Rule2024-20900
U.S. Commercial Space Launch Competitiveness Act Incorporation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 19, 2024
Effective
November 18, 2024
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This final rule incorporates various changes required by the United States Commercial Space Launch Competitiveness Act of 2015. This final rule provides regulatory clarity to applicants seeking licenses for space flight operations involving government astronauts by adding two new subparts to the human space flight regulations containing requirements for operators with government astronauts with and without safety-critical roles on board vehicles.
Full Text
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[Federal Register Volume 89, Number 182 (Thursday, September 19, 2024)]
[Rules and Regulations]
[Pages 76714-76730]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-20900]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 401, 413, 415, 431, 435, 437, 440, 450, and 460
[Docket No. FAA-2023-1656; Amdt. Nos. 401-10, 413-13, 415-8, 431-8,
435-6, 437-4, 440-7, 450-3, 460-4]
RIN 2120-AL19
U.S. Commercial Space Launch Competitiveness Act Incorporation
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule incorporates various changes required by the
United States Commercial Space Launch Competitiveness Act of 2015. This
final rule provides regulatory clarity to applicants seeking licenses
for space flight operations involving government astronauts by adding
two new subparts to the human space flight regulations containing
requirements for operators with government astronauts with and without
safety-critical roles on board vehicles.
DATES: Effective November 18, 2024.
The compliance date for this final rule is November 18, 2024.
ADDRESSES: For information on where to obtain copies of rulemaking
documents and other information related to this final rule, see ``How
to Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT: Charles Huet, Space Policy Division,
Space Regulations and Standards Branch, ASZ-210, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591;
telephone (202) 306-9069; email <a href="/cdn-cgi/l/email-protection#b6d5ded7c4dad3c598dec3d3c2f6d0d7d798d1d9c0"><span class="__cf_email__" data-cfemail="beddd6dfccd2dbcd90d6cbdbcafed8dfdf90d9d1c8">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
List of Abbreviations and Acronyms Frequently Used in This Document
Expendable Launch Vehicle (ELV)
International Civil Aviation Organization (ICAO)
Maximum Probable Loss (MPL)
National Aeronautics and Space Administration (NASA)
Reusable Launch Vehicle (RLV)
United States Commercial Space Launch Competitiveness Act (CSLCA)
United States Government (USG)
Table of Contents
I. Authority for This Rulemaking
II. Executive Summary
A. Purpose of the Regulatory Action
B. Changes From the Proposed Rule
C. Summary of the Costs and Benefits
III. Background
A. Summary of the NPRM
B. General Overview of Comments
C. Differences Between the NPRM and the Final Rule
IV. Discussion of Comments and the Final Rule
V. Regulatory Notices and Analyses
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
C. International Trade Impact Assessment
D. Unfunded Mandates Assessment
E. Paperwork Reduction Act
F. Environmental Analysis
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
B. Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
C. Executive Order 13211, Regulations That Significantly Affect
Energy Supply, Distribution, or Use
D. Executive Order 13609, Promoting International Regulatory
Cooperation
VII. Additional Information
A. Electronic Access and Filing
B. Small Business Regulatory Enforcement Fairness Act
List of Subjects
I. Authority for This Rulemaking
The Commercial Space Launch Act of 1984, as amended and codified at
51 U.S.C. 50901-50923 (the Act), authorizes the Secretary of
Transportation to oversee, license, and regulate commercial launch and
reentry activities, and the operation of launch and reentry sites
within the United States (U.S.) or as carried out by U.S. citizens.
Section 50905 directs the Secretary to exercise this responsibility
consistent with public health and safety, safety of property, and the
national security and foreign policy interests of the United States. In
addition, section 50903 requires the Secretary to encourage,
facilitate, and promote commercial space launches and reentries by the
private sector. As codified in 49 CFR 1.83(b), the Secretary has
delegated authority to the FAA Administrator to carry out these
functions.
II. Executive Summary
A. Purpose of the Regulatory Action
This rule makes several changes to incorporate government
astronauts in the regulations, in accordance with the United States
Commercial Space Launch Competitiveness Act (CSLCA).\1\ It amends title
14 of the Code of Federal Regulations (14 CFR) parts 401, 413, 415,
431, 435, 437, 440, 450, and 460 by incorporating statutory changes
resulting from the CSLCA. Specifically, it adds definitions for
``Government astronaut,'' ``International partner astronaut,'' and
``International Space Station Intergovernmental Agreement,'' and
revises definitions of ``Human space flight incident,'' ``Launch,''
``Launch accident,'' ``Reenter; reentry'' ``Reentry accident,'' and
``Space flight participant,'' to incorporate changes required by adding
the definition of ``Government astronaut.'' The rule also creates two
new subparts in 14 CFR part 460 that include requirements for operators
and applicants whose licensed or permitted operations involve
government astronauts with and without safety-critical roles on board a
vehicle. The rule revises the human space flight sections of parts 415,
431, 435, 437, and 450 to add government astronauts to the list of
people who can be on board a launch or reentry vehicle, and adds
certain additional provisions in part 460 to the list of provisions
with which an operator must comply.
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\1\ The CSLCA adds government astronauts as a third category of
people on board launch or reentry vehicles, excludes government
astronauts from the definition of third party, adds space flight
participants to the waiver of claims with operators, and expands the
applicability of permits to more types of vehicles and operations.
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Additionally, this rule expands the applicability of part 437 to
include launching or reentering certain reusable suborbital vehicles.
The rule also revises parts 401, 413, 415, 431, 435, 437, 440,
[[Page 76715]]
450, and 460 to make conforming amendments to expand the eligibility
for an experimental permit from reusable suborbital rockets to reusable
suborbital vehicles.
The rule revises part 440 in accordance with the statute and makes
conforming amendments. Specifically, it updates the financial
responsibility requirements in part 440 to exclude government
astronauts from the definitions of ``Third party'' and ``Maximum
probable loss (MPL)''. It also adds space flight participants to the
insurance requirements in Sec. 440.9 and the reciprocal waiver of
claims requirements in Sec. 440.17. Finally, this rule removes the
templates for waiver of claims and assumption of responsibilities in
appendices B through E of part 440 from the regulations and places them
in a separate advisory circular (AC).
B. Changes From the Proposed Rule
The final rule makes several changes from the proposed rule. It
replaces the proposed term ``human being,'' proposed in the notice,
with ``crew, space flight participant, or government astronaut'' in the
human space flight requirements of 14 CFR 415.8, 431.8, 435.8, and
437.21(b)(3). In 14 CFR 440.3, the final rule does not adopt the
proposed change to government personnel; and excludes government
astronaut from the definitions of MPL and third party. The final rule
amends the proposed language regarding the reciprocal waiver of claims
templates to specify that the templates contained in advisory circular
AC 440.17-1 satisfy the reciprocal waiver of claims requirements in 14
CFR 440.17. The final rule replaces the proposed requirement in 14 CFR
460.59(d)(1) to track and update government astronaut training in
writing with the requirement to provide traceability to revisions or
changes to government astronaut training. Finally, the final rule
changes the proposed requirement for operators to train government
astronauts in 14 CFR 460.59 and 460.67 to a requirement that operators
ensure government astronauts are trained.
C. Summary of the Costs and Benefits
These changes have a minimal impact on licensed commercial space
activity with government astronauts because the changes align
regulations with the current statutory requirements and practices for
crew, space flight participants, and government astronauts. The FAA has
been applying the statutory changes since they went into effect in
2015. Since this rule codifies these current practices, there is
effectively no change from the baseline practice without the rule, and
therefore no measurable resulting benefits or costs.
III. Background
A. Summary of the NPRM
On August 18, 2023, the FAA published the notice of proposed
rulemaking (NPRM) titled ``U.S. Commercial Space Launch Competitiveness
Act Incorporation'' (88 FR 56546). The FAA also posted draft guidance
material for the proposal in the form of a draft ``AC 440.17-1
Reciprocal Waiver of Claims Requirements'' for comment in the NPRM
docket. This NPRM proposed to amend 14 CFR parts 401, 413, 415, 431,
435, 437, 440, 450, and 460 by incorporating statutory changes
resulting from the CSLCA. The NPRM proposed to add definitions for
``Government astronaut,'' ``International partner astronaut,'' and
``International Space Station Intergovernmental Agreement'' and revise
other definitions required to address the addition of ``Government
astronaut.'' The NPRM also proposed expanding applicability of
permitted operations for suborbital rockets to suborbital launch and
reentry vehicles; revising the human space flight sections of parts
415, 431, 435, 437, and 450 to include the term ``human being'' to
incorporate government astronauts; updating the financial
responsibility requirements to exclude government astronauts from the
definitions of ``Third party'' and ``Government personnel'' in part
440; adding space flight participants to the insurance requirements in
Sec. 440.9, and the reciprocal waiver of claims requirements in Sec.
440.17; and removing the templates for waiver of claims and assumption
of responsibilities in appendices B through E of part 440 from the
regulations and placing them in a separate advisory circular (AC).
Finally, the NPRM proposed creating two new subparts in 14 CFR part 460
to include requirements for operators and applicants who's licensed or
permitted operations involve government astronauts with and without
safety-critical roles on board a vehicle.
B. General Overview of Comments
The FAA received 15 comments from individuals, industry
associations, and launch and reentry operators. All of the commenters
generally supported the proposed changes; however, some suggested
changes to the proposal, as discussed more fully in Section IV.
The FAA received comments on the following general areas of the
proposal:
1. Removing government astronauts from the definition of third party
2. Duplication of requirements
3. Informed consent of government astronauts
4. Government astronauts without a safety-critical role
5. Moving waiver of claims templates to an advisory circular
6. Government astronauts on permitted operations
7. Tracking government astronaut training requirements
8. Environmental controls
9. Use of the term ``human being''
10. Aeronautical knowledge requirement
11. Permit eligibility
12. Government astronauts on foreign vehicles
13. Clarification on the role of international partner astronauts
14. Training of space flight participants for safety critical roles
15. Use of American National Standards Institute (ANSI) standard for
human spaceflight ontology
16. Transparency of MPL Methodology
17. Commercial Use of Asteroid or Space Resources
C. Differences Between the NPRM and the Final Rule
The final rule does not adopt the proposed change to the definition
of ``government personnel'' in 14 CFR 440.3; and excludes government
astronauts from the definitions of third party and maximum probable
loss in the same section. The final rule replaces the proposed term
``human being'' with ``crew, space flight participant, or government
astronaut'' in 14 CFR 415.8, 431.8, 435.8, and 437.21(b)(3). The FAA
also amends the government astronaut training requirements in the final
rule to make clear that an operator must ensure government astronauts
are appropriately trained but is not required to conduct that training
itself. Finally, the final rule allows electronic means of tracking
government astronaut training.
IV. Discussion of Comments and the Final Rule
The FAA makes changes to this final rule in response to comments
made by the public. Summaries of the comments and the FAA's responses
are grouped by category in the following subsections.
A. Treatment of Government Astronauts Under Part 440
In accordance with the CSLCA,\2\ this rule excludes government
astronauts from the definition of third party. It also revises the
definition of maximum
[[Page 76716]]
probable loss (MPL) such that government astronauts are not included in
MPL calculations. It makes no change to the definition of government
personnel.\3\
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\2\ 51 U.S.C. 50902 and 50914.
\3\ The NPRM proposed changing the definition of ``government
personnel'' but the final rule is not adopting that change.
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Title 51 U.S.C. chapter 509 requires a licensee to obtain insurance
or demonstrate financial responsibility in amounts to compensate for
the maximum probable loss from claims by third parties and the United
States Government (USG) for certain specified claims. 51 U.S.C.
50914(a)(1). By excluding government astronauts from the definition of
third party, government astronauts must also necessarily be excluded
from the MPL calculation in Sec. 50914(a)(1)(A). The NPRM proposed to
exclude government astronauts from the definition of ``third party''
and consequently the definition of ``government personnel'' because
government personnel are third parties under 14 CFR 440.3. Under the
proposal, the presence of government astronauts during licensed or
permitted activities would not affect the amount of insurance coverage
operators are required to obtain under 14 CFR 440.9. Additionally, by
excluding government astronauts from the definition of ``government
personnel'' in Sec. 440.3, government astronauts would have also
necessarily been excluded as additional insureds under Sec. 440.9(b).
Multiple commenters indicated that it is not clear in the NPRM who
is responsible for losses to government astronauts during licensed
activities. Sierra Space commented that it believes section 112(j) of
the CSLCA amended the definition of ``third party'' in 51 U.S.C.
50902(26) to exclude government astronauts. Sierra Space found that
this is a logical exclusion, as government astronauts are intentionally
incorporated and integrated into launch missions and should not be
treated as third parties for liability purposes.
Virgin Galactic commented that the removal of government astronauts
from the definition of government personnel removes the requirement for
licensees to obtain an insurance policy to protect government
astronauts from their potential liability in their involvement in
launch or reentry services. Virgin Galactic also commented that the
exclusion of government astronauts from the definition of third party
will prevent the FAA from including potential government astronaut
claims in MPL calculations. Virgin Galactic requested that the FAA
address the implications the exclusion of government astronauts from
the definition of third party will have on MPL determinations and
indemnification eligibility under 51 U.S.C. 50915. Virgin Galactic
noted that it understands the proposed rule as preventing licensees
from being eligible for government indemnification when carrying
government astronauts as government astronauts are neither third
parties nor government personnel.
In the final rule, the FAA explicitly excludes government
astronauts from the definition of ``third party'' in Sec. 440.3 by
adding the phrase ``excluding government astronauts'' and adding text
that excludes government astronauts from government personnel as it is
used in the definition of ``third party.'' Excluding government
astronauts from being considered a third party effectively means that
government astronauts are not included in MPL calculations and are
therefore prevented from bringing claims as third parties. The presence
of government astronauts on board a launch or reentry vehicle would
therefore not increase MPL values. Because government astronauts are
not third parties, they cannot recover for bodily injury or property
damage they may suffer during licensed activities using the licensee's
or permittee's insurance required under Sec. 440.9. However, the USG
could be responsible for losses to government astronauts who are USG
employees because the USG agrees to be responsible for personal injury
to, death of, or property damage or loss sustained by its own employees
through the waiver of claims.
Excluding government astronauts from the definition of third
parties does not affect the government indemnification provisions in 51
U.S.C. 50915. Section 50915 states that the USG, subject to
appropriation or additional legislative authority, shall provide for
the payment of certain successful claims by a third party as a result
of licensed activity to the extent the total amount of successful
claims related to one launch or reentry exceeds the insurance or
demonstration of financial responsibility values and is less than the
maximum amount set in Sec. 50915(a)(1)(B). Virgin Galactic stated that
it understands the proposal would prevent licensees from being eligible
for government indemnification when carrying government astronauts as
the government astronauts are neither third parties nor government
personnel under the proposed rule.
The characterization of government astronauts as not being third
parties under the CSLCA and part 440 does not affect whether a licensee
receives government indemnification under Sec. 50915. Rather, the
total number of successful claims, along with the necessary
appropriations or legislation, are determining factors in whether a
licensee receives government indemnification. A licensed activity with
only government astronauts on board would not render that activity
ineligible for government indemnification of a successful claim of a
third party.
In the final rule, the FAA does not amend the definition of
government personnel in 14 CFR 440.3. By rulemaking finalized in 1998,
the FAA added the term ``government personnel'' to part 440 and added
government personnel to the list of additional insureds. Financial
Responsibility Requirements for Licensed Launch Activities, Final Rule,
63 FR 45592 (Aug. 26, 1998). As it explained in the preamble to the
final rule, the FAA made these changes in response to a Senate Report
stating that Congress intended for government personnel directly
associated with the commercial launch operations to be classified as
third parties. S. Rep. No. 100-593 (1988). The FAA additionally stated
in the Financial Responsibility Requirements for Licensed Launch
Activities NPRM, published in 1996, that treating government personnel
as third parties and naming them as additional insureds is in accord
with the definition of third party contained in the statute. Financial
Responsibility Requirements for Licensed Launch Activities, NPRM, 61 FR
38992 (July 25, 1996). This is because employees of the USG are
different than the USG as an entity. Because of this distinction,
treating USG employees as third parties did not conflict with the
statute.
In 2015, Congress explicitly excluded government astronauts from
the definition of third parties. There is no legislative history to
suggest that Congress also wanted the FAA to exclude government
astronauts who are USG personnel from being protected as additional
insureds. In fact, under the CSLCA, Congress made changes to the
additional insureds requirement in 51 U.S.C. 50914(a)(4) by adding
space flight participants as additional insureds but did not make any
changes to explicitly exclude government astronauts. Therefore,
government astronauts who are USG personnel should also be treated as
additional insureds. The FAA need not make any changes to Sec.
440.9(b) to include government astronauts because any government
astronauts who are employees of the USG are necessarily
[[Page 76717]]
included as additional insureds by being government personnel.
B. Duplication of Requirements
This rule finalizes the proposal to create two new subparts in part
460 to address the training of government astronauts with safety-
critical and non-safety-critical roles during licensed activity. The
FAA revises the language in the proposal regarding training government
astronauts to clarify that while an operator is responsible for
ensuring that a government astronaut is appropriately trained, the
operator itself is not required to conduct the training.
SpaceX commented that the FAA's proposed changes to part 460 would
duplicate training requirements with no material increase to public
safety and would place additional regulatory burden on operators.
SpaceX argued that NASA's training requirements are sufficient and
should automatically be accepted by the FAA. SpaceX also noted that it
believes the NPRM could potentially conflict with NASA's or other
government agencies' training requirements in the future. SpaceX stated
that the FAA already recognizes the appropriateness of certain NASA
training requirements by referring to them in the NPRM. SpaceX also
noted that all or nearly all of the part 460 regulations could be met
by current Crew Dragon training approved by NASA as part of the
Commercial Crew Program. While SpaceX agreed with the FAA's statements
in the NPRM that the FAA has broader regulatory authority to protect
public safety, SpaceX does not believe the FAA has articulated why a
streamlined acceptance of NASA training requirements is insufficient to
protect public safety. To support its position, SpaceX stated that the
part 450 payload review and determination requirements explicitly
remove any duplication of government oversight in Sec. 450.43(b) in
which the FAA defers payload review to agencies with principal
regulatory responsibility. SpaceX noted that the FAA should adopt the
same approach as it relates to government astronaut training
requirements in part 460. SpaceX recommended that the FAA revise the
final rule to codify that its training requirements are ``not intended
to duplicate, conflict with, or replace NASA's training requirements
for government astronauts'' by following the Sec. 450.43(b) model.
SpaceX suggested a single update in Sec. 460.59 applicable only to
government astronauts that states ``An operator must certify that each
government astronaut is trained in accordance with requirements
established or approved by the National Aeronautics and Space
Administration for government astronauts.'' SpaceX stated that these
revisions will provide flexibility for any future updates to training
processes with NASA or the incorporation of NASA-approved training
regimens with other government agencies, both domestically and
internationally.
Under 51 U.S.C. chapter 509, the FAA has the authority and
responsibility to protect public safety during launches and reentries.
NASA does not share this public safety oversight authority. Because
government astronauts may have the ability to affect public safety, the
FAA must establish regulations to mitigate any public safety risk.
Furthermore, the FAA notes that NASA does not currently provide all
government astronaut training for a commercially operated mission. An
operator would provide vehicle- and mission-specific training because
it is the most familiar with the specific vehicle and operation. The
FAA chose to use part 460 crew training requirements to evaluate past
licenses involving government astronauts because crew similarly have
the capability to affect public safety. An operator can meet part 460
requirements by leveraging the contractual obligations between NASA and
the operator. NASA contractual obligations require the operator to
comply with requirements NASA uses to certify operations to the
International Space Station contained in the Crew Transportation
Technical Management Process CCT-PLN-1120 Section 6.3.1, Crew
Transportation and Services Requirements Document CCT-REQ-1130 Section
3.8.5.1, and Crew Transportation Operations Standards CCT-STD-1150
Section 5. NASA certifies that government astronauts received the
training required by contract, and the FAA uses that certification as
verification that the operator meets the FAA regulations. NASA provides
certification and the FAA evaluates the contractual requirements during
the licensing process. The FAA notes that there will be no change to
how licenses involving government astronauts are evaluated and issued
as a result of this rule.
The payload review requirements in 14 CFR 450.43(b) specify that
the FAA will not make a payload determination for those aspects of
payloads that are subject to regulation by the Federal Communications
Commission (FCC) or the Department of Commerce. The FAA will review all
payloads to determine their effect on safety of launch but will not
make a determination on those aspects of payloads that are subject to
regulation by the FCC or the Department of Commerce. Streamlined Launch
and Reentry License Requirements, Final Rule, 85 FR 79566, 79589 (Dec.
10, 2020). Similarly, in this rule, the FAA finalizes requirements that
allow the FAA to satisfy its responsibility to evaluate licenses for
operations including government astronauts for the purposes of a
government astronaut's potential to affect public safety.
While the FAA maintains its authority to issue regulations relating
to the training of government astronauts to protect public safety, it
acknowledges that the operator may not always be the entity conducting
the training. For example, some training may be provided by NASA or by
a contractor. Therefore, in this final rule the FAA changes the text in
Sec. Sec. 460.59 and 460.67 training sections for government
astronauts from ``an operator must train each government astronaut'' to
``an operator must ensure that each government astronaut is trained''.
Instead of requiring operators to train each government astronaut, the
FAA rule specifies that an operator must ensure that training has been
provided to each government astronaut. This change clarifies that
operators do not necessarily need to be the entity providing the
training; however, the requirement is still levied on the operator to
ensure that government astronauts have been trained in accordance with
the regulatory requirements.
C. Informed Consent of Government Astronauts
This final rule does not require government astronauts to sign
informed consent forms with operators. Two commenters disagreed with
this approach.
Virgin Galactic commented that not all potential government
astronauts may be in the NASA Astronaut Corps or have the level of
training to understand the inherent risks associated with spaceflight
activities. Virgin Galactic also commented that there are several state
statutes that protect licensees from liability when informed consent is
provided.
Blue Origin commented that the requirements in Sec. 460.45 are
intended to illuminate the specific risks and hazards associated with
the commercial safety record of each launch vehicle, as well as the
general risks of spaceflight. Blue Origin noted that it remains prudent
to provide government astronauts with the same information and
opportunities for dialogue available to space flight participants. Blue
Origin also recommended that government astronauts without safety-
critical roles
[[Page 76718]]
be informed of the risks associated with spaceflight, similar to the
informed consent space flight participants must provide. Blue Origin
suggested that the FAA adopt language similar to Sec. 460.45 in its
proposed subpart D to apply the same requirement to government
astronauts without a safety-critical role.
The FAA is not adding a requirement that government astronauts
provide informed consent to the final rule because, as it stated in the
NPRM, government astronauts are aware of the risks of space flight. As
explained in the NPRM, the NASA Administrator designates government
astronauts, and that designation implies appropriate knowledge and
training for the performance of official duties. In addition, there is
no statutory requirement for government astronauts to sign informed
consent forms and doing so may interfere with their rights under the
Federal Employees' Compensation Act. Therefore, the U.S. government
should inform government astronauts of any risks they may be exposed to
while performing official duties. This applies to all government
astronauts, including those with a safety-critical role.
In response to Virgin Galactic's concern that state statutes
protect licensees from liability when informed consent is provided, in
most, if not all, of these states the respective statutes provide
specific informed consent language that serves as a waiver of claims
between the operator and the participant. The consideration of informed
consent as a waiver of claims is further reason why a government
astronaut should not sign an informed consent agreement with the
operator because government astronauts do not waive claims.
In response to Blue Origin's comment that government astronauts
should receive the same mission information and opportunity to discuss
that information with the operator, the FAA notes that the fact that
there is not a regulatory requirement for government astronauts to sign
an informed consent form does not preclude operators from providing
information to and speaking with government astronauts. An operator may
inform a government astronaut about the unique risks and safety record
of the vehicle, but the FAA will not require a government astronaut's
signature on an informed consent agreement.
D. Moving Waiver of Claims Templates to an AC
This rule finalizes the proposal to move the templates for waiver
of claims in appendix B through E of part 440 to a separate advisory
circular and adds language to clarify that these templates are approved
by the FAA and may be used to meet the requirements in Sec. 440.17.
SpaceX disagreed with moving the templates to a separate advisory
circular. Specifically, SpaceX noted that the inclusion of cross-
waivers in the part 440 appendices has streamlined negotiations related
to cross-waivers between licensees or permittees and customers and has
therefore also lessened FAA's burden to review cross-waiver submissions
to ensure compliance with the regulations. SpaceX stated that although
the current language of Sec. 440.17 allows for submission of a ``form
that otherwise provides all the same obligations and benefits'' as the
cross-waivers contained in the part 440 appendices, as a practical
matter, licensees simply submit the cross-waiver forms contained in the
appendices. SpaceX emphasized that moving the sample forms out of an
appendix into a separate advisory circular will be confusing to less
frequent signers of cross-waivers and will encourage more negotiation
between the licensee or permittee and the individuals or entities
required to sign cross-waivers. SpaceX noted that any such negotiation
that results in changes to the cross-waiver language will then add to
the FAA's burden by requiring the FAA to spend additional time
reviewing the submission to ensure compliance with Sec. 440.17.
Sierra Space commented that the language proposed in Sec. 440.17
could potentially be read to imply that the Administrator must approve
the form used for the waivers in each case. Sierra Space recommended
rewording the language in Sec. 440.17 to clarify that review or
approval by the Administrator is not required if a licensee adopts the
language already set forth in a template published by the FAA.
An individual commented that they support the FAA's proposal to
move the cross-waiver templates to an advisory circular because the
templates are merely examples of how to meet a regulation and are not
themselves regulatory.
This rule moves the waiver of claims templates from the part 440
appendices to an advisory circular because these templates are not
regulatory, but simply examples, and moving them to an advisory
circular provides greater flexibility to update or revise as needed.
These templates are provided to assist operators with meeting the
reciprocal waiver of claims requirements but are not the only means by
which an operator may meet those requirements. They are, therefore,
more appropriately located in an advisory circular. SpaceX and Sierra
Space commented that the language in the NPRM's proposed Sec. 440.17
was not clear that the waiver of claims forms in the advisory circular
would be acceptable and approved by the FAA without the need for
additional legal review, unless modified. Therefore, the FAA is
revising the language in Sec. 440.17 to state: ``The reciprocal waiver
of claims must be in a form acceptable to the Administrator, such as
those contained in advisory circular AC 440.17-1.'' This change will
clarify that the reciprocal waiver of claims templates found in AC
4401.17-1, or any future updates, are acceptable to the FAA and may be
used to meet the requirements in Sec. 440.17.
E. Government Astronauts on Permitted Operations
The final rule would not prohibit government astronauts from being
onboard during permitted operations.\4\ Some commenters questioned
whether government astronauts would ever be part of a permitted
operation.
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\4\ Permitted operations are operations conducted in accordance
with 14 CFR part 437 Experimental Permits.
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Ascendant Spaceflight Services (Ascendant) commented that the FAA
should delete references to ``government astronaut'' in permitted
operations because suborbital vehicles in the development or
experimental phase would not be carrying government astronauts. Rather,
those vehicles would only be carrying crew. Ascendant asserted that
experimental permit human space flight requirements in Sec. 437.5 only
apply to crew.
The FAA does not agree. While Sec. 437.5 does identify launch or
reentry for the purpose of crew training as eligible for an
experimental permit, Sec. 437.5(b) states that eligibility for a
permit also includes a showing of compliance with requirements for
obtaining a license. An operator may choose to conduct an operation
with government astronauts on board under an experimental permit to
demonstrate compliance with a requirement to obtain a license. Although
no government astronauts have flown on a permitted vehicle to date, it
is possible they might in the future to train for a licensed mission.
F. Tracking Astronaut Training Requirements
The final rule revises proposed Sec. 460.59(d)(1) to require
operators ensure government astronaut training is up to date by
incorporating lessons
[[Page 76719]]
learned from training and operational missions by providing
traceability to revisions or changes. The proposed rule would have
required operators to track each revision of the training plan and
update training in writing.
The FAA received two comments on this issue. ALPA supported the
FAA's proposals requiring operators to track and update the training of
government astronauts. SpaceX, however, recommended providing more
flexibility for tracking changes to training. SpaceX explained that it
utilizes a sophisticated change control system to track updates to
training and suggested revising proposed Sec. 460.59(d)(1) to require
an operator to update the government astronaut training continually to
ensure the training incorporates lessons learned from training and
operational missions by providing traceability to revisions or changes.
The FAA agrees with SpaceX's suggested change. Proposed Sec.
460.59(d)(1) would require all revisions to training to be tracked in
written form. The FAA finds that SpaceX's recommended change would
provide FAA with sufficient compliance insight through traceability,
which meets the intent of the FAA's initial proposed Sec.
460.59(d)(1), while also permitting operators to use modern electronic
systems. The FAA adopts SpaceX's proposed language in the final rule.
G. Environmental Controls
This rule finalizes the proposal to require operators to establish
environmental controls for operations involving government astronauts
with a safety-critical role because, as with crew, the FAA found that
government astronauts would likewise need to be protected from
atmospheric conditions and receive training that is necessary for the
safety of the public on the ground, in air, and in space.
The FAA received two comments on this issue. An individual
questioned whether environmental controls referred to life support
systems or environmental impacts. Environmental controls in these
regulations do refer to life support systems. SpaceX commented that
humidity is not a safety-critical metric of determining suitable
atmospheric conditions for human beings and that compared to other
conditions listed within the subparts to Sec. 460.61, humidity is an
outlier given that it is not a direct risk to life and consciousness.
The FAA retains humidity in Sec. 460.61(a)(2) in the final rule.
The FAA notes that while very high humidity environments could
influence core body temperature, the time high humidity would take to
cause an impact would be much longer than impacts from pressure and
temperature changes in the inhabited area of a vehicle. However, if a
flight crew depended on visual information through a window, humidity
control would be necessary to avoid windows fogging and condensation
that can hinder a pilot's vision and could therefore impact public
safety.
H. Use of the Term ``Human Beings''
In this rule, the FAA replaces the proposed term ``human beings''
with the defined terms ``space flight participant,'' ``crew,'' and
``government astronaut'' where appropriate. In the NPRM, the FAA
proposed to use the term ``human being'' to encompass all three
categories of persons who can currently be carried on board a vehicle:
government astronaut, space flight participant, and crew.
The FAA received two comments on this issue. Sierra Space commented
that the NPRM's use of the term ``human beings'' could potentially lead
individuals, lawmakers, courts, and licensees to incorrectly assume
that there is some other category of humans who may be present on board
licensed operations besides those that have already been defined (space
flight participants, crew, and government astronauts). Sierra Space
stated that the FAA should remove the use of ``human beings'' and
instead revert to listing each category of individuals to which the
language applies. An individual similarly commented that the
classification of non-astronaut workers as ``human beings'' is an
unnecessary classification that would only overcomplicate future
requirements on these workers.
The FAA finds that using the term ``human beings'' could cause
unnecessary confusion among stakeholders and therefore is removing that
term in the final rule. Instead, the FAA is replacing ``human beings''
with the defined terms ``space flight participant,'' ``crew,'' and
``government astronaut'' where appropriate.
I. Aeronautical Knowledge Requirement
This rule finalizes proposed Sec. 460.59(b)(3), which requires an
operator to ensure any government astronaut with a safety-critical role
possesses aeronautical knowledge, experience, and skills necessary to
pilot and control the launch or reentry vehicle that will operate in
the National Airspace System (NAS). The regulation specifies that
aeronautical experience may include hours in flight, ratings, and
training.
SpaceX commented that proposed Sec. 460.59(b)(3) would transfer an
existing requirement onto operators to ensure government astronauts are
trained, and that NASA should continue to hold this responsibility and
set forth any requirements it deems suitable for designated astronauts
as set forth in 51 U.S.C. 50902(4). To support its position, SpaceX
noted that the training requirement is tailored to winged vehicles
rather than fully automated capsules, such as its Crew Dragon, which
are not maneuverable during launch and reentry, and which utilize
Notices to Air Missions and Notices to Mariners to remove the need for
in-flight and real-time coordination within airspace. SpaceX therefore
found that the aeronautical knowledge, including hours in aircraft
flight, required by proposed Sec. 460.59(b)(3) is irrelevant to safe
vehicle operation and recommended that FAA remove this requirement as
overly prescriptive and inapplicable.
The FAA disagrees that proposed Sec. 460.59(b)(3) should be
removed from the final rule. The requirement for aeronautical knowledge
only applies to government astronauts who have the capability to
control, in real time, a launch or reentry vehicle's flight path during
a phase of flight capable of endangering the public. The requirement is
not a blanket requirement for all government astronauts. Autonomous
vehicles where government astronauts do not have any input for phases
of flight going through the NAS would not need to comply with this
requirement as such aeronautical knowledge, experience, and skills
would not be necessary. Any NASA requirement for aeronautical knowledge
for government astronauts that pilot a vehicle is not redundant because
it can be used to demonstrate compliance with the FAA requirement.
J. Permit Eligibility
This rule finalizes the proposal to replace the term ``reusable
suborbital rocket'' with ``reusable suborbital vehicle'' in Sec.
437.5. It also finalizes the proposal to remove the term ``new'' from
Sec. 437.5(a) to allow research and development of existing design
concepts, equipment, or operating techniques, consistent with the
CSLCA.
Ascendant commented that experimental permits should not be limited
to suborbital launch vehicles. Ascendant stated that there is no
difference in risk to the public between any experimental launch or
reentry vehicle, suborbital or orbital, which
[[Page 76720]]
does not carry commercial payloads and paid occupants. Ascendant noted
that the limited applicability of experimental permits places
additional burden on developers of orbital or expendable suborbital
vehicles which require licenses before test flight can begin. Ascendant
also asked for clarification regarding whether the training referenced
in Sec. 437.5 refers to training crew in flight to operate a licensed
vehicle, or training crew to operate a vehicle for which a license
would be issued (for example, to complete integrated testing with
humans).
The training referenced in Sec. 437.5 refers to training crew in
flight to operate a licensed vehicle. The FAA's statutory authority to
issue experimental permits only applies to suborbital vehicles, and
therefore the FAA does not have the authority to expand the
applicability of experimental permits to any orbital vehicles. Title 51
U.S.C. 50906 states that the Secretary may issue a permit only for
reusable suborbital rockets or reusable launch vehicles that will be
launched into a suborbital trajectory or reentered under that permit
solely for research and development to test design concepts, equipment,
or operating techniques; showing compliance with requirements as part
of the process for obtaining a license under this chapter; or crew
training for a launch or reentry using the design of the rocket or
vehicle for which the permit would be issued. The FAA is only expanding
eligibility to launch or reentry vehicles on a suborbital trajectory to
align with the CSLCA. Therefore, the FAA will not expand the
applicability of experimental permits to any orbital vehicles.
K. Government Astronauts on Foreign Vehicles
This rule defines ``government astronaut'' to match the statutory
definition and provides regulatory clarity to applicants seeking FAA
licenses for space flight operations involving government astronauts.
An individual commented that it may be beneficial to acknowledge
U.S. government astronauts flying on board international partner
spacecraft and international launch providers. The individual noted
that the International Space Station (ISS) currently uses Soyuz
vehicles from Russia and that there could be advances in vehicles from
ESA and JAXA, for example.
The FAA does not license foreign launch or reentry vehicles that
are launching or reentering outside the U.S., and therefore addressing
government astronauts flying on board foreign spacecraft that launch or
reenter outside the U.S. is outside the scope of the FAA's regulatory
authority and this rulemaking.
L. Clarification on the Role of International Partner Astronauts
This rule defines an ``International partner astronaut'' as an
individual designated under Article 11 of the International Space
Station Intergovernmental Agreement, by a partner to that agreement
other than the U.S., as qualified to serve as an ISS crew member. This
definition was taken directly from the CSLCA.
Sierra Space encouraged the FAA to further clarify the role of
international partner astronauts, including clarifying who would not
qualify as an international partner astronaut. Sierra Space stated that
since the NPRM's definition of ``international partner astronaut''
applies only to astronauts contributed by ISS partner states who are
crewmembers on board the ISS, the term would not apply to international
astronauts from non-partner states, nor would it apply to any
international astronaut serving missions unrelated to the ISS. Sierra
Space concluded that all such individuals would be considered space
flight participants under the proposed regulations and would therefore
be subject to the waiver and informed consent requirements applicable
to space flight participants.
Sierra Space noted that there may be cases in which foreign
governments may be unwilling to allow or require their employees to
enter the waivers of claims required of space flight participants, or
to personally assume the risk of human space flight operations as
required by the informed consent regime. Sierra Space stated that the
FAA should consider granting latitude to operators carrying astronauts
from foreign countries by waiving informed consent and individual
waiver requirements, especially if those countries have sufficiently
mature astronaut training programs and are willing to accept financial
responsibility for claims brought by their employees.
The FAA is adopting the statutory definition of international
partner astronaut. The FAA realizes that the statutory definition only
applies to ISS partner astronauts. Any foreign astronaut who does not
meet the definition of international partner astronaut would be
considered a space flight participant under FAA regulations and would
have to comply with space flight participant regulations. An operator
may request a waiver to the waiver of claims requirement for space
flight participants for those instances in which a foreign astronaut is
characterized as a space flight participant rather than an
international partner astronaut.
M. Training of Space Flight Participants for Safety Critical Roles
SpaceX commented that, in the interest of public safety and the
safety of those on board launch and reentry vehicles, the FAA should
update the final rule to reflect in its regulations that space flight
participants should be trained appropriately to conduct potentially
lifesaving functions during an emergency to protect both themselves and
the public, including operating a vehicle during launch or reentry in a
manner to protect public safety. SpaceX noted that the definitions for
crew, government astronaut, and space flight participant within 51
U.S.C. 50902 were developed at a time when Congress anticipated all
crewed vehicles to be operated either by crew or by government
astronauts. However, SpaceX noted that while the statute provides
training for crew and government astronauts, missions that have only
had space flight participants on board have occurred for both orbital
and suborbital systems. Furthermore, SpaceX stated that the statutory
definition of space flight participants, defined in 51 U.S.C. 50902 to
be any person that is not crew or a government astronaut, does not
prohibit the FAA from requiring an operator to train space flight
participants to operate a vehicle during launch or reentry. SpaceX
concluded that, therefore, the FAA should revise its regulations to
allow an operator to train space flight participants to operate a
vehicle during launch or reentry because the underlying statute does
not prohibit space flight participant training.
Sierra Space similarly commented that the FAA should adopt common
requirements for training which apply to any passenger or remote
operator in a safety critical role, regardless of how that individual
is classified under the regulations. Sierra Space stated these common
requirements should clarify what constitutes a ``safety-critical role''
to limit the definition to those individuals who are essential to
ensuring that the vehicle operates in real time to ensure public
safety.
In the NPRM, the FAA did not propose to add training requirements
for space flight participants. The FAA explained that whereas the
definition of crew in title 51 expressly acknowledges a crew member's
ability to perform activities directly relating to operation of the
vehicle, the definition of space flight participant contains no express
authority to do so. Furthermore, current
[[Page 76721]]
crew qualification and training requirements include a demonstration of
the ability to withstand the stresses of space in sufficient condition
to safely carry out duties so the vehicle will not harm the public.
Each crew member with a safety-critical role is also required to
possess and carry an FAA second-class medical certificate. Similarly,
government astronauts who perform a safety-critical role must be
trained to carry out that role because it may affect the safety of the
public. An operator may choose to train space flight participants to
conduct potentially lifesaving functions during an emergency to protect
themselves, however, the regulations do not require this training
because it is not necessary to protect public safety.
The FAA has already addressed training requirements for those
missions that only have space flight participants onboard. Under Sec.
460.51, an operator must train each space flight participant before
flight on how to respond to emergency situations, including smoke,
fire, loss of cabin pressure, and emergency exits. An operator may also
provide mission-specific training to space flight participants for
missions without crew or government astronauts. The FAA therefore finds
that the training required by Sec. 460.51 is sufficient to satisfy
missions with only space flight participants on board.
N. Use of ANSI Standard for Human Spaceflight Ontology
This rule updates definitions relating to commercial space launch
and reentry vehicles and occupants to reflect current legislative
definitions.
Both the Space Infrastructure Foundation (SIF) and an individual
commented that the FAA should use terms identified in AIAA/ANSI S-153
2021 Human Spaceflight: Spacecraft Architecture and Systems Engineering
Ontology Standard (S-153) in its applicable commercial space
regulations.
SIF stated that because the National Technology Transfer
Advancement Act (NTTAA) compels government organizations to adopt
industry standards developed under a voluntary consensus process, and
failure to do so must be justified to Congress on a case-by-case basis,
the FAA should use the standards identified in S-153. An individual
stated that S-153 is critical for U.S. commercial spaceflight because
it establishes the baseline of the ontology, streamlines
interdisciplinary communication, and enables strategic planning, and
the FAA should consider S-153's integration into the current
rulemaking.
The FAA does not adopt S-153 into its regulations because the
updated definitions are required by Congress to reflect current
legislative definitions in 51 U.S. Code 50902. Furthermore, the
terminology in S-153 does not align with the purpose of this rulemaking
because the terminology in S-153 focuses on human spaceflight
spacecraft from an architectural and system engineering perspective,
rather than on the statutorily required definitions the FAA must
incorporate into its regulations.
O. Transparency of MPL Methodology
An individual commented that publishing the MPL methodology would
provide greater transparency and reduce uncertainty for commercial
space businesses, insurance companies, and investors. The commenter
noted that this transparency would pose no risks to national security
and that publishing the MPL methodology in an AC would not require
notice and comment for modification. The commenter recommended amending
Sec. 440.7(a) or (b) to include that the method for determining MPL is
set forth in an AC.
The scope of this rulemaking is to codify current statutory
requirements mandated by the CSLCA. The FAA finds that providing MPL
methodology in an AC is beyond the scope of the rulemaking because it
is not a change required by the CSLCA, and this final rule does not
pertain to MPL methodology.
P. Commercial Use of Asteroid or Space Resources
Space Law & Policy Solutions noted that the CSLCA contains a
provision in title IV which authorizes U.S. citizens to perform non-
governmental space activities aimed at the recovery, possession,
ownership, use, and sale of asteroid or space resources. Space Law &
Policy Solutions noted that the NPRM does not mention title IV nor its
enactment in 51 U.S.C. 51303 and asked the FAA a series of related
questions. Such questions included (i) why space resources are not
mentioned in the NPRM; (ii) whether the FAA deems title IV of the CSLCA
as providing the FAA with congressional authority to license space
resource activities and if so, whether an amendment is required to its
regulations; (iii) whether the FAA deems itself the proper Article VI
authorizing agency to review and license a space resource activity; and
(iv) whether the FAA believes it requires additional authority from
Congress to include on orbit authority to oversee space resource
activities. Space Law & Policy Solutions noted that it understands its
questions are beyond the scope of the FAA's request in the NPRM, but
that the FAA should address the lack of clarity on the licensing and
implementation of space resources.
The FAA does not have statutory authority to regulate space
resources, and the commenter's questions are out of scope for the
current rulemaking.
V. Regulatory Notices and Analyses
Federal agencies consider impacts of regulatory actions under a
variety of Executive orders and other requirements. First, Executive
Order 12866, Executive Order 13563, and Executive Order 14094
(``Modernizing Regulatory Review''), direct that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify the costs. Second,
the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires
agencies to analyze the economic impact of regulatory changes on small
entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. Fourth, the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to
prepare a written assessment of the costs, benefits, and other effects
of proposed or final rules that include a Federal mandate 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. The current
threshold after adjustment for inflation is $183 million using the most
current (2023) Implicit Price Deflator for the Gross Domestic Product.
In conducting these analyses, the FAA has determined that this
rule: will result in benefits that justify costs; is not a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866, as amended; will not have a significant economic
impact on a substantial number of small entities; will not create
unnecessary obstacles to the foreign commerce of the United States; and
will not impose an unfunded mandate on State, local, or Tribal
governments, or on the private sector.
A. Regulatory Impact Analysis
This rule amends 14 CFR parts 401, 413, 415, 431, 435, 437, 440,
450, and 460 by incorporating statutory changes resulting from the
CSLCA. This rule adds a definition for ``government astronaut'' and
updates other definitions to account for that addition. This rule also
updates financial responsibility
[[Page 76722]]
requirements in part 440 to exclude government astronauts from the
definitions of ``third party'' and adds space flight participants to
the insurance requirements in Sec. 440.9. Templates for reciprocal
waiver of claims agreements are moved from part 440 appendices B
through E to an AC. This rule also adds two new subparts to part 460 to
address operator requirements for government astronauts playing safety-
critical and non-safety-critical roles during launches and reentries.
In addition, the FAA replaces the terms ``crew'' and ``space flight
participant'' with ``crew, space flight participant, or government
astronaut'' in Sec. Sec. 415.8, 431.8, and 435.8 for applicants
seeking a license for operations involving human space flight and that
must demonstrate compliance with human space flight requirements. This
change accommodates the creation of the government astronaut category
in part 460.
This rule affects all U.S. commercial space operators and launches
and reentries licensed under 14 CFR parts 401, 413, 415, 431, 435, 437,
440, 450, and 460 that will carry a government astronaut on board.
Table 1 details the changes in each part.
There are no changes in the final rule from the proposed rule that
notably change the analysis presented for the proposed rule.
Table 1--Changes by Section
------------------------------------------------------------------------
Section Change Effect of change
------------------------------------------------------------------------
Sec. 401.5 Definitions........ Add definitions None. The FAA has
for ``Government been applying
Astronaut,'' these definitions
``International in accordance
partner with the statute
astronaut,'' and since the CSLCA
``International went into effect.
Space Station This change
Intergovernmental provides
Agreement.'' regulatory
Revising clarity.
definitions for
``Human space
flight
incident,''
``Launch,''
``Launch
accident,''
``Reenter,''
``Reentry
accident,'' and
``Space flight
participant''.
Sec. 401.7 Definitions........ Add definitions None. The FAA has
for ``Government been applying
Astronaut,'' these definitions
``International in accordance
partner with the statute
astronaut,'' and since the CSLCA
``International went into effect.
Space Station This change
Intergovernmental provides
Agreement.'' regulatory
Revising clarity.
definition for
``Space flight
participant''.
Sec. 413.3(f)................. Replace the term None. The FAA has
``rocket'' with been applying
the term these definitions
``vehicle'' to in accordance
align with the with the statute
increase in scope since the CSLCA
from Sec. 437.3. went into effect.
This change
provides
regulatory
clarity.
Sec. 415.8 Human Space Flight Replace ``flight None. The FAA has
in Part 415, LAUNCH LICENSE. crew or a space been applying
flight these
participant'' requirements to
with ``a space government
flight astronauts in
participant, accordance with
crew, or the statute since
government the CSLCA went
astronaut.'' Add into effect. This
sections 460.59, change provides
460.61, and regulatory
460.67 to the clarity.
list of sections
with which an
applicant
proposing to
conduct a launch
with a space
flight
participant,
crew, or
government
astronaut on
board must
demonstrate
compliance.
Sec. 431.8 Human Space Flight Replace ``flight None. The FAA has
in Part 431, LAUNCH AND REENTRY crew or a space been applying
OF A REUSABLE LAUNCH VEHICLE flight these
(RLV). participant'' requirements to
with ``a space government
flight astronauts in
participant, accordance with
crew, or the statute since
government the CSLCA went
astronaut.'' Add into effect. This
sections 460.59, change provides
460.61, and regulatory
460.67 to the clarity.
list of sections
with which an
applicant
proposing to
conduct a launch
with a space
flight
participant,
crew, or
government
astronaut on
board must
demonstrate
compliance.
Sec. 435.8 Human Space Flight Replace ``flight None. The FAA has
in Part 435, REENTRY OF A crew or a space been applying
REENTRY VEHICLE OTHER THAN A flight these
REUSABLE LAUNCH VEHICLE (RLV). participant'' requirements to
with ``a space government
flight astronauts in
participant, accordance with
crew, or the statute since
government the CSLCA went
astronaut.'' Add into effect. This
sections 460.59, change provides
460.61, and regulatory
460.67 to the clarity.
list of sections
with which an
applicant
proposing to
conduct a launch
with a space
flight
participant,
crew, or
government
astronaut on
board must
demonstrate
compliance.
Sec. 437.3 Definitions in Part Replaced None. The FAA has
437, EXPERIMENTAL PERMITS. suborbital rocket been applying
with suborbital these definitions
vehicle in the in accordance
definitions for with the statute
``envelope since the CSLCA
expansion'', went into effect.
``exclusion This change
area'', and provides
``reentry impact regulatory
point''. Updated clarity.
the definition of
``permitted
vehicle'' to
include reusable
launch vehicles
that are launched
on a suborbital
trajectory or are
reentered.
Updated the
definition of
``permitted
vehicle'' to add
that it includes
``a reusable
launch vehicle
that will be
launched into a
suborbital
trajectory or
reentered from a
suborbital
trajectory''.
Sec. Sec. 437.5, 437.7, Replace None. The FAA has
437.9, 437.21, 437.23, 437.25, ``suborbital been applying
437.31, 437.33, 437.53, 437.57, rocket'' with these definitions
437.59, 437.61, 437.71, ``reusable in accordance
437.85., 437.91, and 437.95. suborbital with the statute
vehicle''. since the CSLCA
went into effect.
This change
provides
regulatory
clarity.
Sec. 437.5(a)................. Remove ``new'' to None. The FAA has
allow research been applying
and development these definitions
of existing in accordance
design concepts, with the statute
equipment, or since the CSLCA
operating went into effect.
techniques. This change
provides
regulatory
clarity.
Sec. 437.21(b)(3)............. Replace ``flight None. The FAA has
crew or a space been applying
flight these
participant'' requirements to
with ``a space government
flight astronauts in
participant, accordance with
crew, or the statute since
government the CSLCA went
astronaut.'' Add into effect. This
sections 460.59, change provides
460.61, and regulatory
460.67 to the clarity.
list of sections
with which an
applicant
proposing to
conduct a launch
with a space
flight
participant,
crew, or
government
astronaut on
board must
demonstrate
compliance.
Move appendices B-E in part 440, .................. None.
FINANCIAL RESPONSIBILITY, to an
AC..
[[Page 76723]]
Sec. 440.3.................... Revise definition None. Updates to
of permit and the definition of
permitted permit and
activity. Exclude permitted
government activity align
astronaut from statue with
losses to current practice.
government Excluding
personnel in the government
definition of astronaut from
``MPL''''. third party means
Exclude that they are not
government included in MPL
astronaut from calculations and
the definition of are prevented
``Third party''. from making
claims as third
parties in
alignment with
current practice.
Government
astronauts that
are employed by
the US government
would be covered
by insurance
required under
Sec. 440.9(b)
because they are
government
personnel.
Sec. 440.9(b)................. Add space flight None. The FAA has
participants to been requiring
the list in which the addition of
a licensee or space flight
permittee must participants to
obtain and the insurance
maintain in requirements with
effect a policy operators in
or policies of accordance with
liability the statute since
insurance to the CSLCA went
protect their into effect. This
respective change provides
potential regulatory
liabilities clarity.
against covered
claims by a third
party for bodily
injury or
property damage
resulting from a
licensed or
permitted
activity.
Sec. 440.17(c), (d), and (e).. Add language to None. The FAA has
require the been requiring
licensee or reciprocal waiver
permittee to of claims in
enter into a accordance with
reciprocal waiver existing
of claims regulations. This
agreement, in a change provides
form acceptable regulatory
to the flexibility by
Administrator moving the
such as those templates from
contained in regulatory
advisory circular language to an
AC 440.17-1, with advisory
each space flight circular.
participant.
Sec. 440.17(f) and (g)........ Add requirement None. The FAA has
for reciprocal been requiring
waiver of claims reciprocal waiver
between operators of claims between
and space flight operators and
participants as space flight
section (f). Move participants in
current section accordance with
(f) to section the statute since
(g). the CSLCA went
into effect. This
change provides
regulatory
clarity. Current
section (f) is
moved to section
(g) without
changes to
accommodate the
addition of
section (f).
Sec. 450.45(e)(3)(ii)(E) Human Replace None. The FAA has
Space Flight in part 450. ``rocket's'' with been applying
``vehicle's''. these definitions
in accordance
with the statute
since the CSLCA
went into effect.
This change
provides
regulatory
clarity.
Sec. 450.45(e)(5)............. Replace ``flight None. The FAA has
crew or a space been applying
flight these
participant'' requirements in
with ``a space accordance with
flight the statute since
participant, the CSLCA went
crew, or into effect. This
government change provides
astronaut.'' Add regulatory
sections 460.59, clarity.
460.61, and
460.67 to the
list of sections
with which an
applicant
proposing to
conduct a launch
with a space
flight
participant,
crew, or
government
astronaut on
board must
demonstrate
compliance.
Add Subpart C, Launch and Add requirements None. Operators
Reentry with a Government applicable to have been
Astronaut With a Safety- government training
Critical Role, after Subpart B astronauts with a government
in Sec. 460 Scope, HUMAN safety-critical astronauts in
SPACE FLIGHT REQUIREMENTS. role. order to satisfy
NASA contractual
requirements.
This change makes
some of that
training required
by regulation.
Add Subpart D, Launch and Add requirements None. Operators
Reentry with a Government applicable to have been
Astronaut Without a Safety- government training
Critical Role after Subpart C astronauts government
in Sec. 460 Scope, HUMAN without a safety- astronauts in
SPACE FLIGHT REQUIREMENTS. critical role. order to satisfy
NASA contractual
requirements.
This change makes
some of that
training required
by regulation.
------------------------------------------------------------------------
These changes will have a minimal impact on licensed commercial
space activity with government astronauts because the changes align
regulations with the current statutory requirements for crew, for space
flight participants, and with current practices. The FAA has been
applying the statutory changes since they went into effect in 2015.
Since this rule codifies these current practices, there is effectively
no change from the baseline without the rule and, therefore, no
measurable resulting benefits or costs.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980, (5 U.S.C. 601-612),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L.
111-240), requires Federal agencies to consider the effects of the
regulatory action on small business and other small entities and to
minimize any significant economic impact. The term ``small entities''
comprises small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
This rule updates definitions relating to commercial space launch
and reentry vehicles and occupants to reflect current statutory
definitions and requirements, as well as implements clarifications to
financial responsibility requirements in accordance with the CSLCA. The
FAA has been applying the statutory changes since they went into effect
in 2015. Since this rule codifies these current practices, the FAA
certifies that this rule will not result in a significant economic
impact on a substantial number of small entities.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), 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 these Acts, 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
[[Page 76724]]
the potential effects of this rule and determined that it will not
create unnecessary obstacles to the foreign commerce of the United
States.
D. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
governs the issuance of Federal regulations that require unfunded
mandates. An unfunded mandate is a regulation that requires a State,
local, or Tribal government or the private sector to incur direct costs
without the Federal Government having first provided the funds to pay
those costs. The FAA determined that this final rule will not result in
the expenditure of $183 million or more by State, local, or Tribal
governments, in the aggregate, or the private sector, in any one year.
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. Environmental Analysis
FAA Order 1050.1F identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act (NEPA) in the absence of extraordinary circumstances. The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 5-6.6f for regulations and involves
no extraordinary circumstances.
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order (E.O.) 13132, Federalism. The FAA has
determined that this action will 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, will not have
federalism implications.
B. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Consistent with Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments,\5\ and FAA Order 1210.20,
American Indian and Alaska Native Tribal Consultation Policy and
Procedures,\6\ the FAA ensures that Federally Recognized Tribes
(Tribes) are given the opportunity to provide meaningful and timely
input regarding proposed Federal actions that have the potential to
have substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes; or to affect uniquely or significantly
their respective Tribes. At this point, the FAA has not identified any
unique or significant effects, environmental or otherwise, on Tribes
resulting from this final rule.
---------------------------------------------------------------------------
\5\ 65 FR 67249 (Nov. 6, 2000).
\6\ FAA Order No. 1210.20 (Jan. 28, 2004), available at
<a href="http://www.faa.gov/documentLibrary/media/1210.pdf">www.faa.gov/documentLibrary/media/1210.pdf</a>.
---------------------------------------------------------------------------
C. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this final rule under E.O. 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The FAA has determined that it is
not a ``significant energy action'' under the Executive order and is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
D. 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 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.
VII. Additional Information
A. Electronic Access and Filing
A copy of the NPRM, all comments received, this final rule, and all
background material may be viewed online at <a href="http://www.regulations.gov">www.regulations.gov</a> using
the docket number listed above. A copy of this final rule will be
placed in the docket. Electronic retrieval help and guidelines are
available on the website. It is available 24 hours each day, 365 days
each year. An electronic copy of this document may also be downloaded
from the Office of the Federal Register's website at
<a href="http://www.federalregister.gov">www.federalregister.gov</a> and the Government Publishing Office's website
at <a href="http://www.govinfo.gov">www.govinfo.gov</a>. A copy may also be found at the FAA's Regulations
and Policies website at <a href="http://www.faa.gov/regulations_policies">www.faa.gov/regulations_policies</a>.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.
Commenters must identify the docket or notice number of this
rulemaking.
All documents the FAA considered in developing this final rule,
including economic analyses and technical reports, may be accessed in
the electronic docket for this rulemaking.
B. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires the 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
<a href="http://www.faa.gov/regulations_policies/rulemaking/sbre_act/">www.faa.gov/regulations_policies/rulemaking/sbre_act/</a>.
List of Subjects
14 CFR Part 401
Organization and functions (Government agencies), Space
transportation and exploration.
14 CFR Part 413
Confidential business information, Space transportation and
exploration.
14 CFR Part 415
Aviation safety, Environmental protection, Investigations,
Reporting and recordkeeping requirements, Space transportation and
exploration.
14 CFR Part 431
Launch and reentry safety, Aviation safety, Reporting and
recordkeeping requirements, Rockets, Space transportation and
exploration.
14 CFR Part 435
Launch and reentry safety, Aviation safety, Reporting and
recordkeeping requirements, Rockets, Space transportation and
exploration.
[[Page 76725]]
14 CFR Part 437
Aircraft, Aviation safety, Reporting and recordkeeping
requirements, Space transportation and exploration.
14 CFR Part 440
Indemnity payments, Insurance, Reporting and recordkeeping
requirements, Space transportation and exploration.
14 CFR Part 450
Aircraft, Aviation safety, Environmental protection,
Investigations, Reporting and recordkeeping requirements, Space
transportation and exploration.
14 CFR Part 460
Aircraft, Reporting and recordkeeping requirements, Space
transportation and exploration.
The Amendments
For the reasons discussed in the preamble, the Federal Aviation
Administration amends chapter III of title 14, Code of Federal
Regulations as follows:
PART 401--ORGANIZATION AND DEFINITIONS
0
1. The authority citation for part 401 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
0
2. Amend Sec. 401.5 by:
0
a. Adding definitions in alphabetical order for ``Government
astronaut'', ``International partner astronaut'', and ``International
Space Station Intergovernmental Agreement''; and
0
b. Revising the definitions for ``Human space flight incident'',
``Launch'', ``Launch accident'', ``Reenter; reentry'', ``Reentry
accident'', and ``Space Flight participant''.
The additions and revisions read as follows:
Sec. 401.5 Definitions.
* * * * *
Government astronaut means an individual who--
(1) Is designated by the National Aeronautics and Space
Administration under Title 51, United States Code, Section 20113(n);
(2) Is carried within a launch vehicle or reentry vehicle in the
course of their employment, which may include performance of activities
directly relating to the launch, reentry, or other operation of the
launch vehicle or reentry vehicle; and
(3) Is either--
(i) An employee of the United States Government, including the
uniformed services, engaged in the performance of a Federal function
under authority of law or an Executive act; or
(ii) An international partner astronaut.
* * * * *
Human space flight incident means an unplanned event that poses a
high risk of causing a serious or fatal injury to a space flight
participant, crew, or government astronaut.
* * * * *
International partner astronaut means an individual designated
under Article 11 of the International Space Station Intergovernmental
Agreement, by a partner to that agreement other than the United States,
as qualified to serve as an International Space Station crew member.
International Space Station Intergovernmental Agreement means the
Agreement Concerning Cooperation on the International Space Station,
signed in Washington, DC, on January 29, 1998 (TIAS 12927).
* * * * *
Launch means to place or try to place a launch vehicle or reentry
vehicle and any payload, space flight participant, crew, or government
astronaut from Earth in a suborbital trajectory, in Earth orbit in
outer space, or otherwise in outer space, and includes preparing a
launch vehicle for flight at a launch site in the United States. Launch
includes the flight of a launch vehicle and includes pre- and post-
flight ground operations as follows:
(1) Beginning of launch. (i) Under a license, launch begins with
the arrival of a launch vehicle or payload at a U.S. launch site.
(ii) Under a permit, launch begins when any pre-flight ground
operation at a U.S. launch site meets all of the following criteria:
(A) Is closely proximate in time to flight,
(B) Entails critical steps preparatory to initiating flight,
(C) Is unique to space launch, and
(D) Is inherently so hazardous as to warrant the FAA's regulatory
oversight.
(2) End of launch. (i) For launch of an orbital expendable launch
vehicle (ELV), launch ends after the licensee's last exercise of
control over its launch vehicle.
(ii) For launch of an orbital reusable launch vehicle (RLV) with a
payload, launch ends after deployment of the payload. For any other
orbital RLV, launch ends upon completion of the first sustained,
steady-state orbit of an RLV at its intended location.
(iii) For a suborbital ELV or RLV launch, launch ends after
reaching apogee if the flight includes a reentry, or otherwise after
vehicle landing or impact on Earth, and after activities necessary to
return the vehicle to a safe condition on the ground.
Launch accident means--
(1) An event that causes a fatality or serious injury (as defined
in 49 CFR 830.2) to any person who is not associated with the flight;
(2) An event that causes damage estimated to exceed $25,000 to
property not associated with the flight that is not located at the
launch site or designated recovery area;
(3) An unplanned event occurring during the flight of a launch
vehicle resulting in the impact of a launch vehicle, its payload, or
any component thereof:
(i) For an expendable launch vehicle, outside designated impact
limit lines; and
(ii) For a reusable launch vehicle, outside a designated landing
site.
(4) For a launch that takes place with a person on board, a
fatality or serious injury to a space flight participant, crew, or
government astronaut.
* * * * *
Reenter; reentry means to return or attempt to return,
purposefully, a reentry vehicle and its payload, space flight
participant, crew, or government astronaut, if any, from Earth orbit or
from outer space to Earth. The term ``reenter; reentry'' includes
activities conducted in Earth orbit or outer space to determine reentry
readiness and that are critical to ensuring public health and safety
and the safety of property during reentry flight. The term ``reenter;
reentry'' also includes activities conducted on the ground after
vehicle landing on Earth to ensure the reentry vehicle does not pose a
threat to public health and safety or the safety of property.
Reentry accident means--
(1) Any unplanned event occurring during the reentry of a reentry
vehicle resulting in the impact of the reentry vehicle, its payload, or
any component thereof, outside a designated reentry site;
(2) An event that causes a fatality or serious injury (as defined
in 49 CFR 830.2) to any person who is not associated with the reentry;
(3) An event that causes damage estimated to exceed $25,000 to
property not associated with the reentry and not located within a
designated reentry site; and
(4) For a reentry that takes place with a person on board, a
fatality or serious injury to a space flight participant, crew, or
government astronaut.
* * * * *
Space flight participant means an individual, who is not crew or a
[[Page 76726]]
government astronaut, carried on board a launch vehicle or reentry
vehicle.
* * * * *
0
3. Amend Sec. 401.7 by:
0
a. Adding definitions in alphabetical order for ``Government
astronaut'', ``International partner astronaut'', and ``International
Space Station Intergovernmental Agreement''; and
0
b. Revising the definition for ``Space flight participant''.
The additions and revision read as follows:
Sec. 401.7 Definitions.
* * * * *
Government astronaut means an individual who--
(1) Is designated by the National Aeronautics and Space
Administration under Title 51, United States Code, Section 20113(n);
(2) Is carried within a launch vehicle or reentry vehicle in the
course of their employment, which may include performance of activities
directly relating to the launch, reentry, or other operation of the
launch vehicle or reentry vehicle; and
(3) Is either--
(i) An employee of the United States Government, including the
uniformed services, engaged in the performance of a Federal function
under authority of law or an Executive act; or
(ii) An international partner astronaut.
* * * * *
International partner astronaut means an individual designated
under Article 11 of the International Space Station Intergovernmental
Agreement, by a partner to that agreement other than the United States,
as qualified to serve as an International Space Station crew member.
International Space Station Intergovernmental Agreement means the
Agreement Concerning Cooperation on the International Space Station,
signed in Washington, DC, on January 29, 1998 (TIAS 12927).
* * * * *
Space flight participant means an individual, who is not crew or a
government astronaut, carried on board a launch vehicle or reentry
vehicle.
* * * * *
PART 413--LICENSE APPLICATION PROCEDURES
0
4. The authority citation for part 413 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
0
5. Amend Sec. 413.3 by revising paragraph (f) to read as follows:
Sec. 413.3 Who must obtain a license or permit.
* * * * *
(f) A person, individual, or foreign entity otherwise requiring a
license under this section may instead obtain an experimental permit to
launch or reenter a reusable suborbital vehicle under part 437 of this
chapter.
PART 415--LAUNCH LICENSE
0
6. The authority citation for part 415 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
0
7. Revise Sec. 415.8 to read as follows:
Sec. 415.8 Human space flight.
To obtain a launch license, an applicant proposing to conduct a
launch with a space flight participant, crew, or government astronaut
on board must demonstrate compliance with Sec. Sec. 460.5, 460.7,
460.11, 460.13, 460.15, 460.17, 460.51, 460.53, 460.59, 460.61, and
460.67 of this subchapter.
PART 431--LAUNCH AND REENTRY OF A REUSABLE LAUNCH VEHICLE (RLV)
0
8. The authority citation for part 431 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
0
9. Revise Sec. 431.8 to read as follows:
Sec. 431.8 Human space flight.
To obtain a license, an applicant proposing to conduct a reusable
launch vehicle mission with a space flight participant, crew, or
government astronaut on board must demonstrate compliance with
Sec. Sec. 460.5, 460.7, 460.11, 460.13, 460.15, 460.17, 460.51,
460.53, 460.59, 460.61, and 460.67 of this subchapter.
PART 435--REENTRY OF A REENTRY VEHICLE OTHER THAN A REUSABLE LAUNCH
VEHICLE (RLV)
0
10. The authority citation for part 435 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
0
11. Revise Sec. 435.8 to read as follows:
Sec. 435.8 Human space flight.
To obtain a reentry license, an applicant proposing to conduct a
reentry with a space flight participant, crew, or government astronaut
on board the vehicle must demonstrate compliance with Sec. Sec. 460.5,
460.7, 460.11, 460.13, 460.15, 460.17, 460.51, 460.53, 460.59, 460.61,
and 460.67 of this subchapter.
PART 437--EXPERIMENTAL PERMITS
0
12. The authority citation for part 437 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
0
13. Revise Sec. 437.3 to read as follows:
Sec. 437.3 Definitions.
Envelope expansion means any portion of a flight where planned
operations will subject a reusable suborbital vehicle to the effects of
altitude, velocity, acceleration, or burn duration that exceed a level
or duration successfully verified during an earlier flight.
Exclusion area means an area, within an operating area, that a
reusable suborbital vehicle's instantaneous impact point may not
traverse.
Operating area means a three-dimensional region where permitted
flights may take place.
Permitted vehicle means a reusable suborbital rocket or a reusable
launch vehicle that will be launched into a suborbital trajectory or
reentered that is operated by a launch or reentry operator under an
experimental permit.
Reentry impact point means the location of a reusable suborbital
vehicle's instantaneous impact point during its unpowered
exoatmospheric suborbital flight.
0
14. Revise Sec. 437.5 to read as follows:
Sec. 437.5 Eligibility for an experimental permit.
The FAA will issue an experimental permit to a person to launch or
reenter a reusable suborbital vehicle only for--
(a) Research and development to test design concepts, equipment, or
operating techniques;
(b) A showing of compliance with requirements for obtaining a
license under this subchapter; or
(c) Crew training for a launch or reentry using the design of the
reusable suborbital vehicle for which the permit would be issued.
0
15. Amend Sec. 437.7 by revising the introductory text and paragraph
(b) to read as follows:
Sec. 437.7 Scope of an experimental permit.
An experimental permit authorizes launch or reentry of a reusable
suborbital vehicle. The authorization includes pre- and post-flight
ground operations as defined in this section.
* * * * *
(b) A post-flight ground operation includes each operation
necessary to return the reusable suborbital vehicle to a safe condition
after it lands or impacts.
0
16. Revise Sec. 437.9 to read as follows:
[[Page 76727]]
Sec. 437.9 Issuance of an experimental permit.
The FAA issues an experimental permit authorizing an unlimited
number of launches or reentries for a reusable suborbital vehicle
design for the uses described in Sec. 437.5.
0
17. Amend Sec. 437.21 by revising paragraphs (b)(1)(i) and (iv),
(b)(3), (c), and (d) to read as follows:
Sec. 437.21 General.
* * * * *
(b) * * *
(1) * * *
(i) General. The FAA is responsible for complying with the
procedures and policies of the National Environmental Policy Act (NEPA)
and other applicable environmental laws, regulations, and Executive
Orders to consider and document the potential environmental effects
associated with proposed reusable suborbital vehicle launches or
reentries. An applicant must provide the FAA with information needed to
comply with such requirements. The FAA will consider and document the
potential environmental effects associated with proposed reusable
suborbital vehicle launches or reentries.
* * * * *
(iv) Information requirements. An application must include an
approved FAA Environmental Assessment, Environmental Impact Statement,
categorical exclusion determination, or written re-evaluation covering
all planned permitted activities in compliance with NEPA and the
Council on Environmental Quality Regulations for Implementing the
Procedural Provisions of NEPA.
* * * * *
(3) Human space flight. An applicant proposing to conduct a
permitted operation with a space flight participant, crew, or
government astronaut on board a reusable suborbital vehicle must
demonstrate compliance with Sec. Sec. 460.5, 460.7, 460.11, 460.13,
460.15, 460.17, 460.51, 460.53, 460.59, 460.61, and 460.67 of this
subchapter.
(c) Use of a safety element approval. If an applicant proposes to
use any reusable suborbital vehicle, safety system, process, service,
or personnel for which the FAA has issued a safety element approval
under part 414 of this chapter, the FAA will not reevaluate that safety
element to the extent its use is within its approved scope. As part of
the application process, the FAA will evaluate the integration of that
safety element into vehicle systems or operations.
(d) Inspection before issuing a permit. Before the FAA issues an
experimental permit, an applicant must make each reusable suborbital
vehicle planned to be flown available to the FAA for inspection. The
FAA will determine whether each reusable suborbital vehicle is built as
represented in the application.
* * * * *
0
18. Amend Sec. 437.23 by revising paragraphs (a) and (b) to read as
follows:
Sec. 437.23 Program description.
(a) An applicant must provide--
(1) Dimensioned three-view drawings or photographs of the reusable
suborbital vehicle; and
(2) Gross liftoff weight and thrust profile of the reusable
suborbital vehicle.
(b) An applicant must describe--
(1) All reusable suborbital vehicle systems, including any
structural, flight control, thermal, pneumatic, hydraulic, propulsion,
electrical, environmental control, software and computing systems,
avionics, and guidance systems used in the reusable suborbital vehicle;
(2) The types and quantities of all propellants used in the
reusable suborbital vehicle;
(3) The types and quantities of any hazardous materials used in the
reusable suborbital vehicle;
(4) The purpose for which a reusable suborbital vehicle is to be
flown; and
(5) Each payload or payload class planned to be flown.
0
19. Amend Sec. 437.25 by revising paragraph (c) to read as follows:
Sec. 437.25 Flight test plan.
* * * * *
(c) For each operating area, provide the planned maximum altitude
of the reusable suborbital vehicle.
0
20. Revise and republish Sec. 437.31 to read as follows:
Sec. 437.31 Verification of operating area containment and key
flight-safety event limitations.
(a) An applicant must identify, describe, and provide verification
evidence of the methods and systems used to meet the requirement of
Sec. 437.57(a) to contain its reusable suborbital vehicle's
instantaneous impact point within an operating area and outside any
exclusion area. The description must include, at a minimum--
(1) Proof of physical limits on the ability of the reusable
suborbital vehicle to leave the operating area; or
(2) Abort procedures and other safety measures derived from a
system safety engineering process.
(b) An applicant must identify, describe, and provide verification
evidence of the methods and systems used to meet the requirements of
Sec. 437.59 to conduct any key flight-safety event so that the
reusable suborbital vehicle's instantaneous impact point, including its
expected dispersions, is over unpopulated or sparsely populated areas,
and to conduct each reusable suborbital vehicle flight so that the
reentry impact point does not loiter over a populated area.
0
21. Revise Sec. 437.33 to read as follows:
Sec. 437.33 Landing and impact locations.
An applicant must demonstrate that each location for nominal
landing or any contingency abort landing of the reusable suborbital
vehicle, and each location for any nominal or contingency impact or
landing of a component of that reusable suborbital vehicle, satisfies
Sec. 437.61.
0
22. Amend Sec. 437.53 by revising the introductory text to read as
follows:
Sec. 437.53 Pre-flight and post-flight operations.
A permittee must protect the public from adverse effects of
hazardous operations and systems in preparing a reusable suborbital
vehicle for flight at a launch site in the United States and returning
the reusable suborbital vehicle and any support equipment to a safe
condition after flight. At a minimum, a permittee must--
* * * * *
0
23. Amend Sec. 437.57 by revising paragraphs (a) and (c) to read as
follows:
Sec. 437.57 Operating area containment.
(a) During each permitted flight, a permittee must contain its
reusable suborbital vehicle's instantaneous impact point within an
operating area determined in accordance with paragraph (b) of this
section and outside any exclusion area defined by the FAA in accordance
with paragraph (c) of this section.
* * * * *
(c) The FAA may prohibit a reusable suborbital vehicle's
instantaneous impact point from traversing certain areas within an
operating area by designating one or more areas as exclusion areas, if
necessary to protect public health and safety, safety of property, or
foreign policy or national security interests of the United States. An
exclusion area may be confined to a specific phase of flight.
0
24. Amend Sec. 437.59 by revising paragraph (a) introductory text and
(b) to read as follows:
Sec. 437.59 Key flight-safety event limitations.
(a) A permittee must conduct any key flight-safety event so that
the reusable
[[Page 76728]]
suborbital vehicle's instantaneous impact point, including its expected
dispersion, is over an unpopulated or sparsely populated area. At a
minimum, a key flight-safety event includes:
* * * * *
(b) A permittee must conduct each reusable suborbital vehicle
flight so that the reentry impact point does not loiter over a
populated area.
0
25. Amend Sec. 437.61 by revising the introductory text to read as
follows:
Sec. 437.61 Landing and impact locations.
For a nominal or any contingency abort landing of a reusable
suborbital vehicle, or for any nominal or contingency impact or landing
of a component of that reusable suborbital vehicle, a permittee must
use a location that--
* * * * *
0
26. Revise and republish Sec. 437.71 to read as follows:
Sec. 437.71 Flight rules.
(a) Before initiating flight, a permittee must confirm that all
systems and operations necessary to ensure that safety measures derived
from Sec. Sec. 437.55, 437.57, 437.59, 437.61, 437.63, 437.65, 437.67,
and 437.69 are within acceptable limits.
(b) During all phases of flight, a permittee must--
(1) Follow flight rules that ensure compliance with Sec. Sec.
437.55, 437.57, 437.59, and 437.61; and
(2) Abort the flight if it would endanger the public.
(c) A permittee may not operate a reusable suborbital vehicle in a
careless or reckless manner that would endanger any member of the
public during any phase of flight.
(d) A permittee may not operate a reusable suborbital vehicle in
areas designated in a Notice to Airmen under 14 CFR 91.137, 91.138,
91.141, or 91.145, unless authorized by:
(1) Air Traffic Control; or
(2) A Flight Standards Certificate of Waiver or Authorization.
(e) For any phase of flight where a permittee operates a reusable
suborbital vehicle like an aircraft in the National Airspace System, a
permittee must comply with the provisions of 14 CFR part 91 specified
in an experimental permit issued under this part.
0
27. Amend Sec. 437.85 by revising paragraph (a) to read as follows:
Sec. 437.85 Allowable design changes; modification of an experimental
permit.
(a) The FAA will identify in the experimental permit the type of
changes that the permittee may make to the reusable suborbital vehicle
design without invalidating the permit.
* * * * *
0
28. Revise Sec. 437.91 to read as follows:
Sec. 437.91 For hire prohibition.
No permittee may carry any property or human being for compensation
or hire on a reusable suborbital vehicle.
0
29. Revise Sec. 437.95 to read as follows:
Sec. 437.95 Inspection of additional reusable suborbital vehicles.
A permittee may launch or reenter additional reusable suborbital
vehicles of the same design under the permit after the FAA inspects
each additional reusable suborbital vehicle.
PART 440--FINANCIAL RESPONSIBILITY
0
30. The authority citation for part 440 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
0
31. Amend Sec. 440.3 by revising the definitions of ``Maximum probable
loss'', ``Permit'', ``Permitted activity'', and ``Third party'' to read
as follows:
Sec. 440.3 Definitions.
* * * * *
Maximum probable loss (MPL) means the greatest dollar amount of
loss for bodily injury or property damage that is reasonably expected
to result from a licensed or permitted activity;
(1) Losses to third parties, excluding Government personnel and
other launch or reentry participants' employees involved in licensed or
permitted activities and neighboring operations personnel, that are
reasonably expected to result from a licensed or permitted activity are
those that have a probability of occurrence of no less than one in ten
million.
(2) Losses to Government property and Government personnel,
excluding government astronauts, involved in licensed or permitted
activities and neighboring operations personnel that are reasonably
expected to result from licensed or permitted activities are those that
have a probability of occurrence of no less than one in one hundred
thousand.
* * * * *
Permit means an authorization the FAA issues under this subchapter
for the launch or reentry of a reusable suborbital vehicle.
Permitted activity means the launch or reentry of a reusable
suborbital vehicle conducted under a permit issued by the FAA.
* * * * *
Third party means--
(1) Any person other than:
(i) The United States, any of its agencies, and its contractors and
subcontractors involved in launch or reentry services for a licensed or
permitted activity;
(ii) A licensee, permittee, and its contractors and subcontractors
involved in launch or reentry services for a licensed or permitted
activity;
(iii) A customer and its contractors and subcontractors involved in
launch or reentry services for a licensed or permitted activity;
(iv) A member of a crew;
(v) A space flight participant; and
(vi) A government astronaut.
(2) Government personnel, as defined in this section and excluding
government astronauts, are third parties.
* * * * *
0
32. Amend Sec. 440.9 by revising and republishing paragraph (b) to
read as follows:
Sec. 440.9 Insurance requirements for licensed or permitted
activities.
* * * * *
(b) A licensee or permittee must obtain and maintain in effect a
policy or policies of liability insurance, in an amount determined by
the FAA under paragraph (c) of this section, that protects the
following persons as additional insureds to the extent of their
respective potential liabilities against covered claims by a third
party for bodily injury or property damage resulting from a licensed or
permitted activity:
(1) The licensee or permittee, its customer, and their respective
contractors and subcontractors, and the employees of each, involved in
a licensed or permitted activity;
(2) The United States, its agencies, and its contractors and
subcontractors involved in a licensed or permitted activity;
(3) Government personnel; and
(4) Space flight participants. This paragraph (b)(4) shall cease to
be effective on September 30, 2025, unless public law modifies the
limitation in section 50914 of Title 51 of the U.S. Code.
* * * * *
0
33. Amend Sec. 440.17 by revising paragraphs (c) introductory text,
(d) introductory text, (e) introductory text, and (f) and adding
paragraph (g) to read as follows:
Sec. 440.17 Reciprocal waiver of claims requirements.
* * * * *
(c) For each licensed or permitted activity in which the United
States, or
[[Page 76729]]
its contractors and subcontractors, is involved or where property
insurance is required under Sec. 440.9(d), the Federal Aviation
Administration of the Department of Transportation, the licensee or
permittee, and each first-tier customer must enter into a reciprocal
waiver of claims agreement. The reciprocal waiver of claims must be in
a form acceptable to the Administrator, such as those contained in
advisory circular AC 440.17-1, and must provide that:
* * * * *
(d) For each licensed or permitted activity in which the United
States or its contractors and subcontractors are involved, the Federal
Aviation Administration of the Department of Transportation and each
space flight participant must enter into or have in place a reciprocal
waiver of claims agreement. The reciprocal waiver of claims must be in
a form acceptable to the Administrator, such as those contained in
advisory circular AC 440.17-1.
* * * * *
(e) For each licensed or permitted activity in which the United
States or its contractors and subcontractors is involved, the Federal
Aviation Administration of the Department of Transportation and each
crew member must enter into or have in place a reciprocal waiver of
claims agreement. The reciprocal waiver of claims must in a form
acceptable to the Administrator, such as those contained in advisory
circular AC 440.17-1.
* * * * *
(f) The licensee or permittee and each space flight participant
must enter into a reciprocal waiver of claims agreement under which
each party waives and releases claims against the other party to the
waiver, and agrees to assume financial responsibility for property
damage it sustains and for bodily injury or property damage, and to
hold harmless and indemnify each other from bodily injury or property
damage, resulting from a licensed or permitted activity, regardless of
fault. This paragraph (f) shall cease to be effective as of September
30, 2025, unless public law modifies the limitation in section 50914 of
Title 51 of the U.S. Code.
(g) Any waiver, release, assumption of responsibility or agreement
to hold harmless and indemnify pursuant to this section does not apply
to claims for bodily injury or property damage resulting from willful
misconduct of any of the parties to the reciprocal waiver of claims,
the contractors and subcontractors of any of the parties to the
reciprocal waiver of claims, and in the case of licensee or permittee
and customers and the contractors and subcontractors of each of them,
the directors, officers, agents and employees of any of the foregoing,
and in the case of the United States, its agents.
Appendix B Through E to Part 440--[Removed]
0
34. Remove appendices B through E to part 440.
PART 450--LAUNCH AND REENTRY LICENSE REQUIREMENTS
0
35. The authority citation for part 450 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
0
36. Amend Sec. 450.45 by revising paragraphs (e)(3)(ii)(E) and (e)(5)
to read as follows:
Sec. 450.45 Safety review and approval.
* * * * *
(e) * * *
(3) * * *
(ii) * * *
(E) For an unguided suborbital launch vehicle, the location of the
vehicle's center of pressure in relation to its center of gravity for
the entire flight profile.
* * * * *
(5) Human space flight. For a proposed launch or reentry with a
space flight participant, crew, or government astronaut on board a
vehicle, an applicant must demonstrate compliance with Sec. Sec.
460.5, 460.7, 460.11, 460.13, 460.15, 460.17, 460.51, 460.53, 460.59,
460.61, and 460.67 of this chapter.
* * * * *
PART 460--HUMAN SPACE FLIGHT REQUIREMENTS
0
37. The authority citation for part 460 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
0
38. Add subpart C to read as follows:
Subpart C--Launch and Reentry with a Government Astronaut with a
Safety-Critical Role
Sec.
460.55 Scope.
460.57 Applicability.
460.59 Training of government astronauts with a safety-critical
role.
460.61 Environmental control and life support systems.
Subpart C--Launch and Reentry with a Government Astronaut with a
Safety-Critical Role
Sec. 460.55 Scope.
This subpart establishes requirements for operators and applicants
whose licensed or permitted operations involve government astronauts on
board a vehicle.
Sec. 460.57 Applicability.
This subpart applies to:
(a) An applicant for a license or permit under this chapter who
proposes to have a government astronaut with a safety-critical role on
board a vehicle.
(b) An operator licensed or permitted under this chapter who has a
government astronaut with a safety-critical role on board a vehicle.
Sec. 460.59 Training of government astronauts with a safety-critical
role.
(a) An operator must ensure that each government astronaut with a
safety-critical role is trained on--
(1) How to carry out their safety-critical role on board or on the
ground so that the vehicle will not harm the public; and
(2) Their role in nominal and non-nominal conditions, including
abort scenarios and emergency operations, to the extent that
performance of their role could impact public safety.
(b) An operator must ensure any government astronaut who has the
capability to control, in real time, a launch or reentry vehicle's
flight path during a phase of flight capable of endangering the public:
(1) Receives vehicle and mission-specific training for each phase
of flight capable of endangering the public and over which the
government astronaut has the capability to control the vehicle by using
one or more of the following:
(i) A method or device that simulates the flight;
(ii) An aircraft whose characteristics are similar to the vehicle
or that has similar phases of flight to the vehicle;
(iii) Flight testing; or
(iv) An equivalent method of training approved by the FAA through
the license process.
(2) Trains for each mode of control or propulsion, including any
transition between modes, such that the government astronaut is able to
control the vehicle.
(3) Possesses aeronautical knowledge, experience, and skills
necessary to pilot and control the launch or reentry vehicle that will
operate in the National Airspace System (NAS). Aeronautical experience
may include hours in flight, ratings, and training.
(c) With respect to training device fidelity, an operator must:
(1) Ensure that any government astronaut training device used to
meet the training requirements realistically represents the vehicle's
configuration and mission; or,
[[Page 76730]]
(2) Inform the government astronaut being trained of the
differences between the training device and the vehicle's configuration
and mission.
(d) An operator must update the government astronaut training to
ensure that the training incorporates lessons learned from training and
operational missions including--
(1) Providing traceability to revisions or changes; and
(2) Documenting the completed training for each government
astronaut and maintaining the documentation for each active government
astronaut.
(e) An operator must establish a recurrent training schedule and
ensure that all training of government astronauts performing safety-
critical roles is current before launch or reentry.
(f) For licensed missions supporting U.S. Government contracts,
operators may meet the training requirements of this section through
U.S. Government's contractual requirements.
Sec. 460.61 Environmental control and life support systems.
(a) An operator must provide atmospheric conditions adequate to
sustain life and consciousness for all inhabited areas within a vehicle
that house a government astronaut. The operator must monitor and
control the following atmospheric conditions in the inhabited areas or
demonstrate through the license or permit process that an alternate
means provides an equivalent level of safety--
(1) Composition of the atmosphere, which includes oxygen and carbon
dioxide, and any revitalization;
(2) Pressure, temperature and humidity;
(3) Contaminants that include particulates and any harmful or
hazardous concentrations of gases, or vapors; and
(4) Ventilation and circulation.
(b) An operator must provide an adequate redundant or secondary
oxygen supply for any government astronaut with a safety-critical role.
(c) An operator must provide a redundant means of preventing cabin
depressurization; or prevent incapacitation of any government astronaut
with a safety-critical role in the event of loss of cabin pressure.
0
39. Add subpart D to read as follows:
Subpart D--Launch and Reentry with a Government Astronaut Without a
Safety-Critical Role
Sec.
460.63 Scope.
460.65 Applicability.
460.67 Training of government astronauts without a safety-critical
role.
Subpart D--Launch and Reentry with a Government Astronaut Without a
Safety-Critical Role
Sec. 460.63 Scope.
This subpart establishes requirements for operators and applicants
whose licensed or permitted operations involve government astronauts on
board a vehicle without a safety-critical role.
Sec. 460.65 Applicability.
This subpart applies to:
(a) An applicant for a license or permit under this chapter who
proposes to have a government astronaut without a safety-critical role
on board a vehicle.
(b) An operator licensed or permitted under this chapter who has a
government astronaut without a safety-critical role on board a vehicle.
Sec. 460.67 Training of government astronauts without a safety-
critical role.
An operator must ensure that each government astronaut without a
safety-critical role is trained on how to respond to emergency
situations, including smoke, fire, loss of cabin pressure, and
emergency exit.
Issued under authority provided by 49 U.S.C. 106(f) and 51
U.S.C. 509 in Washington, DC.
Michael Gordon Whitaker,
Administrator.
[FR Doc. 2024-20900 Filed 9-18-24; 8:45 am]
BILLING CODE 4910-13-P
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