[Federal Register Volume 77, Number 235 (Thursday, December 6, 2012)]
[Rules and Regulations]
[Pages 72709-72712]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29412]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2003-14766; Amendment No. 91-327; SFAR No. 77]
RIN 2120-AK07


Prohibition Against Certain Flights Within the Territory and 
Airspace of Iraq

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action is taken to allow U.S. civil flight operations to 
and from Erbil and Sulaymaniyah International Airports in Northern Iraq 
by any United States (U.S.) air carrier or commercial operator, any 
person exercising the privileges of an airman certificate issued by the 
FAA except such persons operating U.S.-registered aircraft for a 
foreign air carrier (who are not covered by the prohibition), or a 
person operating an aircraft registered in the United States unless the 
operator of such aircraft is a foreign air carrier (which also is not 
covered by the prohibition). The FAA has recently determined that a 
full flight prohibition is no longer necessary for these airports in 
Northern Iraq, and this action will allow flights to be conducted 
provided that certain measures are taken. Additional adjustments to the 
current flight prohibition may be appropriate as the risk to aviation 
safety and security lessens in other parts of the country, and 
ultimately the prohibition may be lifted completely.

DATES: This action is effective January 7, 2013.

FOR FURTHER INFORMATION CONTACT: For technical questions about this 
final rule, contact: Will Gonzalez, Air Transportation Division, Flight 
Standards Service, Federal Aviation Administration, 800 Independence 
Avenue SW., Washington, DC 20591; telephone: 202-267-4080. For legal 
questions, contact: Lorna John, Office of the Chief Counsel, AGC-200, 
Federal Aviation Administration, 800 Independence Avenue SW., 
Washington, DC 20591; telephone (202) 267-3921.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA is responsible for the safety of flight in the United 
States and for the safety of U.S. civil operators, U.S.-registered 
aircraft, and U.S.-certificated airmen throughout the world. Also, the 
FAA is responsible for issuing rules affecting the safety of air 
commerce and national security. The FAA's authority to issue rules for 
aviation safety is found in Title 49 of the United States Code. 
Subtitle I, Section 106(g), describes the authority of the FAA 
Administrator. Subtitle VII, 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. Furthermore, the FAA has broad authority 
under section 44701(a)(5) to prescribe regulations governing the 
practices, methods, and procedures the Administrator finds necessary 
for safety in air commerce and national security.

I. Background

    On October 16, 1996, SFAR No. 77 was issued to prohibit flight 
operations within the territory and airspace 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 (who are not covered 
by the prohibition), or by a person operating an aircraft registered in 
the United States, unless the operator of such aircraft is a foreign 
air carrier (which also is not covered by the prohibition). The 
prohibition was issued in response to concerns for the safety and 
security of U.S. civil flights within the territory and airspace of 
Iraq. In the final rule, the FAA cited a threat made by then President 
Saddam Hussein who urged his air defense forces to ignore both the 
southern and northern no-fly zones and to attack ``any air target of 
the aggressors.'' The FAA was concerned that this threat could apply to 
civilian as well as military aircraft, and therefore issued SFAR 77.
    In early 2003, a U.S.-led coalition removed Saddam Hussein's regime 
in Iraq from power. The FAA anticipated that when hostilities ended in 
Iraq, humanitarian efforts would be needed to assist the people of 
Iraq. To facilitate those efforts, in April 2003, the FAA amended 
paragraph 3 of SFAR No. 77 to clarify what the approval process was for 
such flights, making clear that operations could not be authorized by 
another agency without the approval of the FAA.
    On November 19, 2003, the FAA determined that certain limited 
overflights of Iraq could be conducted safely, subject to the 
permission of the appropriate authorities in Iraq and in accordance 
with the conditions established by those authorities. Accordingly, the 
FAA amended SFAR No. 77 to permit overflights of Iraq above Flight 
Level (FL) 200. That amendment also allowed aircraft departing from 
countries adjacent to Iraq to operate at altitudes below FL 200 within 
Iraq to the extent necessary to permit a climb above FL 200 if the 
climb performance of the aircraft would not permit operation above FL 
200 prior to entering Iraqi airspace.

[[Page 72710]]

    Results of recent evaluations of airports in Iraq prompted the FAA 
to consider removing the flight prohibition for Erbil and Sulaymaniyah. 
The Erbil and Sulaymaniyah International Airports have supported non-
U.S. air carrier operations for a number of years without incident. 
Based largely on the initiation of those operations and on improvements 
in the operational environment, the FAA has determined that flights by 
U.S. operators may now be conducted safely to these two airports under 
certain conditions.
    Therefore, the FAA is amending paragraph (b) (former paragraph 2) 
of SFAR No. 77 to allow certain flights from outside Iraq to and from 
the international airports of Erbil and Sulaymaniyah in the northern 
provinces 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 (who are not currently affected by the 
prohibition), or a person operating an aircraft registered in the 
United States, unless the operator of such aircraft is a foreign air 
carrier (which also is not currently affected by the prohibition). The 
FAA is committed to actively and continually evaluating airports in 
other regions of Iraq so that they can be used by U.S. civil operators. 
It is anticipated that additional adjustments to the SFAR may be 
appropriate as the risk to aviation safety and security lessens in 
other parts of the country, and ultimately the SFAR may be lifted 
completely.
    Before U.S. air carriers begin commercial operations to either 
Erbil or Sulaymaniyah, the Transportation Security Administration (TSA) 
must review the current security situation.\1\ Consequently, all U.S. 
air carriers who are required to have a TSA-approved security program 
under 49 CFR 1544.101 that are planning operations to and from Erbil or 
Sulaymaniyah must contact TSA before initiating service to obtain 
appropriate security approvals to operate the proposed service.\2\
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    \1\ In matters relating to aviation security, the FAA works 
closely with the Transportation Security Administration (TSA), 
which, pursuant to Subtitle I, Sections 114(d) and (f) of Title 49 
of the United States Code, is responsible for civil aviation 
security, including the implementation and adequacy of security 
measures at airports and other transportation facilities. With 
respect to foreign airports, the TSA, on behalf of the Secretary of 
the Department of Homeland Security (DHS), implements the 
requirement set forth in Section 44907 of Title 49 to assess the 
effectiveness of the security measures maintained at foreign 
airports (1) Served by an air carrier; (2) from which a foreign air 
carrier serves the United States as a last point of departure; (3) 
that pose a high risk of introducing danger to international air 
travel; or (4) that the DHS Secretary considers appropriate. Among 
its other authorities, the TSA has the general authority under 
Section 40113 of Title 49 to prescribe regulations, standards, and 
procedures and issue orders in carrying out its security 
responsibilities.
    \2\ U.S. air carriers also must hold any necessary U.S. and 
Iraqi economic operating authority.
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    Under new paragraphs (b)(3) and (4) (former paragraphs 2(c) and 
(d)) of SFAR No. 77, flights may be operated by persons covered by 
paragraph (a) (former paragraph 1) of the SFAR within the territory and 
airspace of Iraq north of the 34[deg]30' North latitude below FL200 to 
and from Erbil International Airport (ORER) or Sulaymaniyah 
International Airport (ORSU) to and from points outside Iraq. All other 
flight operations by persons covered by paragraph (a) (former paragraph 
1) of SFAR No. 77 within the territory and airspace of Iraq north of 
the 34[deg]30' North latitude and in other areas within the territory 
and airspace of Iraq must be in accordance with paragraphs (b)(1), 
(b)(2), (c) and (d) (former paragraphs 2(a), 2(b), 3 and 4) of SFAR No. 
77.
    Under new paragraph (b)(5) (former paragraph 2(e)), prior to 
conducting operations under paragraphs (b)(3) and (b)(4) (former 
paragraphs 2(c) and 2(d)), the operator must apply for and obtain a 
letter of authorization (LOA) or operations specification (OpSpec), as 
appropriate, from the Director, Flight Standards Service, AFS-1, which 
will specify the limitations and conditions under which the operation 
must be conducted. An OpSpec or LOA addresses operational safety both 
for the particular flight and for continuing operations. The FAA often 
uses OpSpecs and LOAs to manage specific operations conducted pursuant 
to underlying regulations. In this instance, the OpSpecs and LOAs will 
address the residual risk associated with operating into and out of 
ORER or ORSU. Generally, the operator must:
     Have a method for obtaining current reports and 
information on airport conditions, navigation aids, weather, and any 
other factors that may affect the safety of flight including 
commercially available current threat information. This includes both 
preflight planning and enroute operations.
     Use specific airways to enter Iraqi airspace.
     Operate in accordance with the Iraq Aeronautical 
Information Publication (AIP).
     Minimize time below FL200 within the amended airspace.
     Not land at airports other than ORER and ORSU, except in 
an emergency.
     Report any security incidents/events to the FAA Washington 
Operations Center (WOC) via phone at 202-267-3333 or email aeo-citewatch@faa.gov.
     Comply with 14 CFR parts 91, 119, 125, 135 or 121.
    While the conditions imposed in the OpSpec or LOA may be similar to 
the conditions imposed in OpSpecs and LOAs issued under exemptions or 
approvals for operations to the rest of Iraq, the threshold for 
issuance of an OpSpec or an LOA for flight operations into and out of 
ORER or ORSU is significantly different and does not rise to the level 
required for an exemption or approval for operations to the rest of 
Iraq. In order for an operator to receive an OpSpec or LOA under the 
approval process that applies to the rest of Iraq, a U.S. government 
agency must request approval of the specific operation or series of 
operations. Approval is granted only if the request for approval 
includes a written contract between the U.S. government agency and the 
operator, a plan approved by the U.S. government agency describing how 
the threats to the operation will be mitigated, and any other 
information requested by the FAA. That information will not be required 
for flights into and out of ORER or ORSU. The FAA will not require any 
contractual relationship between the operator and another U.S. 
government agency, and it will not require another agency to request 
operations be permitted. Nor will there be a requirement for a threat 
mitigation plan, although there may be some requirements that the 
operator provide the FAA with information regarding the situation in or 
around the airports.

Good Cause Justification for Waiving Notice and Comment

    Because the circumstances described herein require immediate action 
and results in a lessening of the current flight prohibition, I find 
that notice and public comment under 5 U.S.C. 553(b)(3)(B) are 
impracticable and contrary to the public interest. I also find that 
this action is fully consistent with the obligations under 49 U.S.C. 
40105 to ensure that I exercise my duties consistently with the 
obligations of the United States under international agreements.

II. Regulatory Evaluation, Regulatory Flexibility Determination, 
International Trade Impact Assessment, and Unfunded Mandates Assessment

A. Regulatory Evaluation

    Changes to Federal regulations must undergo several economic 
analyses.

[[Page 72711]]

First, Executive Order 12866 and Executive Order 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) 
requires agencies to analyze the economic impact of regulatory changes 
on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) 
prohibits agencies from setting standards that create unnecessary 
obstacles to the foreign commerce of the United States. In developing 
U.S. standards, the Trade 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) 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 
the base year of 1995). This portion of the preamble summarizes the 
FAA's analysis of the economic impacts of this final rule.
    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected impact on costs and benefits is so minimal that a 
proposed or final rule does not warrant a full evaluation, this order 
permits that a statement to that effect and the basis for it be 
included in the preamble if a full regulatory evaluation of the cost 
and benefits is not prepared. Such a determination has been made for 
this final rule. The reasoning for this determination follows: This 
rule will permit additional flights to be flown within the territory of 
Iraq north of the 34[deg]30' North latitude to or from Erbil 
International Airport (ORER) and Sulaymaniyah International Airport 
(ORSU). The relaxation of restrictions on operations to and from these 
two airports provides more commercial opportunities for operators, as 
well as improved consumer choice, and therefore, has more benefits than 
costs. Further, this expansion of opportunities is likely to lower 
transportation costs associated with these trips today. For example, 
with this rule U.S. operators may operate directly into these two 
airports without incurring the cost of contracting with a foreign 
operator or using foreign-registered aircraft. Therefore, the rule 
expands commercial opportunities with an expected minimal additional 
cost.
    FAA has, therefore, determined that this final rule is not a 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866, and is not ``significant'' as defined in DOT's 
Regulatory Policies and Procedures.

B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation. To achieve this principle, agencies are required 
to solicit and consider flexible regulatory proposals and to explain 
the rationale for their actions to assure that such proposals are given 
serious consideration.'' The RFA covers a wide-range of small entities, 
including small businesses, not-for-profit organizations, and small 
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to 
have a significant economic impact on a substantial number of small 
entities, section 605(b) of the RFA provides that the head of the 
agency may so certify and a regulatory flexibility analysis is not 
required. The certification must include a statement providing the 
factual basis for this determination, and the reasoning should be 
clear.
    This rule permits more flights to Iraq; permits more direct flights 
which reduce costs; and expands revenue opportunity. Therefore, as the 
acting FAA Administrator, I certify that this rule will not have a 
significant economic impact on a substantial number of small entities.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), 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 these Acts, 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 it 
will reduce obstacles to the foreign commerce of the United States and 
is consistent with this Act.

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 $143.1 million in lieu of $100 
million. This rule does not contain such a mandate; therefore, the 
requirements of Title II of the Act do not apply.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents using the 
Internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/ or
    3. Accessing the Government Printing Office's Federal Digital 
System at: http://www.fdsys.gov.
    You can also get a copy by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the amendment or docket number of this rulemaking.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. If you are a small entity and you have a question 
regarding this document, you may contact your local FAA official, or 
the person listed under the FOR FURTHER INFORMATION CONTACT heading at 
the

[[Page 72712]]

beginning of the preamble. You can find out more about SBREFA on the 
Internet at 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(g), 1155, 40103, 40113, 40120, 44101, 
44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 
46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531; 
articles 12 and 29 of the Convention on International Civil Aviation 
(61 Stat. 1180).


0
2. Amend part 91 by removing SFAR No. 77.

0
3. Amend Subpart M by adding Sec.  91.1605 to read as follows:


Sec.  91.1605  Special Federal Aviation Regulation No. 77--Prohibition 
Against Certain Flights Within the Territory and Airspace of Iraq.

    (a) Applicability. This rule applies to the following persons:
    (1) All U.S. air carriers or 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; or
    (3) All operators of aircraft registered in the United States 
except where the operator of such aircraft is a foreign air carrier.
    (b) Flight prohibition. No person may conduct flight operations 
over or within the territory of Iraq, except as provided in paragraphs 
(c) and (d) of this section or except as follows:
    (1) Overflights of Iraq may be conducted above flight level (FL) 
200 subject to the approval of, and in accordance with the conditions 
established by, the appropriate authorities of Iraq.
    (2) Flights departing from the countries adjacent to Iraq whose 
climb performance will not permit operations above FL200 prior to 
entering Iraqi airspace may operate at altitudes below FL200 within 
Iraq to the extent necessary to permit a climb above FL200, subject to 
the approval of, and in accordance with the conditions established by, 
the appropriate authorities of Iraq.
    (3) Flights originating from or destined to areas outside of Iraq 
may be operated to or from Erbil International Airport (ORER) or 
Sulaymaniyah International Airport (ORSU) within the territory of Iraq 
north of 34[deg]30' North latitude. Such flights may operate below 
FL200 only when initiating an arrival to or departure from Erbil 
International Airport (ORER) or Sulaymaniyah International Airport 
(ORSU).
    (4) Flights departing Erbil and Sulaymaniyah whose climb 
performance will not permit operation above FL200 prior to entering 
Iraqi airspace south of the 34[deg]30' North latitude may operate at 
altitudes below FL 200 to the extent necessary to permit a climb above 
FL200.
    (5) Prior to conducting the flight operations described in 
paragraphs (b)(3) and (4) of this section, the operator must obtain a 
letter of authorization or operations specification, as appropriate, 
from the Director, Flight Standards Service, AFS-1, which will specify 
the limitations and conditions under which the operation must be 
conducted. All flights conducted under paragraphs (b)(3) and (4) of 
this section are subject to the approval of, and must be conducted in 
accordance with the conditions established by the appropriate 
authorities of Iraq.
    (c) Permitted Operations. This SFAR does not prohibit persons 
described in paragraph (a) of this section from conducting flight 
operations within the territory and airspace of Iraq when such 
operations are authorized either by another agency of the United States 
Government with the approval of the FAA, or by an exemption granted by 
the Administrator.
    (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 SFAR to the extent required by 
that emergency. Except for U.S. air carriers or commercial operators 
that are subject to the requirements of parts 119, 121, or 135, each 
person who deviates from this rule shall, within ten (10) days of the 
deviation, excluding Saturdays, Sundays, and Federal holidays, submit 
to the Flight Standards Service Air Transportation Division (AFS-200) a 
complete report of the operations of the aircraft involved in the 
deviation including a description of the deviation and the reasons 
therefore.

    Issued in Washington, DC on November 28, 2012.
Michael P. Huerta,
Acting Administrator.
[FR Doc. 2012-29412 Filed 12-5-12; 8:45 am]
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