[Federal Register Volume 85, Number 174 (Tuesday, September 8, 2020)]
[Rules and Regulations]
[Pages 55372-55377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19057]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No.: FAA-2018-0838; Amdt. No. 91-352A]
RIN 2120-AL57


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

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

ACTION: Final rule.

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SUMMARY: This action extends the Special Federal Aviation Regulation 
(SFAR) prohibiting certain flight operations in the Pyongyang Flight 
Information Region (FIR) (ZKKP) by all: U.S. air carriers; U.S. 
commercial operators; persons exercising the privileges of an airman 
certificate issued by the FAA, except when such persons are operating 
U.S.-registered aircraft for a foreign air carrier; and operators of 
U.S.-registered civil aircraft, except when the operator of such 
aircraft is a foreign air carrier. The FAA finds this action necessary 
to address significant, continuing hazards to U.S. civil aviation 
associated with North Korean military capabilities and activities, 
including unannounced North Korean missile launches and air defense 
weapons systems. Additionally, the FAA republishes the approval process 
and exemption information for this SFAR, consistent with other recently 
published flight prohibition SFARs, and makes a minor administrative 
change to the wording of the applicability paragraph of the SFAR for 
consistency with other recently published flight prohibition SFARs.

DATES: This final rule is effective on September 8, 2020.

FOR FURTHER INFORMATION CONTACT: Dale E. Roberts, Air Transportation 
Division, Flight Standards Service, Federal Aviation Administration, 
800 Independence Avenue SW, Washington, DC 20591; telephone 202-267-
8166; email dale.e.roberts@faa.gov.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    This action amends, by extending its expiration date, the 
prohibition against certain flight operations in the Pyongyang FIR 
(ZKKP) by all: U.S. air carriers; U.S. commercial operators; persons 
exercising the privileges of an airman certificate issued by the FAA, 
except when such persons are operating U.S.-registered aircraft for a 
foreign air carrier; and operators of U.S.-registered civil aircraft, 
except when the operator of such aircraft is a foreign air carrier. 
Specifically, this amendment extends the expiration date of SFAR No. 
79, Sec.  91.1615 of title 14 Code of Federal Regulations (CFR) from 
September 18, 2020, to September 18, 2023, due to the significant, 
continuing hazards to the safety of U.S. civil aviation operations in 
the Pyongyang FIR (ZKKP) associated with North Korean military 
capabilities and activities, including unannounced North Korean missile 
launches and air defense weapons systems, as described in the preamble 
to this final rule. This action also republishes, with minor revisions, 
the approval process and exemption information for this SFAR, 
consistent with other recently published flight prohibition SFARs. 
Finally, the FAA makes a minor administrative change to the wording of 
the applicability paragraph of the SFAR for consistency with other 
recently published flight prohibition SFARs.

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. Sections 106(f) and (g) 
of title 49, U.S. Code, subtitle I, establish the FAA Administrator's 
authority to issue rules on aviation safety. Subtitle VII of title 49, 
Aviation Programs, describes in more detail the scope of the agency's 
authority. Section 40101(d)(1) provides that the Administrator shall 
consider in the public interest, among other matters, assigning, 
maintaining, and enhancing safety and security as the highest 
priorities in air commerce. Section 40105(b)(1)(A) requires the 
Administrator to exercise this authority consistently with the 
obligations of the U.S. Government under international agreements.
    The FAA is promulgating this rulemaking under the authority 
described in 49 U.S.C. 44701, General requirements. Under that section, 
the FAA is charged broadly with promoting safe flight of civil aircraft 
in air commerce by prescribing, among other things, regulations and 
minimum standards for practices, methods, and procedures that the 
Administrator finds necessary for safety in air commerce and national 
security.
    This regulation is within the scope of the FAA's authority because 
it continues to prohibit the persons described in paragraph (a) of SFAR 
No. 79, Sec.  91.1615, from conducting flight operations in the 
Pyongyang FIR (ZKKP) due to the continuing hazards to the safety of 
U.S. civil flight operations, as described in the preamble to 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 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 exists to forgo notice and comment 
because notice and comment would be impracticable and contrary to the 
public interest. In addition, it is contrary to the public interest to 
delay the effective date of this SFAR.
    The risk environment for U.S. civil aviation in airspace other 
countries manage with respect to safety of flight is fluid due to the 
risks posed by weapons capable of targeting, or otherwise negatively 
affecting, U.S. civil aviation, as well as other hazards to U.S. civil 
aviation associated with fighting, extremist or militant activity, or 
heightened tensions. This fluidity and the need for the FAA to rely 
upon

[[Page 55373]]

classified information in assessing these risks make issuing notice and 
seeking comments impracticable and contrary to the public interest. 
With respect to the impracticability of notice and comment procedures, 
the potential for rapid changes in the risks to U.S. civil aviation 
significantly limits how far in advance of a new or amended flight 
prohibition the FAA can usefully assess the risk environment. 
Furthermore, to the extent these rules and any amendments to them are 
based upon classified information, the FAA is not legally permitted to 
share such information with the general public, who cannot meaningfully 
comment on information to which they are not legally allowed access.
    Under these conditions, public interest considerations favor not 
providing notice and seeking comment for this rule. While there is a 
public interest in having an opportunity for the public to comment on 
agency action, there is a greater public interest in having the FAA's 
flight prohibitions, and any amendments thereto, reflect the agency's 
current understanding of the risk environment for U.S. civil aviation. 
This allows the FAA to protect the safety of U.S. operators' aircraft 
and the lives of their passengers and crews without over-restricting 
U.S. operators' routing options.
    The FAA has determined extending the flight prohibition for U.S. 
civil aviation operations in the Pyongyang FIR (ZKKP) is necessary due 
to continued safety-of-flight hazards associated with North Korean 
military capabilities and activities, including unannounced North 
Korean missile launches and air defense weapons systems. These hazards 
continue to present significant risks to U.S. civil aviation operations 
in the Pyongyang FIR (ZKKP), as described in the preamble to this rule. 
Therefore, it is important the FAA's flight prohibition for U.S. civil 
aviation operations in the Pyongyang FIR (ZKKP) continue without 
interruption.
    Accordingly, the FAA finds good cause exists to forgo notice and 
comment and any delay in the effective date for this rule.
    The continued level of risk also requires extension of the 
expiration date of the rule for an additional three years.

III. Background

    Since 1997, the FAA has prohibited U.S. civil aviation operations 
in the Pyongyang FIR (ZKKP), or portions thereof, and has issued 
various advisory Notices to Airmen (NOTAMs) regarding the Pyongyang FIR 
(ZKKP) and adjacent areas to warn U.S. civil aviation of hazards to 
their operations.\1\ 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 what was then the 132 degrees east longitude 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 primarily impacted flight operations in the Incheon 
FIR (RKRR), the associated capabilities and effects could also have 
affected operations in adjoining airspace, including the Pyongyang FIR 
(ZKKP).
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    \1\ For a more detailed history of SFAR No. 79, Sec.  91.1615, 
see Amendment of the Prohibition Against Certain Flights in the 
Pyongyang Flight Information Region (FIR) (ZKKP) final rule, 83 FR 
47059 (Sept. 18, 2018).
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    Effective September 18, 2018, the FAA amended SFAR No. 79, Sec.  
91.1615, to incorporate the flight prohibition contained in KICZ NOTAM 
A0023/17 into the rule. Increased North Korean military capabilities 
and activities, including upgraded air defense weapons systems and 
unannounced North Korean missile launches, had increased the 
inadvertent risk of North Korea misidentifying U.S. civil aviation 
operating in the Pyongyang FIR (ZKKP) east of 132 degrees east 
longitude as a threat and inadvertently engaging it or striking a U.S. 
operators' aircraft with a missile or debris from an unannounced 
missile launch. Such events could involve loss of life, injuries, and 
property damage. In response to this situation, on November 3, 2017, 
the FAA issued NOTAM KICZ A0023/17 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.
    In September 2018, the FAA amended SFAR No. 79, Sec.  91.1615, to 
incorporate the flight prohibition contained in KICZ NOTAM A0023/17 
into the rule, due to the significant, continuing risk to U.S. civil 
aviation in the Pyongyang FIR (ZKKP), including the area east of 132 
degrees east longitude, and the uncertainty about when the risks 
described in that final rule would abate sufficiently to allow for safe 
U.S. civil aviation operations in the Pyongyang FIR (ZKKP).\2\
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    \2\ Id.
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IV. Discussion of the Final Rule

    The FAA has determined the situation in the Pyongyang FIR (ZKKP) 
continues to present an unacceptable level of risk for U.S. civil 
aviation safety. North Korea continues to conduct no-notice ballistic 
missile launches to meet its weapons development program goals and to 
signal its resolve, and displeasure with the lack of a diplomatic 
breakthrough and sanctions relief, to the international community. As 
of March 28, 2020, four North Korean missile launch events had occurred 
in 2020. On March 28, 2020, North Korea launched at least two probable 
short-range ballistic missiles (SRBMs). These probable SRBMs impacted 
within the Pyongyang FIR (ZKKP). Previous salvos occurred on March 2, 
9, and 21, 2020.
    These events are consistent with North Korean missile test launch 
activity observed in 2019. On November 28, 2019, a salvo of two 
probable SRBMs impacted within the Pyongyang FIR (ZKKP). These probable 
SRBMs had possible trajectories and impact points near an international 
air route transiting the Pyongyang FIR (ZKKP), highlighting the 
continued risk to U.S. civil aviation if authorized to operate in the 
Pyongyang FIR (ZKKP). A total of 25 North Korean missile test launches 
occurred in 2019, including 12 salvos consisting of two SRBMs each and 
one possible submarine-launched ballistic missile test launch, which 
occurred in early October 2019.
    For each of the 2019 and 2020 missile launch events, North Korea 
failed to issue any NOTAMs or other aeronautical information to warn 
civil aircraft operators of the hazards associated with these missile 
launches. In late 2019, North Korea made public statements indicating 
an end-of-year deadline for a diplomatic breakthrough. It is unclear 
whether North Korea will return to longer-range missile testing with 
impact areas beyond the Pyongyang FIR (ZKKP) that could pose a 
potential risk to U.S. civil aviation operating in adjacent FIRs. 
Additionally, North Korea maintains air defense and tactical aircraft 
capabilities that, if forward deployed, would have ranges covering the 
entire Pyongyang FIR (ZKKP). These weapons could present an inadvertent 
risk to U.S. civil

[[Page 55374]]

aviation operations during periods of heightened tensions.
    Therefore, as a result of the significant continuing risk to the 
safety of U.S. civil aviation in the Pyongyang FIR (ZKKP), the FAA 
extends the expiration date of SFAR No. 79, Sec.  91.1615, from 
September 18, 2020 until September 18, 2023. Amendments to SFAR No. 79, 
Sec.  91.1615, could be appropriate if the risk to aviation safety and 
security changes. In this regard, the FAA will continue to monitor the 
situation and evaluate the extent to which persons described in 
paragraph (a) of this rule might be able to operate safely in the 
Pyongyang FIR (ZKKP). The FAA may amend or rescind SFAR No. 79, Sec.  
91.1615, as necessary, prior to its expiration date.
    The FAA also republishes the details concerning the approval and 
exemption processes in Sections V and VI of this preamble, with 
clarifications for consistency with other recently published flight 
prohibition SFARs, to enable interested persons to refer to this final 
rule for all relevant information about seeking relief from SFAR No. 
79, Sec.  91.1615. Lastly, the FAA makes minor administrative 
revisions, including updating the applicability paragraph of the 
regulatory text to make it consistent with other recently published 
flight prohibition SFARs.

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

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

    In some instances, U.S. Government departments, agencies, or 
instrumentalities may need to engage U.S. civil aviation to support 
their activities in the Pyongyang FIR (ZKKP). If a department, agency, 
or instrumentality of the U.S. Government determines it has a critical 
need to engage any person described in 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 FIR (ZKKP), that department, agency, or 
instrumentality may request the FAA to approve persons described in 
SFAR No. 79, Sec.  91.1615, to conduct such operations.
    The requesting department, agency, or instrumentality of the U.S. 
Government must submit the request for approval to the FAA's Associate 
Administrator for Aviation Safety in a letter signed by an appropriate 
senior official of the requesting department, agency, or 
instrumentality.\3\ The FAA will not accept or consider requests for 
approval from anyone other than the requesting department, agency, or 
instrumentality. In addition, the senior official signing the letter 
requesting FAA approval on behalf of the requesting department, agency, 
or instrumentality must be sufficiently positioned within the 
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. 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 wishes the proposed 
operation(s) to commence.
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    \3\ This approval procedure applies to U.S. Government 
departments, agencies, or instrumentalities; it does not apply to 
the public. The FAA describes this procedure in the interest of 
providing transparency with respect to the FAA's process for 
interacting with U.S. Government departments, agencies, or 
instrumentalities that seek to engage U.S. civil aviation to operate 
within the area in which this SFAR prohibits their operations.
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    The requestor must send the request to the Associate Administrator 
for Aviation Safety, Federal Aviation Administration, 800 Independence 
Avenue SW, Washington, DC 20591. Electronic submissions are acceptable, 
and the requesting entity may request that the FAA notify it 
electronically as to whether the FAA grants the approval request. If a 
requestor wishes to make an electronic submission to the FAA, the 
requestor should contact the Air Transportation Division, Flight 
Standards Service, at (202) 267-8166, to obtain the appropriate email 
address. A single letter may request approval from the FAA for multiple 
persons described in SFAR No. 79, Sec.  91.1615, 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 seeks FAA approval, 
and it must describe--
     The proposed operation(s), including the nature of the 
mission being supported;
     The service that the person(s) covered by the SFAR will 
provide;
     To the extent known, the specific locations in the 
Pyongyang FIR (ZKKP) where the proposed operation(s) will 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, 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., the pre-mission planning and briefing, in-
flight, and post-flight phases).
    The request for approval must also include a list of operators with 
whom the U.S. Government department, agency, or instrumentality 
requesting FAA approval has a current contract(s), grant(s), or 
cooperative agreement(s) (or its prime contractor has a subcontract(s)) 
for specific flight operations in the Pyongyang FIR (ZKKP). The 
requestor may identify additional operators to the FAA at any time 
after the FAA issues its approval. Neither the operators listed in the 
original request, nor any operators the requestor subsequently seeks to 
add to the approval, may commence operations under the approval until 
the FAA issues them an Operations Specification (OpSpec) or Letter of 
Authorization (LOA), as appropriate, for operations in the Pyongyang 
FIR (ZKKP). The approval conditions discussed below apply to all 
operators, whether included in the original list or subsequently added 
to the approval. Requestors should send updated lists 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 Dale E. Roberts 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 the responsibility to 
comply with all other applicable FAA rules and regulations. Operators 
of civil aircraft must comply with the conditions of their 
certificates, OpSpecs, and LOAs, as applicable. Operators must also 
comply with all

[[Page 55375]]

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 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, relating to any event arising out of or related to the 
approved operations in the Pyongyang FIR (ZKKP); and
    (b) The operator's written agreement to indemnify the U.S. 
Government with respect to any and all third-party damages, claims, and 
liabilities, including without limitation legal fees and expenses, 
relating to any event arising from or related to the approved 
operations in the Pyongyang FIR (ZKKP).
    (3) Other conditions the FAA may specify, including those the FAA 
might impose in OpSpecs or LOAs, as applicable.
    The release and agreement to indemnify do not preclude an operator 
from raising a claim under an applicable non-premium war risk insurance 
policy the FAA issues under chapter 443 of title 49, U.S. Code.
    If the FAA approves the proposed operation(s), the FAA will issue 
an OpSpec or LOA, as applicable, to the operator(s) identified in the 
original request authorizing them to conduct the approved operation(s). 
In addition, the FAA will notify the department, agency, or 
instrumentality that requested the FAA's approval of any additional 
conditions beyond those contained in the approval letter.

VI. Information Regarding Petitions for Exemption

    Any operations not conducted under an approval the FAA issues 
through the approval process set forth previously may only occur in 
accordance with an exemption from SFAR No. 79, Sec.  91.1615. A 
petition for exemption must comply with 14 CFR part 11. The FAA will 
consider whether exceptional circumstances exist beyond those the 
approval process described in the previous section contemplates. To 
determine whether a petition for exemption from the prohibition this 
SFAR establishes fulfills the standard of 14 CFR 11.81, the FAA 
consistently finds necessary the following information:
     The proposed operation(s), including the nature of the 
operation;
     The service the person(s) covered by the SFAR will 
provide;
     The specific locations in the Pyongyang FIR (ZKKP) where 
the proposed operation(s) will 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, or landing 
zones at which the aircraft will take off and land;
     The method by which the operator will obtain current 
threat information and an explanation of how the operator will 
integrate this information into all phases of its proposed operations 
(i.e., the pre-mission planning and briefing, in-flight, and post-
flight phases); and
     The plans and procedures the operator will use to minimize 
the risks, identified in this preamble, to the proposed operations, to 
establish 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.
    The FAA includes, as a condition of each such exemption it issues, 
a release and agreement to indemnify, as described previously.
    The FAA recognizes that, with the support of the U.S. Government, 
the governments of other countries could plan operations SFAR No. 79, 
Sec.  91.1615, affects. While the FAA will not permit these operations 
through the approval process, the FAA will consider exemption requests 
for such operations on an expedited basis and in accordance with the 
order of preference set forth in paragraph (c) of SFAR No. 79, Sec.  
91.1615.
    If a petition for exemption includes security-sensitive or 
proprietary information, requestors may contact Aviation Safety 
Inspector Dale E. Roberts for instructions on submitting it to the FAA. 
His contact information is listed in the FOR FURTHER INFORMATION 
CONTACT section of this final rule.

VII. Regulatory Notices and Analyses

    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), as codified in 19 U.S.C. 
Chapter 13, prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the United States. In 
developing U.S. standards, the Trade Agreements Act requires agencies 
to consider international standards and, where appropriate, that they 
be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform 
Act of 1995 (Pub. L. 104-4), as codified in 2 U.S.C. Chapter 25, 
requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this final rule.
    In conducting these analyses, the FAA has determined this final 
rule has benefits that justify its costs. This rule is a significant 
regulatory action, as defined in section 3(f) of Executive Order 12866, 
as it raises novel policy issues contemplated under that Executive 
Order. This rule also complies with the requirements of the Department 
of Transportation's administrative rule on rulemaking at 49 CFR part 5. 
As 5 U.S.C. 553 does not require notice and comment for this final 
rule, 5 U.S.C. 603 and 604 do not require regulatory flexibility 
analyses regarding impacts on small entities. This rule will not create 
unnecessary obstacles to the foreign commerce of the United States. 
This rule will not impose an unfunded mandate on State, local, or 
tribal governments, or on the private sector, by exceeding the 
threshold identified previously.

A. Regulatory Evaluation

    This action extends the expiration date of the SFAR prohibiting 
U.S. civil flights in the Pyongyang FIR (ZKKP) for an additional three 
years due to the

[[Page 55376]]

significant hazards to U.S. civil aviation described in the preamble of 
this final rule. U.S. Government departments, agencies, and 
instrumentalities may take advantage of the approval process on behalf 
of U.S. operators and airmen with whom they have a contract, grant, or 
cooperative agreement, or with whom their prime contractor has a 
subcontract. U.S. operators and airmen who seek to conduct operations 
in the Pyongyang FIR (ZKKP) without any of the foregoing types of 
arrangements with the U.S. Government may petition for exemption from 
this rule.
    The FAA acknowledges this flight prohibition might result in 
additional costs to some U.S. operators, such as increased fuel costs 
and other operational-related costs. However, the FAA expects the 
benefits of this action exceed the costs because it will result in the 
avoidance of risks of deaths, injuries, and property damage that could 
occur if a U.S. operator's aircraft were shot down (or otherwise 
damaged) while operating in the Pyongyang FIR (ZKKP).

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an 
agency to prepare an initial regulatory flexibility analysis describing 
impacts on small entities whenever 5 U.S.C. 553 or any other law 
requires an agency to publish a general notice of proposed rulemaking 
for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to 
prepare a final regulatory flexibility analysis when an agency issues a 
final rule under 5 U.S.C. 553, after that section or any other law 
requires publication of a general notice of proposed rulemaking. The 
FAA concludes good cause exists to forgo notice and comment and to not 
delay the effective date for this rule. As 5 U.S.C. 553 does not 
require notice and comment in this situation, 5 U.S.C. 603 and 604 
similarly do not require regulatory flexibility analyses.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to this Act, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards.
    The FAA has assessed the potential effect of this final rule and 
determined that its purpose is to protect the safety of U.S. civil 
aviation from risks to their operations in the Pyongyang FIR (ZKKP), a 
location outside the U.S. Therefore, the rule complies with the Trade 
Agreements Act of 1979.

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $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 
the FAA to consider the impact of paperwork and other information 
collection burdens it imposes on the public. The FAA has determined no 
new requirement for information collection is associated with this 
final rule.

F. International Compatibility and Cooperation

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, the FAA's policy is to conform to 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
determined no ICAO Standards and Recommended Practices correspond to 
this regulation. The FAA finds this action is fully consistent with the 
obligations under 49 U.S.C. 40105(b)(1)(A) to ensure the FAA exercises 
its duties consistently with the obligations of the United States under 
international agreements.
    While the FAA's flight prohibition does not apply to foreign air 
carriers, DOT codeshare authorizations prohibit foreign air carriers 
from carrying a U.S. codeshare partner's code on a flight segment that 
operates in airspace for which the FAA has issued a flight prohibition 
for U.S. civil aviation. In addition, foreign air carriers and other 
foreign operators may choose to avoid, or be advised or directed by 
their civil aviation authorities to avoid, airspace for which the FAA 
has issued a flight prohibition for U.S. civil aviation.

G. Environmental Analysis

    The FAA has analyzed this action under Executive Order 12114, 
Environmental Effects Abroad of Major Federal Actions, and DOT Order 
5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be 
informed of environmental considerations and take those considerations 
into account when making decisions on major Federal actions that could 
have environmental impacts anywhere beyond the borders of the United 
States. The FAA has determined this action is exempt pursuant to 
Section 2-5(a)(i) of Executive Order 12114 because it does not have the 
potential for a significant effect on the environment outside the 
United States.
    In accordance with FAA Order 1050.1F, Environmental Impacts: 
Policies and Procedures, paragraph 8-6(c), FAA has prepared a 
memorandum for the record stating the reason(s) for this determination 
and has placed it in the docket for this rulemaking.

VIII. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of 
Executive Order 13132. The agency has determined this action 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. 
Therefore, this rule will not have federalism implications.

B. Executive Order 13211, Regulations that Significantly Affect Energy 
Supply, Distribution, or Use

    The FAA analyzed this rule under Executive Order 13211. The agency 
has determined it is not a ``significant energy action'' under the 
executive order and will not be likely to have a significant adverse 
effect on the supply, distribution, or use of energy.

C. Executive Order 13609, Promoting International Regulatory 
Cooperation

    Executive Order 13609, Promoting International Regulatory 
Cooperation, 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

[[Page 55377]]

requirements. The FAA has analyzed this action under the policies and 
agency responsibilities of Executive Order 13609 and has determined 
that this action will 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, Reducing Regulation and Controlling Regulatory Costs, 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 docket for this rulemaking at https://www.regulations.gov;
     Visiting the FAA's Regulations and Policies web page at 
https://www.faa.gov/regulations_policies; or
     Accessing the Government Publishing Office's website at 
https://www.govinfo.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 docket for this 
rulemaking.

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 persons listed under the FOR 
FURTHER INFORMATION CONTACT heading at the beginning of the preamble. 
To find out more about SBREFA on the internet, visit 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), 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).


0
2. Amend Sec.  91.1615 by revising paragraphs (a)(3) and (e) 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) * * *
    (3) All operators of U.S.-registered civil aircraft, except when 
the operator of such aircraft is a foreign air carrier.
* * * * *
    (e) Expiration. This SFAR will remain in effect until September 18, 
2023. 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 
August 20, 2020.
Steve Dickson,
Administrator.
[FR Doc. 2020-19057 Filed 9-4-20; 8:45 am]
BILLING CODE 4910-13-P


