AFS

- 1 6

- 1825

- E Exemption No. 16098

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

GRYPHON AIR, LLC Regulatory Docket No. FAA

- 2015

- 5943

for an exemption from § 91.1605 of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated November 9 , 2015, Mr. Earl D

. Gibbs, President/CEO of Gryphon Holdings, LLC, d

. b

. a

. Gryphon Airlines (Gryphon)

, petitioned the Federal Aviation

Administration (FAA) on behalf of Gryphon for an exemption from § 91.1605, Special Aviation Regulation (SFAR) No. 77

– Prohibition Against Certain Flights in the Baghdad (ORBB) Flight Information Region of Title 14, Code of Federal Regulations (14 CFR) . The proposed exe mption

, if granted, would allow Gryphon to conduct flight operations with

aircraft o perated by Gryphon and flown by airmen employed by Gryphon to and from Baghdad, Balad, Basrah, Erbil, Najaf, Sulaymaniyah , Taji, and Tallil , Iraq to and from points

outside of Iraq in order to provide medical air evacuation (MEDEVAC) services and VIP charter flights

.

The p etitioner requests relief from the following regulation :

Section 91.1605 prescribes, in its pertinent part, that no person may conduct flight operations i n the Baghdad ( ORBB ) f light i nformation r egion ( FIR ) unless such flights are conducted under a contract, grant, or cooperative agreement with a depar tment, agency, or instrumentality of the United States ( U.S. ) G overnment (or under a subcontract between th e prime contractor of the department, agency, or instrumentality, and the person subject to § 91.1605 )

, with the approval of the FAA, or under an exemption issued by the FAA. This rule applies to all U.S. air carriers and U.S. commercial operators; all pe rsons exercising the privileges of an airman certificate issued by the FAA, except such persons operating U.S.

-2

registered aircraft for a foreign air carrier; and all operators of aircraft registered in the United States, except where the operator of such a ircraft is a foreign air carrier.

The p etitioner supports its request with the following information:

Gryphon proposes to conduct MEDEVAC and VIP charter flights between points outside of Iraq and the above

- me nt ioned points in Iraq under 14 CFR p art 135

, using a U.S.

- registered Beechcraft Hawker 800A aircraft operate d by Gryphon and flown by airmen employed by Gryphon

. According to the petitioner, t he aircraft would be used to provide

MEDEVAC services and VIP charter flights . Among those to whom Gryphon expects to provide MEDEVAC services are medical companies and insurance companies that serve employees of contractors and U.S. agencies in Iraq. The petitioner anticipates that those flight operations would be conducted to and from Iraq, on the average

, t wice per week , although the frequency of operations could differ.

Gryphon states it would provide an equivalent level of safety for its flight operations in Iraq through several methods. The petitioner would mini mi ze its exposure to attack through special crew training and operating procedures ( i.e.

, unpredictable arrival and depa r ture times, night operations, circling approaches, minimizing cabin lighting, and other means )

. Gryphon

would also obtain security service s and intelligence information from reliable sources within Iraq a nd provid e enhanced security briefings to its crews by means of direct personal contact,

mobile phones and onboard satellite phones. Gryphon has stated that it is a member of the Department of State Overseas Security Advisory Council (OSAC ) and will be receiving daily security notices for the areas into which it will operate. Gryphon has also applied for memebership in the Department of State’s Aviation Security Working Group. According to the petitioner, Gryphon will also ensure continuous monitoring of aircraft and provid e frequent ly updat ed security briefings to aircraft during these flight operations.

The petitioner points out that Gryphon’s management personnel safely operated an

av erage of 10 large

- jet passenger flights per week into Iraq (for a non

- U.S. operator using non

U.S.

- certified airmen) beginning in 2007

. According to the petitioner, these flights were

flown with the approval of the military or the Iraqi Civil Aviation Age ncy and were conducted

without incident

.
The p etitioner contends that certain characteristics of its operations will help safeguard those flights from threats. According to the petitioner, due to the small size of the aircraft, it will be an extremely di fficult target for potential attackers to visually acquire. Gryphon also

states that i t s operations will be unscheduled, unpredictable, and nearly impossibly to detect. In the case of MEDEVAC flights, the petitioner argues, their short

- fused nature incre ases their unpredictability.

The petitioner states that this is an urgent request for exemption

, because currently

, U.S. citizens working in Iraq are often MEDEVAC’d on aircraft which are not equipped with

an air ambulance stretcher system

, and patients a re frequently boarded through over

- wing

emergency exits

. T he petitioner contend s that this practice is unsafe due to slipping and tripping hazards for the litter bearers that risk further injury to patients . Gryphon explains that3

its U.S.

- registered Beec hcraft Hawker 800A is equipped with a boarding system which was specifically designed to safely board stretcher

- bound patients onto the aircraft. Further, Gryphon points out that its aircraft is also equipped with a proper patient restraint and harness

sy stem

, which would keep the patient in place in the event of a rapid deceleration. The petitioner argues that granting this exemption would be in the public interest, because it would allow for safe boarding and transporting of stretcher

- bound patients out of Iraq, using Gryphon’s professionally engineered and installed stretcher boarding system and its FAA

supplemental

- type

- certificated air ambulance med

- bed. Gryphon also contends that its services will benefit the public and the U.S. Government by provid ing an FAA

- regulated and Fly America Act

- complian t product to travelers into or out of Iraq. Gryphon states that other operators utilizing inferior equipment and procedures are regularly flying today in the Baghdad FIR without incident and that Gryphon’s operations would be very low profile.

Mr. Michiel Van den Berg, General Manager, Assistance Services

– Dubai & Moscow, International SOS filed a letter supporting Gryphon’s petition. Mr. Van den Berg states that International SOS and its subsidiary RMSI collectively provide a comprehensive range of medical services globally, including medical evacuations in Iraq. According to Mr. Van den Berg, the beneficiaries of these services include the staff of leading multinational oil and gas organizations and var ious governmental organizations, such as the U.S. Department of Defense, the NATO Support and Procurement Agency, the United Nations and the Organization for Security and Co

- operation in Europe. Mr. Van den Burg indicates that the

lack of reliable air amb ulance transport has occasional ly led to delays, which has placed patients ’ lives at risk and their medical recovery in jeopardy. Consequently, RMSI has contracted with Gryphon, members of which had previously owned and operated a South

African airline th at successfully provided public charter services between Kuwait, Iraq, Dubai, and Afghanistan from 2007 to 2014 to improve the quality of air ambulance services for RMSI and SOS International clients in Iraq.

The FAA has determined that good cause exists for waiving the requirement for Federal Register publication because any delay in acting on this petition would be detrimental

to Gryphon

.

T he FAA ’s analysis is as follows :

In reviewing the petitioner’s request, the FAA focused on the threat environment f or the proposed flights and the FAA's responsibility for the safety of U.S. operators, U.S. airmen,

and U.S.

- registered civil aircraft

. S pecial F ederal A viation R egulation (SFAR) No. 77 was initially put into place in October 1996 to address potential haz ards to U.S. civil aviation from the then Government of Iraq

. On November 13, 2003

, the FAA determined that certain limited overflights of Iraq could be conducted safely following a change in government in Iraq , subject to the permission of appropriate a uthorities 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 a djacent to Iraq to operate at altitudes below FL 200 within Iraq to4

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

.

Effective January 7, 2013, t he FAA further amended SFAR No. 77

, § 91.1605

, to allow U.S. civil flight operations between points outside Iraq and the Erbil (ORER) and Sulaymaniyah (ORSU) International Airports by persons previously prohibited fro m conducting such operations

, b ased on results of evaluations of the airports. Both 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 improvements in the operational environment, th e 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 n orth of 34 degr ees 30 minutes North latitude below FL 200 to and from ORER or ORSU, with certain conditions

and limitations.

However, b y July 31, 2014, the operational environment for U.S. civil aviation in Iraq

ha d significantly changed. The resurgence of militant gr oups
, 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

, ha d led to an increased

threat to U.S. civ i l aviation in Iraq. Islamic S tate of Iraq and the Levant ha d acquired weapons from captured Iraqi and Syrian stocks and recruited former military personnel to operat e those

weapons. In addition, ISIL had shot down Iraqi rotary

- wing and fixed

- wing aircraft that were flying at low altitudes and acquired man

- portable air defense systems (MANPADS) and other

anti

- aircraft weapons that provided the capability to target aircraft at higher altitudes. As a result, the FAA determined that ISIL pose d an increased threat to U. S. civil aviation operating in Iraqi airspace at or below FL 300. O n July 31, 2014, the FAA issued a NOTAM that prohibited U.S. civil flight operations in the territory and airspace of Iraq at or below FL 300.

The July 31, 2014

, NOTAM increased restric tion s on operations in the territory and airspace of Iraq beyond the restrictions then contained in SFAR No. 77, § 91.1605, which remained in effect. The following operations which had been permitted under SFAR No. 77, § 91.1605, were prohibited by the NO TAM:

(1) Overflights of Iraq above FL 200 but at or below FL 300;

(2) O perations 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; a nd

(3) F lights within the terri t o r y of Iraq north of 34 degree s
, 30 minutes n orth latitude originatin g from or destined to areas outside of Iraq to or from Erbil ( ORER ) or Sulaymaniyah ( ORSU )

.

Less than a month later, on August 7, 2014, President Obama a nnounced that he had authorized targeted airstrikes against militants associated with ISIL

. On August 8, 2014, U.S.

forces conducted airstrikes and, o n t he same day, the FAA issued a NOTAM that prohibited5

U.S. civil flight operations in the Baghdad ( ORBB ) FIR at all altitudes due to the hazardous

situation created by the armed conflict between militants associated with ISIL and the Iraqi security forces and their allies. The August 8, 2014

, NOTAM superseded the July 31, 2014

, NOTAM.

On May 11, 2015, an amendment to SFAR No. 77, § 91.1605

, revised the rule to incorporate the flight prohibitions set forth in the August 8, 2014 NOTAM.

Islamic State of Iraq and the Levant and other anti

- government and anti

- U.S. militant

groups continue to be present in Ira q, and there is ongoing fighting in various areas of central, western, and northern Iraq. As a result of the continuing conflict and uncertain security environment, there is a potential for ISIL or other militant groups to conduct anti

- aircraft

activities throughout Iraq , to include s outhern Iraq . Various anti

- government and anti

- U.S. militant groups, including ISIL, have used anti

- aircraft weapons to fire at Iraqi military aircraft, some of which have reportedly been shot down

, during the course of th e f ighting. There have also been occasional reports of civilian aircraft being fired on while at low altitude over Iraq. Attacks against aircraft in flight and targeting Iraqi airports can occur with little or no warning.

I n considering a petition for e xemption from a flight prohibition SFAR, the FAA evaluates whether granting the requested exemption would provide a level of safety at least equal to that provided by the relevant flight prohibition SFAR, not whether the petitioner’s operations, if authori zed by the FAA, would be safer than services that non

- U.S. operators may provide. In this instance, the relevant flight prohibition SFAR is SFAR No. 77, which applies to the Baghdad (ORBB) FIR and covers the entire country of Iraq. T he petitioner has

des cribed the proposed operations and identifie d steps that the petitioner would take to
minimize risks to the proposed operations. These steps include: (1) special crew training and operating procedures to minimize exposure to attack; (2) obtaining security and intelligence information from sources that the petitioner considers reliable within Iraq; (3) providing enhanced security briefings to its crew by means of direct personal contact, mobile phones, and onboard satellite phone equipment; (4) continuous m onitoring of the aircraft; and (5) providing frequently updated security briefings to the aircraft during actual Iraq flight operations. However, Gryphon has provided very little detail to the FAA about the content of its special crew training and operati onal procedures and its process and procedures for providing enhanced security briefings to its crew, for continuous monitoring of the aircraft, and for providing frequently updated security briefings to the aircraft during actual flight operations in Iraq . The petitioner also has not clearly identified to the FAA its proposed sources of security and intelligence information in Iraq. Consequently, the p etitioner has not

demonstrated how it would achieve a level of safety at least equal that provided by SF AR

No

. 77.

It is unclear from the petitioner ’ s submission and Mr. Van den Berg’s letter of support whether some of petitioner’s proposed operations would be properly addressed under the request for approval process rather than the exemption process. The FAA grants, when appropriate, a pprovals to authoriz e flight operations conducted under contracts, grants or cooperative agreements with U.S. Government departments, agencies, or instrumentalities (or6

under subcontracts with the prime contractor s of any of the foregoing U.S. Government entities) that would otherwise be prohibited by a flight prohibition SFAR . T he approval process for SFAR No. 77 is described in the final rule that the FAA published on May 11, 2015, entitled “Prohibition Against Certain Flig hts Within the Baghdad (ORBB) Flight Information Region (FIR) ( 80 FR 26822 )

. The sponsoring U.S. Government entity itself must request approval directly from the FAA on behalf of the person subject to the SFAR with whom the sponsoring U.S. Government enti ty h as a contract, grant, or cooperative agreement or with whom its prime contractor has a subcontract.

T h e FAA’s Decision

In consideration of the foregoing

, I find that a grant of exemption would not be in the public interest. Therefore, pursuant to th e authority contained in 49 U.S.C. §§ 106(f), 40113 and 44701, delegated to me by the Administrator, the petition of Gryphon Air, LLC for an exemption from 14 CFR § 91.1605 is hereby denied.

Issued in Washington, DC, on March 25, 2016.

/s/

John S. Duncan Director, Flight Standards Service7

Project No.: A F S

- 16

- 1825

- E

Project Officer: ___________

____ ARM

- 10 1 : K Jone s: 4/11/2016 :Doc# 5 8218

ARM

- 1/100/104:Program Office AFS

- 200

MR. EARL D

. GIBBS

PRESIDENT/CEO GRYPHON HOLDINGS, LL C D

. B

. A

. GRYPHON AIRLINES

393 EAST RIVERSIDE D RIVE , SUITE 3C SAINT GEORGE, UT 84 790