[Federal Register Volume 63, Number 31 (Tuesday, February 17, 1998)]
[Rules and Regulations]
[Pages 8016-8018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3837]


     

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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; Final Rule

  Federal Register / Vol. 63, No. 31 / Tuesday, February 17, 1998 / 
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-AG48


Prohibition against certain flights within the Flight Information 
Region of the Democratic People's Republic of Korea

AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.

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SUMMARY: This action amends SFAR 79, issued on April 18, 1997, to 
permit certain flight operations within the international 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; 
and by any operator using an aircraft registered in the United States. 
Due to the lack of certain information from the DPRK necessary to the 
safety of flight operations in the area, the FAA issued SFAR 79, which 
prohibits certain flight operations within the Pyongyang Flight 
Information Region (FIR), pending resolution of outstanding questions 
related to safety of flight operations in the area. The FAA recently 
completed a review of safety information from the DPRK, and has 
determined that an acceptable level of safety exists in the Pyongyang 
FIR east of 132 degrees east longitude. The FAA therefore amends SFAR 
79 to remove the prohibition on flight operations in that area.

DATES: This amendment to SFAR 79 is effective February 17, 1998.

FOR FURTHER INFORMATION CONTACT: Mark W. Bury, International Affairs 
and Legal Policy Staff, AGC-7, Office of the Chief Counsel, Federal 
Aviation Administration, 800 Independence Avenue, SW., Washington, DC 
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

    On April 18, 1997, the FAA issued SFAR 79 prohibiting certain 
flight operations within the Pyongyang FIR (62 FR 20076; April 24, 
1997). In the exercise of its statutory responsibility for the safety 
of U.S.-registered aircraft and U.S. operators, the FAA determined a 
flight prohibition was justified by a combination of factors in the 
DPRK that posed a potential threat to civil aircraft flying through the 
area of the Pyongyang FIR west of 132 degrees east longitude, and by 
the lack of information from the DPRK indicating that flight safety 
could be assured for civil aircraft operating in the Pyongyang FIR east 
of 132 degrees east longitude.
    The DPRK subsequently sent the FAA a copy of their new Aeronautical 
Information Publication (AIP). Following a review of this material, the 
FAA now has determined that the proper level of flight safety can be 
assured for overflights occurring in the international airspace of the 
FIR east of 132 degrees east longitude. In particular, the FAA is 
satisfied with the information in the AIP concerning search and rescue 
capabilities, civil aircraft intercept procedures, and communication 
links other than air-to-ground communication. Therefore, the FAA is 
amending this SFAR to remove the prohibition on flights by U.S.-
registered aircraft and U.S. operators in that airspace. Because the 
Office of Foreign Assets Control of the U.S. Department of Treasury 
lifted its prohibition on the payment of overflight fees to the DPRK on 
April 7, 1997, this portion of the Pyongyang FIR is now available to 
U.S. operators.
    The circumstances supporting the FAA's earlier determination that a 
potential threat to civil aircraft operations exists in the area of the 
Pyongyang FIR west of 132 degrees east longitude have not changed. 
Specifically, the FAA stands by its conclusion that the combination of 
the DPRK's military capabilities and it's rules of engagement poses a 
potential threat to civil aircraft in the area west of 132 degrees east 
longitude, which includes the DPRK's territorial airspace. Therefore, 
in the exercise of its statutory responsibility for the safety of U.S.-
registered aircraft and U.S. operators, the FAA will continue its 
flight prohibition for the area of the Pyongyang FIR west of 132 
degrees east longitude.

Amendment of 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 SFAR 79 should be amended to 
permit flight operations by U.S.-registered aircraft and U.S. operators 
in the area of the Pyongyang FIR east of 132 degrees east longitude. I 
also have determined that circumstances justify the continued 
prohibition of flight operations within the Pyongyang FIR west of 132 
degrees east longitude 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.
    In order to make pilots aware immediately of the lifting of certain 
restrictions affecting flight operations within international airspace 
controlled by the DPRK and to avoid any confusion by the pilots 
concerning areas safe for flight, I find that notice and public comment 
under 5 USC 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 USC 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 not objection to, the action taken 
herein.
    This rule shall remain effective until further notice.

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Regulatory Evaluation Summary

    In accordance with SFAR 79, United States air carriers and 
commercial operators currently use alternate routes to avoid the 
Democratic People's Republic of Korea's (DPRK) territory and airspace. 
Navigating around DPRK territory and airspace results in increased 
variable operation costs, primarily for any United States air carriers 
operating in the region. However, based on information in the original 
SFAR, there were no U.S. air carriers or commercial operators 
conducting revenue flights within the DPRK airspace, and as such, would 
not be adversely affected by the requirements of the original SFAR.
    There are no costs, only cost savings, associated with this 
amendment to SFAR 79, because now flights by United States air carriers 
will be allowed through DPRK airspace east of 132 degrees east 
longitude. Costs savings are associated with the elimination of the 
alternate routes, and subsequent reduced flying time, to circumnavigate 
the Pyongyang FIR east of 132 degrees east longitude, as required by 
the original SFAR. The cost savings are represented by a decrease in 
variable operating costs, which the FAA estimates to be approximately 
$3,200 per hour for a wide-body aircraft. Additionally, there is no 
undue hazard to persons and aircraft, because the FAA has reviewed all 
applicable safety information provided by DPRK and has determined that 
DPRK's regulations, procedures and capabilities conform to 
international safety standards.
    Therefore, because there are some cost savings associated with this 
action, along with no reduction in aviation safety, the FAA has 
determined that the amendment to SFAR 79 is cost beneficial.

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 No. 2100.14A outlines the FAA's procedures and 
criteria for implementing the RFA. The FAA has determined that none of 
the United States air carriers or commercial operators that operate in 
the region are ``small entities'' as defined under FAA Order No. 
2100.14A. Therefore, the FAA certifies that this SFAR would not impose 
a ``significant economic impact on a substantial number of small 
entities.''

International Trade Impact Assessment

    When the FAA promulgated SFAR 79, the FAA found that the SFAR could 
have an adverse impact on the international flights of United States 
air carriers and commercial operators because it could marginally 
increase their operating costs and flight times relative to foreign 
carriers who overfly the Pyongyang FIR. This action lifts some of the 
restrictions on United States air carriers or commercial operators 
originally imposed by SFAR 79. Therefore, the FAA believes that the 
amended SFAR would reduce the competitive disadvantage placed upon 
United States air carriers, and would have a positive effect on the 
sale of United States aviation products and services in foreign 
countries.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (the Act), 
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal 
agency, to the extent permitted by law, to prepare a written assessment 
of the effects of any Federal mandate in a proposed or final agency 
rule that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year. 
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal 
agency to develop an effective process to permit timely input by 
elected officers (or their designees) of State, local, and tribal 
governments on a proposed ``significant intergovernmental mandate.'' A 
``significant intergovernmental mandate'' under the Act is any 
provision in a Federal agency regulation that would impose an 
enforceable duty upon State, local, and tribal governments, in the 
aggregate, of $100 million (adjusted annually for inflation) in any one 
year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section 
204(a), provides that before establishing nay regulatory requirements 
that might significantly or uniquely affect small governments, the 
agency shall have developed a plan that, among other things, provides 
for notice to potentially affected small governments, if any, and for a 
meaningful and timely opportunity to provide input in the development 
of regulatory proposals.
    This rule does not contain any Federal intergovernmental or private 
sector mandate. Therefore, the requirements of Title II of the Unfunded 
Mandates Reform Act of 1995 do not apply.

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 USC 3507 et seq.)

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 Federal Assessment.

List of Subjects in 14 CFR Part 91

    Aircraft, Airmen, Airports, Air traffic control, Aviation safety, 
Democratic People's Republic of Korea, Freight.

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 USC 106(g), 40103, 40113, 40120, 44101, 44111, 
44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 
46315, 46316, 46502, 46504, 46506-46507, 47122, 47508, 47528-47531.

    2. Paragraphs 2 and 3 of SFAR 79 are revised 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)
* * * * *
    2. Flight Prohibition. Except as provided in paragraphs 3 and 4 
of this SFAR, no person described in paragraph 1 may conduct flight 
through the Pyongyang FIR west of 132 degrees east longitude.
    3. Permitted Operations. This SFAR does not prohibit persons 
described in paragraph 1 from conducting flight operations within 
the Pyongyang FIR west of 132 degrees east longitude where such 
operations are authorized either by exemption issued by the 
Administrator or by another agency of the United States Government 
with FAA approval.
* * * * *

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    Issued in Washington, DC on February 10, 1998.
Jane F. Garvey,
Administrator.
[FR Doc. 98-3837 Filed 2-11-98; 12:27 pm]
BILLING CODE 4910-13-M