 26, 2020, until October 26, 2022. 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.
    Amendments to SFAR No. 77, Sec.  91.1605 might be appropriate if 
the risk to 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).
    Lastly, the FAA makes minor administrative revisions to SFAR No. 
77, Sec.  91.1605, including updating the applicability paragraph of 
the regulatory text to make it consistent with other recently published 
flight prohibition SFARs.

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 
\4\
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    \4\ U.S. civil aviation overflights of the Baghdad FIR (ORBB) at 
or above FL320 only require relief from NOTAM KICZ A0036/2020. The 
FAA generally would need the same categories of information, 
addressing the altitudes at which the proposed operation would take 
place, to consider a request for relief from the NOTAM as it would a 
request for relief from the SFAR. If the proposed operations would 
involve U.S. civil flights in the Baghdad FIR (ORBB) at altitudes 
below FL320, then the operator would require relief from both the 
NOTAM and the SFAR. In the interests of efficiency, the U.S. 
Government department, agency, or instrumentality may make a single 
request for approval to the FAA, which the FAA will construe as a 
request for both forms of relief, if both forms of relief would be 
necessary to conduct the proposed operations.
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    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 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), 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 department, agency, or instrumentality of the U.S. 
Government 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.\5\ The FAA will not accept or consider requests for 
approval from 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

[[Page 65690]]

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 wishes the proposed operation(s) to 
commence.
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    \5\ 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 
within the area in which this SFAR prohibits their operations.
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    The requestor must send the request to the Associate Administrator 
for Aviation Safety, Federal Aviation Administration, 800 Independence 
Avenue SW, Washington, DC 20591. Electronic submissions are acceptable 
and the requesting entity may request that the FAA notify it 
electronically as to whether the FAA grants the approval request. If a 
requestor wishes to make an electronic submission to the FAA, the 
requestor should contact the Air Transportation Division, Flight 
Standards Service, at (202) 267-8166, to obtain the appropriate email 
address. A single letter may request approval from the FAA for multiple 
persons described in SFAR No. 77, Sec.  91.1605, or for multiple flight 
operations. To the extent known, the letter must identify the person(s) 
expected to be covered under the SFAR on whose behalf the U.S. 
Government department, agency, or instrumentality seeks FAA approval, 
and it must describe--
     The proposed operation(s), including the nature of the 
mission being supported;
     The service that the person(s) covered by the SFAR will 
provide;
     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
     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 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, 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.\6\ The approval conditions 
discussed below apply to all operators, whether included in the 
original list or subsequently added to the approval. Requestors should 
send updated lists to the email address to be obtained from the Air 
Transportation Division by calling (202) 267-8166.
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    \6\ If the FAA also approves operations under NOTAM KICZ A0036/
20, then the OpSpec or LOA, as appropriate, will apply to operations 
in the Baghdad FIR (ORBB) at all altitudes.
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    If an approval request includes classified information, requestors 
may contact Aviation Safety Inspector Stephen Moates 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 the responsibility to 
comply with all other applicable FAA rules, regulations, and orders, 
including flight prohibition NOTAMs. 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 or agencies 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 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 from or related to the approved 
operations in the Baghdad FIR (ORBB) at altitudes below FL320.\7\
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    \7\ If the FAA approves operations under NOTAM KICZ A0036/20, 
alone or in addition to the SFAR, then the release and agreement to 
indemnify must cover all altitudes.
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    (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, authorizing them to conduct the approved 
operation(s). In addition, the FAA 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. Information Regarding Petitions for Exemption

    Any operations not conducted under an approval the FAA issues 
through the approval process set forth previously may occur only in 
accordance with an exemption from SFAR No. 77, Sec.  91.1605.\8\ A 
petition for exemption

[[Page 65691]]

must comply with 14 CFR part 11. The FAA will consider whether 
exceptional circumstances exist beyond those that the approval process 
described in the previous section contemplates. To determine whether a 
petition for exemption from the prohibition this SFAR establishes 
fulfills the standard of 14 CFR 11.81, the FAA consistently finds 
necessary the following information:
---------------------------------------------------------------------------

    \8\ U.S. civil aviation overflights of the Baghdad FIR (ORBB) at 
altitudes at or above FL320 only require relief from NOTAM KICZ 
A0036/20. The FAA generally would need the same categories of 
information, addressing the altitudes at which the proposed 
operation will be conducted, to consider a request for relief from 
the NOTAM as it would a petition for exemption from the SFAR. If the 
proposed operations would involve U.S. civil flights in the Baghdad 
FIR (ORBB) at altitudes below FL320, then the operator would require 
relief from both the NOTAM and the SFAR. In the interests of 
efficiency, the operator may make a single request to the FAA for 
both forms of relief, which the FAA will construe as a request for 
relief from the NOTAM and a petition for exemption from the SFAR, if 
both forms of relief would be necessary to conduct the proposed 
operations.
---------------------------------------------------------------------------

     The proposed operation(s), including the nature of the 
operation;
     The service the person(s) covered by the SFAR will 
provide;
     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;
     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 the operator will use to minimize 
the risks, identified in this preamble, to the proposed operations, to 
establish 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.
    The FAA includes, as a condition of each such exemption it issues, 
a release and agreement to indemnify, as described previously.\9\
---------------------------------------------------------------------------

    \9\ If the FAA grants a petition for exemption for an operation 
under NOTAM KICZ A0036/20, alone or in addition to the SFAR, then 
the release and agreement to indemnify will cover all altitudes.
---------------------------------------------------------------------------

    The FAA recognizes that, with the support of the U.S. Government, 
the governments of other countries could plan operations that SFAR No. 
77, Sec.  91.1605, affects. 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 security-sensitive or 
proprietary information, requestors may contact Aviation Safety 
Inspector Stephen Moates for instructions on submitting it to the FAA. 
His contact information appears in the FOR FURTHER INFORMATION CONTACT 
section of this final rule.

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. In addition, DOT rulemaking procedures in subpart B of 49 CFR 
part 5 instruct DOT agencies to issue a regulation upon a reasoned 
determination that benefits exceed 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 
and DOT rulemaking procedures, as it raises novel policy issues. This 
rule also complies with the requirements of the Department of 
Transportation's administrative rule on rulemaking at 49 CFR part 5. As 
5 U.S.C. 553 does not require notice and comment for this final rule, 5 
U.S.C. 603 and 604 do not require regulatory flexibility analyses 
regarding impacts on small entities. This rule will not create 
unnecessary obstacles to the foreign commerce of the United States. 
This rule will not impose an unfunded mandate on State, local, or 
tribal governments, or on the private sector, by exceeding the 
threshold identified previously.

A. Regulatory Evaluation

    This rule prohibits U.S. civil flights in the Baghdad FIR (ORBB) at 
altitudes below FL320, due to the significant, continuing hazards to 
U.S. civil aviation detailed in the preamble of this final rule.\10\ 
This action also extends the expiration date of this rule for an 
additional two years. U.S. Government departments, agencies and 
instrumentalities may take advantage of the approval process on behalf 
of U.S. operators and airmen with whom they have a contract, grant, or 
cooperative agreement, or with whom their prime contractor has a 
subcontract. U.S. operators and airmen who seek to conduct operations 
in the Baghdad FIR (ORBB) at altitudes below FL320 without any of the 
foregoing types of arrangements with the U.S. Government may petition 
for exemption from this rule.
---------------------------------------------------------------------------

    \10\ As described previously, the FAA also maintains the all-
altitude flight prohibition contained in NOTAM KICZ A0036/20 due to 
continued safety hazards that extend well above FL320.
---------------------------------------------------------------------------

    The FAA acknowledges this flight prohibition might result in 
additional costs to some U.S. operators, such as increased fuel costs 
and other operational-related costs. However, the FAA expects the 
benefits of this action exceed the costs because it will result in the 
avoidance of risks of fatalities, injuries, and property damage that 
could occur if a U.S. operator's aircraft were shot down (or otherwise 
damaged) while operating in the Baghdad FIR (ORBB) at altitudes below 
FL320. The FAA will continue to monitor and evaluate the risks to U.S. 
civil operators and airmen as a result of security conditions in the 
Baghdad FIR (ORBB).

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

[[Page 65692]]

under 5 U.S.C. 553, after that section or any other law requires 
publication of a general notice of proposed rulemaking. The FAA 
concludes good cause exists to forgo notice and comment and to not 
delay the effective date for this rule. As 5 U.S.C. 553 does not 
require notice and comment in this situation, 5 U.S.C. 603 and 604 
similarly do not require regulatory flexibility analyses.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to this Act, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards.
    The FAA has assessed the potential effect of this final rule and 
determined that its purpose is to protect the safety of U.S. civil 
aviation from risks to their operations in the Baghdad FIR (ORBB), 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 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 also finds this action is fully consistent 
with the obligations under 49 U.S.C. 40105(b)(1)(A) to ensure the FAA 
exercises its duties consistently with the obligations of the United 
States under international agreements.
    While the FAA's flight prohibition does not apply to foreign air 
carriers, DOT codeshare authorizations prohibit foreign air carriers 
from carrying a U.S. codeshare partner's code on a flight segment that 
operates in airspace for which the FAA has issued a flight prohibition 
for U.S. civil aviation. In addition, foreign air carriers and other 
foreign operators may choose to avoid, or be advised or directed by 
their civil aviation authorities to avoid, airspace for which the FAA 
has issued a flight prohibition for U.S. civil aviation.

G. Environmental Analysis

    The FAA has analyzed this action under Executive Order 12114, 
Environmental Effects Abroad of Major Federal Actions, and DOT Order 
5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be 
informed of environmental considerations and take those considerations 
into account when making decisions on major Federal actions that could 
have environmental impacts anywhere beyond the borders of the United 
States. The FAA has determined this action is exempt pursuant to 
Section 2-5(a)(i) of Executive Order 12114 because it does not have the 
potential for a significant effect on the environment outside the 
United States.
    In accordance with FAA Order 1050.1F, Environmental Impacts: 
Policies and Procedures, paragraph 8-6(c), the FAA has prepared a 
memorandum for the record stating the reason(s) for this determination 
and has placed it in the docket for this rulemaking.

VIII. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of 
Executive Order 13132, Federalism. 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, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use. The Agency has determined it is not 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, 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.

D. Executive Order 13771, Reducing Regulation and Controlling 
Regulatory Costs

    This rule is not subject to the requirements of Executive Order 
13771, Reducing Regulation and Controlling Regulatory Costs, because 
the FAA is issuing it with respect to a national security function of 
the United States.

IX. Additional Information

A. Availability of Rulemaking Documents

    An electronic copy of a rulemaking document may be obtained from 
the internet by--
     Searching the docket for this rulemaking at https://www.regulations.gov;
     Visiting the FAA's Regulations and Policies web page at 
https://www.faa.gov/regulations_policies; or
     Accessing the Government Publishing Office's website at 
https://www.govinfo.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,

[[Page 65693]]

ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling 
(202) 267-9677.
    Except for classified material, all documents the FAA considered in 
developing this rule, including economic analyses and technical 
reports, may be accessed from the internet through the docket for this 
rulemaking.

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 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, 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. Revise 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 when such persons are operating U.S.-
registered aircraft for a foreign air carrier; and
    (3) All operators of civil aircraft registered in the United 
States, except when 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 described in paragraph (a) of this 
section may conduct flight operations in the Baghdad Flight Information 
Region (FIR) (ORBB) at altitudes below Flight Level (FL) 320.
    (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 FL320, provided 
that such flight operations occur 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, 
2022. The FAA may amend, rescind, or extend this SFAR, as necessary.

    Issued in Washington, DC, under the authority of 49 U.S.C. 
106(f) and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), on 
October 8, 2020.
Steve Dickson,
Administrator.
[FR Doc. 2020-23047 Filed 10-14-20; 4:15 pm]
BILLING CODE 4910-13-P


