Prohibition Against Certain Flights Within the Territory and Airspace of Iraq

SUMMARY: This action prohibits flight operations within the territory

and airspace of Iraq by any United States 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 an operator using an aircraft

registered in the United States unless the operator of such aircraft is

a foreign air carrier. Recently heightened tensions and instability in

Iraq resulting from the actions of the Iraqi government have increased

the threat of harm to U.S. operators and civil aircraft operating in

this area. Therefore, this action is taken to prevent an undue hazard

as a result of the threat to persons and U.S.-registered aircraft

overflying the area.

DATES: This SFAR is effective October 9, 1996, and shall remain in

effect until further notice.

FOR FURTHER INFORMATION CONTACT:

Mark W. Bury, International Affairs and Legal Policy Staff, AGC-7,

Office of the Chief Counsel, Federal Aviation Administration, 800

Independence Avenue, SW., Washington, D.C. 20591. Telephone: (202) 267-

3515.

SUPPLEMENTARY INFORMATION:

Availability of Document

An electronic copy of this document may be downloaded using a modem

and suitable communications software from the FAA regulations section

of the Fedworld electronic bulletin board service (telephone: 703-321-

3339), the Federal Register's electronic bulletin board service

(telephone: 202-512-1661), or the FAA's Aviation Rulemaking Advisory

Committee Bulletin Board service (telephone: 202-267-5948).

Internet users may reach the FAA's web page at http://www.faa.gov

or the Federal Register's web page at http://www.access.gpo.gov/

su__docs for access to recently published rulemaking documents.

Any person may obtain a copy of this document by submitting 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. Communications must identify the SFAR number or

docket number of this action.

Persons interested in being placed on a mailing list for future

rules should also request a copy of Advisory Circular No. 11-2A, which

describes the application procedure.

Background

The Federal Aviation Administration (FAA) is responsible for the

safety of flight in the United States and for the safety of U.S.-

registered aircraft and U.S. operators throughout the world. Section

40101(d)(1) of Title 49, United States Code, requires the Administrator

of the FAA to consider the regulation of air commerce in a manner that

best promotes safety and fulfills the requirements of national security

as being in the public interest. Section 44701(a) of Title 49, United

States Code, provides the FAA with broad authority to carry out this

policy by prescribing regulations governing the practices, methods, and

procedures necessary to ensure safety in air commerce. In addition, 49

U.S.C. 40105(b)(1)(A) requires the Administrator to exercise his

authority consistently with the obligations of the United States

Government under an international agreement.

In the exercise of these statutory responsibilities, the FAA

already has restricted certain flight operations to and from Iraq. SFAR

61-2 prohibits, with certain exceptions, the takeoff from, landing in,

or overflight of the territory of the United States by an aircraft on a

flight to or from the territory of Iraq, and the landing in, takeoff

from, or overflight of the territory of the United States by any

aircraft on a flight from or to any intermediate destination, if the

flight's origin or ultimate destination is Iraq. SFAR 61-2 implements

Executive orders 12722 (1990) and 12724 (1990) and UN Security Council

Resolutions 661, 666 and 670 (1990) mandating an embargo of air traffic

with Iraq.

The FAA also has published a Notice to Airmen (NOTAM) advising of

no-fly zones established by the United States and its coalition allies.

The no-fly zones cover Iraqi territorial airspace north of 36 degrees

north latitude and south of 33 degrees north latitude. The no-fly zones

may be entered by aircraft only in accordance with the procedures

established by the U.S. and its coalition allies, as described in the

NOTAM.

The FAA has determined that the recently heightened tensions and

instability in Iraq resulting from the actions of the Iraqi government

have increased the threat to civil aircraft. The military situation in

Iraq is tense after Iraqi attacks in Kurdish areas north of the 36th

parallel (the boundary of the northern no-fly zone in Iraq) and the

shift of the southern no-fly zone boundary from the 32nd to the 33rd

parallel. On September 3, 1996, Iraqi President Saddam Hussein urged

his air defense forces to ignore both the southern and northern no-fly

zones and attack ``any air target of the aggressors.'' This threat was

not limited specifically to the aircraft of the U.S. military and the

coalition forces. The threat could also apply to any civilian aircraft

that might attempt to enter the area.

Even after the 1991 Gulf War, the Iraqi military still possesses a

wide range of sophisticated weapons that potentially could be used to

attack civil aviation aircraft overflying Iraq at cruising altitudes.

These weapons include Russian- and French-made fighter and attack

aircraft armed with cannons and air-to-air missiles, as well as Russian

surface-to-air missile systems. The partially rebuilt integrated air

defense command and control system combines early warning radars and

visual observers with the sophisticated weapons.

These circumstances justify the imposition of certain additional

measures to ensure the safety of U.S.-registered aircraft and operators

that are conducting flight operations in the vicinity of Iraqi

territory and airspace.

Prohibition Against Certain Flights Within the Territory and

Airspace of Iraq

On the basis of the above information, and in furtherance of my

responsibilities to promote the safety of flight of civil aircraft in

air commerce, I have determined that immediate action by the FAA is

required to prevent the potential injury or loss of certain U.S.-

registered aircraft and U.S. operators conducting flights in the

vicinity of Iraq. I find that the circumstances surrounding the

recently heightened tensions and instability in and around Iraq and the

actions of the Iraqi military, as described above, present an immediate

hazard to the operation of civil aircraft in the territory and airspace

of Iraq. Accordingly, I am ordering a prohibition of flight operations

within the territory and airspace of Iraq by any United States carrier

or commercial operator, by any person exercising the

[[Page 54021]]

privileges of an airman certificate issued by the FAA except persons

operating U.S.-registered aircraft for a foreign air carrier, or by an

operator using an aircraft registered in the United States unless the

operator of such aircraft is a foreign air carrier. This action is

necessary to prevent an undue hazard to U.S.-registered aircraft and to

protect persons on board that aircraft. Operations approved by the

Administrator or by another agency of the United States Government and

certain emergency operations shall be excepted from the prohibition.

Because the circumstances described in this notice warrant

immediate action by the FAA to maintain the safety of flight, I also

find that notice and public comment under 5 U.S.C. 553(b) are

impracticable and contrary to the public interest. Further, I find that

good cause exists for making this rule effective immediately upon

issuance. I also find that this action is fully consistent with my

obligations under 49 U.S.C. 40105(b)(1)(A) to ensure that I exercise my

duties consistently with the obligations of the United States under

international agreements. The Department of State has been advised of,

and has no objection to, the action taken herein.

This rule shall remain effective until further notice.

Regulatory Evaluation

Benefits

This regulation will generate potential benefits in the form of

ensuring that the current acceptable level of safety continues for U.S.

commercial air carriers and other operators. The potential benefits of

this action will accrue only to those air carriers and other operators

currently engaging in overflights of Iraqi territory; however, the FAA

believes that there are no carriers currently engaged in commercial

revenue operations over Iraq.

Costs

The SFAR will impose a potential incremental cost of compliance in

the form of the circumnavigation (including the additional time for

preflight planning) of Iraqi territory and airspace. The FAA believes

that there are no U.S. air carriers or commercial operators currently

conducting revenue flights over Iraq. However, if there are affected

carriers, the FAA seeks comments on the economic effects of this rule.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) was enacted by

Congress to ensure that small entities are not unnecessarily and

disproportionately burdened by Federal regulations. The RFA requires a

Regulatory Flexibility Analysis if a proposed rule would have

``significant economic impact on a substantial number of small

entities.'' FAA Order 2100.14A outlines the FAA's procedures and

criteria for implementing the RFA. The FAA believes that there are no

U.S. air carriers affected by this SFAR and therefore no ``small

entities'' affected as defined by FAA Order 2100.14A. Thus, the SFAR

would not impose a ``significant economic impact on a substantial

number of small entities.''

Paperwork Reduction Act

This rule contains no information collection requests requiring

approval of the Office of Management and Budget pursuant to the

Paperwork Reduction Act of 1995 (44 U.S.C. 3507 et seq.).

International Trade Impact Assessment

This final rule could have an impact on the international flights

of U.S. air carriers or commercial operators because it will restrict

their ability to overfly the territory of Iraq and therefore may impose

additional costs relating to the circumnavigation of Iraq's territorial

airspace. This final rule, however, will not restrict the ability of

foreign air carriers to overfly Iraqi territory. Given the narrow scope

of this rule, it will not eliminate existing or create additional

barriers to the sale of foreign aviation products in the United States

or to the sale of U.S. aviation products and services in foreign

countries.

Federalism Determination

The SFAR set forth herein will not have substantial direct effects

on the states, on the relationship between the national government and

the states, or on the distribution of power and responsibilities among

the various levels of government. Therefore, in accordance with

Executive Order 12612 (52 FR 41685; October 30, 1987), it is determined

that this regulation does not have federalism implications warranting

the preparation of a Federalism Assessment.

Conclusion

For the reasons set forth above, the FAA has determined that this

action is a ``significant regulatory action'' under Executive Order

12866. This action is considered a ``significant rule'' under DOT

Regulatory Policies and Procedures (44 FR 11034; February 26, 1979).

The FAA has determined that there are no U.S. air carriers affected by

the SFAR, nor any ``small entities'' as defined by FAA Order 2100.14A.

Thus, the FAA certifies that this rule will not have a significant

economic impact, positive or negative, on a substantial number of small

entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 91

Aircraft, Airmen, Air traffic control, Aviation safety, Freight,

Iraq.

The Amendment

For the reasons set forth above, the Federal Aviation

Administration is amending 14 CFR part 91 as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

1. The authority citation for part 91 continues to read as follows:

Authority: 49 USC 106(g), 40103, 40113, 40120, 44101, 44111,

44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306,

46315, 46316, 46502, 46504, 46506-46507, 47122, 47508, 47528-47531.

2. Special Federal Aviation Regulation (SFAR) No. 77 is added to

read as follows:

Special Federal Aviation Regulation No. 77--Prohibition Against Certain

Flights Within the Territory and Airspace of Iraq

1. Applicability. This rule applies to the following persons:

(a) All U.S. air carriers or commercial operators;

(b) 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

(c) All operators of aircraft registered in the United States

except where the operator of such aircraft is a foreign air carrier.

2. Flight prohibition. Except as provided in paragraphs 3 and 4 of

this SFAR, no person described in paragraph 1 may conduct flight

operations over or within the territory and airspace of Iraq.

3. Permitted operations. This SFAR does not prohibit persons

described in paragraph 1 from conducting flight operations over or

within the territory and airspace of Iraq where such operations are

authorized either by exemption issued by the Administrator or by

another agency of the United States Government.

4. 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

[[Page 54022]]

the requirements of 14 CFR 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

nearest FAA Flight Standards District Office a complete report of the

operations of the aircraft involved in the deviation including a

description of the deviation and the reasons therefore.

5. Expiration. This Special Federal Aviation Regulation will remain

in effect until further notice.

Issued in Washington, DC, on October 9, 1996.

David R. Hinson,

Administrator.

[FR Doc. 96-26458 Filed 10-10-96; 1:13 pm]

BILLING CODE 4910-13-M