[Federal Register Volume 69, Number 79 (Friday, April 23, 2004)]
[Rules and Regulations]
[Pages 21953-21954]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9209]



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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2003-14766; SFAR 77]


Prohibition Against Certain Flights Within the Territory and 
Airspace of Iraq; Approval Process for Requests for Authorization to 
Operate in Iraqi Airspace

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; interpretation.

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SUMMARY: This document explains how the FAA will process requests for 
authorization to operate in Iraqi airspace under paragraph 3 of Special 
Federal Aviation Regulation (SFAR) No. 77. Consistent with paragraph 
three of SFAR No.77, this document further specifies the available FAA 
approval process for any covered person to engage in permitted 
operations within the territory of Iraq.

DATES: April 20, 2004.

FOR FURTHER INFORMATION CONTACT: David Catey, Flight Standards Service, 
Air Transportation Division (AFS-200), Federal Aviation Administration, 
800 Independence Ave., SW., Washington, DC 20591; telephone (202) 267-
3732.

SUPPLEMENTARY INFORMATION: This document explains how the FAA will 
process requests for authorization to operate in Iraqi airspace under 
paragraph 3 of Special Federal Aviation Regulation (SFAR) No. 77. 
Special Federal Aviation Regulation No.77 was first issued on October 
16, 1996, and was amended on April 11, 2003, and November 19, 2003. 
Consistent with the amendment set forth in paragraph three of SFAR 
No.77, this document is to further specify the available Federal 
Aviation Administration (FAA) approval process for any covered person 
to engage in permitted operations within the territory of Iraq.
    As amended, SFAR No. 77 provides:

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. No person may conduct flight operations 
over or within the territory of Iraq except as provided in 
paragraphs 3 and 4 of this SFAR or except as follows:
    (a) 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.
    (b) Flights departing from countries adjacent to Iraq whose 
climb performance will not permit operation above FL 200 prior to 
Iraqi airspace may operate at altitudes below FL 200 within Iraq to 
the extent necessary to permit a climb above FL 200, subject to the 
approval of, and in accordance with the conditions established by, 
the appropriate authorities of Iraq.
    (c) [Reserved]
    3. Permitted operations. This SFAR does not prohibit persons 
described in paragraph 1 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 issued by the 
Administrator.
    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 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.

    SFAR No. 77 was originally issued in response to concerns for the 
safety and security of U.S. civil flights within the territory and 
airspace of Iraq.\1\ At that time, Iraq's dictator had threatened to 
attack any air target of the United States, and the threat appeared to 
include civilian as well as military aircraft.
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    \1\ In SFAR No.61-2, the FAA had previously restricted certain 
flight operations to and from Iraq.
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    In April 2003, the FAA anticipated that when hostilities ended in 
Iraq, humanitarian efforts would be needed to assist the people of 
Iraq. To facilitate those efforts, the FAA amended paragraph 3 of the 
SFAR to clarify the FAA approval process and to clarify a technical 
oversight that operations could not be authorized by another agency 
without the approval of the FAA.
    More recently, in November 2003, the United States Government 
determined that certain limited overflights of Iraq might be conducted 
safely, but that significant safety concerns otherwise continued to 
exist.
    Accordingly, the FAA is now clarifying the process by which the 
persons covered in paragraph 1 of SFAR No. 77 may seek to obtain FAA 
approval or exemption under paragraph 3 of SFAR No. 77. These processes 
are described as follows:

Approval Based on Authorization Request of an Agency of the United 
States Government

    If a Department or agency of the U.S. Government determines that it 
has a critical need to engage any person covered under paragraph 1 of 
this SFAR, including a U.S. air carrier or a commercial operator in a 
charter for transportation of civilian or military passengers or cargo 
where the total capacity of the aircraft is used solely for that 
charter while the aircraft operates within Iraq, the U.S. Government 
agency may request FAA approval of the operation on behalf of the 
person covered under paragraph 1 of the SFAR. That request for approval 
shall be made in writing, in the form of a letter under the signature 
of a senior official of that Department or agency, and sent to the FAA 
Associate Administrator for Regulation and Certification (AVR). That 
request for approval must include:
    1. A written contract between the other U.S. Government agency and 
persons covered under paragraph 1 of this SFAR for specific flight 
operations, which includes terms and conditions detailing how the 
operations are to be conducted;
    2. A plan approved by the U.S. Government agency describing how, in 
light of the need for and risk of the proposed operation, the threats 
to the operation will be mitigated, including the threats associated 
with man-portable air defense systems (MANPADS). FAA review of the plan 
shall not constitute FAA acceptance or approval of the plan; and
    3. Any other information requested by the FAA.
    The FAA will review the request for approval submitted by the U.S. 
Government agency to determine whether that agency has addressed the 
threats to the proposed operations, including the threats associated 
with MANPADS. If the FAA determines that the U.S. Government agency has 
addressed those issues, an approval may be issued as described under 
the ``Approval Conditions'' discussion that follows.\2\ FAA approval of 
the operation

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under paragraph 3 of SFAR 77 does not relieve the operator of the 
responsibility of ensuring compliance with all rules and regulations of 
other U.S. Government agencies that may apply to the operation, 
including, but not limited to, the Transportation Security Regulations 
issued by the Transportation Security Administration, Department of 
Homeland Security.
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    \2\ The process set forth above outlines the conditions under 
which the FAA anticipates that approvals of flight operations into 
Iraq may be granted at this time. Any requests for exemption under 
14 CFR part 11 will require exceptional circumstances beyond those 
presently contemplated by this approval process.
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Approval Conditions

    If the FAA approves the requested operation, then AVR will issue an 
approval directly to the carrier through the use of Operations 
Specifications (large air carriers) or a letter of authorization 
(general aviation operations). AVR will send a letter to the 
authorizing agency that stipulates the specific conditions under which 
the FAA approves the air carrier or other covered persons for the 
requested operations in Iraq. Specifically:
    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 shall specify that the operation is not eligible 
for coverage through a premium insurance policy issued by the FAA under 
section 44302 of chapter 443 of title 49 of the United States Code. The 
operator shall not request such coverage, and the FAA shall not issue a 
policy providing insurance; and
    3. If the operator already is covered by a premium insurance policy 
issued by the FAA,\3\ the applicant shall be required to request the 
FAA to issue an endorsement to its premium insurance policy that 
specifically excludes coverage for any operations into, from, or within 
the territory or airspace of Iraq pursuant to a flight plan that 
contemplates landing or taking off from Iraqi territory, and the 
operator shall expressly waive any claims against the U.S. Government 
in the event of injury, death or loss resulting from any such operation 
as a condition for an approval or an exemption issued in accordance 
with Paragraph 3 of SFAR 77. If approved by the FAA, such an 
endorsement to the premium insurance policy must be issued and 
effective prior to the effective date of the approval. Additionally, 
the operator must notify the FAA in writing of its agreement to release 
the U.S. Government from all claims and liabilities, as well as its 
agreement to indemnify the U.S. Government with respect to any third 
party claims and liabilities relating to any and all events arising 
from or related to any such operation. If the operation includes the 
carriage of passengers, the operator shall obtain signed statements 
from each passenger that--(1) contain a statement that the passenger 
knowingly accepts the risk of the operation and consents to that risk, 
and (2) releases the U.S. Government from all claims and liabilities 
relating to any and all events arising from or related to any such 
operation.
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    \3\ Coverage under FAA premium insurance policies is suspended, 
as a condition of the premium policy, if an operation is covered by 
non-premium insurance through a contract with an agency of the U.S. 
Government under section 44305 of chapter 443 of title 49 of the 
U.S. Code.

    Issued in Washington, DC, on April 19, 2004.
Marion C. Blakey,
Administrator.
[FR Doc. 04-9209 Filed 4-20-04; 11:19 am]
BILLING CODE 4910-13-P