[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 [www.gpo.gov]
[FR Doc No: 2023-20017]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 https://www.regulations.gov 
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 https://www.federalregister.gov and the Government Publishing Office's website 
at https://www.govinfo.gov. A copy may also be found at the FAA's 
Regulations and Policies website at https://www.faa.gov/regulations_policies.
    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 https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

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


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>