83 FR 47059 - Amendment of the Prohibition Against Certain Flights in the Pyongyang Flight Information Region (FIR) (ZKKP)

DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration

Federal Register Volume 83, Issue 181 (September 18, 2018)

This action amends 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 where the operator of such aircraft is a foreign air carrier. The FAA is also providing an approval process and exemption information for this Special Federal Aviation Regulations (SFAR), consistent with the approval process and exemption information for more recently published flight prohibition SFARs. This final rule will remain in effect for 2 years.

[Federal Register Volume 83, Number 181 (Tuesday, September 18, 2018)]
[Rules and Regulations]
[Pages 47059-47065]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-20173]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No.: FAA-2018-0838; Amdt. No. 91-352]
RIN 2120-AL34


Amendment of the Prohibition Against Certain Flights in the 
Pyongyang Flight Information Region (FIR) (ZKKP)

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This action amends 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 where 
the operator of such aircraft is a foreign air carrier. The FAA is also 
providing an approval process and exemption information for this 
Special Federal Aviation Regulations (SFAR), consistent with the 
approval process and exemption information for more recently published 
flight prohibition SFARs. This final rule will remain in effect for 2 
years.

DATES: This final rule is effective on September 18, 2018.

FOR FURTHER INFORMATION CONTACT: Michael Filippell, Air Transportation 
Division, Flight Standards Service, Federal Aviation Administration, 
800 Independence Avenue SW, Washington, DC 20591; telephone 202-267-
8166; email [email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    This action amends the prohibition of flight operations in the 
Pyongyang FIR (ZKKP) \1\ 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 where the operator of such aircraft 
is a foreign air carrier. From February 17, 1998, until November 3, 
2017, the FAA prohibited U.S. civil aviation operations in the 
Pyongyang FIR (ZKKP) west of 132 degrees east longitude under SFAR No. 
79 due to the hazardous situation created by North Korea's military 
capabilities and its rules of engagement. On November 3, 2017, the FAA 
issued KICZ Notice to Airmen (NOTAM) A0023/17, prohibiting U.S. civil 
aviation operations in the entire Pyongyang FIR (ZKKP) due to the 
hazardous situation created by North Korean military capabilities and 
activities, including unannounced North Korean missile launches and air 
defense weapons systems. This amendment to SFAR No. 79 incorporates the 
November 3, 2017 NOTAM's expanded flight prohibition into the Code of 
Federal Regulations (CFR). The FAA finds this action necessary due to 
continued hazards to U.S. civil aviation operations in the entire 
Pyongyang FIR (ZKKP).
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    \1\ The FAA notes that, prior to this rule, the FAA referred to 
the Pyongyang FIR (ZKKP) as ``the flight information region of the 
Democratic People's Republic of Korea (DPRK)'' in the title of SFAR 
No. 79. The FAA has changed that reference in this rule to more 
accurately represent the FIR name, in accordance with International 
Civil Aviation Organization (ICAO) naming conventions. The 
Democratic People's Republic of Korea (DPRK) is the official name of 
North Korea.
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    Further, this action moves SFAR No. 79 into subpart M, Special 
Federal Aviation Regulations, of part 91 and adds an expiration date, 
consistent with other flight prohibition SFARs. The FAA also is 
providing an approval process and exemption information for SFAR No. 
79, 14 CFR 91.1615, consistent with the approval process and exemption 
information for more recently published flight prohibition SFARs.
    SFAR No. 79, Sec.  91.1615, will expire on September 18, 2020.

[[Page 47060]]

II. Legal Authority and Good Cause

A. Legal 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. The FAA Administrator's 
authority to issue rules on aviation safety is found in title 49, U.S. 
Code, Subtitle I, sections 106(f) and (g). 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 his authority consistently with the 
obligations of the U.S. Government under international agreements.
    This rulemaking is promulgated under the authority described in 
Subtitle VII, Part A, subpart III, section 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 FAA's authority, because it 
prohibits the persons subject to paragraph (a) of SFAR No. 79, Sec.  
91.1615, (formerly paragraph (1)) from conducting flight operations in 
the entire Pyongyang FIR (ZKKP) due to the continued hazards to the 
safety of such persons' flight operations, as described in the 
Background section of this final rule.

B. Good Cause for Immediate Adoption

    Section 553(b)(3)(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.'' Section 553(d) also 
authorizes agencies to forgo the delay in the effective date of the 
final rule for good cause found and published with the rule. In this 
instance, the FAA finds good cause to forgo notice and comment because 
notice and comment would be impracticable and contrary to the public 
interest. To the extent that the rule is based upon classified 
information, such information is not permitted to be shared with the 
general public. Also, threats to U.S. civil aviation and intelligence 
regarding these threats are fluid. As a result, the agency's original 
proposal could become unsuitable for minimizing the hazards to U.S. 
civil aviation in the affected airspace during or after the notice and 
comment process. The FAA further finds an immediate need to address the 
hazardous situation for U.S. civil aviation that exists in the 
Pyongyang FIR (ZKKP) due to North Korean military capabilities and 
activities, including unannounced North Korean missile launches and air 
defense weapons systems. These hazards are further described in the 
Background section of this rule.
    For these reasons, the FAA finds good cause to forgo notice and 
comment and any delay in the effective date for this rule. The FAA also 
finds that this action is fully consistent with the obligations under 
49 U.S.C. 40105(b)(1)(A) to ensure that the FAA exercises its duties 
consistently with the obligations of the United States under 
international agreements.

III. Background

    On April 24, 1997, the FAA published a final rule, SFAR No. 79, 
which prohibited certain U.S. civil flight operations within the entire 
FIR of the Democratic People's Republic of Korea (DPRK or North Korea), 
i.e., the Pyongyang FIR (ZKKP). 62 FR 20076. In its original form, SFAR 
No. 79 prohibited all U.S. air carriers or commercial operators; all 
persons exercising the privileges of an airman certificate issued by 
the FAA, except such persons operating U.S.-registered aircraft for a 
foreign air carrier; and all operators of aircraft registered in the 
U.S., except where the operator of such aircraft is a foreign air 
carrier, from conducting flight operations through the Pyongyang FIR 
(ZKKP). At that time, North Korea had begun allowing routine 
international overflights, and the U.S. Government had lifted its 
prohibition on the payment of overflight fees to North Korea, which had 
the practical effect of allowing U.S. operators to fly in the Pyongyang 
FIR (ZKKP). Nevertheless, the FAA determined that a variety of factors 
in North Korea posed a potential threat to civil aircraft flying 
through the Pyongyang FIR (ZKKP), necessitating an FAA flight 
prohibition.
    These factors included the potential for periods of heightened 
tension on the Korean peninsula, North Korea's high state of military 
readiness and emphasis on air defense of certain areas, and the fact 
that the North Korean air defense system included modern surface-to-air 
missile systems and interceptor aircraft capable of engaging aircraft 
at cruising altitudes. The FAA further stated that it had been unable 
to determine the level of coordination and cooperation between North 
Korean civil air traffic authorities and air defense commanders for 
civil aircraft overflights, including military rules of engagement if 
an aircraft were to stray from its assigned flight route. The FAA was 
concerned that any lack of coordination, combined with North Korea's 
air defense capabilities, including its rules of engagement and limited 
capability to distinguish between military and civil aircraft, could 
result in civil aircraft operating in the Pyongyang FIR (ZKKP) west of 
132 degrees east longitude being misidentified and inadvertently 
engaged by North Korea. In the FAA's view, this potential threat 
justified a prohibition on U.S. civil aviation operations in the 
Pyongyang FIR (ZKKP) west of 132 degrees east longitude.
    With respect to U.S. civil aviation operations in the Pyongyang FIR 
(ZKKP) east of 132 degrees east longitude, the FAA indicated that, 
since it had not yet reviewed all applicable safety information 
provided by North Korea and necessary for operators to meet 
international safety standards prescribed by the International Civil 
Aviation Organization (ICAO), it had not determined that the proper 
level of operational overflight safety could be assured. Remaining 
issues for review included, but were not limited to: Differences from 
ICAO standards, if any; search and rescue capabilities and procedures; 
and North Korean military pilot training in the proper civil aircraft 
intercept procedures. The FAA stated that, once this information was 
reviewed, the FAA was prepared to amend SFAR No. 79, as warranted, to 
permit U.S. civil flights in the Pyongyang FIR (ZKKP) east of 132 
degrees east longitude. 62 FR 20077.
    Subsequently, North Korea provided the FAA with a copy of its 
Aeronautical Information Publication (AIP). Following a review of North 
Korea's AIP, the FAA determined that the proper level of flight safety 
could be assured for overflights occurring in the international 
airspace of the Pyongyang FIR (ZKKP) east of 132 degrees east 
longitude. On February 17, 1998, the FAA published a final rule 
amending SFAR No. 79 to permit U.S. civil aviation to conduct flights 
in the Pyongyang FIR (ZKKP) east of 132 degrees east longitude. 63 FR 
8016; corrected at 63 FR 19286, (Apr. 17, 1998).
    In recent years, North Korea has conducted a number of provocative 
actions that posed flight safety hazards and necessitated the FAA's 
issuance of various advisory NOTAMs regarding the

[[Page 47061]]

Pyongyang FIR (ZKKP) and adjacent areas to warn U.S. civil aviation of 
these hazards. In 2014, North Korea initiated a ballistic missile test 
program involving frequent unannounced missile launches into the Sea of 
Japan. A number of the missiles impacted in the Pyongyang FIR (ZKKP) 
east of the eastern boundary of SFAR No. 79 and in relatively close 
proximity to international air routes transiting the region. North 
Korea, as recently as April 2016, has also employed electronic jamming 
equipment on several occasions for intentional interference with 
aviation and maritime navigation and communication networks. While 
these intentional interference events have primarily impacted flight 
operations in the Incheon (RKRR) FIR, the associated capabilities and 
effects could also affect operations in adjoining airspace, including 
the Pyongyang FIR (ZKKP). In recent months, increased North Korean 
military capabilities and activities, including upgraded air defense 
weapons systems and unannounced North Korean missile launches, have 
increased the risk of U.S. civil aviation operating in the Pyongyang 
FIR (ZKKP) east of 132 degrees east longitude being either 
misidentified as a threat and inadvertently engaged by North Korea or 
struck by a missile or debris from an unannounced launch. Such events 
could involve loss of life, injuries, and property damage.
    In response to this situation, the FAA issued KICZ NOTAM A0023/17 
on November 3, 2017, to prohibit flight operations in the entire 
Pyongyang FIR (ZKKP), including the area east of 132 degrees east 
longitude, 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 where the operator of such aircraft is a foreign 
air carrier.

IV. Discussion of the Final Rule

    As a result of the significant continuing risk to U.S. civil 
aviation in the Pyongyang FIR (ZKKP), including the area east of 132 
degrees east longitude, and given the uncertainty about when the above-
described hazards will abate sufficiently to allow for safe U.S. civil 
aviation operations therein, this amendment to SFAR No. 79, Sec.  
91.1615, incorporates the flight prohibition contained in KICZ NOTAM 
A0023/17. To maintain consistency with other flight prohibition SFARs, 
the FAA moves SFAR No. 79 into subpart M of part 91, Special Federal 
Aviation Regulations. SFAR No. 79 will now be found at 14 CFR 91.1615. 
The FAA also adds an expiration date to SFAR No. 79 of September 18, 
2010. Finally, the FAA is also publishing an approval process and 
exemption information for this SFAR, which is similar to those for more 
recently published flight prohibition SFARs.
    The FAA will continue to actively monitor the situation and 
evaluate the extent to which U.S. civil operators and airmen may be 
able to operate safely in the Pyongyang FIR (ZKKP). Amendments to SFAR 
No. 79, Sec.  91.1615, may be appropriate if the risk to aviation 
safety and security changes. The FAA may amend or rescind SFAR No. 79, 
Sec.  91.1615, as necessary, prior to its expiration date.

V. Approval Process Based on a Request From a Department, Agency, or 
Instrumentality of the United States Government

A. Approval Process Based on a 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 covered under SFAR No. 79, Sec.  
91.1615, including a U.S. air carrier or commercial operator, to 
conduct a charter to transport civilian or military passengers or 
cargo, or other operations, in the Pyongyang (ZKKP) FIR, that 
department, agency, or instrumentality may request the FAA to approve 
persons covered under SFAR No. 79, Sec.  91.1615, to conduct such 
operations.
    An approval request must be made directly by the requesting 
department, agency, or instrumentality of the U.S. Government 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. The senior official signing the letter requesting FAA 
approval on behalf of the requesting department, agency, or 
instrumentality must be sufficiently highly placed within his or her 
organization to demonstrate that the senior leadership of the 
requesting department, agency, or instrumentality supports the request 
for approval and is committed to taking all necessary steps to minimize 
operational 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. The FAA will not 
accept or consider requests for approval by anyone other than the 
requesting department, agency, or instrumentality. Unless justified by 
exigent circumstances, requests for approval must be submitted to the 
FAA no less than 30 calendar days before the date on which the 
requesting department, agency, or instrumentality intends to commence 
the proposed operations.
    The letter must be sent 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 approval request is granted. 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 covered under SFAR 
No. 79, Sec.  91.1615, and/or for multiple flight operations. To the 
extent known, the letter must identify the person(s) expected to be 
covered under the SFAR on whose behalf the U.S. Government department, 
agency, or instrumentality is seeking FAA approval, and it must 
describe--
     The proposed operation(s), including the nature of the 
mission being supported;
     The service to be provided by the person(s) covered by the 
SFAR;
     To the extent known, the specific locations in the 
Pyongyang FIR (ZKKP) where the proposed operation(s) will be conducted, 
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 and/or landing zones at which the aircraft will 
take-off and land; and
     The method by which the 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., pre-mission planning and briefing, in-
flight, and post-flight phases).

[[Page 47062]]

    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). Additional 
operators may be identified to the FAA at any time after the FAA 
approval is issued. However, all additional operators must be 
identified to, and obtain an Operations Specification (OpSpec) or 
Letter of Authorization (LOA), as appropriate, from the FAA for 
operations in the Pyongyang FIR (ZKKP), before such operators commence 
such operations. The approval conditions discussed below apply to any 
such additional operators. Updated lists should be sent to the email 
address to be obtained from the Air Transportation Division by calling 
(202) 267-8166.
    If an approval request includes classified information, requestors 
may contact Aviation Safety Inspector Michael Filippell for 
instructions on submitting it to the FAA. His contact information is 
listed in the FOR FURTHER INFORMATION CONTACT section of this final 
rule.
    FAA approval of an operation under SFAR No. 79, Sec.  91.1615, does 
not relieve persons subject to this SFAR of their responsibility to 
comply with all other applicable FAA rules and regulations. Operators 
of civil aircraft must comply with the conditions of their certificate, 
OpSpecs, and LOAs, as applicable. Operators must also comply with all 
rules and regulations of other U.S. Government departments or agencies 
that may apply to the proposed operation(s), including, but not limited 
to, regulations issued by the Transportation Security Administration.

B. Approval Conditions

    If the FAA approves the request, the FAA's Aviation Safety 
Organization (AVS) will send an approval letter to the requesting 
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; 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 from or related to the approved 
operations in the Pyongyang FIR (ZKKP).
    (3) Other conditions that the FAA may specify, including those that 
may be imposed 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 issued by the FAA under chapter 443 of title 49, U.S. Code.
    If the proposed operations are approved, the FAA will issue an 
OpSpec or an LOA, as applicable, to the operator(s) identified in the 
original request. The FAA-issued OpSpec or LOA, as applicable, 
authorizes the operator(s) to conduct the approved operations. The FAA 
will also notify the department, agency, or instrumentality that 
requested FAA approval of such operation(s) of any additional 
conditions beyond those contained in the approval letter.

VI. Information Regarding Petitions for Exemption

    Any operations not conducted under an approval issued by the FAA 
through the approval process set forth previously must be conducted 
under an exemption from SFAR No. 79, Sec.  91.1615. A petition for an 
exemption must comply with 14 CFR part 11 and requires exceptional 
circumstances beyond those contemplated by the approval process 
described in the previous section. In addition to the information 
required by 14 CFR 11.81, at a minimum, the requestor must describe in 
its submission to the FAA--
     The proposed operation(s), including the nature of the 
operation;
     The service to be provided by the person(s) covered by the 
SFAR;
     The specific locations in the Pyongyang FIR (ZKKP) where 
the proposed operation(s) will be conducted, 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 and/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., pre-mission planning and briefing, in-flight, and post-flight 
phases); and
     The plans and procedures that the operator will use to 
minimize the risks, identified in the Background section of this rule, 
to the proposed operations, so that granting the exemption 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.
    Additionally, the release and agreement to indemnify, as referred 
to previously, are required as a condition of any exemption issued 
under SFAR No. 79, Sec.  91.1615.
    The FAA recognizes that operations that may be affected by SFAR No. 
79, Sec.  91.1615, may be planned for the governments of other 
countries with the support of the U.S. Government. While these 
operations will not be permitted through the approval process, the FAA 
will consider exemption requests for such operations on an expedited 
basis and prior to any private exemption requests.

VII. Regulatory Notices and Analyses

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Orders 12866 and 13563 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), 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.

[[Page 47063]]

    In conducting these analyses, the FAA has determined that 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 it raises novel policy issues contemplated under that 
Executive Order. As notice and comment under 5 U.S.C. 553 are not 
required for this final rule, the regulatory flexibility analyses 
described in 5 U.S.C. 603 and 604 regarding impacts on small entities 
are not required. 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 sector, by exceeding the threshold identified previously.

A. Regulatory Evaluation

    This rule prohibits U.S. civil flights in the entire Pyongyang FIR 
(ZKKP), including the area east of 132 degrees east longitude, due to 
the significant hazards to U.S. civil aviation described in the 
Background section of this preamble. By mid-summer 2017, most, if not 
all, U.S. scheduled operators had voluntarily ceased flying in the 
portion of the Pyongyang FIR (ZKKP) east of 132 degrees east longitude 
due to the hazards posed by unannounced North Korean missile launches 
and increased tensions in the region. Nevertheless, in the rare cases 
where U.S. operators might have opted to transit that area but for this 
final rule, alternative flight routes could result in additional fuel 
usage and other flight time-associated operator costs, as well as costs 
attributed to passenger time. The FAA believes there are very few, if 
any, U.S. operators who intend to operate in the Pyongyang FIR (ZKKP) 
at this time due to the hazards described in the Background section of 
this final rule. The FAA anticipates receiving very few, if any, 
requests to operate in the Pyongyang FIR (ZKKP) east of 132 degrees 
east longitude due to the previously discussed hazards.

    Consequently, the FAA expects the costs of this rule to be minimal 
and these minimal costs to be exceeded by the benefits of avoided risks 
of deaths, injuries, and property damage that could result from a U.S. 
operator's aircraft being shot down (or otherwise damaged).

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, in 5 U.S.C. 603, requires an agency 
to prepare an initial regulatory flexibility analysis describing 
impacts on small entities whenever an agency is required by 5 U.S.C. 
553, or any other law, 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 being required by 
that section or any other law to publish a general notice of proposed 
rulemaking. The FAA found good cause to forgo notice and comment and 
any delay in the effective date for this rule. As notice and comment 
under 5 U.S.C. 553 are not required in this situation, the regulatory 
flexibility analyses described in 5 U.S.C. 603 and 604 are not 
required.

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 effect of this final rule and determined 
that its purpose is to protect the safety of U.S. civil aviation from 
hazards to their operations in the Pyongyang FIR (ZKKP), a location 
outside the U.S. Therefore, the rule is in compliance 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 $155 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 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. The FAA has determined that 
there is no new requirement for information collection associated with 
this final rule.

F. International Compatibility and Cooperation

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA's policy to conform to ICAO 
Standards and Recommended Practices to the maximum extent practicable. 
The FAA has determined that there are no ICAO Standards and Recommended 
Practices that correspond to this regulation.
    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. 
In addition, foreign air carriers and other foreign operators may 
choose to avoid, or be advised/directed by their civil aviation 
authorities to avoid, airspace for which the FAA has issued a flight 
prohibition.

G. Environmental Analysis

    The FAA has analyzed this action under Executive Order 12114, 
Environmental Effects Abroad of Major Federal Actions (44 FR 1957, 
January 4, 1979), 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 that 
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), FAA has prepared a 
memorandum for the record stating the reason(s) for this determination; 
this memorandum has been placed in the docket for this rulemaking.

[[Page 47064]]

VIII. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of 
Executive Order 13132, Federalism. The agency has determined that this 
action would 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, and, therefore, would 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, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). The agency has determined that it 
would not be a ``significant energy action'' under the executive order 
and would 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, Promoting International Regulatory 
Cooperation, (77 FR 26413, May 4, 2012) 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 Order 13609, and has determined 
that this action would have no effect on international regulatory 
cooperation.

D. Executive Order 13771, Reducing Regulation and Controlling 
Regulatory Costs

    This rule is not subject to the requirements of Executive Order 
13771 (82 FR 9339, Feb. 3, 2017) because it is issued with respect to a 
national security function of the United States.

IX. Additional Information

A. Availability of Rulemaking Documents

    An electronic copy of a rulemaking document may be obtained from 
the internet by--
     Searching the Federal Document Management System (FDMS) 
Portal (http://www.regulations.gov);
     Visiting the FAA's Regulations and Policies web page at 
http://www.faa.gov/regulations_policies; or
     Accessing the Government Publishing Office's web page at 
http://www.fdsys.gov.
    Copies may also be obtained by sending a request (identified by 
amendment or docket number of this rulemaking) to the Federal Aviation 
Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue 
SW, Washington, DC 20591, or by calling (202) 267-9677.
    Except for classified material, all documents the FAA considered in 
developing this rule, including economic analyses and technical 
reports, may be accessed from the internet through the Federal Document 
Management System Portal referenced previously.

B. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601) 
requires 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 person listed under the FOR 
FURTHER INFORMATION CONTACT heading at the beginning of the preamble. 
To find out more about SBREFA on the internet, visit http://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), 1155, 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).

Special Federal Aviation Regulation No. 79 [Removed]

0
2. In part 91, remove Special Federal Aviation Regulation No. 79.

0
3. Add Sec.  91.1615 to subpart M 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).

    (a) Applicability. This Special Federal Aviation Regulation (SFAR) 
applies to the following persons:
    (1) All U.S. air carriers and U.S. commercial operators;
    (2) All 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
    (3) All operators of U.S.-registered civil aircraft, except where 
the operator of such aircraft is a foreign air carrier.
    (b) Flight prohibition. Except as provided in paragraphs (c) and 
(d) of this section, no person described in paragraph (a) of this 
section may conduct flight operations in the Pyongyang Flight 
Information Region (FIR) (ZKKP).
    (c) Permitted operations. This section does not prohibit persons 
described in paragraph (a) of this section from conducting flight 
operations in the Pyongyang Flight Information Region (FIR) (ZKKP), 
provided that such flight operations are conducted under a contract, 
grant, or cooperative agreement with a department, agency, or 
instrumentality of the U.S. government (or under a subcontract between 
the prime contractor of the department, agency, or instrumentality and 
the person described in paragraph (a) of this section) with the 
approval of the FAA, or under an exemption issued by the FAA. The FAA 
will consider requests for approval or exemption in a timely manner, 
with the order of preference being: First, for those operations in 
support of U.S. government-sponsored activities; second, for those 
operations in support of government-sponsored activities of a foreign 
country with the support of a U.S. Government department, agency, or 
instrumentality; and third, for all other operations.
    (d) Emergency situations. In an emergency that requires immediate 
decision and action for the safety of the flight, the pilot in command 
of an aircraft may deviate from this section to the extent required by 
that emergency. Except for U.S. air carriers and commercial operators 
that are subject to the requirements of 14 CFR part 119, 121, 125, or 
135, each person who

[[Page 47065]]

deviates from this section must, within 10 days of the deviation, 
excluding Saturdays, Sundays, and Federal holidays, submit to the 
responsible Flight Standards Office a complete report of the operations 
of the aircraft involved in the deviation, including a description of 
the deviation and the reasons for it.
    (e) Expiration. This SFAR will remain in effect until September 18, 
2020. 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), on 
September 4, 2018.
Daniel K. Elwell,
Acting Administrator.
[FR Doc. 2018-20173 Filed 9-17-18; 8:45 am]
 BILLING CODE 4910-13-P