[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]



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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

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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