2015-11284. Prohibition Against Certain Flights Within the Baghdad (ORBB) Flight Information Region (FIR)

AGENCY:

Federal Aviation Administration (FAA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

This action amends Special Federal Aviation Regulation (SFAR) No. 77, “Prohibition Against Certain Flights Within the Territory and Airspace of Iraq,” which prohibits certain flight operations in the territory and airspace of Iraq by all United States (U.S.) air carriers; U.S. commercial operators; persons exercising the privileges of a U.S. airman certificate, except when such persons are operating a U.S.-registered civil aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when such operators are foreign air carriers. On August 8, 2014, the FAA issued a Notice to Airmen (NOTAM) prohibiting flight operations in the ORBB FIR at all altitudes, subject to certain limited exceptions, due to the armed conflict in Iraq. This amendment to SFAR No. 77 incorporates the flight prohibition set forth in the August 8, 2014, NOTAM into the rule. The FAA is also revising the approval process for this SFAR for other U.S. Government departments, agencies, and instrumentalities, to align with the approval process established for other recently published flight prohibition SFARs. This final rule will remain in effect for two years.

DATES:

This final rule is effective May 11, 2015 through May 11, 2017.

FOR FURTHER INFORMATION CONTACT:

For technical questions about this action, contact Will Gonzalez, Air Transportation Division, AFS-220, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: [phone]; email: [e-mail].

For legal questions concerning this action, contact: Robert Frenzel, Office of the Chief Counsel, AGC-200, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone [phone], email: [e-mail].

SUPPLEMENTARY INFORMATION:

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.” In this instance, the FAA finds that notice and public comment to this immediately adopted final rule, as well as any delay in the effective date of this rule, are impracticable and contrary to the public interest due to the immediate need to address the potential hazard to civil aviation that now exists in the ORBB FIR, as described in the Background section of this rule.

Authority for This Rulemaking

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's authority to issue rules on aviation safety is found in title 49, U.S. Code. Subtitle I, section 106(f), describes the authority of the FAA Administrator. 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, 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 that authority, because it amends SFAR No. 77, § 91.1605, to incorporate the prohibition set forth in the August 8, 2014, NOTAM on flight operations at all altitudes in the ORBB FIR due to the potential hazard to U.S. civil aviation posed by the armed conflict in Iraq. This amendment will remain in effect for two years. The FAA will continue to actively evaluate the area and amendments to the SFAR may be appropriate if the risk to aviation safety and security changes. The FAA may amend or rescind the SFAR as necessary prior to its expiration date.

I. Background

On October 9, 1996 (61 FR 54020 (October 16, 1996)), the FAA issued SFAR No. 77 to prohibit flight operations over or 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; or by any person operating an aircraft registered in the United States, unless the operator of such aircraft was a foreign air carrier. 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 of Iraq Saddam Hussein, who urged his air defense forces to ignore both the southern and northern no-fly zones that were then in place and to attack “any air target of the aggressors.” 61 FR 54020. The FAA was concerned that this threat could apply to civilian as well as to military aircraft, and therefore issued SFAR No. 77.

In early 2003, a U.S.-led coalition removed Saddam Hussein's regime from power in Iraq. 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 what was then paragraph 3 of SFAR No. 77 to clarify the approval process for such flights, making clear that operations could not be authorized by another agency without the approval of the FAA. The FAA issued the amendment on April 7, 2003 (68 FR 17870 (April 11, 2003)).

On November 13, 2003 (68 FR 65382 (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.

On April 19, 2004 (69 FR 21953 (April 23, 2004)), the FAA issued an interpretation of SFAR No. 77, entitled “Prohibition Against Certain Flights Within the Territory and Airspace of Iraq; Approval Process for Requests for Authorization to Operate in Iraqi Airspace,” (the 2004 Interpretation) in the Federal Register. The purpose of the 2004 Interpretation was to explain how the FAA would process and, where appropriate, approve requests for authorization to operate in Iraqi airspace. A copy of the 2004 Interpretation has been placed in the docket for this rulemaking.

On November 28, 2012 (77 FR 72709 (December 6, 2012)), the FAA again amended SFAR No. 77, § 91.1605, effective January 7, 2013, to allow U.S. civil flight operations to and from points outside Iraq, to and from Erbil (ORER) and Sulaymaniyah (ORSU) International Airports in Northern Iraq by persons previously prohibited from conducting such operations by SFAR No. 77, § 91.1605, based on results of evaluations of the airports. ORER and ORSU had 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 determined that flights by U.S. operators could be conducted safely to those two airports under certain conditions. Therefore, the FAA amended SFAR No. 77, § 91.1605, to allow certain flights within the territory and airspace of Iraq north of 34°30′ North latitude below FL 200 to and from ORER or ORSU, with certain conditions and limitations.

Once the December 2012 amendment went into effect, neither an exemption nor an approval under paragraph (c) of SFAR No. 77 was required for operations to or from ORER or ORSU. However, paragraph (b)(5) required operators flying to or from ORER or ORSU to or from points outside Iraq to obtain a Letter of Authorization (LOA) or Operations Specification (OpSpec), as appropriate, from the Director, Flight Standards Service, AFS-1, prior to conducting such operations. The OpSpec or LOA specified the limitations and conditions under which the operation had to be conducted, to address the residual risk associated with operating into and out of those two airports.

On July 31, 2014, the FAA issued a NOTAM prohibiting flight operations in the territory and airspace of Iraq at or below FL 300 because of significant changes in the operational environment for U.S. civil aviation. The recent resurgence of groups, such as the Islamic State of Iraq and the Levant (ISIL), also known as the Islamic State of Iraq and Syria (ISIS), and their ongoing combat operations against the Iraqi government and its allies had led to an increased threat to U.S. civil aviation in Iraq. ISIL was rapidly acquiring weapons from captured Iraqi or Syrian stocks and had former military personnel to operate those weapons. ISIL had shot down Iraqi rotary-wing and fixed-wing aircraft flying at low altitudes, and also had man-portable air defense systems and other anti-aircraft weapons that provided the capability to target aircraft at higher altitudes. As a result, the FAA determined that ISIL posed an increased threat to U.S. civil aviation operating in Iraqi airspace at or below FL 300.

The July 31, 2014, NOTAM increased restrictions on operations in the territory and airspace of Iraq beyond the restrictions contained in SFAR No. 77, § 91.1605, which remained in effect. The following operations that had been permitted under SFAR No. 77, § 91.1605, were prohibited by the July 31, 2014, NOTAM: (1) Overflights of Iraq above FL 200 but at or below FL 300; (2) operations at or below FL 300 by flights departing from countries adjacent to Iraq whose climb performance would not permit operations above FL 300 prior to entering Iraqi airspace; and (3) flights within the territory of Iraq north of 34°30′ North latitude originating from or destined to areas outside of Iraq to or from ORER or ORSU.

On August 7, 2014, President Obama announced that he had authorized targeted airstrikes against militants associated with ISIL if they moved toward the Iraqi city of Erbil, as well as targeted airstrikes, if necessary, to help Iraqi forces as they fought to break the siege of Mount Sinjar and to protect the civilians trapped there. The President also stated that the U.S. was conducting humanitarian air drops to aid the trapped civilians. U.S. forces began conducting airstrikes on August 8, 2014. On the same day, the FAA issued a NOTAM that prohibited U.S. civil flight operations in the ORBB FIR at all altitudes due to the potentially hazardous situation created by the armed conflict between militants associated with ISIL and Iraqi security forces and their allies. The August 8, 2014, NOTAM superseded the July 31, 2014, NOTAM. This amendment to SFAR No. 77, § 91.1605, revises the rule to incorporate the flight prohibition set forth in the August 8, 2014, NOTAM.

Because the circumstances described herein warrant immediate action by the FAA, I find that notice and public comment under 5 U.S.C. 553(b)(3)(B) are impracticable and contrary to the public interest. Further, I find that good cause exists under 5 U.S.C. 553(d) for making this rule effective immediately upon issuance. 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. Overview of Final Rule

This action amends SFAR No. 77, § 91.1605, to incorporate the prohibition contained in the FAA's August 8, 2014, NOTAM on flight operations at all altitudes in the ORBB FIR by all U.S. air carriers; U.S. commercial operators; persons exercising the privileges of a U.S. airman certificate, except when such persons are operating a U.S.-registered civil aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when such operators are foreign air carriers. The FAA finds this action necessary to prevent a potential hazard to persons and aircraft engaged in such flight operations.

A. Revised Approval Process Based on an Authorization Request From a Department, Agency, or Instrumentality of the United States Government

In some instances, U.S. government departments, agencies, or instrumentalities may need to engage U.S. civil aviation to support their activities in Iraq. The FAA believes that it has provided a more streamlined approval processes for other U.S. government departments, agencies, and instrumentalities in more recent flight prohibition SFARs than the 2004 Interpretation would allow, and that an approval process similar to those adopted for recent SFARs may be instituted for SFAR No. 77, § 91.1605, while still addressing the threats to U.S. civil aviation in the ORBB FIR. Therefore, the FAA withdraws the 2004 Interpretation in its entirety and replaces it with the approval process described below.

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, § 91.1605, including a U.S. air carrier or a U.S. commercial operator, to conduct a charter to transport civilian or military passengers or cargo, that department, agency, or instrumentality may request the FAA to approve persons covered under SFAR No. 77, § 91.1605, to conduct such operations. U.S. Government departments, agencies, and instrumentalities may also request approval on behalf of subcontractors where the prime contractor has a contract, grant, or cooperative agreement with the U.S. Government department, agency, or instrumentality. An approval request must be made to the FAA in a letter signed by an appropriate senior official of the requesting department, agency, or instrumentality of the U.S. Government. The letter must be sent to the Associate Administrator for Aviation Safety (AVS-1), 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], to obtain the appropriate email address. A single letter may request approval from the FAA for multiple persons covered under SFAR No. 77, § 91.1605, and/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 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 ORBB FIR where the proposed operation(s) will be conducted; 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 its proposed operations (e.g., pre-mission planning and briefing, in-flight, and post-flight).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 ORBB FIR. Additional operators may be identified to the FAA at any time after the FAA approval is issued. Updated lists should be sent to the email address to be obtained from the Air Transportation Division, AFS-220, by calling [phone].

If an approval request includes classified information, requestors may contact Aviation Safety Inspector Will Gonzalez 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, § 91.1605, does not relieve persons subject to this SFAR of their responsibility to comply with all applicable FAA rules and regulations. Operators of civil aircraft will have to comply with the conditions of their certificate and OpSpecs. Operators will also have to comply with all rules and regulations of other U.S. Government departments or agencies that may apply to the proposed operation, including, but not limited to, the Transportation Security Regulations issued by the Transportation Security Administration, Department of Homeland Security.

B. Approval Conditions

When the FAA approves the request, the FAA's Aviation Safety Organization (AVS) 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:

(1) Any 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) Any approval will indicate that the operation is not eligible for coverage under any premium war risk insurance policy issued by the FAA under chapter 443 of title 49, U.S. Code. ^{[1]  [2]} Each such policy excludes coverage for any aircraft operations that are intentionally conducted into or within geographic areas prohibited by an SFAR, such as this SFAR No. 77, § 91.1605. The exclusion specified in the policy will remain in effect as long as this SFAR No. 77, § 91.1605, remains in effect, notwithstanding the issuance of any approval under, or exemption from, this SFAR No. 77, § 91.1605, (the chapter 443 premium war risk insurance policy refers to such approval as a “waiver” and such exemption as an “exclusion”).

(3) Before any approval takes effect, the operator must submit to the FAA:

(a) A written release of the U.S. Government (including, but not limited to, the United States of America as Insurer) from all damages, claims, and liabilities, including without limitation legal fees and expenses; and

(b) The operator's written agreement to indemnify the U.S. Government (including but not limited to the United States of America, as Insurer) 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 ORBB FIR.

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.

(4) Other conditions that the FAA may specify, including those that may be imposed in OpSpecs.

If the proposed operation or operations is or are approved, the FAA will issue OpSpecs authorizing the operation or operations to the certificate holder and will notify the department, agency, or instrumentality that requested FAA approval of such operation(s) of any additional conditions beyond those contained in the approval letter. The requesting department, agency, or instrumentality must have a contract, grant, or cooperative agreement (or its prime contractor must have a subcontract) with the person(s) described in paragraph (a) of SFAR No. 77, § 91.1605, on whose behalf the department, agency, or instrumentality requests FAA approval.

C. Requests for Exemption

Any operation not conducted under the approval process set forth above must be conducted under an exemption from SFAR No. 77, § 91.1605. A request by any person covered under SFAR No. 77, § 91.1605, for an exemption must comply with 14 CFR part 11, and will require exceptional circumstances beyond those contemplated by the approval process set forth above. In addition to the information required by 14 CFR 11.81, the requestor must describe in its submission to the FAA, at a minimum—

• The proposed operation(s), including the nature of the operation;
• The service to be provided by the person(s) covered by SFAR No. 77, § 91.1605;
• The specific locations in the ORBB FIR where the proposed operation(s) will be conducted; and
• 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 (e.g., the pre-mission planning and briefing, in-flight, and post-flight phases).

Additionally, the release and agreement to indemnify, as referred to above, will be required as a condition of any exemption issued under SFAR No. 77, § 91.1605.

The FAA recognizes that operations that may be affected by SFAR No. 77, § 91.1605, including this amendment, 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 process exemption requests for such operations on an expedited basis and prior to any private exemption requests.

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

Changes to Federal regulations must undergo several economic analyses. 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), as codified in 5 U.S.C. 601 et seq., requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39, as amended, 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) 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; currently $151 million). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, FAA has determined 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. The rule is also “significant” as defined in DOT's Regulatory Policies and Procedures. The final rule, if adopted, will not have a significant economic impact on a substantial number of small entities, will not create unnecessary obstacles to international trade, and will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector.

Total Benefits and Costs of This Rule

Total annual costs to airlines are estimated to be approximately $14 million. The benefits of this final rule are the avoided deaths that might result from a U.S. operator's aircraft being shot down (or otherwise damaged) amidst the armed conflict in Iraq. Since each fatality is valued at $9.2 million, the benefits of this final rule will exceed the costs if just two such deaths are averted.

Who is potentially affected by this rule?

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 aircraft registered in the United States, except where the operator of such aircraft is a foreign air carrier.

Assumptions

• Calendar Year 2013 data.
• Schedule P-10 from Bureau of Transportation Statistics (BTS) to obtain number of employees at a carrier.
• Schedule P-1.2 from BTS to obtain Total Operating Revenues at a carrier.
• U.S. Block Hour Operating Costs by Aircraft Type and Airline, from The Airline Monitor Commercial Aircraft Database.
• Number of flights affected and additional flying time provided by air carriers.
• Value of Statistical Life (VSL) of $9.2 million for 2013.

Costs of This Rule

By prohibiting flights from operating in the ORBB FIR, flights that would overfly the ORBB FIR in the absence of this rule will have to fly additional time to avoid the area. The FAA requested flight and cost information from some U.S. air carriers who indicated to the FAA they would be affected by the prohibition. The FAA received responses from those U.S. air carriers, most of whom reported additional flying time and its associated costs. The additional reported flying time was multiplied by the operating cost per block hour by airline and aircraft type to obtain an estimate of the cost of this final rule. Total annual costs are estimated at $14 million.

This rule imposes no reporting, recordkeeping, or other compliance requirements. The FAA is unaware of any Federal rules that duplicate, overlap, or conflict with this rule.

Benefits of This Rule

The benefits of this final rule are the avoided deaths (or other losses) that might have resulted from a U.S. operator's aircraft being shot down (or otherwise damaged) amidst the armed conflict in Iraq. The benefits of this final rule will exceed the costs if just two such deaths do not occur (where each averted fatality is valued at $9.2 million).

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (“RFA”), as codified in 5 U.S.C. 601 et seq. 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.

Reasons the FAA Considered the Rule

The FAA remains committed to continuously improving civil aviation safety. The FAA finds that this final rule is in the public interest due to the immediate need to address the potential hazard to civil aviation that now exists in the ORBB FIR, as described in this Notice.

The Objectives of and the Legal Basis for the Rule

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 civil aircraft, and U.S.-certificated airmen throughout the world. The FAA's authority to issue rules on aviation safety is found in title 49, U.S. Code. Subtitle I, section 106(f), describes the authority of the FAA Administrator. 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 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 that authority, because it amends SFAR No. 77, § 91.1605, to incorporate the August 8, 2014, NOTAM's prohibition on U.S. civil flight operations at all altitudes in the ORBB FIR due to the potential hazard to U.S. civil aviation posed by the armed conflict in Iraq. This amendment also changes the approval process and adds an expiration date.

A Description of and an Estimate of the Number of Small Entities to Which the Rule Will Apply or an Explanation of Why No Such Estimate Is Available

The Small Business Administration defines a small entity in the Air Transportation business as having less than 1,500 employees.^[3] There are over 10 small entities identified as being affected by this final rule. Only two provided information relating to costs.

The FAA Believes That This Final Rule Would Not Have a Significant Impact on a Substantial Number of Small Entities for the Following Reason

The additional reported flying time by operators was multiplied by the operating cost per block hour by small airline and by aircraft type to obtain an estimate of the cost of this final rule. The small entities' operation costs compared to their revenue is estimated at less than 1 percent. Therefore, as provided in section 605(b) of the RFA, the Administrator of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.

B. International Trade Impact Assessment

The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. Chapter 13), as amended, 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 assessed the potential effect of this final rule and determined that it will not create an unnecessary obstacle to the foreign commerce of the United States, because the regulation has a legitimate domestic objective, the protection of safety.

C. 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 $151.0 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.

D. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. 3501 et seq.) as amended, 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 immediately adopted final rule.

E. International Compatibility and Cooperation

In keeping with U.S. obligations under the Convention on International Civil Aviation (the “Chicago Convention”), it is FAA 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 proposed regulation.

F. Environmental Analysis

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act (“NEPA”) (Pub. L. 91-190, 42 U.S.C. Chapter 55) in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312(f) of FAA Order 1050.1E and involves no extraordinary circumstances.

The FAA has reviewed the implementation of the proposed amendment to SFAR No. 77, § 91.1605, and determined it is categorically excluded from further environmental review according to FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 312(f). The FAA has examined possible extraordinary circumstances and determined that no such circumstances exist. After careful and thorough consideration of the proposed action, the FAA finds that the proposed federal action does not require preparation of an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) in accordance with the requirements of NEPA, Council on Environmental Quality regulations, and FAA Order 1050.1E.

IV. Executive Order Determinations

A. Executive Order 13132, “Federalism”

The FAA has analyzed this immediately adopted final rule under the principles and criteria of Executive Order 13132, “Federalism.” The agency has determined that 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, and, therefore, does not have Federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

The FAA analyzed this immediately adopted 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 is not a “significant energy action” under the executive order and it is not 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.

V. How To Obtain Additional Information

A. Rulemaking Documents

An electronic copy of a rulemaking document may be obtained by using the Internet—

1. Search the Federal Document Management System (FDMS) Portal (http://www.regulations.gov);

2. Visit the FAA's Regulations and Policies Web page at http://www.faa.gov/​regulations_​policies/​ or

3. Access the Government Publishing Office's Web page at: http://www.gpo.gov/​fdsys/​.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling [phone].

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), as amended, 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 section at the 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

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, articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).

2. Revise § 91.1605 to read as follows:

§ 91.1605

Special Federal Aviation Regulation No. 77—Prohibition Against Certain Flights in the Baghdad (ORBB) Flight Information Region (FIR)

(a) Applicability. This rule 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 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 in the Baghdad (ORBB) Flight Information Region (FIR), except as provided in paragraphs (c) and (d) of this section.

(c) Permitted operations. This section does not prohibit persons described in paragraph (a) of this section from conducting flight operations in the ORBB FIR, provided that such flight operations 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)), with the approval of the FAA, or under an exemption issued by the FAA. The FAA will process 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 parts 119, 121, 125, or 135, each person who deviates from this section must, within 10 days of the deviation, excluding Saturdays, Sundays, and Federal holidays, submit to the nearest FAA Flight Standards District Office (FSDO) 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 May 11, 2017. The FAA may amend, rescind, or extend this SFAR as necessary.

Issued under authority provided by 49 U.S.C. 106(f), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), in Washington, DC, on May 1, 2015.

Michael P. Huerta,

Administrator.

Footnotes

1.  Section 102 of Division L of the Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235, December 16, 2014, inter alia, amended 49 U.S.C. 44302(f) and 44310(a) to specify the termination dates in those sections as December 11, 2014. The effect was to terminate coverage under FAA's premium war risk insurance program as of December 11, 2014. FAA has decided to leave the matter relating to premium insurance in this final rule, in order to make clear that the conditions relating to insurance, as stated in the final rule, will apply in the event that Congress decides to reauthorize the premium insurance program under chapter 443 of title 49, U.S. Code. Under 49 U.S.C. 44310(b) (which was not affected by Pub. L. 113-235), FAA's authority to provide non-premium insurance coverage remains in effect through December 31, 2018.

2.  If and when, in connection with an operator's contract with a department, agency, or instrumentality of the U.S. Government, an operation is covered by a non-premium war risk insurance policy issued by the FAA under 49 U.S.C. 44305, coverage under that operator's FAA premium war risk insurance policy, if any, is suspended as a condition contained in that premium policy.

3.  U.S. Small Business Administration, Table of Small Business Size Standards Matched to North American Industry Classification System Codes, page 26, http://www.sba.gov/​sites/​default/​files/​Size_​Standards_​Table.pdf.