Exemption No. 10260

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

SAMARITAN’S PURSE Regulatory Docket No. FAA-2011-0189

for an exemption from Special Federal Aviation Regulation No. 79, of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated March 2, 2011, as ame nded on March 24, 2011, Mr. Mark W. Atwood and Ms. Elizabeth J. Wadsworth, Counsel for Samar itan’s Purse, Cozen O’Connor, The Army and Navy Club Building, 1627 I Street, NW., Washington, D.C. 20006 petitioned the Federal Aviation Administration (FAA) on behalf of Samaritan’s Purse for an exemption from Special Federal Aviation Regulation (SFAR) No. 79— Prohib ition Against Certain Flights Within the Flight Information Region (FIR) of the Democratic Pe ople’s Republic of Korea (DPRK) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would permit Samaritan’s Purse to operate a flight to Pyongyang, th e capital city of the DPRK, on or about May 10, 2011, and from Pyongyang on or about May 13, 2011. It would also permit certain airmen to exercise the privileges of airmen certificates issued by the FAA in connection with these flights. The aircraft to be used in these operations is owned by and registered to BB &T Equipment Finance Corporation, which in turn

has leased the aircraft to Samaritan’s Purse. The aircraft is a Dassa ult Falcon 900EX with the registration number N900FJ, whic h is equipped with radios capab le of receiving/transmitting on all standard frequencies as per air traffi c control instructions. The aircraft is also equipped with airborne collision avoidance system/traffic collision avoidance system.2

The petitioner requests relief from the following regulation:

SFAR No. 79 reads as follows:

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 cer tificate issued by the FAA, except such persons operating U.S.-registere d aircraft for a foreign air carrier.

(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 ma y conduct flight operations through the Pyongyang FIR west of 132 degrees east longitude.

3. Permitted Operations. This SFAR does not prohibit persons described in paragraph 1 from conducting flight operations w ithin the Pyongyang FIR west of 132 degrees east longitude where such operations ar e authorized either by exemption issued by the Administrator or by another agency of the United States Government with FAA approval.

4. Emergency Situations. In an emergency that requires immediate decision and action for the safety of the flight, the pilot in command on an ai rcraft may deviate from this SFAR to the extent required by that emergency. Except for U.S. air

carriers and commercial operators that are subject to the requirements of 14 CFR parts 121, 125, 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 Standa rds 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 Regulati on No. 79 will remain in effect

until further notice.

The petitioner supports its request with the following information:

The petitioner states that the proposed exempti on, if granted, would permit Samaritan’s Purse to operate its leased airplane into Sunan Airpor t, Pyongyang, in the DPRK. The petitioner further states that there are three purposes of the visit:

1. The primary purpose of the visit is to allo w Reverend William Franklin Graham III and his delegation to visit Sunuiju and Kwaksan T uberculosis Hospitals. Samaritan’s Purse previously provided electrical generator syst ems, operating room equipment, and medical supplies to the hospitals. The Sinuiju area is also where Samaritan’s Purse provided humanitarian assistance in September 2010 by chartering a Kalitta Air Boeing 747 aircraft3

and flying relief supplies to the area following torrential rains and heavy flooding in the

DPRK.

2. By visiting Sinuiju and Kwaksan Hospitals , Reverend Graham wishes to identify additional ways in which Samaritan’s Purse might provide further medical equipment and supply assistance. Reverend Graham also anticipates meeting with several high-level DPRK officials regarding future possible me dical relief efforts by Samaritan’s Purse for

other areas in the DPRK.

3. Additionally, the delegation’s visit will allow Sa maritan’s Purse to continue to foster the friendship and relationship between Samaritan’s Purse, the Billy Graham Evangelistic Association and DPRK that began with visits to Pyongyang in 1992 and 1994 by the Reverend Billy Graham who, on both of these oc casions, had meetings with the late DPRK President Kim II Sung.

Samaritan’s Purse states that it is critical that it be permitted to operate this flight using its leased airplane and, from a practical perspective, there are few commercial flights to Pyongyang. The petitioner states that Reverend Grah am is on a tight schedule for this visit and it would be unlikely that he could accomplish his objectives if he we re forced to rely on scheduled commercial air service to Pyongyang.

More importantly, from a ceremonial/ “soft diplomacy ” perspective, the arrival of the Samaritan’s Purse airplane (possibly piloted by Reverend Graham , a licensed pilot) is thought to have a much more beneficial impact on the high-level No rth Korean government officials with whom Reverend Graham will be meeting than would arrival by commercial carrier. Samaritan’s Purse hopes to recreate the positive impression that was made when a private airplane piloted by

Reverend Graham arrived in North Kor ea in May 2000, August 2008, and October 2009.

The petitioner states that a grant of exemption woul d not affect safety or security. The petitioner further states that the only su ch concern at issue for a flight into Pyongyang concerns a possible hostile response by North Korea to aircraft ente ring North Korean airspace. In its initial submission, the petitioner stated that permission to land in Nort h Korea had been sought (under the auspices of the Swedish Embassy in Pyongyang) and that documentation of this permission

would be submitted to the FAA once obtained. The petitioner states that this flight has been arranged with, and is expected by, the highest levels of the DPRK government. The petitioner adds that the warm reception given to the organi zation’s previous flights makes a hostile response extremely unlikely. After its initial submi ssion, the petitioner provided the FAA with the clearance number provided to it by the DPRK, which is GACA-10-11

.

The petitioner states that it is aw are of the issues involved in flyi ng to North Korea and notes that it has an extensive history working in that coun try. The petitioner stat es that it obtained exemptions from SFAR 79 to operate a privat e jet to North Korea in May 2000, August 2008, and October 2009 and chartered flights by Kalit ta Air into Pyongyang in September 2007 and September 2010 for the delivery of humanitarian supp lies. Samaritan’s Purs e further asserts that this flight will foster goodwill toward the Unite d States by the government and people of North Korea. The petitioner states that, based upon detailed advance communications over the past4

several years with high-level DP RK government officials, up to and including the Minister of Foreign Affairs, and the DPRK Am bassador to the United Nations and his diplomatic associates in New York, this high-level delegation visit is being viewed in a very positive way by Pyongyang.

Additionally, the petitioner states that the humanitarian aid work that Samaritan’s Purse conducts in North Korea is by definition in the public interest and that this flight will allow for the better provision of services to the people of North Korea.

The FAA also received a letter from the U.S. De partment of State indica ting that it has no foreign policy objections to Samaritan’s Purse’s travel to North Korea or the approval of an exemption from SFAR 79 for a single flight operated by Samaritan’s Purse to fly to North Korea. The Department of State indicated that the humanitarian assistance provi ded in the past by Samaritan’s Purse and its current projects in North Korea ar e in the public interest in the view of the Department of State, respond to the needs of the North Korean people, and will foster goodwill among the North Korean people toward the United St ates government and the people of the United States. The Department of Stat e stated that, accordingly, it supports the grant of an exemption to Samaritan’s Purse for this humanitarian-related pu rpose. In addition, the Department of State noted the security issues attendant upon travel to North Kore a and the lack of diplomatic or

consular relations between the Un ited States and North Korea.

The FAA has determined that good cause ex ists for waiving the requirement for Federal Register publication, because the exemption, if gran ted, would not set a new precedent, and any delay in acting on this petition would be detrim ental to Samaritan’s Purse. The FAA notes, however, that this trip was apparently the subj ect of extended discussi ons between Samaritan’s

Purse and North Korean officials and calls the petitioner’s attention to 14 CFR § 11.63(d), which directs petitioners to submit petitions for exemp tion 120 days before the effective date of the exemption. Failure to comply with this regulatory requi rement may result in denial of the petition for the date and time requested to allow sufficient time to act on the petition.

The FAA’s analysis is as follows:

In issuing SFAR 79, the FAA found that a combina tion of various factors in the DPRK posed a potential threat to civil aircra ft flying through the Pyongyang Fli ght Information Region (FIR).

The FAA found that tensions on th e Korean peninsula occasionally run high, and as a result, the DPRK maintained a high state of military readiness. The F AA further found that the DPRK military had emphasized the air defense of the Ko rean demilitarized zone (DMZ) and of areas further removed from the DMZ, particularly th e capital city, Pyongyang. The FAA also found that the DPRK air defense system included modern surface-to-air missile systems and interceptor aircraft capable of engaging aircraft at cruising altitudes.

The FAA also stated that it had been unable to determine the current level of coordination and cooperation between civil air traffic authorities and air defense commanders for civil aircraft overflights, including military rules of engagement if an aircraft strays from its assigned flight route. The FAA found that any lack of coordination presented a risk that civil aircraft operating in the Pyongyang FIR west of 132 degrees east longitude could be misidentifie d as a threat by the

DPRK.5

Given the DPRK’s air defense capabilities, in cluding its rules of engagement and limited capability to distinguish between military and civil aircraft, the FAA determined that civil aircraft operating in the Pyongyang FIR west of 132 degrees east longitude could be misidentified and inadvertently engaged by the DPRK. The FAA found that this potential threat justified the imposition of certain measures on U.S. civil flig ht operations to ensure the safety of U.S.- registered aircraft and operat ors considering flight operations in the Pyongyang FIR west of 132 degrees east longitude.

The FAA stated that, since it had not yet reviewed all applicable safety information provided by the DPRK and necessary for operators to meet in ternational safety standards prescribed by the International Civil Aviation Organization (ICAO), it had not determ ined that the proper level of operational overflight safety coul d be assured east of 132 degrees east longitude. Remaining

issues for review included:

1) Differences from ICAO standards, if any; 2) Search and rescue capa bilities and procedures; 3) DPRK military pilot training in the prope r civil aircraft intercept procedures; and 4) Communications links othe r than air-ground communication.

The FAA also stated that it needed to publish related information for its International Flight

Information Manual. The FAA further stated that, once this information was reviewed and published, the FAA was prepared to amend SFAR 79 as warranted to permit flights east of 132 degrees east longitude and to publish a Notice to Airmen indicating that such flights are permitted and where to find the information supplied by the DPRK.

On the basis of the information above, and in furtherance of the FAA’s responsibilities to promote the safety of flight of civil ai rcraft in air commerce, the FAA de termined that immediate action by the FAA was required to ensure there was no damage to or loss of U.S.-register ed aircraft or injury to U.S. civil operators conducti ng flights through the Pyongyang FI R. The FAA found that the current air defense capabilities in th e DPRK, as well as the need to review safety information from the DPRK necessary to determine the proper leve l of operational overflight safety, presented a potential hazard to the operation of civil aircraft in the Pyongyang FIR. The FAA determined that

the issuance of SFAR 79 was necessa ry to prevent an undue hazard to U.S.-registered aircraft and to protect persons on board such aircraft.

After the issuance of the original version of SFAR 79, the DPRK sent the FAA a copy of its new Aeronautical Information Publication. Following a review of this material, the FAA determined that the proper level of flight safety could be assured for overfli ghts occurring in the international airspace of the FIR east of 132 degr ees east longitude. In particular , the FAA stated that it was

satisfied with the informati on in the AIP concerning:

1) search and re scue capabilities; 2) civil aircraft in tercept procedures; and 3) communication links other than air-to-ground communication.6

Therefore, the FAA amended SFAR 79 to remove the prohibition on flights by U.S.-registered aircraft and U.S. operators in that airspace. B ecause the Office of Foreig n Assets Control of the U.S. Department of Treasury had lifted its prohibition on the paym ent of overflight fees to the DPRK on April 7, 1997, this portion of the Pyongya ng FIR became available to U.S. operators.

However, in amending SFAR 79, the FAA stated that the circumstan ces supporting the FAA’s earlier determination that a potential threat to civi l aircraft operations exists in the area of the Pyongyang FIR west of 132 degrees east longitude had not changed. Specifically, the FAA stated that it stood by its conclusion that the combination of: (1) the DPRK ’s military capabilities; and (2) its rules of engagement posed a potential threat to ci vil aircraft in the area west of 132 degrees east longitude, which includes the DPRK’s territorial airspace. Therefore, in the exercise of its statutory responsibility for the safe ty of U.S.-registered aircraft and U.S. operators, the FAA found that it was necessary to continue its flight prohibition for the area of the Pyongyang FIR west of 132 degrees east longitude.

The FAA has fully considered all of the peti tioner’s supportive information and finds that Samaritan’s Purse is well prepared to operate the proposed flight. In addition, the FAA has determined that for the very limited time peri od involved in this grant of exemption, the two remaining reasons for the necessity of SFAR 79: (1) the DPRK’s military capabilities; and (2) its rules of engagement should not pose a poten tial threat to the single Samaritan’s Purse civil aircraft that would operate in the Pyongyang FIR in the area we st of 132 degrees east longitude, which includes the DPRK’s territorial airspace , provided advance notifi cation of the time of arrival, route of flight, and flight altitude is pr ovided to the DPRK civil ai r traffic and military air defense authorities, and Samaritan’s Purse opera tes in compliance with all requirements imposed by DPRK. As of April 29, 2011, the petiti oner received flight clearance number GACA-10-11

from the Government of North Korea.

Further, the FAA finds that SFAR 79 also prohibits all persons ex ercising the privileges of an airman certificate issued by the FAA from condu cting the proposed operations. Thus, the FAA

finds that relief similar to that issued to Samaritan’s Purse is necessary, and appropriate, for each person involved in the humanitari an effort who would be exercisi ng the privileges of an airman certificate issued by the FAA in connection wi th the flights covere d by this exemption.

The FAA finds that the proposed ex emption would be in the public in terest due to this flight’s humanitarian mission. Additionally, the humanitarian work conducted by Samaritan’s Purse in the DPRK has the potential to foster goodwill toward the United States by the government and people

of North Korea. The FAA further finds that Sama ritan’s Purse is sufficien tly different from the general class of regulated persons who are subjec t to compliance with SFAR 79, so as to justify relief by an exemption rather than the general rulemaking process.7

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exem ption is in the public interest. Therefore, pursuant to the au thority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, Samaritan’s Purse is grante d an exemption from Special Federal Aviation Regulation (SFAR) No. 79—Prohibi tion Against Certain Flights W ithin the Flight Information Region (FIR) of the Democratic Pe ople’s Republic of Korea (DPRK) of Title 14, Code of Federal Regulations. This exemption permits Samaritan’s Purse to operate the proposed flight to Pyongyang, the capital city of the DPRK, de parting the United States on or about May 9, 2011; arriving in Pyongyang on or about May 10, 2011; and departing from Pyongyang on or about May 13, 2011. It also permits those persons who will be exercising th e privileges of airmen certificates issued by the FAA to do so in connection with these specific flight operations. This exemption is subject to the following conditions and limitations.

Conditions and Limitations

1. Prior to conducting any ope ration under this exemption, Sama ritan’s Purse must provide

advance notification to the DPRK civil aviati on and DPRK military air defense authorities

of the:

a) planned entry point into the ZKKP FIR;

b) estimated arrival tim e at the entry point in to the ZKKP FIR;

c) the planned flight altitude; and

d) the planned flight route from the entry point into the ZKKP FIR to Pyongyang.

2. Prior to conducting any ope ration under this exemption, Sa maritan’s Purse must obtain approval from the DPRK civil aviation and DPRK military air defense authorities for the:

a) actual entry point into the ZKKP FIR;

b) actual arrival time at the entry point into the ZKKP FIR;

c) approved flight altitude;

d) approved route of flight fr om the entry point into the ZKKP FIR to Pyongyang.

3. Prior to conducting any opera tion under this exemption, Samaritan’s Purse must obtain any

other authorizations or license s that may be required by other agencies of the United States

Government.

4. A copy of this exemption must be provided to the pilot in command (PIC) of any aircraft operated under this exemption and must be carri ed on board the aircraft operated under this exemption.

5. A copy of the information and approvals obtained in Condition No. 2 above must be provided to the PIC of the aircraft operated under this exemption and must be carried on board any aircraft operated under this exemption.8

6. The FAA requests that Samaritan’s Purse pr ovide the FAA Washington Operations Center Complex with flight updates for aircra ft N900FJ during the upcoming mission to Pyongyang on or about May 9 – 13, 2011. The FAA Washington Operations Center Complex is open 24/7 and can be re ached by telephone at (202) 267-3333.

This exemption terminates at 11:59 p.m. on Ma y 23, 2011, unless sooner superseded or rescinded.

Issued in Washington, D.C., on May 05, 2011.

/s/ Raymond Towles Acting Director, Flight Standards

Service