[Federal Register Volume 62, Number 79 (Thursday, April 24, 1997)]
[Rules and Regulations]
[Pages 20076-20078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10631]
[[Page 20075]]
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Part III
Department of Transportation
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Federal Aviation Administration
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14 CFR Part 91
Prohibition Against Certain Flights Within the Flight Information
Region of the Democratic People's Republic of Korea (DPRK); Final Rule
Federal Register / Vol. 62, No. 79 / Thursday, April 24, 1997 / Rules
and Regulations
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. 28831; Special Federal Aviation Regulation (SFAR) No. 79]
RIN 2120-AG24
Prohibition Against Certain Flights Within the Flight Information
Region of the Democratic People's Republic of Korea (DPRK)
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This action prohibits certain flight operations within the
airspace controlled by the Democratic People's Republic of Korea (DPRK)
by any United States air carrier or commercial operator; by any person
exercising the privileges of an airman certificate issued by the FAA,
except such persons operating U.S.-registered aircraft for a foreign
air carrier; or by an operator using an aircraft registered in the
United States unless the operator of such aircraft is a foreign air
carrier. The DPRK is opening its airspace to routine international
overflights. On April 7, 1997, the U.S. Government lifted its
prohibition on the payment of overflight fees to the DPRK, effectively
opening the airspace to U.S. operators. However, pending the resolution
of outstanding questions related to safety of flight operations in the
area, the FAA will maintain a prohibition on certain flight operations
within the Pyongyang Flight Information Region (FIR). The combination
of the DPRK's military capabilities, rules of engagement, and
inexperience in managing international civil aircraft poses a threat to
civil aircraft in certain areas of the Pyongyang FIR. As a result, the
FAA is prohibiting certain flight operations in the Pyongyang FIR. The
FAA will consider authorizing U.S. flight operations east of 132
degrees east longitude following the review of applicable safety
information received from the DPRK and an FAA determination that the
proper level of safety for the overflights can be assured.
DATES: This SFAR is effective April 18, 1997.
FOR FURTHER INFORMATION CONTACT: Patricia Lane, Airspace and Air
Traffic Law Branch, AGC-230, or Mark W. Bury, International Affairs and
Legal Policy Staff, AGC-7, Office of the Chief Counsel, Federal
Aviation Administration, 800 Independence Avenue, SW., Washington, D.C.
20591; telephone: (202) 267-3515.
SUPPLEMENTARY INFORMATION:
Availability of Document
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339), the Federal Register's electronic bulletin board service
(telephone: 202-512-1661), or the FAA's Aviation Rulemaking Advisory
Committee Bulletin Board service (telephone: 800-FAA-ARAC).
Internet users may reach the FAA's web page at http://www.faa.gov
or the Federal Register's webpage at http://www.access.gpo.gov/su__docs
for access to recently published rulemaking documents.
Any person may obtain a copy of this document by submitting a
request to the Federal Aviation Administration, Office of Rulemaking,
ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by
calling (202) 267-9680. Communications must identify the SFAR number or
docket number of this document.
Persons interested in being placed on the mailing list for future
rules should request from the above office a copy of Advisory Circular
No. 11-2A, Notice of Proposed Rulemaking Distribution System, that
describes the application procedure.
Background
The DPRK is opening its airspace to routine international
overflights. The Office of Foreign Assets Control (OFAC), Department of
Treasury, had prohibited the payment of overflight fees to the DPRK,
effectively closing DPRK airspace to U.S. operators. On April 7, 1997,
the U.S. government lifted the prohibition against the payment of
overflight fees to the DPRK. However, because of the following
concerns, the FAA has determined that immediate action is necessary to
prohibit certain flight operations within DPRK airspace.
The Federal Aviation Administration (FAA) is responsible for the
safety of flight in the United States and for the safety of U.S.-
registered aircraft and U.S. operators throughout the world. Section
40101(d)(1) of Title 49, United States Code, requires the Administrator
of the FAA to consider the regulation of air commerce in a manner that
best promotes safety and fulfills the requirements of national security
as being in the public interest. Section 44701(a) of Title 49, United
States Code, provides the FAA with broad authority to carry out this
policy by prescribing regulations governing the practices, methods, and
procedures necessary to ensure safety in air commerce.
In the exercise of these statutory responsibilities, the FAA has
determined that the combination of various factors in the DPRK poses a
potential threat to civil aircraft flying through the Pyongyang FIR.
Tensions on the Korean peninsula occasionally run high, and as a result
the DPRK maintains a high state of military readiness. The DPRK
military has emphasized the air defense of the Korean demilitarized
zone (DMZ) and of areas further removed from the DMZ, particularly the
capital city, Pyongyang. The DPRK air defense system includes modern
surface-to-air missile systems and interceptor aircraft capable of
engaging aircraft at cruising altitudes. The FAA has been unable to
determine the current level of coordination and cooperation between
civil air traffic authorities and air defense commanders for civil
aircraft overflights, including military rules of engagement if an
aircraft strays from its assigned flight route. Any lack of
coordination presents a risk that civil aircraft operating in the
Pyongyang FIR west of 132 degrees east longitude could be misidentified
as a threat by the DPRK.
Given the DPRK's air defense capabilities, including its rules of
engagement and limited capability to distinguish between military and
civil aircraft, the FAA has determined that civil aircraft operating in
the Pyongyang FIR west of 132 degrees east longitude could be
misidentified and inadvertently engaged by the DPRK. This potential
threat justifies the imposition of certain measures on U.S. flight
operations to ensure the safety of U.S.-registered aircraft and
operators considering flight operations in the Pyongyang FIR west of
132 degrees east longitude.
Further, since the FAA has not yet reviewed all applicable safety
information provided by the DPRK and necessary for operators to meet
international safety standards prescribed by the International Civil
Aviation Organization, it has not determined that the proper level of
operational overflight safety can be assured east of 132 degrees east
longitude. Remaining issues for review include differences from ICAO
standards, if any; search and rescue capabilities and procedures; DPRK
military pilot training in the proper civil aircraft intercept
procedures; and communications links other than air-ground
communication. The FAA also needs to publish related information for
its International Flight Information
[[Page 20077]]
Manual. Once this information is reviewed and published, the FAA is
prepared to amend this SFAR as warranted to permit flights east of 132
degrees east longitude and to publish a Notice to Airmen (NOTAM)
indicating that such flights are permitted and where to find the
information supplied by the DPRK.
Prohibition Against Certain Flights Within the Flight Information
Region of the Democratic People's Republic of Korea (DPRK)
On the basis of the information above, and in furtherance of my
responsibilities to promote the safety of flight of civil aircraft in
air commerce, I have determined that immediate action by the FAA is
required to ensure there is no damage to or loss of U.S.-registered
aircraft or injury to U.S. operators conducting flights through the
Pyongyang FIR. I find that the current air defense capabilities in the
DPRK, as well as the need to review safety information from the DPRK
necessary to determine the proper level of operational overflight
safety, presents a potential hazard to the operation of civil aircraft
in the Pyongyang FIR. Accordingly, I am ordering a prohibition of
flight operations within the Pyongyang FIR by any U.S. carrier or
commercial operator; by any person exercising the privileges of an
airman certificate issued by the FAA, except persons operating U.S-
registered aircraft for a foreign air carrier; or by an operator using
an aircraft registered in the United States unless the operator of such
aircraft is a foreign air carrier. The FAA will amend this SFAR to
permit flight operations east of 132 degrees east longitude once it
evaluates certain information from the DPRK and determines that the
proper level of operational overflight safety can be assured. The
flight prohibition is necessary to prevent an undue hazard to U.S-
registered aircraft and to protect persons on board such aircraft.
Operations approved by the Administrator, or by another agency of the
United States Government with FAA approval, and certain emergency
operations shall be excepted from the prohibition.
Because the circumstances described in this notice warrant
immediate action by the FAA to maintain the safety of flight, I also
find that notice and public comment under 5 U.S.C. 553(b) are
impracticable and contrary to the public interest. Further, I find that
good cause exists for making this rule effective immediately upon
issuance. I also find that this action is fully consistent with my
obligations under 49 U.S.C. 40105(b)(1)(A) to ensure that I exercise my
duties consistently with the obligations of the United States under
international agreements. The Department of State has been advised of,
and has no objection to, the action taken herein.
This rule shall remain effective until further notice.
Regulatory Evaluation
Benefits
This regulation will generate potential benefits in the form of
ensuring that the current acceptable level of safety continues for U.S.
commercial air carriers and other operators. Since this action is
promulgated prior to the occurrence of a serious incident resulting in
loss of life or damage to or destruction of property, there are no
statistics from which a quantitative estimate of benefits can be
derived.
Costs
The SFAR will impose a potential incremental cost of compliance in
the form of the circumnavigation (including the additional time for
preflight planning) of the Pyongyang FIR. Based on information
available to informed FAA personnel, there are no U.S. air carriers or
commercial operators currently conducting revenue flights within the
Pyongyang FIR, and therefore none that will be adversely affected by
this action.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily and
disproportionately burdened by Federal regulations. The RFA requires a
Regulatory Flexibility Analysis if a proposed rule would have
``significant economic impact on a substantial number of small
entities.'' FAA Order 2100.14A outlines the FAA's procedures and
criteria for implementing the RFA. The FAA has determined that none of
the U.S. air carriers affected by the SFAR are ``small entities'' as
defined by FAA Order 2100.14A. Thus, the SFAR would not impose a
``significant economic impact on a substantial number of small
entities.''
Paperwork Reduction Act
This rule contains no information collection requests requiring
approval of the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507 et seq.).
International Trade Impact Assessment
This final rule could have an impact on the international flights
of U.S. air carriers and commercial operators because it will restrict
their ability to fly through the Pyongyang FIR and therefore may impose
additional costs relating to the circumnavigation of this airspace.
This final rule, however, will not restrict the ability of foreign air
carriers to fly through the Pyongyang FIR (unless they are carrying
passengers under a code-share arrangement with a U.S. carrier). Given
the narrow scope of this rule, it will not eliminate existing or create
additional barriers to the sale of foreign aviation products in the
United States or to the sale of U.S. aviation products and services in
foreign countries.
Federalism Determination
The SFAR set forth herein will not have substantial direct effects
on the states, on the relationship between the national government and
the states, or on the distribution of power and responsibilities among
the various levels of government. Therefore, in accordance with
Executive Order 12612 (52 FR 41685; October 30, 1987), it is determined
that this regulation does not have federalism implications warranting
the preparation of a Federalism Assessment.
Conclusion
For the reasons set forth above, FAA has determined that this
action is not a ``significant regulatory action'' under Executive Order
12866. This action is considered a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979).
The FAA has determined that none of the U.S. air carriers affected by
the SFAR are ``small entities'' as defined by FAA Order 2100.14A. Thus,
the FAA certifies that this rule will not have a significant economic
impact, positive or negative, on a substantial number of small entities
under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 91
Aircraft, Airmen, Airports, Air traffic control, Aviation safety,
Freight, Democratic People's Republic of Korea.
The Amendment
For the reasons set forth above, the Federal Aviation
Administration is amending 14 CFR part 91 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(g), 40103, 40113, 40120, 44101, 44111,
44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306,
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46315, 46316, 46502, 46504, 46506-46507, 47122, 47508, 47528-47531.
2. Special Federal Aviation Regulation (SFAR) No. 79 is added to
read as follows:
Special Federal Aviation Regulation (SFAR) No. 79--Prohibition Against
Certain Flights Within the Flight Information Region (FIR) of the
Democratic People's Republic of Korea (DPRK).
1. Applicability. This rule applies to the following persons:
(a) All U.S. air carriers or commercial operators.
(b) All persons exercising the privileges of an airman
certificate issued by the FAA, except such persons operating U.S.-
registered aircraft for a foreign air carrier.
(c) All operators of aircraft registered in the United States
except where the operator of such aircraft is a foreign air carrier.
2. Flight Prohibition. (a) Except as provided in paragraphs
2(b), 3, and 4 of this SFAR, no person described in paragraph 1 may
conduct flight operations through the Pyongyang FIR.
(b) Flight operations within the Pyongyang FIR east of 132
degrees east longitude are prohibited until the FAA determines,
based on information from the DPRK civil aviation authority, that
the proper level of operational overflight safety can be assured.
The FAA will amend this SFAR and publish a notice to airmen (NOTAM)
to permit flights east of 132 degrees east longitude once this
determination is made.
3. Permitted operations. This SFAR does not prohibit persons
described in paragraph 1 from conducting flight operations within
the Pyongyang FIR where such operations are authorized either by
exemption issued by the Administrator or by another agency of the
United States Government with FAA approval.
4. Emergency situations. In an emergency that requires immediate
decision and action for the safety of the flight, the pilot in
command on an aircraft may deviate from this SFAR to the extent
required by that emergency. Except for U.S. air carriers and
commercial operators that are subject to the requirements of 14 CFR
parts 121, 125, or 135, each person who deviates from this rule
shall, within ten (10) days of the deviation, excluding Saturdays,
Sundays, and Federal holidays, submit to the nearest FAA Flight
Standards District Office a complete report of the operations of the
aircraft involved in the deviation, including a description of the
deviation and the reasons therefore.
5. Expiration. This Special Federal Aviation Regulation No. 79
will remain in effect until further notice.
Issued in Washington, DC, on April 18, 1997.
Barry L. Valentine,
Acting Administrator.
[FR Doc. 97-10631 Filed 4-23-97; 8:45 am]
BILLING CODE 4910-13-M