Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Rules and Regulations 63519 

received hundreds of inquiries through 

emails, phone calls, and in-person 

questions about the remote 

identification operational compliance 

date. Flight Standards District Offices 

alone are receiving over 10 emails a day 

related to remote identification 

requirements. The FAA UAS Support 

Center has received over 380 inquires 

over the past 60 days. Their primary 

inquiry was about the compliance date 

and the inability to obtain remote 

identification modules. UAS operators 

within the Commercial Drone Alliance, 

the Association of Uncrewed Vehicle 

Systems International, multiple public 

safety agencies such as the Nebraska 

Department of Transportation and the 

Iowa Department of Transportation, as 

well as FAA Lead Participants in the 

BEYOND program, have all indicated 

that they are encountering significant 

difficulty obtaining remote 

identification broadcast modules, which 

would allow continued operation of 

existing unmanned aircraft instead of 

purchasing new standard remote 

identification unmanned aircraft. Those 

difficulties are primarily related to 

availability of broadcast modules, the 

shipping timelines for broadcast 

modules, and the cost of those modules. 

Data from the FAA Drone Zone as of 

August 28, 2023, shows that there are 

261,143 operators flying with a remote 

pilot certificate under 14 CFR part 107 

and 328,372 recreational flyers 

operating under the provisions of 49 

U.S.C. 44809 who are not remote 

identification equipped. The FAA has 

also received feedback from operators, 

including numerous public safety 

agencies, about difficulties in obtaining 

firmware updates to some existing 

models of unmanned aircraft to activate 

standard remote identification 

capabilities and make them remote 

identification compliant. 

As a separate matter, as of August 18, 

2023, the FAA has approved 412 

applications for FRIAs, with 1,206 yet to 

be reviewed. The FAA has endeavored 

to review these FRIA applications as 

quickly as possible but expects a large 

increase in applications as the 

mandatory compliance date approaches. 

This influx is expected to increase the 

application processing backlog and 

impair the ability of recreational 

operators to comply with the rule. The 

FAA anticipates that the supply of 

remote identification broadcast 

modules, resolution of firmware issues, 

and approval of FAA-recognized 

identification areas will increase in the 

next six months. 

Statement of Policy 

The FAA recognizes that it has yet to 

evaluate a majority of submitted 

applications for FAA-recognized 

identification areas. The FAA also 

recognizes the unanticipated issues that 

operators are facing related to the 

availability of remote identification 

broadcast modules. The FAA has 

continued to monitor this situation as 

long as possible before making a 

determination, but with less than a 

month remaining until the operational 

compliance date, the FAA 

acknowledges that for many operators, 

compliance with § 89.105 may prove 

difficult or impossible in the timeframe 

presented. While some operators, such 

as those who are using standard remote 

identification unmanned aircraft or 

those operating in FRIAs that have 

already been approved by the FAA, will 

be able to comply with the rule, the 

cumulative effect of the current state of 

the compliance issues reported to the 

FAA could otherwise cause a cessation 

of numerous UAS operations, which is 

not consistent with the FAA’s intent for 

this rule or its statutory mandate to 

integrate UAS operations into the 

National Airspace System. 

Accordingly, the FAA will exercise its 

discretion in determining how to handle 

any apparent noncompliance, including 

exercising discretion to not take 

enforcement action, if appropriate, for 

any noncompliance that occurs on or 

before March 16, 2024—the six-month 

period following the compliance 

deadline for operators initially 

published in the Remote Identification 

of Unmanned Aircraft final rule, RIN 

2120–AL31. The exercise of 

enforcement discretion herein creates 

no individual right of action and 

establishes no precedent for future 

determinations. 

Issued in Washington, DC, on September 

12, 2023. 

Taneesha Dobyne Marshall, 

Assistant Chief Counsel for Aviation 

Litigation, Federal Aviation Administration. 

[FR Doc. 2023–20074 Filed 9–13–23; 11:15 am] 

BILLING CODE 4910–13–P 

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 bill.petrak@faa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

This action extends the expiration 

date of SFAR No. 79, § 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 


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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, § 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 antiaircraft 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 overrestrictive, 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 underrestrictive, 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. 


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1For a more detailed history of SFAR No. 79, 

§ 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). 

2Extension of the Prohibition Against Certain 

Flights in the Pyongyang Flight Information Region 

(FIR) (ZKKP) final rule, 85 FR 55372 (Sept. 8, 2020). 

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. 

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 rocketassociated 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. 


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3This 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. 

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, 

§ 91.1615, from September 18, 2023, 

until September 18, 2028. 

Further amendments to SFAR No. 79, 

§ 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, § 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, § 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, 

§ 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). 

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, § 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— 

• The proposed operation(s), 

including the nature of the mission 

being supported; 

• The service the person(s) covered 

by the SFAR will provide; 

• 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 

• 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 premission 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, § 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. 


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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, 

§ 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: 

• The proposed operation(s), 

including the nature of the operation(s); 

• The service the person(s) covered 

by the SFAR will provide; 

• 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; 

• 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 

• 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, § 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, § 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 


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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 


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Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Rules and Regulations 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 

■ 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). 

■ 2. Amend § 91.1615 by revising 

paragraph (e) to read as follows: 

§ 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 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2023–0632] 

RIN 1625–AA00 

Safety Zone; Bay St. Louis, MS 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone for 

navigable waters at the opening of Bay 

St. Louis, extending the entire width of 

the channel, approximately 1⁄2 mile 

south of the Hwy 90 Bridge. This safety 

zone is needed to protect personnel, 

vessels, and the marine environment 

from potential hazards created by the 

2023 Swim Across the Bay. Entry of 

vessels or persons into this zone is 

prohibited unless specifically 

authorized the Captain of the Port 

Sector Mobile (COTP) or a designated 

representative. 

DATES: This rule is effective from 7 a.m. 

through 10 a.m. on September 17, 2023. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2023– 

0632 in the search box and click 

‘‘Search.’’ Next, in the Document Type 

column, select ‘‘Supporting & Related 

Material.’’ 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Lieutenant Lawrence J. Schad, 

Sector Mobile, Waterways Management 

Division, U.S. Coast Guard; telephone 

251–441–5678, email 

sectormobilewaterways@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

The Coast Guard is issuing this 

temporary final rule without prior 

notice and opportunity to comment 

pursuant to authority under section 4(a) 

of the Administrative Procedure Act 

(APA) (5 U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(3)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because it is 

impracticable and contrary to the public 

interest. It is impracticable to publish an 

NPRM because we must establish this 

safety zone by September 17th, 2023, 

and lack sufficient time to provide a 

reasonable comment period and then 

consider those comments before issuing 

the rule. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. Delaying the effective date of 

this rule is contrary to public interest 

because it would delay the safety 

measures necessary to respond to 

potential safety hazards associated with 

the 2023 Swim Across the Bay. 

Immediate action is needed to protect 

vessels and mariners from the safety 

hazards associated with 2023 Swim 

Across the Bay. 

III. Legal Authority and Need for Rule 

The Coast Guard is issuing this rule 

under authority in 33 U.S.C. 1231. The 

Captain of the Port Sector Mobile 

(COTP) has determined that potential 


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