Rule2023-20017
Extension of the Prohibition Against Certain Flights in the Pyongyang Flight Information Region (FIR) (ZKKP)
Primary source
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Published
September 15, 2023
Effective
September 15, 2023
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This action extends the prohibition against certain flight operations in the Pyongyang Flight Information Region (FIR) (ZKKP) by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when the operator of such aircraft is a foreign air carrier, for an additional five years, from September 18, 2023, until September 18, 2028. The FAA finds this action necessary to address significant safety-of-flight risks to U.S. civil aviation associated with the Democratic People's Republic of Korea's (DPRK's) military capabilities and activities. The FAA also republishes the approval process and exemption information for this Special Federal Aviation Regulation (SFAR), consistent with other recently published flight prohibition SFARs.
Full Text
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<title>Federal Register, Volume 88 Issue 178 (Friday, September 15, 2023)</title>
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[Federal Register Volume 88, Number 178 (Friday, September 15, 2023)]
[Rules and Regulations]
[Pages 63519-63525]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20017]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No.: FAA-2018-0838; Amdt. No. 91-352B]
RIN 2120-AL90
Extension of the Prohibition Against Certain Flights in the
Pyongyang Flight Information Region (FIR) (ZKKP)
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This action extends the prohibition against certain flight
operations in the Pyongyang Flight Information Region (FIR) (ZKKP) by
all: U.S. air carriers; U.S. commercial operators; persons exercising
the privileges of an airman certificate issued by the FAA, except when
such persons are operating U.S.-registered aircraft for a foreign air
carrier; and operators of U.S.-registered civil aircraft, except when
the operator of such aircraft is a foreign air carrier, for an
additional five years, from September 18, 2023, until September 18,
2028. The FAA finds this action necessary to address significant
safety-of-flight risks to U.S. civil aviation associated with the
Democratic People's Republic of Korea's (DPRK's) military capabilities
and activities. The FAA also republishes the approval process and
exemption information for this Special Federal Aviation Regulation
(SFAR), consistent with other recently published flight prohibition
SFARs.
DATES: This final rule is effective on September 15, 2023.
FOR FURTHER INFORMATION CONTACT: Bill Petrak, Flight Standards Service,
Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 20591; telephone (202) 267-8166; email
<a href="/cdn-cgi/l/email-protection#bad8d3d6d694cadfcec8dbd1fadcdbdb94ddd5cc"><span class="__cf_email__" data-cfemail="690b00050547190c1d1b0802290f0808470e061f">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This action extends the expiration date of SFAR No. 79, Sec.
91.1615 of title 14 Code of Federal Regulations (CFR), from September
18, 2023, until September 18, 2028. SFAR No. 79 prohibits certain
flight operations in the Pyongyang FIR (ZKKP) by all: U.S. air
carriers; U.S. commercial operators; persons exercising the privileges
of an airman certificate issued by the FAA, except when such persons
are operating U.S.-registered aircraft for a foreign air carrier; and
operators of U.S.-registered civil aircraft, except when the operator
[[Page 63520]]
of such aircraft is a foreign air carrier. The FAA finds this action
necessary to address significant safety-of-flight risks to U.S. civil
aviation associated with the DPRK's military capabilities and
activities. These risks include, but are not limited to, extensive
unannounced ballistic missile test launches associated with the DPRK's
strategic weapons development activities, DPRK air defense and tactical
aircraft capabilities that now cover the entire Pyongyang FIR (ZKKP),
the DPRK's potential use of electronic warfare (EW) capabilities during
periods of heightened tensions, and potential DPRK weapons of mass
destruction (WMD) testing, which would likely increase inadvertent
risks to civil aviation, both within and potentially beyond the
Pyongyang FIR (ZKKP), if it were to occur. Consistent with other
recently published flight prohibition SFARs, this action also
republishes the approval process and exemption information for this
flight prohibition SFAR.
II. Authority and Good Cause
A. Authority
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. Sections 106(f) and (g)
of title 49, U.S. Code (U.S.C.), subtitle I, establish the FAA
Administrator's authority to issue rules on aviation safety. 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 this authority consistently with the
obligations of the U.S. Government under international agreements.
The FAA is promulgating this rule under the authority described in
49 U.S.C. 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 the FAA's authority because
it continues to prohibit the persons described in paragraph (a) of SFAR
No. 79, Sec. 91.1615, from conducting flight operations in the
Pyongyang FIR (ZKKP) due to the significant safety-of-flight risks to
U.S. civil flight operations in that airspace, as described in the
preamble to this final rule.
B. Good Cause for Immediate Adoption
Section 553(b)(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.'' Also, section 553(d)
permits agencies, upon a finding of good cause, to issue rules with an
effective date less than 30 days from the date of publication. In this
instance, the FAA finds good cause to forgo notice and comment and the
delayed effective date because they would be impracticable and contrary
to the public interest.
Providing notice and the opportunity for the public to comment here
would be impracticable. The FAA's flight prohibitions, and any
amendments thereto, need to include appropriate boundaries that reflect
the agency's current understanding of the risk environment for U.S.
civil aviation. This allows the FAA to protect the safety of U.S.
operators' aircraft and the lives of their passengers and crews without
over-restricting or under-restricting U.S. operators' routing options.
However, the risk environment for U.S. civil aviation in airspace
managed by other countries with respect to safety of flight is fluid in
circumstances involving fighting, extremist and militant activity, or
periods of heightened tensions, particularly where weapons capable of
targeting or otherwise negatively affecting U.S. civil aviation are or
may be present. This fluidity, and the potential for rapid changes in
the risks to U.S. civil aviation, significantly limits how far in
advance of a new or amended flight prohibition the FAA can usefully
assess the risk environment. The delay that would be occasioned by
providing an opportunity to comment on this action would significantly
increase the risk that the resulting final action would not accurately
reflect the current risks to U.S. civil aviation associated with the
situation and thus would not establish boundaries for the flight
prohibition commensurate with those risks.
While the FAA sought and responded to public comments, the
boundaries of the area in which unacceptable risks to the safety of
U.S. civil aviation existed might change due to: evolving military or
political circumstances; violent extremist and militant group activity;
the introduction, removal, or repositioning of more advanced anti-
aircraft weapon systems; or other factors. As a result, if the
situation improved while the FAA sought and responded to public
comments, the rule the FAA finalized might be over-restrictive,
unnecessarily limiting U.S. operators' routing options and potentially
causing them to incur unnecessary additional fuel and operations-
related costs, as well as potentially causing passengers to incur
unnecessarily some costs attributed to their time. Conversely, if the
situation deteriorated while the FAA sought and responded to public
comments, the rule the FAA finalized might be under-restrictive,
allowing U.S. civil aviation to continue operating in areas where
unacceptable risks to their safety had developed. Such an outcome would
endanger the safety of these aircraft, as well as their passengers and
crews, exposing them to unacceptable risks of death, injury, and
property damage that could occur if a U.S. operator's aircraft were
shot down (or otherwise damaged) while operating in the Pyongyang FIR
(ZKKP).
Alternatively, if the FAA made changes to the area in which U.S.
civil aviation operations would be prohibited between a notice of
proposed rulemaking and a final rule due to changed conditions, the
version of the rule the public commented on would no longer reflect the
FAA's current assessment of the risk environment for U.S. civil
aviation.
In addition, seeking comment would be contrary to the public
interest because some of the rational basis for the rulemaking is based
upon classified information and controlled unclassified information not
authorized for public release. In order to meaningfully provide comment
on a proposal, the public would need access to the basis for the
agency's decision-making, which the FAA cannot provide. Disclosing
classified or controlled unclassified information in order to seek
meaningful comment on the proposal would harm the public interest.
Accordingly, the FAA meaningfully seeking comment on the proposal is
contrary to the public interest.
Therefore, providing notice and the opportunity for comment would
be impracticable, as it would hinder the FAA's ability to maintain
appropriate flight prohibitions based on up-to-date risk assessments of
the risks to the safety of U.S. civil aviation operations in airspace
managed by other countries, and contrary to the public interest, as the
FAA cannot protect classified and controlled unclassified information
and meaningfully seek public comment.
[[Page 63521]]
For the same reasons discussed above, the potential safety impacts
and the need for prompt action on up-to-date information that is not
public would make delaying the effective date impracticable and
contrary to the public interest.
Accordingly, the FAA finds good cause exists to forgo notice and
comment and any delay in the effective date for this rule.
III. Background
Since 1997, the FAA has prohibited U.S. civil aviation operations
in the Pyongyang FIR (ZKKP), or portions thereof, and has issued
various advisory Notices to Air Missions (NOTAMs) regarding the
potential risks to civil aviation operations in the adjacent
airspace.\1\ On September 8, 2020, the FAA published a final rule in
the Federal Register extending its existing flight prohibition for U.S.
civil aviation operations in the entire Pyongyang FIR (ZKKP) for an
additional three years.\2\ At that time, the FAA determined the
situation in the Pyongyang FIR (ZKKP) continued to present an
unacceptable level of risk for U.S. civil aviation safety. The DPRK
continued to conduct no-notice ballistic missile launches to meet its
weapons development program goals and to signal its resolve, and
displeasure with the lack of a diplomatic breakthrough and sanctions
relief, to the international community. The DPRK consistently failed to
issue any NOTAMs or other aeronautical information to warn civil
aircraft operators of the hazards associated with these missile
launches. Additionally, at the time of the 2020 final rule, the DPRK
maintained air defense and tactical aircraft capabilities that, if
forward deployed, would have had ranges covering the entire Pyongyang
FIR (ZKKP). The FAA assessed these weapons could present an inadvertent
risk to U.S. civil aviation operations during periods of heightened
tensions.
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\1\ For a more detailed history of SFAR No. 79, Sec. 91.1615,
see Amendment of the Prohibition Against Certain Flights in the
Pyongyang Flight Information Region (FIR) (ZKKP) final rule, 83 FR
47059 (Sept. 18, 2018).
\2\ Extension of the Prohibition Against Certain Flights in the
Pyongyang Flight Information Region (FIR) (ZKKP) final rule, 85 FR
55372 (Sept. 8, 2020).
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IV. Discussion of the Final Rule
The FAA has determined the situation in the Pyongyang FIR (ZKKP)
continues to present an unacceptable level of risk for U.S. civil
aviation safety. The DPRK continues to increase its military
capabilities and activities in ways that would pose unacceptable
safety-of-flight risks to U.S. civil aviation operations if they were
permitted to fly in the Pyongyang FIR (ZKKP). Most notably, in 2022 and
continuing into 2023, the DPRK conducted extensive unannounced
ballistic missile test launches, the overwhelming majority of which
impacted in the Pyongyang FIR (ZKKP). The DPRK's strategic weapons
development activities and the associated missile test launches are
expected to continue, including launches associated with the DPRK's
intercontinental ballistic missile (ICBM) and hyper-glide technologies,
which demonstrate increased weapons ranges and sophistication in launch
operations. To the extent that they continue to be conducted without
adequate advance notice to the international civil aviation community,
these longer-range missile test launches contribute to the unacceptable
safety-of-flight risks for U.S. civil aviation operations in the
Pyongyang FIR (ZKKP) and pose potential risks to civil aviation
operations in adjacent FIRs.
The rate of unannounced DPRK missile test launches increased
significantly in 2022 in comparison to previous years to nearly 70 such
launches. The high rate of unannounced DPRK missile launches continued
into 2023, with more than 26 unannounced missile launches occurring
between January 1, 2023, and April 14, 2023. Many of the DPRK's
ballistic missiles are also related to its WMD program, as they can
carry conventional, chemical, or nuclear warheads.
On May 29, 2023, the DPRK publicly announced an impending satellite
launch via state media. Subsequently, the Republic of Korea (ROK),
Japan, and the Philippines issued NOTAMs establishing warning areas for
rocket-associated debris in the Yellow Sea and the Philippine Sea for
the period of May 30, 2023, to June 11, 2023. On May 31, 2023, the DPRK
conducted a failed space launch from its northwest coastal area. The
rocket body flew approximately six minutes before it crashed into the
Yellow Sea, approximately 200 km west of Eocheong Island, Republic of
Korea. This location places the impact of the launched rocket body near
one of the announced closure areas. The DPRK's advance notice to the
international civil aviation community of activity potentially
hazardous to civil aviation in this instance is a positive development.
However, it is unknown whether the DPRK will make providing adequate
advance notice to the international community of activities potentially
hazardous to civil aviation, including but not limited to ballistic
missile test launches both within and outside the Pyongyang FIR (ZKKP),
its normal operating practice in the future.
As the DPRK continues its strategic weapons development programs,
including sea and land-based ballistic missile launch capabilities,
fewer indications provide advance warning of potential missile test
launches. The reduced warning can be attributed to the DPRK's increased
concealment of key indicators associated with missile launch
preparations. This is due to the DPRK's underground infrastructure, its
sea-launched ballistic missile (SLBM) developments, and the increasing
sophistication of its weapons. For example, the DPRK's recent testing
of a solid fuel ICBM reduces its missile support footprint and launch
preparation timelines and, consequently, decreases insight into its
missile test launch cycles. The reduction in indicators providing
potential advance warning, in conjunction with the DPRK's failure in
most cases to issue NOTAMs or other appropriate aeronautical
information to inform the international civil aviation community of
planned ballistic missile testing activities hazardous to civil
aviation, increases the risk of the DPRK inadvertently striking a civil
aircraft in flight with a missile or with falling debris from an
unannounced missile launch. This situation further contributes to the
already unacceptable safety-of-flight risks for U.S. civil aviation
operations in the Pyongyang FIR (ZKKP) and poses potential risks to
civil aviation operations in adjacent FIRs.
In addition to the DPRK's significant recent history of unannounced
missile test launch activities, the DPRK maintains air defense and
tactical aircraft capabilities covering the entire Pyongyang FIR
(ZKKP), which have been active in conjunction with recent show-of-force
exercises and unannounced missile test launches. These weapons could
present an inadvertent risk to U.S. civil aviation operations in the
Pyongyang FIR (ZKKP) during periods of heightened tensions. While the
FAA has not observed any significant Global Positioning System (GPS)
jamming emanating from the DPRK in recent years, it assesses the DPRK
maintains electronic warfare capabilities that it would likely use in a
conflict scenario or in conjunction with military exercises or other
show of force operations during periods of heightened tensions. Such
electronic interference could negatively affect communications and
navigation systems for civil aviation operating in the Pyongyang FIR
(ZKKP), as well as in adjacent airspace.
[[Page 63522]]
Therefore, as a result of the significant and unacceptable risks to
the safety of U.S. civil aviation operations in the Pyongyang FIR
(ZKKP) described in this preamble, the FAA extends the expiration date
of SFAR No. 79, Sec. 91.1615, from September 18, 2023, until September
18, 2028.
Further amendments to SFAR No. 79, Sec. 91.1615, might be
appropriate if the risk to U.S. civil aviation safety and security
changes. In this regard, the FAA will continue to monitor the situation
and evaluate the extent to which persons described in paragraph (a) of
this rule might be able to operate safely in the Pyongyang FIR (ZKKP).
The FAA also republishes the details concerning the approval and
exemption processes in sections V and VI of this preamble, consistent
with other recently published flight prohibition SFARs, to enable
interested persons to refer to this final rule for comprehensive
information about requesting relief from the FAA from the provisions of
SFAR No. 79, Sec. 91.1615.
V. Approval Process Based on a Request From a Department, Agency, or
Instrumentality of the United States Government
A. 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 the Pyongyang FIR (ZKKP). If a department, agency,
or instrumentality of the U.S. Government determines that it has a
critical need to engage any person described in paragraph (a) of SFAR
No. 79, Sec. 91.1615, including a U.S. air carrier or commercial
operator, to transport civilian or military passengers or cargo or
conduct other operations in the Pyongyang FIR (ZKKP), that department,
agency, or instrumentality may request the FAA to approve persons
described in SFAR No. 79, Sec. 91.1615, to conduct such operations.
The requesting U.S. Government department, agency, or
instrumentality must submit the request for approval to the FAA's
Associate Administrator for Aviation Safety in a letter signed by an
appropriate senior official of the requesting department, agency, or
instrumentality.\3\ The FAA will not accept or consider requests for
approval from anyone other than the requesting U.S. Government
department, agency, or instrumentality. In addition, the senior
official signing the letter requesting FAA approval must be
sufficiently positioned within the requesting department, agency, or
instrumentality to demonstrate that the organization's senior
leadership supports the request for approval and is committed to taking
all necessary steps to minimize aviation safety and security risks to
the proposed flights. The senior official must also be in a position
to: (1) attest to the accuracy of all representations made to the FAA
in the request for approval, and (2) ensure that any support from the
requesting U.S. Government department, agency, or instrumentality
described in the request for approval is in fact brought to bear and is
maintained over time. Unless justified by exigent circumstances,
requesting U.S. Government departments, agencies, or instrumentalities
must submit requests for approval to the FAA no less than 30 calendar
days before the date on which the requesting department, agency, or
instrumentality wishes the operator(s) to commence the proposed
operation(s).
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\3\ This approval procedure applies to U.S. Government
departments, agencies, or instrumentalities; it does not apply to
the public. The FAA describes this procedure in the interest of
providing transparency with respect to the FAA's process for
interacting with U.S. Government departments, agencies, or
instrumentalities that seek to engage U.S. civil aviation to operate
in the area in which this SFAR would prohibit their operations in
the absence of specific FAA authorization.
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The requestor must send the request to the Associate Administrator
for Aviation Safety, 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 FAA grants the request for approval.
If a requestor wishes to make an electronic submission to the FAA, the
requestor should contact the Air Transportation Division, Flight
Standards Service, at (202) 267-8166, to obtain the appropriate email
address. A single letter may request approval from the FAA for multiple
persons described in SFAR No. 79, Sec. 91.1615, or for multiple flight
operations. To the extent known, the letter must identify the person(s)
the requester expects the SFAR to cover on whose behalf the U.S.
Government department, agency, or instrumentality seeks FAA approval,
and it must describe--
<bullet> The proposed operation(s), including the nature of the
mission being supported;
<bullet> The service the person(s) covered by the SFAR will
provide;
<bullet> To the extent known, the specific locations in the
Pyongyang FIR (ZKKP) where the proposed operation(s) will occur,
including, but not limited to, the flight path and altitude of the
aircraft while it is operating in the Pyongyang FIR (ZKKP) and the
airports, airfields, or landing zones at which the aircraft will take
off and land; and
<bullet> The method by which the requesting 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 the
proposed operations (i.e., the pre-mission planning and briefing, in-
flight, and post-flight phases).
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 Pyongyang FIR (ZKKP). The
requestor may identify additional operators to the FAA at any time
after the FAA issues its approval. Neither the operators listed in the
original request, nor any operators the requestor subsequently seeks to
add to the approval, may commence operations under the approval until
the FAA issues them an Operations Specification (OpSpec) or Letter of
Authorization (LOA), as appropriate, for operations in the Pyongyang
FIR (ZKKP). The approval conditions discussed below apply to all
operators. Requestors should send updated lists to the email address
they obtain from the Air Transportation Division by calling (202) 267-
8166.
If an approval request includes classified information or
controlled unclassified information not authorized for public release,
requestors may contact Aviation Safety Inspector Bill Petrak for
instructions on submitting it to the FAA. His contact information
appears in the FOR FURTHER INFORMATION CONTACT section of this final
rule.
The FAA's approval of an operation under SFAR No. 79, Sec.
91.1615, does not relieve persons subject to this SFAR of the
responsibility to comply with all other applicable FAA rules and
regulations. Operators of civil aircraft must comply with the
conditions of their certificates, OpSpecs, and LOAs, as applicable.
Operators must also comply with all rules and regulations of other U.S.
Government departments, agencies, or instrumentalities that may apply
to the proposed operation(s), including, but not limited to,
regulations issued by the Transportation Security Administration.
[[Page 63523]]
B. Approval Conditions
If the FAA approves the request, the FAA's Aviation Safety
organization will send an approval letter to the requesting U.S.
Government department, agency, or instrumentality informing it that the
FAA's approval is subject to all of the following conditions:
(1) The 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) Before any approval takes effect, the operator must submit to
the FAA:
(a) A written release of the U.S. Government from all damages,
claims, and liabilities, including without limitation legal fees and
expenses, relating to any event arising out of or related to the
approved operations in the Pyongyang FIR (ZKKP); and
(b) The operator's written agreement to indemnify the U.S.
Government with respect to any and all third-party damages, claims, and
liabilities, including without limitation legal fees and expenses,
relating to any event arising out of or related to the approved
operations in the Pyongyang FIR (ZKKP).
(3) Other conditions the FAA may specify, including those the FAA
might impose in OpSpecs or LOAs, as applicable.
The release and agreement to indemnify do not preclude an operator
from raising a claim under an applicable non-premium war risk insurance
policy the FAA issues under 49 U.S.C. chapter 443.
If the FAA approves the proposed operation(s), the FAA will issue
an OpSpec or LOA, as applicable, to the operator(s) identified in the
original request and any operators the requestor subsequently adds to
the approval, authorizing them to conduct the approved operation(s). In
addition, as stated in paragraph (3) of this section V.B., the FAA
notes that it may include additional conditions beyond those contained
in the approval letter in any OpSpec or LOA associated with a
particular operator operating under this approval, as necessary in the
interests of aviation safety. U.S. Government departments, agencies,
and instrumentalities requesting FAA approval on behalf of entities
with which they have a contract or subcontract, grant, or cooperative
agreement should request a copy of the relevant OpSpec or LOA directly
from the entity with which they have any of the foregoing types of
arrangements, if desired.
VI. Information Regarding Petitions for Exemption
Any operations not conducted under an approval the FAA issues
through the approval process set forth previously may only occur in
accordance with an exemption from SFAR No. 79, Sec. 91.1615. A
petition for exemption must comply with 14 CFR part 11. The FAA will
consider whether exceptional circumstances exist beyond those described
in the approval process in the previous section. To determine whether a
petition for exemption from the prohibition this SFAR establishes
fulfills the standards described in 14 CFR 11.81, the FAA consistently
finds necessary the following information:
<bullet> The proposed operation(s), including the nature of the
operation(s);
<bullet> The service the person(s) covered by the SFAR will
provide;
<bullet> The specific locations in the Pyongyang FIR (ZKKP) where
the proposed operation(s) will occur, including, but not limited to,
the flight path and altitude of the aircraft while it is operating in
the Pyongyang FIR (ZKKP) and the airports, airfields, or landing zones
at which the aircraft will take off and land;
<bullet> 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
(i.e., the pre-mission planning and briefing, in-flight, and post-
flight phases); and
<bullet> The plans and procedures the operator will use to minimize
the risks identified in this preamble to the proposed operations, to
support the relief sought and demonstrate that granting such relief
would not adversely affect safety or would provide a level of safety at
least equal to that provided by this SFAR. The FAA has found
comprehensive, organized plans and procedures of this nature to be
helpful in facilitating the agency's safety evaluation of petitions for
exemption from flight prohibition SFARs.
The FAA includes, as a condition of each such exemption it issues,
a release and agreement to indemnify, as described previously.
The FAA recognizes that, with the support of the U.S. Government,
the governments of other countries could plan operations that may be
affected by SFAR No. 79, Sec. 91.1615. While the FAA will not permit
these operations through the approval process, the FAA will consider
exemption requests for such operations on an expedited basis and in
accordance with the order of preference set forth in paragraph (c) of
SFAR No. 79, Sec. 91.1615.
If a petition for exemption includes information that is sensitive
for security reasons or proprietary information, requestors may contact
Aviation Safety Inspector Bill Petrak for instructions on submitting it
to the FAA. His contact information is listed in the FOR FURTHER
INFORMATION CONTACT section of this final rule.
VII. Regulatory Notices and Analyses
Federal agencies consider impacts of regulatory actions under a
variety of executive orders and other requirements. First, Executive
Order 12866 and Executive Order 13563, as amended by Executive Order
14094 (``Modernizing Regulatory Review''), 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. 603 et seq., requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act of 1979 (Pub. L. 96-39), as codified in 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), as codified in 2 U.S.C. Chapter 25,
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). This portion of the preamble summarizes the FAA's analysis of
the economic impacts of this final rule.
In conducting these analyses, the FAA has determined this final
rule has benefits that justify its costs. This rule is a significant
regulatory action, as defined in section 3(f) of Executive Order 12866
as amended by Executive Order 14094. As 5 U.S.C. 553 does not require
notice and comment for this final rule, 5 U.S.C. 603 and 604 do not
require regulatory flexibility analyses regarding impacts on small
entities. This rule will not create unnecessary obstacles to the
foreign commerce of the United States. This rule will not impose an
unfunded mandate on State, local, or Tribal governments, or on the
private
[[Page 63524]]
sector, by exceeding the threshold identified previously.
A. Regulatory Evaluation
This action extends the expiration date of the SFAR prohibiting
U.S. civil flight operations in the Pyongyang FIR (ZKKP) for an
additional five years due to the significant risks to U.S. civil
aviation described in the preamble of this final rule. The FAA
acknowledges this flight prohibition might result in additional costs
to some U.S. operators, such as increased fuel costs and other
operational-related costs. However, the FAA expects the benefits of
this action exceed the costs because it will result in the avoidance of
risks of deaths, injuries, and property damage that could occur if a
U.S. operator's aircraft were shot down (or otherwise damaged) while
operating in the Pyongyang FIR (ZKKP).
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an
agency to prepare an initial regulatory flexibility analysis describing
impacts on small entities whenever 5 U.S.C. 553 or any other law
requires an agency to publish a general notice of proposed rulemaking
for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to
prepare a final regulatory flexibility analysis when an agency issues a
final rule under 5 U.S.C. 553 after that section or any other law
requires publication of a general notice of proposed rulemaking. The
FAA concludes good cause exists to forgo notice and comment and to not
delay the effective date for this rule. As 5 U.S.C. 553 does not
require notice and comment in this situation, 5 U.S.C. 603 and 604
similarly do not require regulatory flexibility analyses.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39) 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 has assessed the potential effect of this final rule and
determined that its purpose is to protect the safety of U.S. civil
aviation from risks to their operations in the Pyongyang FIR (ZKKP), a
location outside the U.S. Therefore, the rule complies with the Trade
Agreements Act of 1979.
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 $177 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.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
the FAA to consider the impact of paperwork and other information
collection burdens it imposes on the public. The FAA has determined no
new requirement for information collection is associated with this
final rule.
F. International Compatibility and Cooperation
In keeping with U.S. obligations under the Convention on
International Civil Aviation, the FAA's policy is to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined no ICAO Standards and Recommended Practices correspond to
this regulation. The FAA finds this action is fully consistent with the
obligations under 49 U.S.C. 40105(b)(1)(A) to ensure the FAA exercises
its duties consistently with the obligations of the United States under
international agreements.
While the FAA's flight prohibition does not apply to foreign air
carriers, DOT codeshare authorizations prohibit foreign air carriers
from carrying a U.S. codeshare partner's code on a flight segment that
operates in airspace for which the FAA has issued a flight prohibition
for U.S. civil aviation. In addition, foreign air carriers and other
foreign operators may choose to avoid, or be advised or directed by
their civil aviation authorities to avoid, airspace for which the FAA
has issued a flight prohibition for U.S. civil aviation.
G. Environmental Analysis
The FAA has analyzed this action under Executive Order 12114,
Environmental Effects Abroad of Major Federal Actions, and DOT Order
5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be
informed of environmental considerations and take those considerations
into account when making decisions on major Federal actions that could
have environmental impacts anywhere beyond the borders of the United
States. The FAA has determined this action is exempt pursuant to
section 2-5(a)(i) of Executive Order 12114 because it does not have the
potential for a significant effect on the environment outside the
United States.
In accordance with FAA Order 1050.1F, Environmental Impacts:
Policies and Procedures, paragraph 8-6(c), the FAA has prepared a
memorandum for the record stating the reason(s) for this determination
and has placed it in the docket for this rulemaking.
VIII. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this rule under the principles and criteria of
Executive Order 13132. The agency has determined 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.
Therefore, this rule will not have federalism implications.
B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this rule under Executive Order 13211. The agency
has determined it is not a ``significant energy action'' under the
Executive order and will not be 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 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
[[Page 63525]]
Order 13609 and has determined that this action will have no effect on
international regulatory cooperation.
IX. Additional Information
A. Electronic Access
Except for classified and controlled unclassified material not
authorized for public release, all documents the FAA considered in
developing this rule, including economic analyses and technical
reports, may be accessed from the internet through the docket for this
rulemaking.
Those documents may be viewed online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
using the docket number listed above. A copy of this rule will be
placed in the docket. Electronic retrieval help and guidelines are
available on the website. It is available 24 hours each day, 365 days
each year. An electronic copy of this document may also be downloaded
from the Office of the Federal Register's website at <a href="https://www.federalregister.gov">https://www.federalregister.gov</a> and the Government Publishing Office's website
at <a href="https://www.govinfo.gov">https://www.govinfo.gov</a>. A copy may also be found at the FAA's
Regulations and Policies website at <a href="https://www.faa.gov/regulations_policies">https://www.faa.gov/regulations_policies</a>.
Copies may also be obtained 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) 267-9677.
B. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) (Pub. L. 104-121), requires the 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 persons listed under the FOR FURTHER INFORMATION CONTACT heading
at the beginning of the preamble. To find out more about SBREFA on the
internet, visit <a href="https://www.faa.gov/regulations_policies/rulemaking/sbre_act/">https://www.faa.gov/regulations_policies/rulemaking/sbre_act/</a>.
List of Subjects in 14 CFR Part 91
Air traffic control, Aircraft, Airmen, Airports, Aviation safety,
Freight, North Korea.
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(f), 106(g), 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, Pub. L. 114-190, 130 Stat. 615 (49
U.S.C. 44703 note); articles 12 and 29 of the Convention on
International Civil Aviation (61 Stat. 1180), (126 Stat. 11).
0
2. Amend Sec. 91.1615 by revising paragraph (e) to read as follows:
Sec. 91.1615 Special Federal Aviation Regulation No. 79--Prohibition
Against Certain Flights in the Pyongyang Flight Information Region
(FIR) (ZKKP).
* * * * *
(e) Expiration. This SFAR will remain in effect until September 18,
2028. The FAA may amend, rescind, or extend this SFAR, as necessary.
Issued in Washington, DC, under the authority of 49 U.S.C.
106(f) and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5).
Polly Trottenberg,
Acting Administrator.
[FR Doc. 2023-20017 Filed 9-14-23; 8:45 am]
BILLING CODE 4910-13-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.