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FAA Final Rule on Human Space Flight Requirements for Crew and Space Flight Participants

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  • 1. Friday, December 15, 2006 Part II Department of Transportation Federal Aviation Administration 14 CFR Parts 401, 415, 431, 435, 440 and 460 Human Space Flight Requirements for Crew and Space Flight Participants; Final Rulemstockstill on PROD1PC61 with RULES2 VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:FRFM15DER2.SGM 15DER2
  • 2. 75616 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: conditions specified in a license or permit, all in accordance with FAA Federal Aviation Administration Availability of Rulemaking Documents regulations. This rulemaking imposes You can get an electronic copy using crew qualification and training 14 CFR Parts 401, 415, 431, 435, 440 the Internet by: requirements and implements the and 460 (1) Searching the Department of statutory requirement that an operator Transportation’s electronic Docket advise the flight crew and any space [Docket No. FAA–2005–23449] Management System (DMS) Web page flight participant that the U.S. RIN 2120–AI57 (http://dms.dot.gov/search); Government has not certified the launch (2) Visiting the FAA’s Regulations and vehicle as safe. Section 70105(b)(5) Human Space Flight Requirements for Policies Web page at http:// directs the FAA to promulgate Crew and Space Flight Participants www.faa.gov/regulations_policies/; or regulations requiring that the holder of (3) Accessing the Government a license or permit inform each space AGENCY: Federal Aviation Printing Office’s Web page at http:// flight participant in writing about the Administration (FAA), DOT. www.gpoaccess.gov/fr/index.html. risks of launch or reentry. ACTION: Final rule. You can also get a copy by sending a request to the Federal Aviation Table of Contents SUMMARY: The FAA is establishing requirements for human space flight as Administration, Office of Rulemaking, I. Background required by the Commercial Space ARM–1, 800 Independence Avenue II. Description of Final Rule and Discussion Launch Amendments Act of 2004, SW., Washington, DC 20591, or by of Comments calling (202) 267–9680. Make sure to A. Equivalent Level of Safety including rules on crew qualifications B. Launch and Reentry With Crew and training, and informed consent for identify the amendment number or docket number of this rulemaking. 1. Definitions crew and space flight participants. The a. Cabin Crew Suggestion requirements should provide an Anyone is able to search the b. Recommendations Regarding Personnel acceptable level of safety to the general electronic form of all comments on the Ground public and ensure individuals on board received into any of our dockets by the c. Carrier Aircraft Personnel are aware of the risks associated with a name of the individual submitting the d. Payment for Pilot or Remote Operator launch or reentry. The rule also applies comment (or signing the comment, if Training submitted on behalf of an association, 2. Authority existing financial responsibility and 3. Pilot Qualifications waiver of liability requirements to business, labor union, etc.). You may review DOT’s complete Privacy Act 4. Remote Operator Qualifications human space flight and experimental 5. Medical Standards for Crew permits. Experimental permits are the statement in the Federal Register a. Objections to Requiring Medical subject of a separate rulemaking. published on April 11, 2000 (Volume Certification of Crew Who Do Not Have 65, Number 70; Pages 19477–78) or you a Safety-Critical Role DATES: Effective Date: These may visit http://dms.dot.gov. b. Recommendations for More Stringent amendments become effective February Medical Standards 13, 2007. Small Business Regulatory Enforcement 6. Crew Training Compliance Date: Affected parties, Fairness Act 7. Crew Notification however, do not have to comply with The Small Business Regulatory 8. Environmental Control and Life Support the information collection requirements Enforcement Fairness Act (SBREFA) of System in §§ 460.5, 460.7, 460.9, 460.19, 460.45, a. Requiring Both Monitoring and Control 1996 requires the FAA to comply with of Atmospheric Conditions or Requiring and 460.49 until the FAA publishes in small entity requests for information or Only Control the Federal Register the control number advice about compliance with statutes b. Open-Loop System Versus Closed-Loop assigned by the Office of Management and regulations within its jurisdiction. If System and Budget (OMB) for these information you are a small entity and you have a c. Other Environmental Control and Life collection requirements. Publication of question regarding this document, you Support System Related Comments the control number notifies the public may contact your local FAA official, or d. Guidance Plans that OMB has approved these 9. Smoke Detection and Fire Suppression the person listed under FOR FURTHER 10. Human Factors information collection requirements INFORMATION CONTACT. You can find out under the Paperwork Reduction Act of 11. Verification Program more about SBREFA on the Internet at 12. Crew Waiver of Claims Against U.S. 1995. http://www.faa.gov/ Government FOR FURTHER INFORMATION CONTACT: For regulations_policies/rulemaking/ 13. Professional Engineer technical information, contact Kenneth sbre_act/. C. Launch and Reentry With a Space Flight Wong, Deputy Manager, Licensing and Participant Safety Division, Commercial Space Authority for This Rulemaking 1. Risk to Space Flight Participants Transportation, AST–200, Federal The FAA’s authority to issue rules on 2. Informed Consent a. Space Flight Participant’s Ability To Be Aviation Administration, 800 commercial space transportation safety Informed Independence Avenue, SW., is found in Title 49 of the United States 3. Physical Examination Washington, DC 20591; telephone (202) Codes, section 322(a), which authorizes 4. Space Flight Participant Waiver of 267–8465; facsimile (202) 267–3686; e- the Secretary of Transportation to carry Claims Against U.S. Government mail ken.wong@faa.gov. For legal out Subtitle IX, Chapter 701, 49 U.S.C. 5. Space Flight Participant Training information, contact Laura Montgomery, 70101–70121 (Chapter 701). The 6. Security Requirements Senior Attorney, Office of the Chief Commercial Space Launch D. Financial Responsibility and Waiver of Liabilitymstockstill on PROD1PC61 with RULES2 Counsel, Federal Aviation Amendments Act of 2004 (the CSLAA) 1. Changes From What the FAA Proposed Administration, 800 Independence provides additional authority. Under 49 in the NPRM Avenue SW., Washington, DC 20591; U.S.C. 70105(b)(4), no holder of a 2. Waivers of Claims telephone (202) 267–3150; facsimile license or permit may launch or reenter 3. Federal Preemption (202) 267–7971, e-mail crew unless the crew has received 4. Insurance laura.montgomery@faa.gov. training and satisfied medical or other 5. Maximum Probable Loss VerDate Aug<31>2005 18:26 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 3. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75617 III. Rulemaking Analyses flight participant or crew member operator wishes to pursue a course that IV. The Amendment participating in an activity authorized is not consistent with the requirements I. Background under 14 CFR Chapter III. Part 460 of part 460, the operator must apply for defines crew and flight crew and a waiver. On December 23, 2005, the FAA imposes notification, medical, published a notice of proposed B. Launch and Reentry With Crew qualification, and training requirements. rulemaking (NPRM), ‘‘Human Space It also promulgates informed consent Subpart A of part 460 applies to the Flight Requirements for Crew and Space and training requirements for space flight crew and any remote operator. Flight Participants’’ 70 FR 77261 (Dec. flight participants. The only ground crew covered is a 29, 2005), which discusses the The FAA received comments from remote operator. background of the CSLAA and the forty-two entities, including aerospace nascent human space flight industry. 1. Definitions companies, associations, service The NPRM also discusses the safety providers, individuals and other The FAA is retaining the definition of considerations underlying the FAA’s agencies of the U.S. Government. crew required by the CSLAA, that is, proposed requirements and each Operators of launch and reentry any employee of a licensee, transferee, alternative that the agency considered. vehicles who provided comments or permittee, or of a contractor or In the CSLAA, Congress also directed include Blue Origin, LLC (Blue Origin), subcontractor of a licensee, transferee, the FAA to issue guidelines or advisory the Personal Spaceflight Federation 2 or permittee, who performs activities in materials to guide the implementation (Federation), Rocketplane Limited, Inc. the course of that employment directly of the law as soon as practical, and to (Rocketplane), TGV Rockets, Inc., and relating to the launch, reentry, or other promulgate requirements governing XCOR Aerospace (XCOR). The following operation of or in a launch vehicle or experimental permits. On February 11, associations, individuals and service reentry vehicle that carries human 2005, the FAA issued ‘‘Draft Guidelines providers also commented: Airline beings. As proposed in the NPRM, a for Commercial Suborbital Reusable Pilots Association International (ALPA); crew consists of flight crew, crew on Launch Vehicle Operations with Flight Association of Space Explorers-USA board a vehicle during a launch or Crew’’ and ‘‘Draft Guidelines for (ASE), International Association of reentry, and any remote operator. Also, Commercial Suborbital Reusable Space Entrepreneurs and Institute for crew members may be independent Launch Vehicle Operations with Space Space Law and Policy (IASE and contractors as well as employees. As it Flight Participants.’’ On March 31, 2006, ISLAP); Knutson & Associates, explained in the NPRM, the FAA the FAA published an NPRM, Attorneys at Law (Knutson); Nickolaus defines crew to include all personnel on ‘‘Experimental Permits for Reusable Leggett (Leggett); Planehook Aviation board, namely the flight crew, as part of Suborbital Rockets.’’ 71 FR 16251. Services, LLC (Planehook); Predesa, LLC the crew, and thus give a broader II. Description of Final Rule and (Predesa) and James Snead. meaning to crew than one consisting Discussion of Comments In general, the commenters supported only of a pilot or remote operator. the proposed requirements, but with Because Congress contemplated In this final rule, the FAA changes operation of or in a vehicle (emphasis several suggested changes. parts 401, 415, 431, 435 and 440 of Title added), Congress appears to have 14 of the Code of Federal Regulations A. Equivalent Level of Safety intended some persons on the ground to and establishes a new part 460 in The Federation recommended that the be included as part of the crew. A response to the CSLAA’s requirement to FAA consider allowing means of remote operator of a vehicle satisfies the issue regulations governing crew and compliance other than those identified Congressional direction to include some space flight participant, by June 23, in the regulations. In part 460, the FAA ground crew as part of the crew. Also, 2006. Revisions in part 440 codify the will allow an operator to demonstrate a remote operator is someone whose financial responsibility and risk that an alternative method of employment would directly relate to a allocation regime for activities compliance for certain requirements launch or reentry, thus satisfying the authorized by a permit and for crew and provides an equivalent level of safety other statutory prong. Limiting ground space flight participants. These and satisfies the rule. The FAA notes crew to remote operators avoids requirements supplement other launch that many of the requirements of this providing notice to personnel on the and reentry regulations, including those part are performance standards that ground about the dangers of a vehicle in parts 415, 431, and 435. For example, already offer operators a great deal of they are not going to board. Were the part 431 governs reusable launch flexibility. Where a requirement is FAA to include more ground personnel vehicle operations, and contains system prescriptive, such as when the FAA as crew, the CSLAA would require an safety and risk requirements and requires a pilot certificate, the FAA does operator to inform those persons that operational constraints. An operator of a not contemplate approving alternatives the U.S. Government has not certified reusable launch vehicle with a person through the license or permit process the vehicle as safe for carrying crew or on board must comply with this rule unless the requirement explicitly allows space flight participants, 49 U.S.C. and part 431. alternatives. As the Federation noted, 70105(b)(4)(B), which seems an exercise Part 460 applies to anyone applying the FAA also has the ability to grant of no benefit. for or having a license or permit under waivers under 14 CFR 404.3. If an Commenters raised a number of Title 14 Code of Federal Regulation questions regarding the definition of (CFR) Chapter III, who conducts a flight 2 The Federation is a non-profit trade association crew. With the exception of those with crew or space flight participants on consisting of companies whose business involves or related to the requirement for a second- board a vehicle, or employs a remote will involve commercial human space flight. They class airman medical certificate, they operator of a vehicle with a human on provided consensus comments on the NPRM andmstockstill on PROD1PC61 with RULES2 consist of the following: Air Launch, Armadillo are addressed here. board.1 This part also applies to a space Aerospace, Bigelow Aerospace, Mojave Spaceport, a. Cabin Crew. The IASE and ISLAP RocketPlane Limited, Inc., Scaled Composites, suggested that distinguishing between 1 For a vehicle with no one on board that is Space Adventures, SpaceDev, Space Explorations controlled by a remote operator part 460 does not Technologies Corporation (SpaceX), The SpaceShip ‘‘cabin crew’’ and ‘‘flight crew’’ would apply. Instead, an operator will be governed by Company, XCOR Aerospace, X PRIZE Foundation, ensure that the fundamental difference other parts, such as parts 431 and 435. and Virgin Galactic. between them—direct involvement in VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 4. 75618 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations vehicle operation as opposed to board should be subjected to lesser crew on board a carrier aircraft as crew passenger safety and comfort—would be standards merely because of their under part 460. recognized in future regulations while location. The FAA defines flight crew to mean facilitating clearer discussion of the The FAA has decided against crew that is on board a vehicle during regulatory responsibilities of each crew expanding the definition because the a launch or reentry. The crew aboard the member. This suggestion is premature. personnel, even though not covered aircraft are already covered by existing The FAA will address the under part 460 if not on board the FAA regulations. Thus, new terms such recommendation when those launch or reentry vehicle, will be as spacecraft pilot are not necessary to circumstances arise. subjected, during the license or permit distinguish between aviation and space b. Personnel on the Ground. The FAA, process, to the standards appropriate to flight crew. as it proposed in the NPRM, defines a their roles. For example, an applicant d. Payment for Pilot or Remote remote operator as a crew member who proposing a reusable launch vehicle Operator Training. Under this final rule, has the ability to control, in real time, mission would have to meet part 431, the FAA will not allow a space flight a launch or reentry vehicle’s flight path, which requires that a licensed operator participant to act as a pilot or remote and is not on board the vehicle. This implement a system safety process and operator of a launch or reentry vehicle. means that a remote operator is the only operational restrictions and satisfy risk ASE noted that it is possible that a member of the ground crew.3 requirements. As part of the system qualified, medically-certified person Blue Origin requested that the FAA may wish to pay an operator to pilot the safety process, personnel on the ground clarify the definition of remote operator operator’s vehicle. The FAA notes that will receive training to carry out their to ensure the exclusion of persons on someone paying to fly, whether as a roles safely, and it is through this the ground from the definition of crew. passenger or at the controls, is a space training that the personnel on the Blue Origin recommended that the FAA flight participant rather than an ground will be held to standards clarify that ‘‘control’’ means navigation employee. appropriate to their roles. As part of the For public safety reasons, the FAA and control of the vehicle, rather than proposed requirements for obtaining an will not allow space flight participants merely being in the chain of command. experimental permit, the FAA intends to pilot launch or reentry vehicles at Blue Origin’s clarification would to require an applicant conduct a hazard this time. A space flight participant who preclude someone who initiated a analysis. Human error issues and wants to pilot a launch or reentry launch or an abort from being training of ground personnel would be vehicle would have to become an considered part of the crew. Blue Origin addressed through this analysis. Also, employee or independent contractor of reasoned that launch decisions will part 431 requirements address the the operator to acquire vehicle and often be made by a launch director after readiness of vehicle safety operations mission-specific training. The operator receiving input from all groups, personnel to support flight under will be in a better position to evaluate including air traffic control. As explained in the NPRM, a remote nominal and non-nominal conditions. the skills of an employee or operator is someone who actively c. Carrier Aircraft Personnel. Dassault independent contractor than of a space controls the vehicle, and does more than Aviation and Spaceport Associates flight participant, particularly as those initiate or abort a launch in progress. asked whether the crew of a carrier skills relate to the requirements of the Active control encompasses navigation aircraft 4 would be included as crew operator’s particular vehicle. The FAA as well as control. A mission flight under part 460. Spaceport Associates acknowledges that this restriction may control officer in charge of terminating pointed out that, in one sense, crew of create a dilemma for someone who the flight of an errant expendable a carrier aircraft are effectively wishes to acquire training in order to launch vehicle would not be treated as providing the first stage of the launch become employed, but, while the a remote operator because he or she although not themselves subject to technology is so new, it is important for does not have the ability to control, in extraordinary biomedical stresses. public safety that pilots be highly real time, the vehicle’s flight path. Planehook commented that adopting the skilled at the outset. Accordingly, the FAA does not need to term ‘‘spacecraft pilot’’ would reduce confusion when distinguishing between 2. Authority adopt Blue Origin’s suggestion. Predesa suggested expanding ground the pilot of an aircraft and the pilot of The FAA has the authority to protect crew to include ‘‘specialists who a launch vehicle. According to crew. Spaceport Associates questioned monitor and maintain vehicle systems Planehook, the training of crew on a the FAA’s authority to protect crew via telemetry’’ as they may assist a carrier aircraft should be addressed in when it commented that the FAA remote operator or pilot, and provide 14 CFR part 61 because the vehicle is should not implement design information or modify the operations of most likely to remain an air-breathing requirements to protect crew, vehicle systems during flight. Predesa aircraft. This rulemaking does not treat particularly in light of the requirement recommended that these personnel to notify crew members that a vehicle possess FAA flight engineer certification 4 Some licensees have used aircraft to assist in has not been certified as safe. The or FAA pilot certification. Predesa does space launch. Orbital Sciences Corporation’s commenter observed, in effect, that the Pegasus launch vehicle is air-launched from an L– FAA was limited to protecting the not believe that persons who are not on 1011 carrier aircraft. Scaled Composites’ SpaceShipOne was air-launched from a White general public. Under the CSLAA, the 3 ASE commented that it believes the portion of Knight carrier aircraft. The L–1011 was issued a FAA has the authority to protect the the definition of crew ‘‘A crew consists of flight supplemental type certificate and operates under crew because they are part of the flight crew and any remote operator’’ to mean if a person two FAA airworthiness certificates: A standard safety system that protects the general is not a flight crew member or a remote operator, airworthiness certificate for operation without then that person is not crew. ASE recommended Pegasus and a restricted airworthiness certificate for public.5mstockstill on PROD1PC61 with RULES2 that the definition read ‘‘A crew consists only of operations with the Pegasus launch vehicle. White flight crew and any remote operator’’ to avoid any Knight operated under a special airworthiness 5 Even before the passage of the CSLAA, this has misinterpretation. The FAA does not incorporate certificate in the experimental category when it was been the case. In April 2004 the FAA issued two the suggested change because it is unnecessary but operating alone or carrying SpaceShipOne. The RLV mission specific licenses: one to Scaled confirms in this document that if a person is not FAA did not impose requirements on the crew of Composites and one to XCOR. These licenses apply a flight crew member or a remote operator, then that the carrier aircraft other than those required by the to suborbital RLV missions with a pilot on board, person is not crew. FAA’s aviation requirements. where the FAA addressed the safety of the crew in VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 5. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75619 3. Pilot Qualifications vehicle design, capabilities, and require an RLV pilot to hold a pilot As proposed in the NPRM, § 460.5 properly trained in the operation and certificate for a specific category of requires a pilot of a launch or reentry recovery of such vehicles could be a aircraft or to have a specific instrument vehicle to possess and carry an FAA better choice to operate the vehicle than rating on that certificate. pilot certificate with an instrument a pilot. The FAA requires a pilot certificate so 4. Remote Operator Qualifications rating. The FAA invited public that a pilot of a reusable launch vehicle Section 460.5 requires a remote comment on the proposed requirement has a basic level of aeronautical operator to possess and carry a pilot and received differing views. Some commenters considered the experience, an understanding of the certificate with an instrument rating. requirement too lenient. TGV suggested National Airspace System (NAS), and an Section 460.5(c)(1)(iii), however, allows that a pilot certificate might only understanding of the regulatory an operator to demonstrate through the partially address the knowledge, skills, requirements under which aircraft in license or permit process that an and abilities necessary for safety. TGV the NAS operate, including cloud alternative approach provides an recommended that, in addition to a pilot clearance requirements and airspace equivalent level of safety. In the NPRM, certificate, the FAA require test pilot restrictions. This awareness will the FAA invited public comment on the credentials or military supersonic enhance overall safety of the NAS, proposed requirement that a remote experience for single piloted suborbital regardless of whether a vehicle has operator of a launch or reentry vehicle and orbital vehicles. Because having a wings. An instrument rating should with a human on board possess an FAA pilot certificate may not be sufficient, ensure that pilots of launch and reentry pilot certificate with an instrument § 460.5(c)(2) requires aeronautical vehicles have acquired the skills of rating and that he or she demonstrate experience and skills necessary to pilot scanning cockpit displays, correctly the knowledge of the NAS necessary to and control the vehicle. interpreting the instruments, and operate the vehicle. The Federation and Planehook agreed responding with correct control inputs. Predesa questioned whether it was with the requirement for a pilot to have The FAA expects that regardless of the safe to allow remote operators at all. an instrument rating because, as kind of vehicle used, there will be times Predesa pointed out that remote Planehook commented, the trajectory of when a pilot will be relying on operation of a vehicle could lead to a vehicle will pass through Class A instrument skills and competency. concerns over the security and integrity airspace at least twice. ALPA also Having a pilot certificate and of telemetry from the vehicle and of the aeronautical experience provides commands sent to control the vehicle. agreed that the pilots or flight crew, evidence of a basic level of knowledge Predesa recommended redundancy in including any remote operators acting of and experience with the NAS, such the communications channel or on- under part 460, should be certificated. Focusing on a possible exception to as communications, navigation, airspace board back up in the form of a trajectory the utility of requiring a pilot certificate, limitations, and other aircraft traffic controller or, preferably, a pilot on Mr. Nickolaus Leggett recommended avoidance, that will help promote board. James Snead also recommended against requiring pilots and remote public safety. that a pilot be on board because there operators of launch vehicles that do not Planehook commented that a pilot or is no precedent for flight without one. remote operator of a vehicle should The FAA notes that there is have aircraft characteristics to possess have a commercial pilot certificate precedence for permitting remote an FAA pilot certificate with an appropriate to the type of vehicle flown. operators to control a vehicle. instrument rating. He pointed out that a Unmanned aerial vehicles (UAVs) are strictly ballistic suborbital vehicle The FAA’s guidelines contain such a recommendation. The FAA did not, already operated by the National consisting of a capsule and parachute Aeronautics and Space Administration does not require conventional piloting however, propose in the NPRM to implement this guideline as a (NASA) and the military services, and skills at all. Similarly, Starchaser authorized by the FAA. The FAA will recommended not requiring a pilot requirement. The FAA did not specify the particular kind of pilot certificate address whether the operators can certificate at all and relying only on the sufficiently control a vehicle through performance requirement that a pilot required nor what category, class, type or instrument ratings are needed the license or permit process on a case- possess the necessary skills and by-case basis. The safety issues, such as because different operators are experience for the vehicle. An Air Force those raised by Predesa, will also be proposing vehicles of varied and unique member of the Common Standards addressed in that process. designs. The pilot certification is not Working Group (CSWG) 6 recommended The Federation and Starchaser directly transferable from aircraft to that the FAA not require that a pilot be recommended against requiring remote launch or reentry vehicles. Rocket- certified when a vehicle is unique and operators to possess pilot certificates at powered vehicles do not operate as lacks any similarity to an airplane.7 The all, let alone with an instrument rating. aircraft. As Mr. Leggett noted, even for commenter suggested that a properly The Federation recommended that a more manually controlled ballistic trained engineer may be a better choice remote operators still demonstrate vehicle, the skills required differ from as a pilot for the vehicles that do not those of an aircraft pilot. knowledge, albeit with wide latitude, of resemble aircraft. If the key criterion is The FAA recognizes the validity of the NAS and the deconfliction of to protect the public, an individual these comments. Accordingly, the airspace necessary to safely operate the intimately familiar with the unique agency is adopting a performance vehicle. The Federation claimed the requirement, § 460.5(c)(2), that requires variety of possible vehicles and control order to protect the public. See also, Notice of Policy, 68 FR 56039, 56040 (Sept. 29, 2003). a pilot and remote operator to possess schemes renders unnecessary a 6 The CSWG consists of Air Force, FAA, and aeronautical experience and skills requirement that remote operatorsmstockstill on PROD1PC61 with RULES2 other government agencies. The CSWG develops, necessary to pilot and control the possess a pilot’s certificate. According documents, and maintains common safety vehicle for any launch or reentry vehicle to the Federation, operators can and standards for public safety of the launch and that will operate in the NAS. To avoid should be allowed to demonstrate their reentry of launch and reentry vehicles. 7 The commenter agreed with requiring pilot overly burdening the industry, and in knowledge of the NAS in other ways, certification where a vehicle has many recognition of the diverse range of such as by written test. The Federation characteristics in common with an airplane. vehicles proposed, the FAA does not noted that John Carmack of Armadillo VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 6. 75620 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations Aerospace successfully operated a critical, possess and carry such a able to meet training or performance vertical takeoff, vertical landing vehicle certificate. requirements. remotely at the 2005 X PRIZE Cup, a. Objections to Requiring Medical The FAA agrees that requiring without the use of a pilot’s license or Certification of Crew Who Do Not Have second-class medical certification for instrumentation resembling that of an a Safety-Critical Role. Rather than crew members who do not perform aircraft cockpit.8 creating a separate class of crew who are safety-critical functions is unnecessary. One commenter, t/Space, suggested not safety critical or modifying the There may be missions when a flight that in some instances, remote operation definition of crew as some commenters attendant or flight test engineer has of a launch or reentry vehicle with a suggested, the FAA can better address duties that would not affect public human on board may provide backup medical risk to the mission by more safety. The FAA, however, anticipates command and control of the vehicle if precisely identifying what triggers the that there may be missions when a flight the pilot or flight crew is incapacitated need for a medical certification. In attendant or flight test engineer does or otherwise unable to function. When section 460.5(e), the FAA distinguishes have a safety critical role. Rather than not intended for nominal flight between crew members with a safety- specifying which crew members must operations, remote operation from the critical and non-safety-critical role to have a medical certificate, the FAA ground is likely to be limited to determine whether they must satisfy the requires that only crew members who execution of pre-planned flight, reentry, medical requirements. have a safety-critical role must possess or abort scenarios. According to t/Space, Several commenters, including ALPA, and carry a second-class airman medical the remote operator in these situations generally concurred with the FAA that certificate. would not require the same level of requiring medical certification is Jonathan Goff suggested that knowledge and experience as a pilot appropriate, particularly for those crew alternatives to the second-class medical with an instrument rating. be accepted if they demonstrate an members whose duties are associated The FAA acknowledges that there equivalent level of safety. The FAA has with operation of the launch or reentry may be a variety of vehicle types and decided against this approach because a vehicles. Several suggested that it may control schemes, such as back up demonstration of equivalence would not be necessary for all crew members. remote operators that may be used. likely require the same level of Planehook and David J. Sullivan- Accordingly, for a remote operator, the examination and information as a Nightengale commented that a second- FAA will allow an operator to medical certificate. The most class medical certificate was appropriate demonstrate that something other than a straightforward approach is to obtain a for the pilot but unnecessary for other pilot certificate provides an equivalent second-class medical certificate. crew members. The Federation, t/Space, b. Recommendations for More level of safety. and XCOR asked the FAA to reconsider Stringent Medical Standards. Several 5. Medical Standards for Crew requiring a second-class medical commenters recommended the FAA Section 460.5(e) requires that each certificate for non-safety-critical crew on adopt more stringent medical standards. crew member with a safety-critical role the grounds that it would be impractical The Aerospace Medical Association possess and carry an FAA second-class and unnecessary. The Federation commented that a second-class medical airman medical certificate issued in claimed that where a regulatory certificate is acceptable for suborbital accordance with 14 CFR part 67 9 and requirement does not respond to a real flight but more stringent physical issued no more than 12 calendar months need, it can negatively impact a flight standards should be applied to orbital prior to the month of launch and test. XCOR commented that members of missions. It further posited that the reentry. For example, this means that if a rocket engine development team will examination should be conducted by a a launch were to take place on May 1, likely serve as flight test engineers on physician with aerospace medicine 2007, or May 31, 2007, a medical some test flights to permit them to training and include screening tests certificate issued anytime in May 2006 observe engine operation in real time consistent with prudent aeromedical would satisfy the requirement. Because and possibly to adjust parameters of the practice and recommendations of the the requirement applies to both launch propulsion system in flight. According U.S. Preventive Services Task Force. Dii and reentry, operators who plan on a to XCOR, these operations are not Aerospace Laboratories commented that reentry in a different month than the safety-critical because the flight is different standards should apply to launch should ensure that their crews’ aborted if the flight test engineer is space flight because the effects of medical certificates are still timely for incapacitated, and the worst case effect weightlessness and reentry are vastly the reentry. is the loss of some data from that flight. different for space flight than for Requiring a medical certificate only Blue Origin commented that a person standard commercial air travel. If a for crew with a safety-critical role marks should not be required to have a second- candidate for a medical certificate had a change from the NPRM, where the class medical certificate if he or she is significant medical issues, he or she FAA proposed that all crew members, only involved in pushing an ignition would not receive certification. The regardless of whether they were safety- button or initiating an abort of a vehicle physician would refer that person to a experiencing non-nominal telemetry. specialist for further evaluation. TGV 8 It should be noted that Armadillo’s vertical-take TGV Rockets recommended against Rockets commented that a first-class off vehicle, which hovered about 25 feet above the medical certification for remote ground for a few seconds and had no human on medical certificate should be required board, was not an FAA licensed launch. Nor did the operators. for pilots carrying space flight vehicle have an impact on the NAS. Under today’s rule, crew members participants. 9 In the NPRM, the FAA proposed to require that must complete training on how to The FAA proposed requiring a the medical certificate be issued within 12 months perform their duties on board or on the second-class medical certificate so that of launch or reentry as opposed to 12 months priormstockstill on PROD1PC61 with RULES2 to the month of launch or reentry. The proposed ground so that the vehicle will not harm crew members would demonstrate a time limit might have created confusion because a the public. They also must complete basic level of health within 12 months second-class medical certificate expires at the end training to be able to perform duties in of launch or reentry. Recognizing that of the last day of the twelfth month after the month of the date of examination. 14 CFR 61.23(d)(2). The emergency operations or abort second-class medical certification is requirement now provides the same expiration date scenarios. Crew members who are not insufficient for spaceflight, the FAA is as part 61. medically stable likely would not be also establishing a performance VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 7. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75621 standard that requires the flight crew to proposed vehicles. While the use of operators to meet certain requirements. demonstrate an ability to withstand the simulators is recommended, the FAA For example, as discussed above, an stresses of space flight sufficiently so intends to maximize the training operator must ensure training currency. that the vehicle will not harm the approaches that are acceptable by Ms. Knutson commented that requiring public. This requirement may be more allowing methods of training other than an operator to ‘‘ensure’’ something may stringent than the suggested first-class simulators. create a warranty at odds with the risky medical certificate for pilots. The The FAA notes that some simulators nature of space travel at this stage in its stresses experienced in space flight may intended for aircraft may be used for evolution. The FAA notes that requiring include high acceleration or different launch or reentry vehicles. an operator to ensure to the FAA that an deceleration, microgravity, and Section 460.7(b) requires that an event does or does not take place vibration. The performance standard operator ensure that either the crew- identifies the purpose of a requirement provides an additional level of safety training device used to meet the training in order to impose a flexible yet beyond basic medical certification requirements realistically represents the enforceable performance standard. because flight crew members will have vehicle’s configuration and mission or When the regulations require an to demonstrate an ability to perform the operator has informed the crew operator to satisfy a performance duties in the spaceflight environment in member being trained of the differences. standard, the FAA requires that an which they plan to operate. As Predesa took issue with this proposed operator demonstrate the means by discussed in the NPRM, the FAA requirement, noting that just because an which it would satisfy that standard in recognizes that different standards may operator knows of differences between its application for a license or permit. be required for orbital and suborbital the systems, does not mean that the Grant of authorization constitutes flights. The FAA will gather data for the operator can describe those differences approval of that approach as one that development of those standards over and train crew accordingly. Such the FAA thinks will ensure satisfaction time and they may be implemented on training may be possible with data of the intent of the performance a case-by-case basis or through future available from vehicle flight tests, but, requirement. It is then up to the rulemaking. without such data, Predesa operator to carry out its method of recommended that operators remind the compliance as described in its 6. Crew Training crew of the experimental nature of application. Because a license requires As proposed in the NPRM, flight. This is sound guidance that is that an operator amend its application § 460.5(a)(1) requires each member of a already encompassed within the when it would no longer be accurate, crew to complete training on how to requirement. the method an operator describes in its carry out his or her role on board or on Alteon Training, L.L.C. (Alteon) application has the same legal effect as the ground so that the vehicle will not observed that requiring that ‘‘an a prescriptive requirement. harm the public. Section 460.7 requires operator must train each member of its an operator to train each member of its crew and define standards for successful 7. Crew Notification crew and define standards for successful completion’’ could be interpreted to As proposed in the NPRM, § 460.9 completion in accordance with § 460.5. mean that only the operator could requires an operator to inform, in The FAA received comments on hours conduct the required training. writing, any individual serving as crew of training, simulator training, and the According to Alteon, an operator should that the United States Government has training standard itself. have the ability to arrange with an not certified the launch or reentry Starchaser recommended a minimum approved training provider for the vehicle as safe for carrying flight crew number of hours of training, but did not development of training programs. or space flight participants.10 An provide its reasons for this suggestion. Alteon further commented that the operator must provide this notification Depending on the role the crew operator would have the responsibility prior to employing someone as crew or, members will have, different amounts of for oversight of the training provider to if the individual is already employed by training will be necessary for a crew ensure that the training satisfied the the operator, as soon as possible and member to learn his or her role. The FAA’s regulatory requirements. The prior to any launch in which that person FAA will evaluate this need on a case- FAA agrees that an operator can have a will serve as crew. by-case basis during the license and contractor provide training, a concept Blue Origin commented on the permit process. that is already encompassed by logistical difficulties associated with the Section 460.5(c)(3) requires a pilot § 460.7(a). Ultimately, however, it will timing requirements. Blue Origin is and a remote operator to receive vehicle be the responsibility of the operator to concerned that the rule makes no and mission-specific training for each ensure that crew members are trained provision for lawful notification when phase of flight by using a simulator, a properly. an existing employee is promoted or similar aircraft, flight testing, or an Section 460.7(d) also requires that an reassigned to a flight crew position. equivalent method. Mr. Leggett operator ensure that all required crew Section 460.9 requires that an operator commented that because development qualifications and training are current provide the notification before entering of a vehicle would likely include a before launch and reentry. The NPRM into any contract or other arrangement significant amount of simulation, the proposed that an operator ensure to employ an individual. A promotion FAA should require simulator training. currency prior to launch or reentry, but, or reassignment would constitute such The benefit would be that training could as Predesa pointed out, this language ‘‘other arrangement,’’ and the FAA take place in a safe environment. Dii incorrectly implied that an operator expects an operator to inform the commented that simulator training could postpone its currency check on a prospective crew member of the should be mandatory because realism is suborbital mission to just prior to required notice prior to the person accepting the new assignment.mstockstill on PROD1PC61 with RULES2 critical. Dii noted that a pilot needs to reentry. Accordingly, the regulatory text be able to deal with simulator sickness has been changed to specify that 10 The Federation requested that the FAA create and spatial disorientation. currency checks be complete prior to a The FAA does not require the use of a form by which operators could provide this suborbital launch. notice. The FAA will not adopt this suggestion in simulators in all circumstances because At various points in the crew training order to preserve flexibility. The required simulators may not exist for all the requirements, the FAA requires notifications are described in § 460.9. VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 8. 75622 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations Predesa also commented that the FAA compliance that demonstrates an operator or flight crew to monitor and does not require the experience and equivalent level of safety. control atmospheric conditions in the background necessary for crew to a. Requiring Both Monitoring and inhabited areas as proposed in the identify design or operational flaws that Control of Atmospheric Conditions or NPRM, but will allow the operator to would stop them from participating in Requiring Only Control. The Federation show an alternate means of compliance a mission. Predesa appears to base this commented that not every life support that will demonstrate an equivalent comment on a belief that the CLSAA system must be both monitored and level of safety. This alternate means of asks the crew to accept the risk of space controlled. For example, it is asserted compliance must be approved by the flight with full information. The FAA that a dehumidification system may not FAA through the license or permit does not interpret the statute in this require monitoring because a proper process. manner. Rather, the CSLAA and the verification test, which may be b. Open-Loop System Versus Closed- FAA’s attendant regulations impose a performed on the ground, may show Loop System. According to the duty on a launch operator to inform that the system has ample capacity to Federation and Blue Origin, any crew of the absence of U.S. Government keep humidity below acceptable undesirable atmospheric condition can certification. Just as with a space flight limits.11 Additionally, the Federation be controlled with an open-loop, rather participant, a crew member may not noted some atmospheric conditions than closed-loop system.12 The FAA have the schooling and experience need only be monitored without agrees that in some cases an required to discern operational or constant, active controls. Similarly, Blue atmospheric condition can be controlled design flaws. Part of the risk associated Origin suggested that the FAA clarify with an open-loop system rather than a with the flights anticipated by this rule that ‘‘control’’ can include passive closed-loop system with automatic is the presence of unknown hazards. measures rather than active feedback from the monitoring device. The notification requirement requires instrumentation. According to the For example, carbon dioxide only that an operator inform the crew Federation, if followed literally, the concentrations in the atmosphere in that risks exist, not that it identify all requirement to monitor and control inhabited areas should be monitored potential operational and design every life support system would drive and controlled. A carbon dioxide (CO2) hazards. up the cost and complexity of space control device, however, may operate vehicles and, as a consequence, possibly without automatic feedback from the 8. Environmental Control and Life drive down reliability with adverse monitoring device. Without controls, Support System (ECLSS) public safety implications. Paragon CO2 from human respiration would Section 460.11 requires that an commented that the requirement to accumulate in the cabin atmosphere. operator provide atmospheric monitor and control contaminants that The resulting increase in the conditions adequate to sustain life and include particulates and any harmful or concentration of CO2 would depend consciousness for all inhabited areas hazardous concentrations of gases or upon the habitable volume of the within a vehicle. The operator or flight vapors should be restricted to those that vehicle, the number of persons on crew must monitor and control specific reasonably can be expected to build up board, and the overall mission duration. atmospheric conditions in inhabited during the course of the spaceflight due To avoid elevated CO2 concentrations, areas or demonstrate through the license to metabolic or other processes an operator must provide controls to or permit process that an alternative occurring in the cabin, or to those remove CO2 from the atmosphere at a means of compliance provides an potential contaminants for which a rate comparable to the respiration rate of equivalent level of safety. This source is present in the cabin. the crew members and space flight requirement reflects a change from what The FAA agrees with the Federation participants. CO2 may be removed by the FAA proposed in the NPRM in that and Paragon that only control may be using lithium hydroxide (LiOH) the FAA will now allow an alternative needed in some cases. Control of canisters. The LiOH canisters could be means of compliance. particulate contaminants in the replaced on a schedule based on the Blue Origin suggested that the ECLSS atmosphere of inhabited areas is an number of persons on board. Under this requirements not be applied to short example where the FAA would consider scenario, an operator would monitor the suborbital flights, such as those that are control without requiring monitoring. carbon dioxide concentration in the ten to twenty minutes. The FAA notes The passive control method commonly cabin atmosphere, to verify in flight that that the vehicle’s atmospheric employed is to provide filters, the CO2 control devices are operating conditions have to last from the time the especially high efficiency particulate air and are effective in avoiding elevated cabin is sealed from the external filters, for the cabin air return duct CO2 concentrations. Because any environment until it is opened. When inlets. When used with a recirculation increase in CO2 concentration would humans are in a closed environment fan, filters effectively maintain low occur slowly, and because there is a and dependent upon manmade life concentrations of particulate considerable margin between the support systems, a failure to monitor or contaminants in the atmosphere for expected concentration with controls control the environment even for a short extended times, with neither rapid nor and the threshold concentration where duration could lead to a loss of life or large changes during spaceflight chronic physiological changes begin to injury. The FAA also understands, operation. Consequently, monitoring of appear, a closed-loop control would not however, that some of the atmospheric the atmospheric concentration of be required. Should the crew observe constituents and conditions may not particulate contaminants may not be increasing CO2 concentrations, there change significantly in a short duration necessary, especially for a suborbital flight, and the ECLSS for a suborbital mission. In order to address these types 12 A closed loop system is a control system with mission typically will not be as complex of systems, the FAA will require the an active feedback loop. A typical example of a closed loop system is one that uses a thermostat tomstockstill on PROD1PC61 with RULES2 as one for an orbital mission. Therefore, control temperature. The thermostat compares the the FAA will continue to require the 11 The FAA notes that in a condensing heat actual temperature with the desired temperature; if operator or flight crew to monitor and exchanger, the separation of liquid condensate from the actual temperature is less than the desired air, and the collection of liquid condensate, are temperature an actuating signal causes the control control atmospheric conditions in difficult processes in the expected microgravity elements to supply more heat. An open loop system inhabited areas but will allow the environment, and so ground testing may not does not have active feedback that compares the operator to show an alternate means of necessarily provide adequate verification. controlled variable with the desired input. VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 9. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75623 should be sufficient time to diagnose or permitting phase. The FAA 10. Human Factors and remedy any abnormal operation of acknowledges the potential for micro- Section 460.15 requires an operator to the control device, or if that fails, to meteorites and orbital debris, and notes take necessary precautions to account safely terminate the mission. that these details will surface through for human factors that can affect a Oxygen concentration in the an applicant’s hazard analysis and be crew’s ability to perform safety-critical atmosphere is another example of what resolved during the license or permit roles. The FAA received no comments must be monitored and controlled. Very process. on this requirement, and it is adopted as low oxygen partial pressure constitutes d. Guidance Plans. The FAA proposed in the NPRM. a severe hazard, results in impaired recognizes and anticipates that there judgment and ability to concentrate, will be many ECLSS designs. The 11. Verification Program shortness of breath, nausea, and fatigue, ECLSS requirements are performance Section 460.17 requires an operator to affecting the proper functioning of the based rather than design based with successfully verify the integrated crew, and so potentially results in prescriptive requirements. The performance of a vehicle’s hardware and catastrophic consequences. Control of following factors should be considered any software in an operational flight oxygen concentration must be closed in determining if both monitoring and environment before allowing any space loop, with the automatic addition of control of an atmospheric condition is flight participant on board during a oxygen depending upon the oxygen- needed and whether an open-loop flight. Verification must include flight measuring device indication. system or closed-loop system with c. Other ECLSS-related Comments. testing. Predesa requested clarification automatic feedback from the monitoring of this requirement, observing that the ASE noted that the FAA did not propose device is necessary: to require protecting safety-critical NPRM appeared to allow a space flight • Severity of the hazards presented to participant to be carried during first equipment, such as heat-generating humans; avionics. ASE commented that vehicle time flight testing in a different • Likelihood for catastrophic or operational environment than what was designers must recognize the need to critical consequences of exposure; tested. For example, an operator might cool avionics, which may be in the • Potential for rapid changes in flight test a reentry from a high altitude. space-unique environment of low, or no conditions; Predesa inquired whether a space flight pressure. The FAA agrees on the need to design for adequate thermal control of • Potential for changes in conditions participant could board for the first safety-critical equipment, but the of large magnitude; flight test into a suborbital micro-gravity suggested requirement would not be • Availability of practicable in-flight environment. The FAA expects that appropriate in the context of a measurement techniques and devices; more than a single flight test will be performance based rule. Design • Access to emergency breathing required to verify the integrated requirements for spacecraft avionics equipment; and performance of a vehicle. Because the equipment are outside the scope of this • Mission duration. FAA did not identify how much flight rule. However, the FAA will evaluate The FAA plans to develop an ECLSS testing would be required, Starchaser the design, including thermal control, of advisory circular or guidance document. commented that the requirement was safety-critical equipment when it This document will address some of the open to subjective judgment and reviews a license application. concerns and suggestions of the IASE potential manipulation. The FAA Predesa requested that the ECLSS and ISLAP. The IASE and ISLAP believe believes that it would be premature at requirements be specifically applied to that it is premature for the FAA to issue this time to specify the number of hours all normal, non-normal and emergency regulations pertaining to ECLSS at this of flight testing needed given the variety operations, to emphasize the need for time. Instead, they believe it would of launch and reentry vehicle designs secondary or backup environment make more sense for the FAA to issue and concepts. The appropriate level of systems or other means to preserve the guidelines and to refine such guidelines testing depends on many factors, atmospheric conditions for the crew. with industry input over time as including the vehicle’s mission profile, The FAA may find that redundancy is operators gain experience. According to operational restrictions, test and flight necessary on a case-by-case basis, the IASE and ISLAP, at this time there history, component and subsystem depending on a particular design, to is simply too much untested diversity of heritage, and design and operating ensure the crew’s ability to protect design and proposed operation for ‘‘one margins. The FAA will initially public safety. At this point, the only size fits all’’ regulation in environmental determine the amount of verification redundancies the FAA anticipates control and life support areas. and, specifically, flight testing of launch requiring for all designs are specified in or reentry vehicles on a case-by-case 9. Smoke Detection and Fire the regulations, including the basis through the license or permit Suppression requirement for an adequate redundant process. or secondary oxygen supply for the Section 460.13 requires an operator or A space flight participant would not flight crew. crew to have the ability to detect smoke be allowed on an envelope expansion ASE commented that the space and suppress a cabin fire to prevent flight, that is, a space flight participant environment offers unique incapacitation of the flight crew. This would not be allowed to be carried environmental challenges, such as requirement is adopted as proposed in during first time flight testing in a micro-meteorites and orbital debris. It the NPRM. Predesa inquired whether different operational environment than noted dual seals will not address a hull the FAA meant to imply that an what was tested. breach by orbital debris. Although a low operator could employ remote systems probability during suborbital flight, a for fire detection and suppression. 12. Crew Waiver of Claims Against U.S. Governmentmstockstill on PROD1PC61 with RULES2 hull breach is not impossible, and the Predesa raised operational safety risk dramatically increases during concerns regarding the security and Section 460.19 requires each member orbital flight due to the increased integrity of telemetry to and from the of a flight crew and any remote operator exposure time. ASE recommended that vehicle. The FAA will address these to execute a reciprocal waiver of claims this and other space-unique hazards be issues during the license and permit with the Federal Aviation addressed, at least during the licensing process. Administration of the Department of VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 10. 75624 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations Transportation in accordance with the 2. Informed Consent Mission Assurance recommended requirements of part 440. The FAA Section 460.45 requires that before requiring that an operator prepare a received no comments on this receiving compensation or agreeing to hazard analysis with a specific focus on requirement, and it is adopted as fly a space flight participant, an operator keeping the crew and any participants proposed. must inform each space flight alive and functioning and that defines participant in writing about the risks of each hazard and how it is mitigated. 13. Professional Engineer According to the commenter, a space the launch and reentry, including the James Snead commented that the FAA safety record of the launch or reentry flight participant would likely want to should require a professional engineer vehicle type. For each mission, an see such an analysis. The FAA notes to prepare and approve an application operator must inform a space flight that hazard analyses will be conducted for an FAA license to launch or reenter. participant, in writing, of the known by an applicant during the license or Mr. Snead recommended this permit process. For example, during the hazards and risks that could result in a requirement as an alternate means to license process, Scaled Composites serious injury, death, disability, or total protect public safety where there is no conducted hazard analyses pertaining to or partial loss of physical and mental government certification.13 Opposing the SpaceShipOne pilot. The analyses function. Although the FAA did not the recommendation, XCOR commented identified and characterized the propose to require the identification of that FAA’s oversight function should potential hazards and assessed the risks unknown hazards as a risk in the not be transferred to a private party to the pilot because his performance had NPRM, the FAA is now requiring notice because of the potential for conflicts of implications for public safety given that of unknown hazards in response to Ms. interest. A professional engineer would the pilot was part of the flight safety Knutson’s comment that an operator system. Because § 460.45(1) requires be paid by the applicant and thus be should inform a space flight participant under subtle pressure to make decisions that an operator inform each space flight that there are also unknown hazards. participant of the known hazards and in favor of the vehicle developer. The The operator also must disclose that FAA notes that applicants may choose risks that could result in a serious participation in space flight may result injury, death, or disability, the FAA to engage professional engineers, but in death, serious injury, or total or will not require them. anticipates that a hazard analysis partial loss of physical or mental focusing on keeping the space flight C. Launch and Reentry With a Space function. An operator must inform each participant alive will be conducted by Flight Participant space flight participant that the United the operator to identify these hazards. States Government has not certified the The FAA also requires, under Subpart B establishes requirements launch vehicle and any reentry vehicle § 460.45, that an operator provide the for space flight participants on board a as safe for carrying crew or space flight safety record of all launch or reentry vehicle whose operator is licensed or participants. If there is a separate vehicles that have carried one or more permitted under this chapter. The operator for each vehicle, each operator persons on board, including U.S. subpart applies to a license or permit must provide this statement for the government and private sector vehicles. applicant, licensed or permitted space flight participants on its vehicle. The FAA will not, as suggested by the operators and space flight participants. Predesa commented that the FAA Federation, require that all foreign 1. Risk to Space Flight Participants should also require disclosure of the fact government vehicles be included in this Several commenters urged that the that the law only permits the FAA to disclosure. The Federation FAA establish requirements to protect issue regulations for the safety of crew recommended that ‘‘all government space flight participants. Nicholas and space flight participants relating to vehicles’’ be clarified to specifically Leggett recommended that a pilot have vehicle design and operations if a include Soviet/Russian and Chinese at least one solo flight before serious injury or fatality occurs or government vehicles, and suggested that transporting passengers. Starchaser nearly occurs. The FAA will leave it up the FAA include non-U.S. Government advocated pressure suits for space flight to the operator to choose whether to vehicles in its list of vehicle accidents participants. As the FAA noted in the disclose this information. The FAA does in order to expand the knowledge base. NPRM, the CSLAA does not provide the not see a need to require additional The FAA did not propose to require authority to protect space flight disclosure because the statutorily disclosure of foreign launch or reentry participants except in certain required disclosure encompasses this accidents because the information may circumstances. 49 U.S.C. 70105(c)); 70 information. not always be publicly available and its Predesa also commented that it is the accuracy will be difficult to verify. FR at 77270. The CSLAA only allows duty of the space flight participant to However, if an operator is able to obtain the FAA to issue regulations restricting research and recognize design features accurate data regarding foreign launch or prohibiting design features or or operating practices that elevate accidents, the operator may use that operating practices that result in a personal risk. The FAA does not agree. data as part of the safety record. human space flight incident or a fatality A space flight participant may not have Blue Origin, the Federation, Predesa, or serious injury to space flight the training and background to conduct and t/Space all suggested that the FAA participants during an FAA authorized such research and analysis. The FAA provide a standardized summary of the flight until December 23, 2012. For the expects space flight participants to come historical safety record of all launch or next six years, the FAA has to wait for from all walks of life, with varying reentry vehicles that have carried one or harm to occur or almost occur before it degrees of technical expertise and more persons on board for all U.S. can impose restrictions. Instead, understanding. Congress requires that a Government vehicles for use by all Congress requires that space flight space flight participant be informed of applicants, and that the FAA maintain participants be informed of the risks. Tomstockstill on PROD1PC61 with RULES2 the risks, not that he or she acquire an a standard summary of the safety record that end, the FAA is establishing understanding of basic engineering of all private sector vehicles on behalf notification requirements. principles in order to understand that of the public. The Federation and 13 Although the licensing process differs from risk. t/Space commented that the FAA certification, the licensing process also protects A commenter from NASA needed to provide the operator with the public safety. Headquarters Office of Safety and safety record in order to ensure an VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 11. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75625 accurate and impartial list, used equally use different definitions, with models would discourage operators by all operators. Blue Origin commented competitive pressures possibly from iterative experimenting and testing that this approach would help avoid influencing these definitions. It of non-passenger models, which would litigation. recommended clearer definitions to undermine the goal of developing safer The FAA is exploring available ensure a level playing field between vehicles. options. The agency is considering operators. In response, rather than The FAA agrees that an operator need developing a database on the safety requiring the disclosure of failures and only disclose its safety record created record of U.S. Government and private anomalies as proposed, paragraphs during and after vehicle verification sector space transport with one or more 460.45(d) and (f) require an operator to performed in accordance with § 460.17. persons on-board. If it were possible to describe accidents and human space This includes all subsequent launches do so, the FAA could include foreign flight incidents, and the FAA now and reentry. Earlier models that predate data. Although a database, whether defines launch and reentry accidents to the verification of the vehicle are not developed by the FAA or commercially, include a fatality or serious injury to a part of the safety record. The FAA is may eventually be used by an operator space flight participant or crew. Without including accidents occurring on the to help fulfill the requirements of these revisions, the definitions of ground because those are relevant to the § 460.45, ultimately it is the launch and reentry accidents would fail risks a space flight participant faces. responsibility of the launch vehicle to require an operator to disclose all Accordingly, if a launch vehicle operator to inform each space flight relevant information.14 Under the exploded upon ignition while on the participant of that safety record. current definition of reentry accident, if ground, the explosion would have to be Section 460.45 also requires an an RLV crashed inside a designated included as part of the vehicle safety operator to describe the safety record of landing site, the FAA’s definition would record. its own vehicle to each space flight not encompass that event and an Under § 460.45(e), an operator must participant. The operator’s safety record operator would not have to disclose it inform a space flight participant that he must include the number of vehicle to a space flight participant. Another or she may request additional flights, the number of launch and example of an instance where relevant information. Under § 460.45(f) if a space reentry accidents and human space information would be left undisclosed is flight participant asks, an operator must flight incidents (including on the if someone associated with a flight, such describe each accident and human ground or in flight), and whether any as a space flight participant or crew space flight incident at a system level. corrective actions were taken to resolve member, were injured or killed. That Blue Origin and the Federation the causes of the accident or human event would not be characterized as an commented that the proposed space flight incident. The FAA is accident. All of these events must now requirement would effectively stop revising its definitions of launch and be disclosed under section 460.45. companies from being hired by foreign reentry accident and adding the The Federation commented that the space flight participants because of definition of human space flight FAA should restrict disclosure to the conflicts with International Traffic in incident to ensure that all relevant vehicle verification and commercial Arms Regulations (ITAR). The information is included in this safety operations phases only, and should not Federation urged the FAA to consider record. For a launch that takes place require the disclosure of accidents the ITAR ramifications of any proposed with a person on board, launch and occurring on the ground. Blue Origin requirement for describing corrective reentry ‘‘accidents’’ as defined in requested that the FAA clarify that actions to space flight participants. Blue section 401.5 now include a fatality or disclosures relate only to the licensed Origin, the Federation and the New serious injury to a space flight model vehicle and not to earlier Mexico Office for Space participant or crew. ‘‘Human space developmental iterations of that model. Commercialization were all concerned flight incident’’ means an unplanned It noted that, in developing a vehicle, that an operator would have to disclose event that poses a high risk of causing most operators plan on successive information that is restricted by the a serious or fatal injury to a space flight versions or models. Thus, safety ITAR. participant or crew. performance related to an earlier, Blue Origin suggested a clarification In the NPRM the FAA proposed to experimental model is not directly to prevent a potential conflict between require disclosure of ‘‘anomalies’’ and relevant to a final, passenger-carrying the FAA’s regulations, which require ‘‘failures.’’ The Federation model. Requiring disclosure of earlier disclosure to a space flight participant recommended that the FAA require who is a foreign national, and the ITAR, disclosure of accidents rather than 14 Section 401.5 currently defines launch accident which would restrict or prohibit failures or anomalies because the FAA to mean a fatality or serious injury (as defined in disclosure to the same foreign national. does not define anomaly or failure by 49 CFR 830.2) to any person who is not associated Blue Origin suggested that the FAA regulation, and the Federation thought with the flight; any damage estimated to exceed establish the same standard for $25,000 to property not associated with the flight that the definitions proposed in the May that is not located at the launch site or designated disclosure to a U.S. and a foreign 2005 experimental permit guidelines recovery area; an unplanned event occurring during national, and limit that disclosure were overly broad. According to the the flight of a launch vehicle resulting in the known obligation to only ‘‘general systems Federation, under these definitions impact of a launch vehicle, its payload or any descriptions.’’ This would conform to component thereof: (i) For an expendable launch operators could be required to provide vehicle (ELV), outside designated impact limit the ITAR’s exclusion of ‘‘general an unreasonably large amount of data to lines; and (ii) for an RLV, outside a designated systems descriptions’’ from ‘‘Technical space flight participants, and such landing site. Section 401.5 states that a reentry Data’’ as defined in ITAR 22 CFR ‘‘information overload’’ could actually accident means any unplanned event occurring 120.10(a)(5). The FAA agrees and will during the reentry of a reentry vehicle resulting in decrease the ability of a prospective the known impact of the reentry vehicles, its require only a general systemmstockstill on PROD1PC61 with RULES2 space flight participant to properly payload, or any component thereof outside a description. An operator only needs to evaluate the risk involved. designated reentry site; a fatality or serious injury disclose, for example, that a propulsion Likewise, t/Space commented that the (as defined in 49 CFR 830.2) to any person who is system exploded, not the details of how not associated with the reentry; any damage terms ‘‘anomalies’’ and ‘‘failures’’ are estimated to exceed $25,000 to property not the explosion occurred. not adequately defined. According to associated with the reentry and not located within Blue Origin and the Federation t/Space, different operators are likely to a designated reentry site. commented that describing corrective VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 12. 75626 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations actions could require the disclosure of Prices, however, drop over time, and the 4. Space Flight Participant Waiver of proprietary data and company secrets. FAA agrees with the commenters that a Claims Against U.S. Government The Federation commented that the minor could not be adequately intellectual property of its members informed. Given the risks involved, Section 460.49 requires each space could be placed at risk. Competitors parental consent may not substitute for flight participant to execute a reciprocal could seek to fly on one another’s the minor’s inability to be informed. waiver of claims with the Federal vehicles for the purpose of obtaining Aviation Administration of the Although not proposed in the NPRM, data. Department of Transportation in under § 460.45(g) the FAA requires The FAA agrees with the commenters accordance with the requirements of operators to provide each space flight that requiring a description of any part 440. The FAA received no participant an opportunity to ask system in detail or any corrective action comments, and adopts this requirement questions orally to acquire a better could require the disclosure of as proposed in the NPRM, with some understanding of the hazards and risks proprietary data or technical sensitive modifications which are discussed in of the mission. In its February 11, 2005, information to space flight participants; the context of part 440. guidelines, the FAA recommended that therefore, the FAA will require an an operator provide space flight 5. Space Flight Participant Training operator to disclose only accidents and participants an opportunity to ask human space flight incidents if a space questions orally to acquire a better Section 460.51 requires an operator to flight participant asks and then only at understanding of the hazards and risks train each space flight participant before the system level; it will not, as of the mission. In the NPRM, the FAA flight on how to respond to emergency originally proposed, require an operator stated that although the FAA does not situations, including smoke, fire, and to also describe what corrective actions now propose to require this loss of cabin pressure. This remains were taken. recommendation, the FAA continues to unchanged from what was proposed in a. Space Flight Participant’s Ability the NPRM. Mr. Snead commented that consider this good practice and believes To Be Informed. Section 460.45(f) all space flight participants should be such opportunities should be provided. requires each space flight participant to tested to ensure that each space flight XCOR agreed both with the desirability provide written informed consent. The participant could respond properly in of this practice and with the FAA’s consent must state that the space flight emergencies. Because the FAA requires decision not to require it at this time. participant understands the risk an applicant proposing to conduct a According to XCOR, it is difficult to associated with being a space flight launch or reentry with a space flight phrase a regulation in such a way that participant aboard the specific vehicle participant on board to demonstrate achieves the desired effect without and that his or her presence on board is compliance with this section, the FAA being burdensome, and therefore it voluntary. In response to comments, the will review the adequacy of the FAA does not consider a person under should be left in the guidelines. XCOR further added that responsible operator’s training plan, which may the age of 18 someone who can provide include testing, during the license or informed consent. operators, with insurance companies, will doubtless pay close attention to permit process. Commenters claimed that persons under the age of 21 do not have a basis such guidelines. 6. Security Requirements for making an informed consent. James After further consideration and review of other informed consent The FAA requires an operator to Snead pointed to age limitations on practices such as those in the medical implement security requirements to drinking, driving, operating heavy construction equipment and selling profession, the FAA believes that an prevent any space flight participant liquor. Mr. Snead felt that persons opportunity to ask questions allows a from jeopardizing the safety of the flight under 21 could be more likely to view space flight participant a chance to get crew or the public. As in the NPRM, space flight as a thrill ride and not clarification on any information that under § 460.53, a space flight appreciate the risks or have the mental may be confusing or unclear. Therefore, participant may not carry on board any capacity to act responsibly during the § 460.45(g) now requires that an explosives, firearms, knives, or other excitement of flight. For the same operator provide each space flight weapons. reasons, a parent or guardian should not participant an opportunity before flight XCOR inquired whether the FAA had be able to provide the consent for the to ask questions orally. In addition to the authority to impose security minor. Dii recommended a minimum receiving informed consent in writing requirements under its statute and the age of 18. from a space flight participant, this U.S. Constitution. The Second Societally, the United States has requirement serves as another Amendment to the Constitution acknowledged that it is reasonable to ‘‘cognizance test’’ or affirmation that the provides that ‘‘[a] well regulated Militia, place restrictions on individuals under space flight participant understands being necessary to the security of a free the age of 18, including restrictions on what he or she is getting into before State, the right of the people to keep and their ability to legally consent. In the embarking on a mission. An operator bear Arms, shall not be infringed.’’ This United States, a person may vote in must provide an opportunity for an oral right is not unfettered. Nearly every federal elections at the age of 18. A discussion; the discussion does not have statute restricting the right to bear arms person may not enlist for military to occur if the space flight participant has been upheld. For example, in 1958, service without parental consent until declines it. Congress made it a criminal offense to the age of 18. While some states classify knowingly carry a firearm onto an 3. Physical Examination a person as a minor until the age of 21, airplane engaged in air transportation. in many states the age of majority is 18. The FAA is not requiring that a space 49 U.S.C. 46505. Additionally, nearly allmstockstill on PROD1PC61 with RULES2 In no state is the age of majority less flight participant obtain a physical courts have also held that the Second than 18. examination. The Federation agreed Amendment is a collective right, rather The FAA is aware that most persons with this decision in its comments. As than a personal right. Therefore, despite under the age of 18 will not be able to it discussed in the guidelines and the the Second Amendment collective right afford the price of a ride on a rocket at NPRM, the FAA recommends such an to bear arms, the FAA has the authority the prices currently being discussed. examination. to prohibit firearms on launch and VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 13. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75627 reentry vehicles for safety and security 1. Changes From What the FAA final rule provides that the estate of the purposes. Proposed in the NPRM crew member or space flight participant Planehook commented that the Tracey Knutson, Esq. commented that must indemnify the U.S. Government Transportation Security Administration the FAA should clearly specify that for claims arising out of the bodily (TSA) is charged with the responsibility claims arising out of the death of crew injury, including death, of the or space flight participants are part of individual. This indemnification will for aviation security as well as other what is covered by the cross-waivers. cover all costs and fees incurred by the modes of transportation within the U.S. The FAA notes that its definition of U.S. Government in defending itself Therefore, according to Planehook, ‘‘bodily injury,’’ 14 CFR 440.3, includes against claims by the individual, his or security regulations should come from her family, or estate. the TSA. Under Chapter 701, the FAA death, but is adopting the suggestion in Also of note, although not proposed is responsible for security as well as the waivers of claims that will be signed in the NPRM, the waivers of claims for safety, and thus shares jurisdiction on by space flight participants and crew crew and space flight participants now this issue with TSA. members. The courts have stressed the define these individuals to include not importance of individuals only themselves, but all the heirs, The FAA will work with and rely on understanding what they are waiving. administrators, executors, assignees, the expertise of the Transportation Thus, to avoid confusion, the FAA will next of kin, and estate of the Security Administration and the make clear that the waivers encompass individuals, and anyone who attempts intelligence community at large. Threat claims arising out of an individual’s to bring a claim on behalf of the crew assessments will be conducted to own death. determine the sufficiency of an member or space flight participant or for Mr. James Snead commented that the damage or harm arising out of that operator’s security plans. Although the reciprocal waivers of claims required by threats may be the same, different person’s bodily injury, including death. part 440 should identify a particular vehicles may require different security operator, the vehicle being flown and 2. Waivers of Claims plans. The FAA will look to the security the manner of its use. Mr. Snead community for developing guidelines in As the FAA proposed in the NPRM, pointed out that the proposed § 440.17(e) and (f) requires a space flight reviewing the different plans. The FAA appendices omitted information participant and each crew member to plans to coordinate initial guidelines necessary to describe that to which the waive any claims he or she may have with the TSA. As the commercial waivers apply. The FAA now requires against the U.S. Government for activity in this sector expands, the TSA that the operator, the vehicle, any participation in a launch or reentry in will likely take a larger role in payload, and the location of the licensed which the U.S. Government, any of its developing standards and monitoring or permitted flight be included in the agencies, or its contractors and compliance. In the meantime, the FAA reciprocal waivers of claims. This subcontractors is involved. intends its security requirements to change clarifies the subject of the Mr. James Snead commented that for provide a foundation that is both waiver. the U.S. Government to require a crew effective and flexible. This final rule contains a provision in member or space flight participant to D. Financial Responsibility and Waiver the waivers of claims for crew and space waive claims against an operator could of Liability flight participant that the FAA did not deprive the space flight participant or propose in the NPRM, but is necessary crew member of a normal expectation of The FAA implements the financial to carry out Congress’ intent that crew customary behavior on the part of the responsibility requirements and waiver and space flight participants not bring operator by virtue of the normal of claims required by Chapter 701 claims against the U.S. Government. potential for legal liability. As noted in through part 440.15 With the exception The waivers require that crew members the NPRM, the CSLAA and the FAA of clarifications to the crew and space and space flight participants hold regulations do not require either a space flight participant waivers of claims harmless and indemnify the United flight participant or a crew member to discussed below, the FAA only made States and its agencies, servants, agents, agree to waive claims against an editorial changes from what it proposed subsidiaries, employees and assignees, operator of a launch or reentry vehicle. in the NPRM. The FAA received or any of them, from and against The waiver is with the U.S. Government comments concerning the cross-waivers liability, loss or damage arising out of for its participation in a launch or between space flight participants, the claims brought by anyone for property reentry. In the NPRM, the FAA only operators and the U.S. Government. It damage or bodily injury, including noted that nothing in the CSLAA also received comments regarding death, sustained by a crew member or prevents an operator from making a insurance requirements. space flight participant, resulting from waiver of liability a condition of an licensed or permitted activities. agreement between it and a space flight 15 This rulemaking makes effective the FAA The crew and space flight participant participant or crew member. 70 FR decision to combine parts 440 and 450 in light of must agree to this indemnification in 77272 (Dec. 29, 2005). Neither Congress the fact that they were almost identical, except that order to prevent claims brought by nor the FAA mandated waivers of part 440 only applied to launch and part 450 others as well as on their own behalf. claims against an operator. addressed reentry of reentry vehicles. The FAA requested comments on whether this would cause For example, if a crew member or space Blue Origin commented that the FAA any concerns for those persons having to abide by flight participant were to die during a should clarify the nature of government these requirements. In supporting the FAA decision licensed launch, the waivers will involvement triggering the need for to combine the parts to reduce the regulatory prevent that individual or his estate waivers of claims. Blue Origin burden on service providers, t/Space observed that a single part, would simplify the process of from bringing claims against the U.S. commented that FAA oversight in themstockstill on PROD1PC61 with RULES2 establishing maximum probable loss and Government. Some states, however, form of authorizing a launch or reentry implementing reciprocal waivers of claims. allow a surviving spouse to bring would not constitute government Rocketplane, on the other hand, commented that separate wrongful death claims for his ‘‘involvement.’’ The FAA agrees. In that reentry conditions from orbit are more severe than those from a suborbital RLV launch. The FAA or her own losses arising out of the context, the FAA would be acting in its agrees with this observation, but notes that this part death of the spouse. Accordingly, the regulatory capacity, and would not be imposes no technical requirements. indemnification requirement under this involved. Blue Origin also suggested, VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 14. 75628 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations however, that coordination with local that a state or political subdivision of a such a change could be significant and FAA air traffic control and issuance of state ‘‘may not adopt or have in effect would merit a more thorough study than notices to airmen would not constitute a law, regulation, standard, or order is available now. the kind of U.S. Government inconsistent with this chapter; * * *.’’ III. Rulemaking Analyses involvement requiring crew to sign a 49 U.S.C. 70117(c)(1). In its 2004 waiver of claims. Instead, Blue Origin amendments to 49 U.S.C. 70112, Paperwork Reduction Act suggested, U.S. Government Congress required crew and space flight As required by the Paperwork involvement requiring cross-waivers participants to sign waivers of claims Reduction Act of 1995 (44 U.S.C. would be limited to when an operator against the U.S. Government. 3507(d)), the FAA submitted a copy of transports a U.S. Government payload Accordingly, in order to avoid conflicts the new information collection or personnel acting in their official with any state law to the contrary, requirements in this final rule to the capacities, or when launching from a federal law must apply. Office of Management and Budget U.S. Government facility. Adopting this 4. Insurance (OMB) for its review. Affected parties, suggestion would constitute a change Mr. James Snead commented that the however, do not have to comply with from what the law currently requires. FAA should require an operator to the information collection requirements Where the U.S. Government is involved provide pre-paid health and accidental in §§ 460.5, 460.7, 460.9, 460.19, 460.45, in a launch or reentry by providing death insurance for space flight and 460.49 until the FAA publishes in services, the requirements of part 440 participants. The FAA does not have the Federal Register the control number apply. For example, the federal launch authority to impose such requirements assigned by the OMB for these ranges currently provide launch safety services for the launch of expendable under its statute. Chapter 701 requires information collection requirements. launch vehicles, and the Air Traffic the FAA to impose insurance Publication of the control number Organization manages the NAS to requirements for damage or harm to notifies the public that OMB has ensure the safety of all participants. third parties, that is, the general public, approved these information collection Congress intended the statutory and to U.S. Government property and requirements under the Paperwork revisions of 1988 and of 2004 to reduce personnel. Legislative history shows Reduction Act of 1995. litigation expenses by requiring launch that Congress expected space flight Regulatory Evaluation participants to assume responsibility for participants to purchase insurance on their own. Changes to Federal regulations must their own losses, except in cases of gross undergo several economic analyses. negligence. See Report of the Committee 5. Maximum Probable Loss First, Executive Order 12866 directs that on Science, Space, and Technology, Space Adventures and XCOR each Federal agency shall propose or Sen. Rep. No. 639, 100th Cong., 2d commented that the probability adopt a regulation only upon a reasoned Sess., 14 (1988); Report, H.R. Rep. No. 429, 108th Cong., 2d Sess., VII (2004). threshold for the determination of determination that the benefits of the Accordingly, the FAA cannot adopt the liability insurance requirements for intended regulation justify its costs. interpretation suggested by Blue Origin. commercial launch sites should be Second, the Regulatory Flexibility Act Sections 440.15(c)(1)(iv) and (v), and changed from 1 × 10¥7 to 1 × 10¥5. of 1980 (Pub. L. 96–354) requires 440.17(b) and (e) require a licensee or Space Adventures commented that agencies to analyze the economic permittee to submit reciprocal waivers under the FAA’s definition of maximum impact of regulatory changes on small of claims to the FAA for signature. Mr. probable loss (MPL), a different entities. Third, the Trade Agreements Garrett Smith commented that a launch probability threshold is applied for the Act (Pub. L. 96–39) prohibits agencies should not be held up because of the determination of liability insurance from setting standards that create delay that could be caused by waiting requirements for government property unnecessary obstacles to the foreign for the U.S. Government to sign a (primarily government property at a commerce of the United States. In reciprocal waiver of claims. To date, a government launch site) exposed to risk developing U.S. standards, this Trade launch has never been delayed on from a commercial launch (1 × 10¥5) Act requires agencies to consider account of waiting for a signature from than is applied for third party property international standards and, where the U.S. Government on a cross-waiver. (1 × 10¥7). Space Adventures noted that appropriate, that they be the basis of Timely submission of a cross-waiver this can have a very real effect on the U.S. standards. Fourth, the Unfunded that complies with part 440 will avoid insurance costs to an operator operating Mandates Reform Act of 1995 (Pub. L. unnecessary delay. from a government launch site as 104–4) requires agencies to prepare a opposed to one operating from a written assessment of the costs, benefits, 3. Federal Preemption commercial launch site. This is because and other effects of proposed or final Ms. Tracey Knutson submitted the current third party threshold rules that include a Federal mandate additional material to the docket in encompasses more potential for harm, likely to result in the expenditure by response to a request for clarification likely requiring the purchase of more State, local, or tribal governments, in the regarding her comments on the waivers insurance. aggregate, or by the private sector, of of claims to be signed by crew and space Space Adventures believes that a $100 million or more annually (adjusted flight participants. The materials commercial launch site’s property for inflation with the base year of 1995). highlight the differences in state law, should also fall under the higher 1 × This portion of the preamble including that many states view waivers 10¥5 threshold, and that the same summarizes the FAA’s analysis of the of claims as contrary to public policy. threshold should extend to all other economic impacts of this final rule. Accordingly, the FAA now emphasizes property located on a commercial In conducting these analyses, FAAmstockstill on PROD1PC61 with RULES2 that the waivers required by the CSLAA launch site. The FAA will not adopt this has determined this rule: (1) Has and part 440 are not to be construed suggestion because it is outside the benefits that justify its costs, (2) is a under state law. As proposed in the scope of this rulemaking. The FAA did ‘‘significant regulatory action’’ as NPRM and adopted now, the waivers not propose this change in the NPRM, defined in Executive Order 12866 provide that federal law applies. and others have not had an opportunity because it raises novel policy issues Chapter 701 provides, in relevant part, to comment. The economic effect of under the legal mandate of the CSLAA, VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 15. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75629 and is ‘‘significant’’ as defined in DOT’s • Flight crew • The high launch forecast used in the Regulatory Policies and Procedures; (3) • Remote operator analysis is 10,142 over ten years will not have a significant economic • Space flight participants • The low launch forecast used in the impact on a substantial number of small Government analysis is 5,081 over ten years entities; (4) will have a neutral impact on international trade; and (5) will not • Federal Aviation Administration • Requirements that were fulfilled by impose an unfunded mandate on state, 2. Assumptions and Ground Rules Used the SpaceShipOne launches or that local, or tribal governments, or on the in Analysis constitute prudent business practice private sector. These analyses are do not impose costs • All monetary values are expressed in available in the docket. • Preparation time expended by 2004 dollars 1. Potentially Impacted Parties • The time horizon for the analysis is 10 commercial entities for specific years (2006 to 2016) requirements that might cause Private Sector • Costs are discounted at 7% industry to incur costs because the • Commercial operators who will be • Hourly Burdened Industry Wage Rate new requirements are not current operating launch or reentry vehicles is $69.40 practice is as follows: with crew and space flight • Hourly Burdened Government Wage participants on board Rate is $52.04 Requirement Hrs/operator Hrs/mission § 460.9: Informing Crew of Risk .............................................................................................................................. 4 1 § 460.19 (§ 440.17()): Crew Waiver of Claims Against U.S. Government .............................................................. 4 1 § 460.45: Operator Informing Space Flight Participant of Risk ............................................................................... 120 2 § 460.49 (§ 440.17(e)): Space Flight Participant waiver of claims against U.S. Government ................................ 4 1 Benefits public safety. For example, a surprise Total Costs The rule will offer some benefit noise or abrupt vehicle motion during flight could frighten an ‘‘uninformed’’ The rule will result in a total cost impacts that are not readily quantified. impact ranging from $1.9 to $3.8 million The principal benefit will be the space flight participant, causing that person to behave or act (e.g., panic) in over the ten-year period from 2006 assurance that the human commercial space flight industry understands and a manner that could adversely impact through 2015 (undiscounted 2004 adheres to the current practices that mission performance and jeopardize dollars). The human space flight have worked thus far to protect public public safety by causing a crash or industry will incur 72 percent of the safety. The rule will help preserve the falling debris from an airborne total costs, ranging from $1.4 million to level of public safety already achieved explosion. Informing candidate space $2.7 million to comply with the rule. by commercial operations. Additionally, flight participants of risks may deter an The FAA will incur 28 percent of the informing space flight participants of individual from participating in space total costs, ranging from $529,000 to mission hazards and risks may help flight who otherwise would panic $1.1 million to administer the regulatory mitigate any behavior or reaction during during flight and possibly create a requirements. Costs are summarized in space flight that would jeopardize situation that would jeopardize public the following table. mission success and consequently safety. SUMMARY OF INCREMENTAL COST IMPACTS ATTRIBUTABLE TO THE RULE OVER THE TEN-YEAR PERIOD, 2006 THROUGH 2015 [In 2004 dollars] Undiscounted Discounted a Category Upper bound Lower bound Upper bound Lower bound Human Space Flight Industry Compliance Costs ............................................ $2,739,149 $1,390,221 $1,728,231 $876,863 Federal Aviation Administration Administrative Costs ..................................... 1,055,579 528,830 656,445 328,890 Total Costs Attributable to the Rule ......................................................... 3,794,728 1,919,051 2,384,676 1,205,753 a Calculated using a discount factor of seven percent over a ten-year period. Regulatory Flexibility Determination regulation.’’ To achieve that principle, rule will have a significant economic the RFA requires agencies to consider impact on a substantial number of small The Regulatory Flexibility Act of 1980 flexible regulatory proposals, to explain entities. If the agency determines that it (Pub. L. 96–354) (RFA) establishes ‘‘as a the rationale for their actions, and to will, the agency must prepare a principle of regulatory issuance that solicit comments. The RFA covers a regulatory flexibility analysis as agencies shall endeavor, consistent with wide-range of small entities, including described in the RFA.mstockstill on PROD1PC61 with RULES2 the objective of the rule and of small businesses, not-for-profit However, if an agency determines that applicable statutes, to fit regulatory and organizations and small governmental a proposed or final rule is not expected informational requirements to the scale jurisdictions. to have a significant economic impact of the business, organizations, and Agencies must perform a review to on a substantial number of small governmental jurisdictions subject to determine whether a proposed or final entities, section 605(b) of the RFA VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 16. 75630 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations provides that the head of the agency expressed interest in entering the in its infancy and has not yet begun may so certify and a regulatory human spaceflight industry. The offering commercial flights, per mission flexibility analysis is not required. The number of employees of these costs and revenues are not known. certification must include a statement companies ranges from 5 to 40. Based However, prospective companies have providing the factual basis for this on the definition of small business for quoted ticket prices of $102,000 to determination, and the reasoning should the launch industry of entities $250,000 per seat for early flights (with be clear. employing no more than 1,000 some predicting prices could fall to The final rule will not have a employees, all of the above mentioned about $25,000 per seat after eight or significant economic impact on a companies are small businesses with the nine years). Regardless of seat prices, substantial number of small entities. exception of one: Virgin Galactic may be the estimated $270 per mission Because almost all the companies in the considered a large business because it is incremental compliance cost that the fledgling industry are small, the FAA a subsidiary of Virgin Airways which rule will impose will be a very small concludes that a substantial number of has over 1,000 employees. The FAA percentage of the revenues of a small entities in the human space flight estimates that five to six companies will commercial operator entity offering industry will be affected by the rule. successfully enter the human space human space flight and is not However, we believe that the rule will flight industry in the next ten years. We economically significant. not have a significant impact on these cannot yet divide this small number Therefore as the FAA Administrator, entities as explained below. into categories by size; we only know I certify that this rule will not have a The rule will require launch and that the vast majority of companies significant economic impact on a reentry operators to perform certain interested in entering the industry are substantial number of small entities. actions that, although they may be very small (from 5 to 135 employees). considered prudent, may not be International Trade Impact Assessment We expect that these companies will be performed in current practice in all about the size of Scaled Composites, the The Trade Agreements Act of 1979 instances. These actions will cause a only company thus far to have launched (Pub. L. 96–39) prohibits Federal space transportation operator to incur humans, once they start launching. agencies from establishing any minimal additional costs relative to The FAA has determined that the standards or engaging in related current practice. impacts are not significant. In order to activities that create unnecessary The North American Industry make this determination, we compared obstacles to the foreign commerce of the Classification System does not have a the incremental cost per mission and United States. Legitimate domestic discrete code for commercial space the total cost to estimated revenue. It objectives, such as safety, are not transportation per se. However, it does should be noted that all of these considered unnecessary obstacles. have the following codes that estimates are extremely speculative due Because this rulemaking will be largely collectively capture entities engaged in to the difficulty of predicting the consistent with current or prudent commercial space transportation: structure of such a nascent industry; practice, it will not create obstacles. The 336414, ‘‘Guided Missile and Space however, our projections of cost as a statute also requires consideration of Vehicle Manufacturing,’’ 336415, percent of revenue is extremely small. international standards and where ‘‘Guided Missile and Space Vehicle The first input to the calculation is appropriate, that they be the basis for Propulsion Unit and Parts the number of expected missions, which U.S. standards. The FAA has assessed Manufacturing,’’ and 336419, ‘‘Other the FAA tentatively estimates is the potential effect of this rule and Guided Missile and Space Vehicle Parts between 5,081 and 10,142 over the next determined that it will impose the same and Auxiliary Equipment 10 years, based on written proprietary costs on domestic and international Manufacturing.’’ The Small Business information received from three entities, and thus has a neutral trade Administration (SBA) has defined small companies expecting to offer launch impact. business entities engaged in the services. To the extent that the industry aforementioned activities as those develops more slowly than expected, Unfunded Mandates Assessments employing no more than 1,000 these may be overestimates. The Title II of the Unfunded Mandates employees. Further, the SBA does not incremental cost per expected flight, Reform Act of 1995 (Pub. L. 104–4) apply a size standard based on however, is not significantly affected by requires each Federal agency to prepare maximum annual receipts to define the estimated total number of flights. a written statement assessing the effects small business entities engaged in the The second input is the cost for the of any Federal mandate in a proposed or above industries. incremental safety activity required by final agency rule that may result in an A substantial number of firms this rulemaking. In the absence of this expenditure of $100 million or more entering the human space flight regulation, companies would certainly (adjusted annually for inflation with the industry are very small. Because it is a voluntarily engage in extensive testing base year 1995) in any one year by State, nascent industry, it is difficult to state and safety training; therefore the cost local, and tribal governments, in the how many and which entities will per mission of less than $300 does not aggregate, or by the private sector; such succeed. There are two companies represent the total investment in safety a mandate is deemed to be a ‘‘significant licensed to perform launches with expected in this industry, but rather the regulatory action.’’ The FAA currently humans on board: Scaled Composites, incremental increase in safety related uses an inflation-adjusted value of with about 135 employees, and XCOR, activity expected as a result of this $120.7 million in lieu of $100 million. with about 10 employees. Only Scaled regulation. This final rule does not contain such a Composites has actually launched as of Putting the two inputs together, we mandate. the date of this rule; therefore, the estimate costs to perform 10,142 Executive Order 13132, Federalismmstockstill on PROD1PC61 with RULES2 industry currently consists of one missions (upper bound) over ten years company. There are about six more are $2,739,149 or an average of $270 per The FAA has analyzed this rule under companies that the FAA considers mission. We estimate costs to perform the principles and criteria of Executive serious candidates because they have 5,081 missions (lower bound) over ten Order 13132, Federalism. We have committed financial resources, and years are $1,390,221 or an average of determined that this action would not another twenty companies that have $274 per mission. Since the industry is have a substantial direct effect on the VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 17. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75631 States, on the relationship between the 14 CFR Part 450 located at the launch site or designated national Government and the States, or Armed forces, Federal buildings and recovery area; on the distribution of power and (3) An unplanned event occurring facilities, Government property, Human responsibilities among the various during the flight of a launch vehicle space flight, Indemnity payments, levels of government, and therefore will resulting in the impact of a launch Insurance, Reporting and recordkeeping not have federalism implications. vehicle, its payload or any component requirements, Space transportation and thereof: Environmental Analysis exploration. (i) For an expendable launch vehicle, FAA Order 1050.1E identifies FAA 14 CFR Part 460 outside designated impact limit lines; actions that are categorically excluded Human space flight, Reporting and and from preparation of an environmental (ii) For a reusable launch vehicle, recordkeeping requirements, Rockets, assessment or environmental impact outside a designated landing site. Space safety, Space transportation and statement under the National (4) For a launch that takes place with exploration. Environmental Policy Act in the a person on board, a fatality or serious absence of extraordinary circumstances. IV. The Amendment injury to a space flight participant or The FAA has determined this crew member. I In consideration of the foregoing, the rulemaking action qualifies for the * * * * * Federal Aviation Administration will categorical exclusion identified in Operator means a holder of a license amend parts 401, 415, 431, 435, and paragraph (4i) appendix F and involves or permit under 49 U.S.C. Subtitle IX, 440; remove and reserve part 450 of no extraordinary circumstances. chapter 701. Chapter III of title 14, Code of Federal Regulations That Significantly Affect Regulations; and add part 460 as * * * * * Energy Supply, Distribution, or Use follows— Pilot means a flight crew member who has the ability to control, in real time, The FAA has analyzed this rule under PART 401—ORGANIZATION AND a launch or reentry vehicle’s flight path. Executive Order 13211, Actions DEFINITIONS * * * * * Concerning Regulations that Reentry accident means Significantly Affect Energy Supply, I 1. The authority citation for part 401 (1) Any unplanned event occurring Distribution, or Use (May 18, 2001). We continues to read as follows: during the reentry of a reentry vehicle have determined that it is not a Authority: 49 U.S.C. 70101–70121. resulting in the impact of the reentry ‘‘significant energy action’’ under the vehicle, its payload, or any component executive order because, although it is I 2. Section 401.5 is amended by thereof, outside a designated reentry a ‘‘significant regulatory action’’ under revising the definitions of ‘‘Launch site; Executive Order 12866, it is not likely Accident’’ and ‘‘Reentry Accident’’ and (2) An event that causes a fatality or to have a significant adverse effect on adding the following definitions in serious injury (as defined in 49 CFR the supply, distribution, or use of alphabetical order to read as follows: 830.2) to any person who is not energy. § 401.5 Definitions. associated with the reentry; List of Subjects (3) An event that causes damage * * * * * estimated to exceed $25,000 to property 14 CFR Part 401 Crew means any employee or not associated with the reentry and not independent contractor of a licensee, Human space flight, Organization and located within a designated reentry site; transferee, or permittee, or of a functions (Government agencies), Space and contractor or subcontractor of a licensee, Safety, Space transportation and (4) For a reentry that takes place with transferee, or permittee, who performs exploration. a person on board, a fatality or serious activities in the course of that injury to a space flight participant or 14 CFR Part 415 employment or contract directly relating crew member. to the launch, reentry, or other Human space flight, Rockets, Space operation of or in a launch vehicle or * * * * * safety, Space transportation and reentry vehicle that carries human Remote operator means a crew exploration. beings. A crew consists of flight crew member who and any remote operator. (1) Has the ability to control, in real 14 CFR Part 431 time, a launch or reentry vehicle’s flight * * * * * path, and Human space flight, Reporting and Flight crew means crew that is on (2) Is not on board the controlled recordkeeping requirements, Rockets, board a vehicle during a launch or vehicle. Space safety, Space transportation and reentry. exploration. * * * * * * * * * * Space flight participant means an 14 CFR Part 435 Human space flight incident means individual, who is not crew, carried Human space flight, Reporting and an unplanned event that poses a high aboard a launch vehicle or reentry recordkeeping requirements, Rockets, risk of causing a serious or fatal injury vehicle. Space safety, Space transportation and to a space flight participant or crew. Suborbital rocket means a vehicle, exploration. * * * * * rocket-propelled in whole or in part, Launch accident means intended for flight on a suborbital 14 CFR Part 440 (1) An event that causes a fatality or trajectory, and the thrust of which ismstockstill on PROD1PC61 with RULES2 Armed forces, Federal buildings and serious injury (as defined in 49 CFR greater than its lift for the majority of facilities, Government property, 830.2) to any person who is not the rocket-powered portion of its ascent. Indemnity payments, Insurance, associated with the flight; Suborbital trajectory means the Reporting and recordkeeping (2) An event that causes damage intentional flight path of a launch requirements, Space transportation and estimated to exceed $25,000 to property vehicle, reentry vehicle, or any portion exploration. not associated with the flight that is not thereof, whose vacuum instantaneous VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 18. 75632 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations impact point does not leave the surface 440.5 General. reentered by the licensee or permittee, of the Earth. 440.7 Determination of maximum probable including a conditional sale, lease, loss. assignment, or transfer of rights; * * * * * 440.9 Insurance requirements for licensed or permitted activities. (iii) Who has placed property on PART 415—LAUNCH LICENSE 440.11 Duration of coverage for licensed board the payload for launch, reentry, or launch, including suborbital launch, or payload services; or I 3. The authority citation for part 415 permitted activities; modifications. continues to read as follows: (iv) To whom the customer has 440.12 Duration of coverage for licensed transferred its rights to the launch or Authority: 49 U.S.C. 70101–70121. reentry; modifications. reentry services. 440.13 Standard conditions of insurance coverage. (2) A space flight participant, for the Subpart A—General 440.15 Demonstration of compliance. purposes of this part, is not a customer. 440.17 Reciprocal waiver of claims Federal range facility means a U.S. I 4. Add § 415.8 to read as follows: requirements. Government-owned installation at § 415.8 Human space flight. 440.19 United States payment of excess which a launch or reentry takes place. third-party liability claims. To obtain a launch license, an Appendix A to Part 440—Information Financial responsibility means applicant proposing to conduct a launch requirements for obtaining a maximum capable of satisfying a liability with flight crew or a space flight probable loss determination for licensed obligation as required by 49 U.S.C. participant on board must demonstrate or permitted activities. Subtitle IX, chapter 701. compliance with §§ 460.5, 460.7, Appendix B to Part 440—Agreement for Government personnel means 460.11, 460.13, 460.15, 460.17, 460.51 waiver of claims and assumption of responsibility for licensed activities. employees of the United States, its and 460.53 of this subchapter. agencies, and its contractors and Appendix C to Part 440—Agreement for PART 431—LAUNCH AND REENTRY waiver of claims and assumption of subcontractors, involved in launch or OF A REUSABLE LAUNCH VEHICLE responsibility for permitted activities. reentry services for an activity Appendix D to Part 440—Agreement for authorized by an FAA license or permit. (RLV) waiver of claims and assumption of Employees of the United States include responsibility for a crew member. members of the Armed Forces of the I 5. The authority citation for part 431 Appendix E to Part 440—Agreement for continues to read as follows: United States. waiver of claims and assumption of Authority: 49 U.S.C. 70101–70121. responsibility for a space flight Hazardous operations means participant. activities, processes, and procedures I 6. Add § 431.8 to read as follows: that, because of the nature of the Authority: 49 U.S.C. 70101–70119; 49 CFR § 431.8 Human space flight. 1.47. equipment, facilities, personnel, environment involved or function being To obtain a license, an applicant Subpart A—Financial Responsibility performed, may result in bodily injury proposing to conduct a reusable launch for Licensed and Permitted Activities or property damage. vehicle mission with flight crew or a space flight participant on board must Liability means a legal obligation to § 440.1 Scope of part. demonstrate compliance with §§ 460.5, pay a claim for bodily injury or property This part establishes financial damage resulting from a licensed or 460.7, 460.11, 460.13, 460.15, 460.17, responsibility and allocation of risk 460.51 and 460.53 of this subchapter. permitted activity. requirements for any launch or reentry authorized by a license or permit issued License means an authorization the PART 435—REENTRY OF A REENTRY under this subchapter. FAA issues under this subchapter to VEHICLE OTHER THAN A REUSABLE launch or reenter a launch or reentry LAUNCH VEHICLE (RLV) § 440.3 Definitions. vehicle. Except as otherwise provided in this Licensed activity means the launch of I 7. The authority citation for part 435 section, any term used in this part and a launch vehicle or the reentry of a continues to read as follows: defined in 49 U.S.C. 70101–70121, or in reentry vehicle conducted under a Authority: 49 U.S.C. 70101–70121. § 401.5 of this chapter shall have the license the FAA issues. I 8. Add § 435.8 to read as follows: meaning contained therein. For Maximum probable loss (MPL) means purposes of this part— the greatest dollar amount of loss for § 435.8 Human space flight. Bodily injury means physical injury, bodily injury or property damage that is An applicant for a license to conduct sickness, disease, disability, shock, reasonably expected to result from a a reentry with flight crew or a space mental anguish, or mental injury licensed or permitted activity; flight participant on board the vehicle sustained by any person, including (1) Losses to third parties, excluding must demonstrate compliance with death. Government personnel and other launch §§ 460.5, 460.7, 460.11, 460.13, 460.15, Contractors and subcontractors means or reentry participants’ employees 460.17, 460.51 and 460.53 of this those entities that are involved at any involved in licensed or permitted subchapter. level, directly or indirectly, in licensed activities, that are reasonably expected I 9. Revise part 440 to read as set forth or permitted activities, and includes to result from a licensed or permitted below: suppliers of property and services, and activity are those that have a probability the component manufacturers of a of occurrence of no less than one in ten PART 440—FINANCIAL launch vehicle, reentry vehicle, or million. RESPONSIBILITY payload.mstockstill on PROD1PC61 with RULES2 Customer means. (2) Losses to Government property Subpart A—Financial Responsibility for (1) Any person: and Government personnel involved in Licensed and Permitted Activities (i) Who procures launch or reentry licensed or permitted activities that are Sec. services from a licensee or permittee; reasonably expected to result from 440.1 Scope of part. (ii) With rights in the payload (or any licensed or permitted activities are those 440.3 Definitions. part of the payload) to be launched or that have a probability of occurrence of VerDate Aug<31>2005 18:26 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 19. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75633 no less than one in one hundred of this part and does not exceed FAA will consult with Federal agencies thousand. $1,500,000,000 (as adjusted for that are involved in, or whose personnel Permit means an authorization the inflation) above such amount, and are or property are exposed to risk of FAA issues under this subchapter for payable pursuant to 49 U.S.C. 70113 damage or loss as a result of, a licensed the launch or reentry of a reusable and § 440.19 of this part. A claim of an or permitted activity before issuing a suborbital rocket. employee of any entity listed in license or permit order prescribing Permitted activity means the launch paragraphs (1)(ii) through (1)(iii) in the financial responsibility requirements, or reentry of a reusable suborbital rocket Third party definition in § 440.3 of this and shall notify the licensee, or conducted under a permit issued by the part for bodily injury or property permittee, if interagency consultation FAA. damage is not a covered claim; may delay issuance of the MPL Property damage means partial or (3) A covered claim for property loss determination. total destruction, impairment, or loss of or damage exceeds the amount of (c) Appendix A of this part contains tangible property, real or personal. financial responsibility required under information requirements for obtaining Regulations mean the Commercial § 440.9(e) of this part and does not a maximum probable loss Space Transportation Licensing result from willful misconduct of the determination. Any person requesting a Regulations codified at 14 CFR Ch. III. licensee; or determination of maximum probable Third party means (4) The licensee has no liability for loss must submit the information (1) Any person other than: covered claims by third parties for required by Appendix A, unless the (i) The United States, any of its bodily injury or property damage arising FAA has waived a requirement. In lieu agencies, and its contractors and out of any particular launch or reentry of submitting required information, a subcontractors involved in launch or that exceeds $1,500,000,000 (as adjusted person requesting a maximum probable reentry services for a licensed or for inflation) above the amount of loss determination may designate and permitted activity; financial responsibility required under certify certain information previously (ii) A licensee, permittee, and its § 440.9(c). submitted for a prior determination as contractors and subcontractors involved (d) Demonstration of financial complete, valid, and equally applicable in launch or reentry services for a responsibility under this part does not to its current request. The requester is licensed or permitted activity; relieve a permittee of ultimate responsible for the continuing accuracy (iii) A customer and its contractors responsibility for liability, loss, or and completeness of information and subcontractors involved in launch damage sustained by the United States submitted under this part and must or reentry services for a licensed or resulting from a permitted activity, promptly report any changes in writing. permitted activity; except to the extent that: (d) The FAA will amend a (iv) A member of a crew; and (1) Liability, loss, or damage sustained determination of maximum probable (v) A space flight participant. by the United States results from willful loss required under this section at any (2) Government personnel, as defined misconduct of the United States or its time prior to completion of licensed or in this section, are third parties. agents; or permitted activities as warranted by United States means the United States (2) A covered claim for property loss supplementary information provided to Government, including each of its or damage to the United States exceeds or obtained by the FAA after the MPL agencies. the amount of financial responsibility determination is issued. Any change in required under § 440.9(e) and does not financial responsibility requirements as § 440.5 General. result from willful misconduct of the a result of an amended MPL (a) No person may commence or permittee. determination shall be set forth in a conduct any launch or reentry activity (e) A licensee’s or permittee’s failure license or permit order. that requires a license or permit unless to comply with any requirement of this (e) The FAA may make a that person has demonstrated part may result in suspension or determination of maximum probable compliance with the requirements of revocation of a license or permit, and loss at any time other than as set forth this part. subject the licensee or permittee to civil in paragraph (b) of this section upon (b) The FAA will prescribe the penalties as provided in part 405 of this request by any person. amount of financial responsibility a chapter. licensee or permittee must obtain and § 440.9 Insurance requirements for any adjustments of the amount in a § 440.7 Determination of maximum licensed or permitted activities. license or permit order issued probable loss. (a) As a condition of each license or concurrent with or subsequent to the (a) The FAA will determine the permit, a licensee or permittee must issuance of a license or a permit. maximum probable loss (MPL) from comply with all insurance requirements (c) Demonstration of financial covered claims by a third party for of this section and of a license or permit responsibility under this part shall not bodily injury or property damage, and issued by the FAA, or otherwise relieve a licensee of ultimate the United States, its agencies, and its demonstrate the required amount of responsibility for liability, loss, or contractors and subcontractors for financial responsibility. damage sustained by the United States covered property damage or loss, (b) A licensee or permittee must resulting from a licensed activity, except resulting from a permitted or licensed obtain and maintain in effect a policy or to the extent that: activity. The maximum probable loss policies of liability insurance, in an (1) Liability, loss, or damage sustained determination forms the basis for amount determined by the FAA under by the United States results from willful financial responsibility requirements paragraph (c) of this section, that misconduct of the United States or its issued in a license or permit order. protects the following persons asmstockstill on PROD1PC61 with RULES2 agents; (b) The FAA issues its determination additional insureds to the extent of their (2) Any covered claim of a third party of maximum probable loss no later than respective potential liabilities against for bodily injury or property damage ninety days after a licensee or permittee covered claims by a third party for arising out of any particular licensed has requested a determination and bodily injury or property damage activity exceeds the amount of financial submitted all information required by resulting from a licensed or permitted responsibility required under § 440.9(c) the FAA to make the determination. The activity: VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 20. 75634 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations (1) The licensee or permittee, its (2) The maximum available on the (1) For ground operations, until customer, and their respective world market at a reasonable cost, as completion of licensed reentry at the contractors and subcontractors, and the determined by the FAA. reentry site; and employees of each, involved in a (f) In lieu of a policy of insurance, a (2) For other licensed reentry licensed or permitted activity; licensee or permittee may demonstrate activities, 30 days from initiation of (2) The United States, its agencies, financial responsibility in another reentry flight; however, in the event of and its contractors and subcontractors manner meeting the terms and an abort that results in the reentry involved in a licensed or permitted conditions for insurance of this part. vehicle remaining on orbit, insurance activity; and The licensee or permittee must describe shall remain in place until the FAA’s (3) Government personnel. in detail the method proposed for determination that risk to third parties demonstrating financial responsibility and Government property as a result of (c) The FAA will prescribe for each and how it ensures that the licensee or licensed reentry is sufficiently small licensee or permittee the amount of permittee is able to cover claims as that financial responsibility is no longer insurance required to compensate the required under this part. necessary, as determined by the FAA total of covered third-party claims for through the risk analysis conducted to bodily injury or property damage § 440.11 Duration of coverage for licensed determine MPL and specified in a resulting from a licensed or permitted launch, including suborbital launch, or license order. activity in connection with any permitted activities; modifications. (b) Financial responsibility required particular launch or reentry. A covered (a) Insurance coverage required under under this part may not be replaced, third-party claim includes a claim by § 440.9, or other form of financial canceled, changed, withdrawn, or in the United States, its agencies, and its responsibility, shall attach when a any way modified to reduce the limits contractors and subcontractors for licensed launch or permitted activity of liability or the extent of coverage, nor damage or loss to property other than starts, and remain in full force and effect expire by its own terms, prior to the property for which insurance is required as follows: time specified in a license order, unless under paragraph (d) of this section. The (1) Until completion of licensed the FAA is notified at least 30 days in amount of insurance required is based launch or permitted activities at a advance and expressly approves the upon the FAA’s determination of launch or reentry site; and modification. maximum probable loss; however, it (2) For orbital launch, until the later will not exceed the lesser of: § 440.13 Standard conditions of insurance of— coverage. (1) $500 million; or (i) Thirty days following payload (2) The maximum liability insurance (a) Insurance obtained under § 440.9 separation, or attempted payload available on the world market at a must comply with each of the following separation in the event of a payload reasonable cost, as determined by the terms and conditions of coverage: separation anomaly; or (1) Bankruptcy or insolvency of an FAA. (ii) Thirty days from ignition of the insured, including any additional (d) The licensee or permittee must launch vehicle. insured, shall not relieve an insurer of obtain and maintain in effect a policy or (3) For a suborbital launch, until the any of its obligations under any policy. policies of insurance, in an amount later of— (2) Policy limits shall apply separately determined by the FAA under (i) Motor impact and payload to each occurrence and, for each paragraph (e) of this section, that covers recovery; or occurrence to the total of claims arising claims by the United States, its agencies, (ii) The FAA’s determination that risk out of a licensed or permitted activity in and its contractors and subcontractors to third parties and Government connection with any particular launch involved in a licensed or permitted property as a result of licensed launch or reentry. activity for property damage or loss or permitted activities is sufficiently (3) Except as provided in this section, resulting from a licensed or permitted small that financial responsibility is no each policy must pay claims from the activity. Property covered by this longer necessary. That determination is first dollar of loss, without regard to any insurance must include all property made through the risk analysis deductible, to the limits of the policy. A owned, leased, or occupied by, or conducted before the launch to licensee or permittee may obtain a within the care, custody, or control of, determine MPL and specified in a policy containing a deductible amount the United States and its agencies, and license or permit order. if the amount of the deductible is placed its contractors and subcontractors in an escrow account or otherwise (b) Financial responsibility required involved in a licensed or permitted demonstrated to be unobligated, under this part may not be replaced, activity, at a Federal range facility. unencumbered funds of the licensee or canceled, changed, withdrawn, or in Insurance must protect the United permittee, available to compensate any way modified to reduce the limits States and its agencies, and its claims at any time claims may arise. of liability or the extent of coverage, nor contractors and subcontractors involved (4) No policy may be invalidated by expire by its own terms, prior to the in a licensed or permitted activity. any action or inaction of the licensee or time specified in a license or permit (e) The FAA will prescribe for each order, unless the FAA is notified at least permittee or any additional insured, licensee or permittee the amount of 30 days in advance and expressly even by nonpayment by the licensee or insurance required to compensate approves the modification. permittee of the policy premium, and claims for property damage under each policy must insure the licensee or paragraph (d) of this section resulting § 440.12 Duration of coverage for licensed permittee and each additional insured from a licensed or permitted activity in reentry; modifications. regardless of any breach or violation of connection with any particular launchmstockstill on PROD1PC61 with RULES2 (a) For reentry, insurance coverage any warranties, declarations, or or reentry. The amount of insurance is required under § 440.9, or other form of conditions contained in the policies by based upon a determination of financial responsibility, shall attach the licensee or permittee or any maximum probable loss; however, it upon commencement of licensed additional insured (other than a breach will not exceed the lesser of: reentry, and remain in full force and or violation by the licensee, permittee or (1) $100 million; or effect as follows: an additional insured, and then only as VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 21. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75635 against that licensee, permittee or must be submitted at least 30 days in authorized officer of the licensee or additional insured). advance of its expiration date. permittee. (5) Each exclusion from coverage (b) Upon a complete demonstration of (d) Each certificate of insurance must be specified. compliance with financial responsibility required by paragraph (c)(1)(ii) of this (6) Insurance shall be primary without and allocation of risk requirements section must be signed by the insurer right of contribution from any other under this part, the requirements of this issuing the policy and accompanied by insurance that is carried by the licensee part shall preempt each and any an opinion of the insurance broker that or permittee or any additional insured. provision in any agreement between the the insurance obtained by the licensee (7) Each policy must expressly licensee or permittee and an agency of or permittee complies with all the provide that all of its provisions, except the United States governing access to or requirements for insurance of this part the policy limits, operate in the same use of United States launch or reentry and any applicable license or permit manner as if there were a separate property or launch or reentry services order. policy with and covering the licensee or for a licensed or permitted activity (e) The licensee or permittee must permittee and each additional insured. which addresses financial maintain, and make available for (8) Each policy must be placed with responsibility, allocation of risk and inspection by the FAA upon request, all an insurer of recognized reputation and related matters covered by 49 U.S.C. required policies of insurance and other responsibility that either: 70112, 70113. documents necessary to demonstrate (i) Is licensed to do business in any (c) A licensee or permittee must compliance with this part. State, territory, possession of the United demonstrate compliance as follows: (f) In the event the licensee or States, or the District of Columbia; or (1) The licensee or permittee must permittee demonstrates financial (ii) Includes in each of its policies or provide proof of the existence of the responsibility using means other than insurance obtained under this part a insurance required by § 440.9 by: insurance, as provided under § 440.9(f), contract clause in which the insurer (i) Certifying to the FAA that it has the licensee or permittee must provide agrees to submit to the jurisdiction of a obtained insurance in compliance with proof that it has met the requirements of court of competent jurisdiction within the requirements of this part and any this part and of a FAA issued license or the United States and designates an applicable license or permit order; permit order. authorized agent within the United (ii) Filing with the FAA one or more States for service of legal process on the § 440.17 Reciprocal waiver of claims certificates of insurance evidencing requirements. insurer. insurance coverage by one or more (9) Except as to claims resulting from (a) As a condition of each license or insurers under a currently effective and permit, the licensee or permittee must the willful misconduct of the United properly endorsed policy or policies of States or any of its agents, the insurer comply with the reciprocal waiver of insurance, applicable to a licensed or claims requirements of this section. shall waive any and all rights of permitted activity, on terms and subrogation against each of the parties (b) The licensee or permittee shall conditions and in amounts prescribed implement a reciprocal waiver of claims protected by required insurance. under this part, and specifying policy (b) [Reserved] with each of its contractors and exclusions; subcontractors, each customer and each § 440.15 Demonstration of compliance. (iii) In the event of any policy of the customer’s contractors and (a) A licensee or permittee must exclusions or limitations of coverage subcontractors, under which each party submit to the FAA evidence of financial that may be considered usual under waives and releases claims against all responsibility and compliance with § 440.19(c), or for purposes of the other parties to the waiver and allocation of risk requirements under implementing the Government’s waiver agrees to assume financial responsibility this part, as follows, unless a license or of claims for property damage under 49 for property damage it sustains and for permit order specifies otherwise due to U.S.C. 70112(b)(2), certifying that bodily injury or property damage the proximity of the intended date for insurance covering the excluded risks is sustained by its own employees, and to commencement of licensed or permitted not commercially available at hold harmless and indemnify each other activities: reasonable cost; and from bodily injury or property damage (1) All reciprocal waiver of claims (iv) Submitting to the FAA, for sustained by its employees, resulting agreements required under § 440.17(c) signature by the Department on behalf from a licensed or permitted activity, must be submitted at least 30 days of the United States Government, the regardless of fault. before the start of any licensed or waiver of claims and assumption of (c) For each licensed or permitted permitted activity involving a customer, responsibility agreement required by activity in which the U.S. Government, crew member, or space flight § 440.17(c), executed by the licensee or any agency, or its contractors and participant; permittee and its customer. subcontractors is involved or where (2) Evidence of insurance must be (v) Submitting to the FAA, for property insurance is required under submitted at least 30 days before signature by the Department on behalf § 440.9(d), the Federal Aviation commencement of any licensed launch of the United States Government, an Administration of the Department of or permitted activity, and for licensed agreement to waive claims and assume Transportation, the licensee or reentry no less than 30 days before responsibility required by § 440.17(e), permittee, and its customer shall enter commencement of launch activities executed by each space flight into a three-party reciprocal waiver of involving the reentry licensee; participant. claims agreement. The three-party (3) Evidence of financial (vi) Submitting to the FAA, for reciprocal waiver of claims shall be in responsibility in a form other than signature by the Department on behalf the form set forth in Appendix B of thismstockstill on PROD1PC61 with RULES2 insurance, as provided under § 440.9(f), of the United States Government, an part, for licensed activity, or Appendix must be submitted at least 60 days agreement to waive claims and assume C of this part, for permitted activity, of before commencement of a licensed or responsibility required by § 440.17(f), this part or in a form that satisfies the permitted activity; and executed by each member of the crew. requirements. (4) Evidence of renewal of insurance (2) Any certification required by this (d) The licensee or permittee, its or other form of financial responsibility section must be signed by a duly customer, and the Federal Aviation VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 22. 75636 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations Administration of the Department of are payable under 49 U.S.C. 70113 and Part 1: Information Requirements for Transportation on behalf of the United not covered by required insurance Licensed Launch, Including Suborbital States and its agencies but only to the under § 440.9(b), without regard to the Launch extent provided in legislation, must limitation under paragraph (a)(1) of this I. General Information agree in any waiver of claims agreement section, because of an insurance policy A. Mission description. required under this part to indemnify exclusion that is usual. A policy 1. A description of mission parameters, another party to the agreement from exclusion is considered usual only if including: claims by the indemnifying party’s insurance covering the excluded risk is a. Launch trajectory; contractors and subcontractors arising not commercially available at b. Orbital inclination; and c. Orbit altitudes (apogee and perigee). out of the indemnifying party’s failure reasonable rates. The licensee must 2. Flight sequence. to implement properly the waiver submit a certification in accordance 3. Staging events and the time for each requirement. with § 440.15(c)(1)(iii) of this part for event. (e) For each licensed or permitted the United States to cover the claims. 4. Impact locations. activity in which the U.S. Government, (d) Upon the expiration of the policy 5. Identification of the launch site facility, any of its agencies, or its contractors and period prescribed in accordance with including the launch complex on the site, subcontractors are involved, the Federal § 440.11(a), the United States shall planned date of launch, and launch Aviation Administration of the windows. provide for payment of claims that are Department of Transportation and each 6. If the applicant has previously been payable under 49 U.S.C. 70113 from the issued a license or permit to conduct space flight participant shall enter into first dollar of loss up to $1,500,000,000 activities using the same vehicle from the or have in place a reciprocal waiver of (as adjusted for inflation occurring after same launch site, a description of any claims agreement in the form of the January 1, 1989). differences planned in the conduct of agreement in Appendix E of this part or (e) Payment by the United States of proposed activities. that satisfies its requirements. excess third-party claims under 49 B. Launch vehicle description. (f) For each licensed or permitted U.S.C. 70113 shall be subject to: 1. General description of the launch activity in which the U.S. Government, vehicle and its stages, including dimensions. (1) Prompt notice by the licensee to 2. Description of major systems, including any of its agencies, or its contractors and the FAA that the total amount of claims safety systems. subcontractors is involved, the Federal arising out of licensed activities 3. Description of rocket motors and type of Aviation Administration of the exceeds, or is likely to exceed, the fuel used. Department of Transportation and each required amount of financial 4. Identification of all propellants to be crew member shall enter into or have in responsibility. For each claim, the used and their hazard classification under place a reciprocal waiver of claims notice must specify the nature, cause, the Hazardous Materials Table, 49 CFR agreement in the form of the agreement and amount of the claim or lawsuit 172.101. in Appendix D of this part or that 5. Description of hazardous components. associated with the claim, and the party C. Payload. satisfies its requirements. or parties who may otherwise be liable 1. General description of the payload, § 440.19 United States payment of excess for payment of the claim; including type (e.g., telecommunications, third-party liability claims. (2) Participation or assistance in the remote sensing), propellants, and hazardous (a) The United States pays successful defense of the claim or lawsuit by the components or materials, such as toxic or United States, at its election; radioactive substances. covered claims (including reasonable D. Flight safety system. expenses of litigation or settlement) of a (3) Approval by the FAA of any 1. Identification of any flight safety system third party against a licensee, a settlement, or part of a settlement, to be on the vehicle, including a description of customer, and the contractors and paid by the United States; and operations and component location on the subcontractors of the licensee and the (4) Approval by Congress of a vehicle. customer, and the employees of each compensation plan prepared by the II. Pre-Flight Processing Operations involved in licensed activities, and the FAA and submitted by the President. A. General description of pre-flight contractors and subcontractors of the (f) The FAA will: operations including vehicle processing United States and its agencies, and their (1) Prepare a compensation plan consisting of an operational flow diagram employees, involved in licensed outlining the total amount of claims and showing the overall sequence and location of activities to the extent provided in an meeting the requirements set forth in 49 operations, commencing with arrival of appropriation law or other legislative U.S.C. 70113; vehicle components at the launch site facility authority providing for payment of (2) Recommend sources of funds to through final safety checks and countdown claims in accordance with 49 U.S.C. sequence, and designation of hazardous pay the claims; and operations, as defined in 14 CFR 440.3. For 70113, and to the extent the total (3) Propose legislation as required to purposes of these information requirements, amount of such covered claims arising implement the plan. payload processing, as opposed to out of any particular launch or reentry: (g) The FAA may withhold payment integration, is not a hazardous operation. (1) Exceeds the amount of insurance of a claim if it finds that the amount is B. For each hazardous operation, including required under § 440.9(b); and unreasonable, unless it is the final order but not limited to fueling, solid rocket motor (2) Is not more than $1,500,000,000 of a court that has jurisdiction over the build-up, ordnance installation, ordnance (as adjusted for inflation occurring after matter. checkout, movement of hazardous materials, January 1, 1989) above that amount. and payload integration: (b) Payment by the United States Appendix A to Part 440—Information 1. Identification of location where each under paragraph (a) of this section shall Requirements for Obtaining a operation will be performed, including each not be made for any part of such claims Maximum Probable Loss Determination building or facility identified by name or number.mstockstill on PROD1PC61 with RULES2 for which bodily injury or property for Licensed or Permitted Activities 2. Identification of facilities adjacent to the damage results from willful misconduct Any person requesting a maximum location where each operation will be by the party seeking payment. probable loss determination shall submit the performed and therefore exposed to risk, (c) The United States shall provide for following information to the FAA, unless the identified by name or number. payment of claims by third parties for FAA has waived a particular information 3. Maximum number of Government bodily injury or property damage that requirement under 14 CFR 440.7(c): personnel and individuals not involved in VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 23. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75637 licensed activities who may be exposed to and exposed to risk, identified by name or Scenarios shall cover the range of reentry risk during each operation. For Government number. trajectories for which authorization is sought. personnel, identification of his or her 3. Maximum number of Government C. On-orbit risk analysis assessing risks employer. personnel and individuals not involved in posed by a reentry vehicle to operational 4. Identification of launch site policies or licensed launch activities that may be satellites during reentry. requirements applicable to the conduct of exposed to risk during each operation. For D. Reentry risk analysis assessing risks to operations. Government personnel, identification of his Government personnel and individuals not III. Flight Operations or her employer. involved in licensed activities as a result of 4. Identification of launch site facility inadvertent or random reentry of the launch A. Identification of launch site facilities policies or requirements applicable to the exposed to risk during licensed flight. vehicle or its components. conduct of operations. E. Nominal and 3-sigma dispersed B. Identification of accident failure scenarios, probability assessments for each, Part 2: Information Requirements for trajectories in one-second intervals, from and estimation of risks to Government Licensed Reentry reentry initiation through landing or impact. personnel, individuals not involved in (Coordinate system will be specified on a I. General Information case-by-case basis) licensed activities, and Government property, due to property damage or bodily injury. The A. Reentry mission description. F. Three-sigma landing or impact estimation of risks for each scenario shall 1. A description of mission parameters, dispersion area in downrange (±) and take into account the number of such including: crossrange individuals at risk as a result of lift-off and a. Orbital inclination; and (±) measured from the nominal and flight of a launch vehicle (on-range, off-range, b. Orbit altitudes (apogee and perigee). contingency landing or impact target. The and down-range) and specific, unique c. Reentry trajectories. applicant is responsible for including all facilities exposed to risk. Scenarios shall 2. Reentry flight sequences. significant landing or impact dispersion cover the range of launch trajectories, 3. Reentry initiation events and the time constituents in the computations of landing inclinations and orbits for which for each event. or impact dispersion areas. The dispersion authorization is sought in the license 4. Nominal landing location, alternative constituents should include, but not be application. landing sites and contingency abort sites. limited to: Variation in orbital position and C. On-orbit risk analysis assessing risks 5. Identification of landing facilities, velocity at the reentry initiation time; posed by a launch vehicle to operational (planned date of reentry), and reentry variation in re-entry initiation time offsets, satellites. windows. either early or late; variation in the bodies’ D. Reentry risk analysis assessing risks to 6. If the applicant has previously been ballistic coefficient; position and velocity Government personnel and individuals not issued a license or permit to conduct reentry variation due to winds; and variations in re- involved in licensed activities as a result of activities using the same reentry vehicle to entry retro-maneuvers. reentering debris or reentry of the launch the same reentry site facility, a description of G. Malfunction turn data (tumble, trim) for vehicle or its components. any differences planned in the conduct of guided (controllable) vehicles. The E. Trajectory data as follows: Nominal and proposed activities. malfunction turn data shall include the total 3-sigma lateral trajectory data in x, y, z and B. Reentry vehicle description. angle turned by the velocity vector versus x (dot), y (dot), z (dot) coordinates in one- 1. General description of the reentry turn duration time at one second intervals; second intervals, data to be pad-centered vehicle, including dimensions. the magnitude of the velocity vector versus with x being along the initial launch azimuth 2. Description of major systems, including turn duration time at one second intervals; and continuing through impact for suborbital safety systems. and an indication on the data where the re- flights, and continuing through orbital 3. Description of propulsion system entry body will impact the Earth, or breakup insertion or the end of powered flight for (reentry initiation system) and type of fuel due to aerodynamic loads. A malfunction orbital flights. used. turn data set is required for each malfunction F. Tumble-turn data for guided vehicles 4. Identification of all propellants to be time. Malfunction turn start times shall not only, as follows: For vehicles with gimbaled used and their hazard classification under exceed four-second intervals along the nozzles, tumble turn data with zeta angles the Hazardous Materials Table, 49 CFR trajectory. and velocity magnitudes stated. A separate 172.101. H. Identification of debris casualty areas table is required for each combination of fail 5. Description of hazardous components. and the projected number and ballistic times (every two to four seconds), and C. Payload. coefficient of fragments expected to result significant nozzle angles (two or more small 1. General description of any payload, from each failure mode during reentry, angles, generally between one and five degrees). including type (e.g., telecommunications, including random reentry. G. Identification of debris lethal areas and remote sensing), propellants, and hazardous III. Post-Flight Processing Operations the projected number and ballistic coefficient components or materials, such as toxic or radioactive substances. A. General description of post-flight of fragments expected to result from flight ground operations including overall termination, initiated either by command or D. Flight Safety System. 1. Identification of any flight safety system sequence and location of operations for self-destruct mechanism, for lift-off, land removal of vehicle and components and overflight, and reentry. on the reentry vehicle, including a description of operations and component processing equipment from the reentry site IV. Post-Flight Processing Operations location on the vehicle. facility and for handling of hazardous A. General description of post-flight materials, and designation of hazardous II. Flight Operations operations. ground operations including overall sequence and location of operations for A. Identification of reentry site facilities B. Identification of all facilities used in removal of vehicle components and exposed to risk during vehicle reentry and conducting post-flight processing operations. processing equipment from the launch site landing. C. For each hazardous operation: facility and for handling of hazardous B. Identification of accident failure 1. Identification of location where each materials, and designation of hazardous scenarios, probability assessments for each, operation is performed, including each operations. and estimation of risks to Government building or facility identified by name or B. Identification of all facilities used in personnel, individuals not involved in number. conducting post-flight processing operations. licensed reentry, and Government property, 2. Identification of facilities adjacent to C. For each hazardous operation: due to property damage or bodily injury. The location where each operation is performedmstockstill on PROD1PC61 with RULES2 1. Identification of location where each estimation of risks for each scenario shall and exposed to risk, identified by name or operation is performed, including each take into account the number of such number. building or facility identified by name or individuals at risk as a result of reentry 3. Maximum number of Government number. (flight) and landing of a reentry vehicle (on- personnel and individuals not involved in 2. Identification of facilities adjacent to range, off-range, and down-range) and licensed reentry activities who may be location where each operation is performed specific, unique facilities exposed to risk. exposed to risk during each operation. For VerDate Aug<31>2005 18:26 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 24. 75638 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations Government personnel, identification of his Regulations, shall have the same meaning as Subcontractors of each, for Bodily Injury or or her employer. contained in 49 U.S.C. Subtitle IX, ch. 701, Property Damage sustained by their own 4. Identify and provide reentry site facility or the Regulations, respectively. employees, resulting from Licensed policies or requirements applicable to the 2. Waiver and Release of Claims Activities, regardless of fault. conduct of operations. (b) Customer shall extend the requirements (a) Licensee hereby waives and releases of the waiver and release of claims, and the Part 3: Information Requirements for claims it may have against Customer and the assumption of responsibility, hold harmless, Permitted Activities United States, and against their respective and indemnification, as set forth in In addition to the information required in Contractors and Subcontractors, for Property paragraphs 2(b) and 3(a), respectively, to its part 437 subpart B, an applicant for an Damage it sustains and for Bodily Injury or Contractors and Subcontractors by requiring experimental permit must provide, for each Property Damage sustained by its own them to waive and release all claims they permitted pre-flight and post-flight operation, employees, resulting from Licensed may have against Licensee and the United the following information to the FAA: Activities, regardless of fault. States, and against the respective Contractors A. Identification of location where each (b) Customer hereby waives and releases and Subcontractors of each, and to agree to operation will be performed, including any claims it may have against Licensee and the be responsible, for Property Damage they U.S. Government or third party facilities United States, and against their respective sustain and to be responsible, hold harmless identified by name or number. Contractors and Subcontractors, for Property and indemnify Licensee and the United B. Identification of any U.S. Government or Damage it sustains and for Bodily Injury or States, and the respective Contractors and third party facilities adjacent to the location Property Damage sustained by its own Subcontractors of each, for Bodily Injury or where each operation will be performed and employees, resulting from Licensed Property Damage sustained by their own therefore exposed to risk, identified by name Activities, regardless of fault. employees, resulting from Licensed or number. (c) The United States hereby waives and Activities, regardless of fault. C. Maximum number of Government releases claims it may have against Licensee (c) The United States shall extend the personnel and individuals not involved in and Customer, and against their respective requirements of the waiver and release of permitted activities that may be exposed to Contractors and Subcontractors, for Property claims, and the assumption of responsibility risk during each operation. For Government Damage it sustains, and for Bodily Injury or as set forth in paragraphs 2(c) and 3(b), personnel, identification of his or her Property Damage sustained by its own respectively, to its Contractors and employer. employees, resulting from Licensed Subcontractors by requiring them to waive Activities, regardless of fault, to the extent and release all claims they may have against Appendix B to Part 440—Agreement for that claims it would otherwise have for such Licensee and Customer, and against the Waiver of Claims and Assumption of damage or injury exceed the amount of respective Contractors and Subcontractors of Responsibility for Licensed Activities insurance or demonstration of financial each, and to agree to be responsible, for any responsibility required under sections Property Damage they sustain and for any Part 1—Waiver of Claims and Assumption of 440.9(c) and (e), respectively, of the Bodily Injury or Property Damage sustained Responsibility for Licensed Launch, Regulations. by their own employees, resulting from including Suborbital Launch 3. Assumption of Responsibility Licensed Activities, regardless of fault, to the THIS AGREEMENT is entered into extent that claims they would otherwise have thisllday ofllll, by and among (a) Licensee and Customer shall each be for such damage or injury exceed the amount [Licensee] (the ‘‘Licensee’’), [Customer] (the responsible for Property Damage it sustains of insurance or demonstration of financial ‘‘Customer’’) and the Federal Aviation and for Bodily Injury or Property Damage responsibility required under sections Administration of the Department of sustained by its own employees, resulting 440.9(c) and (e), respectively, of the Transportation, on behalf of the United States from Licensed Activities, regardless of fault. Regulations. Government (collectively, the ‘‘Parties’’), to Licensee and Customer shall each hold harmless and indemnify each other, the 5. Indemnification implement the provisions of section 440.17(c) of the Commercial Space United States, and the Contractors and (a) Licensee shall hold harmless and Transportation Licensing Regulations, 14 Subcontractors of each Party, for Bodily indemnify Customer and its directors, CFR Ch. III (the ‘‘Regulations’’). This Injury or Property Damage sustained by its officers, servants, agents, subsidiaries, agreement applies to the launch of [Payload] own employees, resulting from Licensed employees and assignees, or any of them, and payload on a [Launch Vehicle] vehicle at Activities, regardless of fault. the United States and its agencies, servants, [Location of Launch Site]. In consideration of (b) The United States shall be responsible agents, subsidiaries, employees and the mutual releases and promises contained for Property Damage it sustains, and for assignees, or any of them, from and against herein, the Parties hereby agree as follows: Bodily Injury or Property Damage sustained liability, loss or damage arising out of claims by its own employees, resulting from that Licensee’s Contractors and 1. Definitions Licensed Activities, regardless of fault, to the Subcontractors may have for Property Contractors and Subcontractors means extent that claims it would otherwise have Damage sustained by them and for Bodily entities described in § 440.3 of the for such damage or injury exceed the amount Injury or Property Damage sustained by their Regulations. of insurance or demonstration of financial employees, resulting from Licensed Customer means the above-named responsibility required under sections Activities. Customer on behalf of the Customer and any 440.9(c) and (e), respectively, of the (b) Customer shall hold harmless and person described in § 440.3 of the Regulations. indemnify Licensee and its directors, officers, Regulations. servants, agents, subsidiaries, employees and License means License No.llissued 4. Extension of Assumption of Responsibility assignees, or any of them, and the United onllll, by the Associate Administrator and Waiver and Release of Claims States and its agencies, servants, agents, for Commercial Space Transportation, (a) Licensee shall extend the requirements subsidiaries, employees and assignees, or any Federal Aviation Administration, Department of the waiver and release of claims, and the of them, from and against liability, loss or of Transportation, to the Licensee, including assumption of responsibility, hold harmless, damage arising out of claims that Customer’s all license orders issued in connection with and indemnification, as set forth in Contractors and Subcontractors, or any the License. paragraphs 2(a) and 3(a), respectively, to its person on whose behalf Customer enters into Licensee means the Licensee and any Contractors and Subcontractors by requiring this Agreement, may have for Property transferee of the Licensee under 49 U.S.C. them to waive and release all claims they Damage sustained by them and for Bodily Subtitle IX, ch. 701. may have against Customer and the United Injury or Property Damage sustained by theirmstockstill on PROD1PC61 with RULES2 United States means the United States and States, and against the respective Contractors employees, resulting from Licensed its agencies involved in Licensed Activities. and Subcontractors of each, and to agree to Activities. Except as otherwise defined herein, terms be responsible, for Property Damage they (c) To the extent provided in advance in an used in this Agreement and defined in 49 sustain and to be responsible, hold harmless appropriations law or to the extent there is U.S.C. Subtitle IX, ch. 701—Commercial and indemnify Customer and the United enacted additional legislative authority Space Launch Activities, or in the States, and the respective Contractors and providing for the payment of claims, the VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 25. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75639 United States shall hold harmless and references herein to Customer shall apply to, 2. Waiver and Release of Claims indemnify Licensee and Customer and their and be deemed to include, each such (a) Licensee hereby waives and releases respective directors, officers, servants, agents, customer severally and not jointly. claims it may have against Customer and the subsidiaries, employees and assignees, or any (d) This Agreement shall be governed by United States, and against their respective of them, from and against liability, loss or and construed in accordance with United Contractors and Subcontractors, for Property damage arising out of claims that Contractors States Federal law. Damage it sustains and for Bodily Injury or and Subcontractors of the United States may In witness whereof, the Parties to this Property Damage sustained by its own have for Property Damage sustained by them, Agreement have caused the Agreement to be employees, resulting from Licensed and for Bodily Injury or Property Damage duly executed by their respective duly Activities, regardless of fault. sustained by their employees, resulting from (b) Customer hereby waives and releases authorized representatives as of the date Licensed Activities, to the extent that claims claims it may have against Licensee and the they would otherwise have for such damage written above. United States, and against their respective or injury exceed the amount of insurance or LICENSEE Contractors and Subcontractors, for Property demonstration of financial responsibility By: lllllllllllllllllll Damage it sustains and for Bodily Injury or required under sections 440.9(c) and (e), Its: lllllllllllllllllll Property Damage sustained by its own respectively, of the Regulations. employees, resulting from Licensed CUSTOMER 6. Assurances Under 49 U.S.C. 70112(e) Activities, regardless of fault. By: lllllllllllllllllll (c) The United States hereby waives and Notwithstanding any provision of this Agreement to the contrary, Licensee shall Its: lllllllllllllllllll releases claims it may have against Licensee hold harmless and indemnify the United FEDERAL AVIATION ADMINISTRATION and Customer, and against their respective States and its agencies, servants, agents, OF THE DEPARTMENT OF Contractors and Subcontractors, for Property employees and assignees, or any of them, TRANSPORTATION ON BEHALF OF THE Damage it sustains, and for Bodily Injury or from and against liability, loss or damage UNITED STATES GOVERNMENT Property Damage sustained by its own arising out of claims for Bodily Injury or employees, resulting from Licensed By: lllllllllllllllllll Activities, regardless of fault, to the extent Property Damage, resulting from Licensed Its: lllllllllllllllllll that claims it would otherwise have for such Activities, regardless of fault, except to the extent that: (i) As provided in section 7(b) of ASSOCIATE ADMINISTRATOR FOR damage or injury exceed the amount of this Agreement, claims result from willful COMMERCIAL SPACE TRANSPORTATION insurance or demonstration of financial misconduct of the United States or its agents; responsibility required under sections (ii) claims for Property Damage sustained by Part 2—Waiver of Claims and Assumption of 440.9(c) and (e) of the Regulations. the United States or its Contractors and Responsibility for Licensed Reentry 3. Assumption of Responsibility Subcontractors exceed the amount of This Agreement is entered into this ll insurance or demonstration of financial day of llll, by and among [Licensee] (a) Licensee and Customer shall each be responsibility required under section 440.9(e) responsible for Property Damage it sustains (the ‘‘Licensee’’), [Customer] (the of the Regulations; (iii) claims by a Third and for Bodily Injury or Property Damage ‘‘Customer’’), and the Federal Aviation Party for Bodily Injury or Property Damage sustained by its own employees, resulting Administration of the Department of exceed the amount of insurance or from Licensed Activities, regardless of fault. Transportation, on behalf of the United States Licensee and Customer shall each hold demonstration of financial responsibility Government (collectively, the ‘‘Parties’’), to required under section 440.9(c) of the harmless and indemnify each other, the implement the provisions of § 440.17(c) of United States, and the Contractors and Regulations, and do not exceed the Commercial Space Transportation $1,500,000,000 (as adjusted for inflation after Subcontractors of each Party, for Bodily Licensing Regulations, 14 CFR Ch. III (the Injury or Property Damage sustained by its January 1, 1989) above such amount, and are ‘‘Regulations’’). This agreement applies to the own employees, resulting from Licensed payable pursuant to the provisions of 49 U.S.C. 70113 and section 440.19 of the reentry of the [Payload] payload on a Activities, regardless of fault. Regulations; or (iv) Licensee has no liability [Reentry Vehicle] vehicle. (b) The United States shall be responsible for claims exceeding $1,500,000,000 (as In consideration of the mutual releases and for Property Damage it sustains, and for adjusted for inflation after January 1, 1989) promises contained herein, the Parties hereby Bodily Injury or Property Damage sustained above the amount of insurance or agree as follows: by its own employees, resulting from demonstration of financial responsibility 1. Definitions Licensed Activities, regardless of fault, to the required under section 440.9(c) of the extent that claims it would otherwise have Regulations. Contractors and Subcontractors means for such damage or injury exceed the amount entities described in § 440.3 of the of insurance or demonstration of financial 7. Miscellaneous Regulations. responsibility required under §§ 440.9(c) and (a) Nothing contained herein shall be Customer means the above-named (e) of the Regulations. construed as a waiver or release by Licensee, Customer on behalf of the Customer and any 4. Extension of Assumption of Responsibility Customer or the United States of any claim person described in § 440.3 of the by an employee of the Licensee, Customer or and Waiver and Release of Claims Regulations. the United States, respectively, including a License means License No. ll issued on (a) Licensee shall extend the requirements member of the Armed Forces of the United llll, by the Associate Administrator for of the waiver and release of claims, and the States, for Bodily Injury or Property Damage, assumption of responsibility, hold harmless, Commercial Space Transportation, Federal resulting from Licensed Activities. and indemnification, as set forth in Aviation Administration, Department of (b) Notwithstanding any provision of this paragraphs 2(a) and 3(a), respectively, to its Transportation, to the Licensee, including all Agreement to the contrary, any waiver, Contractors and Subcontractors by requiring license orders issued in connection with the them to waive and release all claims they release, assumption of responsibility or agreement to hold harmless and indemnify License. may have against Customer and the United herein shall not apply to claims for Bodily Licensee means the Licensee and any States, and against the respective Contractors Injury or Property Damage resulting from transferee of the Licensee under 49 U.S.C. and Subcontractors of each, and to agree to willful misconduct of any of the Parties, the Subtitle IX, ch. 701. be responsible, for Property Damage they Contractors and Subcontractors of any of the United States means the United States and sustain and to be responsible, hold harmless Parties, and in the case of Licensee and its agencies involved in Licensed Activities. and indemnify Customer and the United Customer and the Contractors and Except as otherwise defined herein, terms States, and the respective Contractors andmstockstill on PROD1PC61 with RULES2 Subcontractors of each of them, the directors, used in this Agreement and defined in 49 Subcontractors of each, for Bodily Injury or officers, agents and employees of any of the U.S.C. Subtitle IX, ch. 701—Commercial Property Damage sustained by their own foregoing, and in the case of the United Space Launch Activities, or in the employees, resulting from Licensed States, its agents. Regulations, shall have the same meaning as Activities, regardless of fault. (c) In the event that more than one contained in 49 U.S.C. Subtitle IX, ch. 701, (b) Customer shall extend the requirements customer is involved in Licensed Activities, or the Regulations, respectively. of the waiver and release of claims, and the VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 26. 75640 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations assumption of responsibility, hold harmless, have for Property Damage sustained by them, duly executed by their respective duly and indemnification, as set forth in and for Bodily Injury or Property Damage authorized representatives as of the date paragraphs 2(b) and 3(a), respectively, to its sustained by their employees, resulting from written above. Contractors and Subcontractors by requiring Licensed Activities, to the extent that claims LICENSEE them to waive and release all claims they they would otherwise have for such damage may have against Licensee and the United or injury exceed the amount of insurance or By: lllllllllllllllllll States, and against the respective Contractors demonstration of financial responsibility Its: lllllllllllllllllll and Subcontractors of each, and to agree to required under §§ 440.9(c) and (e) of the CUSTOMER be responsible, for Property Damage they Regulations. By: lllllllllllllllllll sustain and to be responsible, hold harmless 6. Assurances Under 49 U.S.C. 70112(e) Its: lllllllllllllllllll and indemnify Licensee and the United States, and the respective Contractors and Notwithstanding any provision of this FEDERAL AVIATION ADMINISTRATION Subcontractors of each, for Bodily Injury or Agreement to the contrary, Licensee shall OF THE DEPARTMENT OF Property Damage sustained by their own hold harmless and indemnify the United TRANSPORTATION ON BEHALF OF THE employees, resulting from Licensed States and its agencies, servants, agents, UNITED STATES GOVERNMENT Activities, regardless of fault. employees and assignees, or any of them, By: lllllllllllllllllll (c) The United States shall extend the from and against liability, loss or damage Its: lllllllllllllllllll requirements of the waiver and release of arising out of claims for Bodily Injury or Property Damage, resulting from Licensed ASSOCIATE ADMINISTRATOR FOR claims, and the assumption of responsibility Activities, regardless of fault, except to the COMMERCIAL SPACE TRANSPORTATION as set forth in paragraphs 2(c) and 3(b), respectively, to its Contractors and extent that: (i) As provided in section 7(b) of Appendix C to Part 440—Agreement for Subcontractors by requiring them to waive this Agreement, claims result from willful misconduct of the United States or its agents; Waiver of Claims and Assumption of and release all claims they may have against Responsibility for Permitted Activities Licensee and Customer, and against the (ii) claims for Property Damage sustained by respective Contractors and Subcontractors of the United States or its Contractors and THIS AGREEMENT is entered into this __ each, and to agree to be responsible, for any Subcontractors exceed the amount of day of ____, by and among [Permittee] (the Property Damage they sustain and for any insurance or demonstration of financial ‘‘Permittee’’), [Customer] (the ‘‘Customer’’) Bodily Injury or Property Damage sustained responsibility required under § 440.9(e) of and the Federal Aviation Administration of by their own employees, resulting from the Regulations; (iii) claims by a Third Party the Department of Transportation, on behalf Licensed Activities, regardless of fault, to the for Bodily Injury or Property Damage exceed of the United States Government extent that claims they would otherwise have the amount of insurance or demonstration of (collectively, the ‘‘Parties’’), to implement the for such damage or injury exceed the amount financial responsibility required under provisions of section 440.17(c) of the of insurance or demonstration of financial § 440.9(c) of the Regulations, and do not Commercial Space Transportation Licensing responsibility required under §§ 440.9(c) and exceed $1,500,000,000 (as adjusted for Regulations, 14 CFR Ch. III (the (e) of the Regulations. inflation after January 1, 1989) above such ‘‘Regulations’’). This agreement applies to amount, and are payable pursuant to the [describe permitted activity]. 5. Indemnification provisions of 49 U.S.C. 70113 and § 440.19 of In consideration of the mutual releases and (a) Licensee shall hold harmless and the Regulations; or (iv) Licensee has no promises contained herein, the Parties hereby indemnify Customer and its directors, liability for claims exceeding $1,500,000,000 agree as follows: officers, servants, agents, subsidiaries, (as adjusted for inflation after January 1, employees and assignees, or any of them, and 1. Definitions 1989) above the amount of insurance or the United States and its agencies, servants, demonstration of financial responsibility Customer means the above-named agents, subsidiaries, employees and required under § 440.9(c) of the Regulations. Customer on behalf of the Customer and any assignees, or any of them, from and against 7. Miscellaneous person described in § 440.3 of the liability, loss or damage arising out of claims Regulations. that Licensee’s Contractors and (a) Nothing contained herein shall be Permit means Permit No. __issued on ____, Subcontractors may have for Property construed as a waiver or release by Licensee, by the Associate Administrator for Damage sustained by them and for Bodily Customer or the United States of any claim Commercial Space Transportation, Federal Injury or Property Damage sustained by their by an employee of the Licensee, Customer or Aviation Administration, Department of employees, resulting from Licensed the United States, respectively, including a Transportation, to the Permittee, including Activities. member of the Armed Forces of the United all permit orders issued in connection with (b) Customer shall hold harmless and States, for Bodily Injury or Property Damage, the Permit. indemnify Licensee and its directors, officers, resulting from Licensed Activities. Permittee means the holder of the Permit servants, agents, subsidiaries, employees and (b) Notwithstanding any provision of this issued under 49 U.S.C. Subtitle IX, ch. 701. assignees, or any of them, and the United Agreement to the contrary, any waiver, United States means the United States and States and its agencies, servants, agents, release, assumption of responsibility or its agencies involved in Permitted Activities. subsidiaries, employees assignees, or any of agreement to hold harmless and indemnify Except as otherwise defined herein, terms them, from and against liability, loss or herein shall not apply to claims for Bodily used in this Agreement and defined in 49 damage arising out of claims that Customer’s Injury or Property Damage resulting from U.S.C. Subtitle IX, ch. 701—Commercial Contractors and Subcontractors, or any willful misconduct of any of the Parties, the Space Launch Activities, or in the person on whose behalf Customer enters into Contractors and Subcontractors of any of the Regulations, shall have the same meaning as this Agreement, may have for Property Parties, and in the case of Licensee and contained in 49 U.S.C. Subtitle IX, ch. 701, Damage sustained by them and for Bodily Customer and the Contractors and or the Regulations, respectively. Injury or Property Damage sustained by their Subcontractors of each of them, the directors, officers, agents and employees of any of the 2. Waiver and Release of Claims employees, resulting from Licensed Activities. foregoing, and in the case of the United (a) Permittee hereby waives and releases (c) To the extent provided in advance in an States, its agents. claims it may have against Customer and the appropriations law or to the extent there is (c) In the event that more than one United States, and against their respective enacted additional legislative authority customer is involved in Licensed Activities, Contractors and Subcontractors, for Property providing for the payment of claims, the references herein to Customer shall apply to, Damage it sustains and for Bodily Injury or United States shall hold harmless and and be deemed to include, each such Property Damage sustained by its ownmstockstill on PROD1PC61 with RULES2 indemnify Licensee and Customer and their customer severally and not jointly. employees, resulting from Permitted respective directors, officers, servants, agents, (d) This Agreement shall be governed by Activities, regardless of fault. subsidiaries, employees and assignees, or any and construed in accordance with United (b) Customer hereby waives and releases of them, from and against liability, loss or States Federal law. claims it may have against Permittee and the damage arising out of claims that Contractors In Witness Whereof, the Parties to this United States, and against their respective and Subcontractors of the United States may Agreement have caused the Agreement to be Contractors and Subcontractors, for Property VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 27. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75641 Damage it sustains and for Bodily Injury or claims, and the assumption of responsibility (b) Notwithstanding any provision of this Property Damage sustained by its own as set forth in paragraphs 2(c) and 3(b), Agreement to the contrary, any waiver, employees, resulting from Permitted respectively, to its Contractors and release, assumption of responsibility or Activities, regardless of fault. Subcontractors by requiring them to waive agreement to hold harmless and indemnify (c) The United States hereby waives and and release all claims they may have against herein shall not apply to claims for Bodily releases claims it may have against Permittee Permittee and Customer, and against the Injury or Property Damage resulting from and Customer, and against their respective respective Contractors and Subcontractors of willful misconduct of any of the Parties, the Contractors and Subcontractors, for Property each, and to agree to be responsible, for any Contractors and Subcontractors of any of the Damage it sustains resulting from Permitted Property Damage they sustain, resulting from Parties, and in the case of Permittee and Activities, regardless of fault, to the extent Permitted Activities, regardless of fault, to Customer and the Contractors and that claims it would otherwise have for such the extent that claims they would otherwise Subcontractors of each of them, the directors, damage exceed the amount of insurance or have for such damage exceed the amount of officers, agents and employees of any of the demonstration of financial responsibility insurance or demonstration of financial foregoing, and in the case of the United required under section 440.9(e) of the responsibility required under section 440.9(e) States, its agents. Regulations. of the Regulations. (c) In the event that more than one 3. Assumption of Responsibility 5. Indemnification customer is involved in Permitted Activities, references herein to Customer shall apply to, (a) Permittee and Customer shall each be (a) Permittee shall hold harmless and and be deemed to include, each such responsible for Property Damage it sustains indemnify Customer and its directors, customer severally and not jointly. and for Bodily Injury or Property Damage officers, servants, agents, subsidiaries, (d) This Agreement shall be governed by sustained by its own employees, resulting employees and assignees, or any of them, and from Permitted Activities, regardless of fault. and construed in accordance with United the United States and its agencies, servants, States Federal law. Permittee and Customer shall each hold agents, subsidiaries, employees and harmless and indemnify each other, the IN WITNESS WHEREOF, the Parties to this assignees, or any of them, from and against Agreement have caused the Agreement to be United States, and the Contractors and liability, loss or damage arising out of claims Subcontractors of each Party, for Bodily duly executed by their respective duly that Permittee’s Contractors and authorized representatives as of the date Injury or Property Damage sustained by its Subcontractors may have for Property own employees, resulting from Permitted written above. Damage sustained by them and for Bodily Activities, regardless of fault. Injury or Property Damage sustained by their PERMITTEE (b) The United States shall be responsible employees, resulting from Permitted By: lllllllllllllllllll for Property Damage it sustains, resulting Activities. Its: lllllllllllllllllll from Permitted Activities, regardless of fault, (b) Customer shall hold harmless and to the extent that claims it would otherwise CUSTOMER indemnify Permittee and its directors, have for such damage exceed the amount of By: lllllllllllllllllll officers, servants, agents, subsidiaries, insurance or demonstration of financial Its: lllllllllllllllllll employees and assignees, or any of them, and responsibility required under section 440.9(e) FEDERAL AVIATION ADMINISTRATION the United States and its agencies, servants, of the Regulations. OF THE DEPARTMENT OF agents, subsidiaries, employees and 4. Extension of Assumption of Responsibility assignees, or any of them, from and against TRANSPORTATION ON BEHALF OF THE and Waiver and Release of Claims liability, loss or damage arising out of claims UNITED STATES GOVERNMENT (a) Permittee shall extend the requirements that Customer’s Contractors and By: lllllllllllllllllll of the waiver and release of claims, and the Subcontractors, or any person on whose Its: lllllllllllllllllll assumption of responsibility, hold harmless, behalf Customer enters into this Agreement, ASSOCIATE ADMINISTRATOR FOR and indemnification, as set forth in may have for Property Damage sustained by COMMERCIAL SPACE TRANSPORTATION paragraphs 2(a) and 3(a), respectively, to its them and for Bodily Injury or Property Contractors and Subcontractors by requiring Damage sustained by their employees, Appendix D to Part 440—Agreement for them to waive and release all claims they resulting from Permitted Activities. Waiver of Claims and Assumption of may have against Customer and the United 6. Assurances Under 49 U.S.C. 70112(e) Responsibility for a Crew Member States, and against the respective Contractors and Subcontractors of each, and to agree to Notwithstanding any provision of this THIS AGREEMENT is entered into this be responsible, for Property Damage they Agreement to the contrary, Permittee shall ll day of llll, by and among [name sustain and to be responsible, hold harmless hold harmless and indemnify the United of Crew Member] (the ‘‘Crew Member’’) and and indemnify Customer and the United States and its agencies, servants, agents, the Federal Aviation Administration of the States, and the respective Contractors and employees and assignees, or any of them, Department of Transportation, on behalf of Subcontractors of each, for Bodily Injury or from and against liability, loss or damage the United States Government (collectively, Property Damage sustained by their own arising out of claims for Bodily Injury or the ‘‘Parties’’), to implement the provisions of employees, resulting from Permitted Property Damage, resulting from Permitted section 440.17(f) of the Commercial Space Activities, regardless of fault. Activities, regardless of fault, except to the Transportation Licensing Regulations, 14 (b) Customer shall extend the requirements extent that it is provided in section 7(b) of CFR Ch. III (the ‘‘Regulations’’). This of the waiver and release of claims, and the this Agreement, except to the extent that agreement applies to the Crew Member’s assumption of responsibility, hold harmless, claims (i) result from willful misconduct of participation in activities that the FAA has and indemnification, as set forth in the United States or its agents and (ii) for authorized by license or permit during the paragraphs 2(b) and 3(a), respectively, to its Property Damage sustained by the United Crew Member’s employment with [Name of Contractors and Subcontractors by requiring States or its Contractors and Subcontractors licensee or permittee]. them to waive and release all claims they exceed the amount of insurance or In consideration of the mutual releases and may have against Permittee and the United demonstration of financial responsibility promises contained herein, the Parties hereby States, and against the respective Contractors required under section 440.9(e) of the agree as follows: and Subcontractors of each, and to agree to Regulations. be responsible, for Property Damage they 1. Definitions sustain and to be responsible, hold harmless 7. Miscellaneous Crew Member means and indemnify Permittee and the United (a) Nothing contained herein shall be (a) The above-named Crew Member, States, and the respective Contractors and construed as a waiver or release by Permittee, (b) All the heirs, administrators, executors,mstockstill on PROD1PC61 with RULES2 Subcontractors of each, for Bodily Injury or Customer or the United States of any claim assignees, next of kin, and estate of the Property Damage sustained by their own by an employee of the Permittee, Customer above-named Crew Member, and employees, resulting from Permitted or the United States, respectively, including (c) Anyone who attempts to bring a claim Activities, regardless of fault. a member of the Armed Forces of the United on behalf of the Crew Member or for damage (c) The United States shall extend the States, for Bodily Injury or Property Damage, or harm arising out of the Bodily Injury, requirements of the waiver and release of resulting from Permitted Activities. including Death, of the Crew Member. VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 28. 75642 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations License/Permit means License/Permit No. respectively, to its Contractors and CREW MEMBER llll issued on llll, by the Associate Subcontractors by requiring them to waive Signature: llllllllllllllll Administrator for Commercial Space and release all claims they may have against Printed Name: llllllllllllll Transportation, Federal Aviation Crew Member and to agree to be responsible, Administration, Department of for any Property Damage the Contractors and FEDERAL AVIATION ADMINISTRATION Transportation, to the Licensee/Permittee, Subcontractors sustain and for any Bodily OF THE DEPARTMENT OF including all license/permit orders issued in Injury, including Death, or Property Damage TRANSPORTATION ON BEHALF OF THE connection with the License/Permit. sustained by their own employees, resulting UNITED STATES GOVERNMENT Licensee/Permittee means the Licensee/ from Licensed Activities, regardless of fault. By: lllllllllllllllllll Permittee and any transferee of the Licensee (b) The United States shall extend the Its: lllllllllllllllllll under 49 U.S.C. Subtitle IX, ch. 701. requirements of the waiver and release of ASSOCIATE ADMINISTRATOR FOR United States means the United States and claims, and the assumption of responsibility COMMERCIAL SPACE TRANSPORTATION its agencies involved in Licensed/Permitted as set forth in paragraphs 2(b) and 3(c), Activities. respectively, to its Contractors and Appendix E to Part 440—Agreement for Except as otherwise defined herein, terms Subcontractors by requiring them to waive Waiver of Claims and Assumption of used in this Agreement and defined in 49 and release all claims the Contractors and Responsibility for a Space Flight U.S.C. Subtitle IX, ch. 701—Commercial Subcontractors may have against Crew Participant Space Launch Activities, or in the Member and to agree to be responsible, for Regulations, shall have the same meaning as any Property Damage they sustain, resulting THIS AGREEMENT is entered into this contained in 49 U.S.C. Subtitle IX, ch. 701, from Permitted Activities, regardless of fault. ll day of llll, by and among [name or the Regulations, respectively. of Space Flight Participant] (the ‘‘Space 5. Indemnification Flight Participant’’) and the Federal Aviation 2. Waiver and Release of Claims Crew Member shall hold harmless and Administration of the Department of (a) Crew Member hereby waives and Transportation, on behalf of the United States indemnify the United States and its agencies, releases claims it may have against the Government (collectively, the ‘‘Parties’’), to servants, agents, subsidiaries, employees and United States, and against its respective implement the provisions of section assignees, or any of them, from and against Contractors and Subcontractors, for Bodily 440.17(e) of the Commercial Space liability, loss, or damage arising out of claims Injury, including Death, or Property Damage Transportation Licensing Regulations, 14 brought by anyone for Property Damage or sustained by Crew Member, resulting from CFR Ch. III (the ‘‘Regulations’’). This Bodily Injury, including Death, sustained by Licensed/Permitted Activities, regardless of agreement applies to Space Flight Crew Member, resulting from Licensed/ fault. Participant’s travel on [name of launch or Permitted Activities. (b) The United States hereby waives and reentry vehicle] of [name of Licensee or releases claims it may have against the Crew 6. Assurances Under 49 U.S.C. 70112(e) Permittee]. In consideration of the mutual Member for Property Damage it sustains, and Notwithstanding any provision of this releases and promises contained herein, the for Bodily Injury, including Death, or Agreement to the contrary, Crew Member Parties hereby agree as follows: Property Damage sustained by its own shall hold harmless the United States and its 1. Definitions employees, resulting from Licensed/ agencies, servants, agents, employees and Permitted Activities, regardless of fault. Space Flight Participant means assignees, or any of them, from and against (a) The above-named Space Flight 3. Assumption of Responsibility liability, loss or damage arising out of claims Participant, (a) The Crew Member shall be responsible for Bodily Injury, including Death, or (b) All the heirs, administrators, executors, for Bodily Injury, including Death, or Property Damage, sustained by Crew assignees, next of kin, and estate of the Property Damage sustained by Crew Member, Member, resulting from Licensed/Permitted above-named Space Flight Participant , and resulting from Licensed/Permitted Activities, Activities, regardless of fault, except to the (c) Anyone who attempts to bring a claim regardless of fault. The Crew Member shall extent that, as provided in section 6(b) of this on behalf of the Space Flight Participant or hold harmless the United States, and the Agreement, claims result from willful for damage or harm arising out of the Bodily Contractors and Subcontractors of each Party, misconduct of the United States or its agents. Injury, including Death, of the Space Flight for Bodily Injury, including Death, or 7. Miscellaneous Participant. Property Damage sustained by Crew Member, (a) Nothing contained herein shall be License/Permit means License/Permit resulting from Licensed/Permitted Activities, construed as a waiver or release by the No.llll issued on llll, by the regardless of fault. United States of any claim by an employee Associate Administrator for Commercial (b) The United States shall be responsible of the United States, respectively, including Space Transportation, Federal Aviation for Property Damage it sustains, and for a member of the Armed Forces of the United Administration, Department of Bodily Injury, including Death, or Property Transportation, to the Licensee/Permittee, States, for Bodily Injury or Property Damage, Damage sustained by its own employees, including all license/permit orders issued in resulting from Licensed/Permitted Activities. resulting from Licensed Activities, regardless connection with the License/Permit. (b) Notwithstanding any provision of this of fault, to the extent that claims it would Licensee/Permittee means the Licensee/ Agreement to the contrary, any waiver, otherwise have for such damage or injury Permittee and any transferee of the Licensee release, assumption of responsibility or exceed the amount of insurance or under 49 U.S.C. Subtitle IX, ch. 701. agreement to hold harmless herein shall not demonstration of financial responsibility United States means the United States and apply to claims for Bodily Injury, including required under sections 440.9(c) and (e), its agencies involved in Licensed/Permitted Death, or Property Damage resulting from respectively, of the Regulations. Activities. willful misconduct of any of the Parties, the (c) The United States shall be responsible Except as otherwise defined herein, terms Contractors and Subcontractors of any of the for Property Damage it sustains, resulting used in this Agreement and defined in 49 from Permitted Activities, regardless of fault, Parties, and in the case of the United States, U.S.C. Subtitle IX, ch. 701—Commercial to the extent that claims it would otherwise its agents. Space Launch Activities, or in the have for such damage exceed the amount of (c) This Agreement shall be governed by Regulations, shall have the same meaning as insurance or demonstration of financial and construed in accordance with United contained in 49 U.S.C. Subtitle IX, ch. 701, responsibility required under section 440.9(e) States Federal law. or the Regulations, respectively. of the Regulations. IN WITNESS WHEREOF, the Parties to this Agreement have caused the Agreement to be 2. Waiver and Release of Claimsmstockstill on PROD1PC61 with RULES2 4. Extension of Assumption of Responsibility duly executed by their respective duly (a) Space Flight Participant hereby waives and Waiver and Release of Claims authorized representatives as of the date and releases claims it may have against the (a) The United States shall extend the written above. United States, and against its respective requirements of the waiver and release of I [name of Crew Member] have read and Contractors and Subcontractors, for Bodily claims, and the assumption of responsibility understand this agreement and agree that I Injury, including Death, or Property Damage as set forth in paragraphs 2(b) and 3(b), am bound by it. sustained by Space Flight Participant, VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 29. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75643 resulting from Licensed/Permitted Activities, damage arising out of claims brought by 460.5 Crew qualifications and training. regardless of fault. anyone for Property Damage or Bodily Injury, 460.7 Operator training of crew. (b) The United States hereby waives and including Death, sustained by Space Flight 460.9 Informing crew of risk. releases claims it may have against Space Participant, resulting from Licensed/ 460.11 Environmental control and life Flight Participant for Property Damage it Permitted Activities. support systems. sustains, and for Bodily Injury, including 6. Assurances Under 49 U.S.C. 70112(e) 460.13 Smoke detection and fire Death, or Property Damage sustained by its suppression. own employees, resulting from Licensed/ Notwithstanding any provision of this 460.15 Human factors. Permitted Activities, regardless of fault. Agreement to the contrary, Space Flight 460.17 Verification program. Participant shall hold harmless the United 460.19 Crew waiver of claims against U.S. 3. Assumption of Responsibility States and its agencies, servants, agents, Government. (a) Space Flight Participant shall be employees and assignees, or any of them, 460.20–460.40 [Reserved] responsible for Bodily Injury, including from and against liability, loss or damage Death, or Property Damage sustained by the arising out of claims for Bodily Injury, Subpart B—Launch and reentry with a Space Flight Participant resulting from including Death, or Property Damage, space flight participant Licensed/Permitted Activities, regardless of sustained by Space Flight Participant, 460.41 Scope. fault. Space Flight Participant shall hold resulting from Licensed/Permitted Activities, 460.43 Applicability. harmless the United States, and its regardless of fault, except to the extent that, 460.45 Operator informing space flight Contractors and Subcontractors, for Bodily as provided in section 6(b) of this Agreement, participant of risk. Injury, including Death, or Property Damage claims result from willful misconduct of the 460.47 [Reserved] sustained by Space Flight Participant from United States or its agents. 460.49 Space flight participant waiver of Licensed/Permitted Activities, regardless of 7. Miscellaneous claims against U.S. Government. fault. 460.51 Space flight participant training. (b) The United States shall be responsible (a) Nothing contained herein shall be construed as a waiver or release by the 460.53 Security. for Property Damage it sustains, and for Bodily Injury, including Death, or Property United States of any claim by an employee Authority: 49 U.S.C. 70105. Damage sustained by its own employees, the United States, respectively, including a resulting from Licensed Activities, regardless member of the Armed Forces of the United Subpart A—Launch and reentry with of fault, to the extent that claims it would States, for Bodily Injury or Property Damage, crew otherwise have for such damage or injury resulting from Licensed/Permitted Activities. exceed the amount of insurance or (b) Notwithstanding any provision of this § 460.1 Scope. demonstration of financial responsibility Agreement to the contrary, any waiver, release, assumption of responsibility or This subpart establishes requirements required under sections 440.9(c) and (e), for crew of a vehicle whose operator is agreement to hold harmless herein shall not respectively, of the Regulations. licensed or permitted under this apply to claims for Bodily Injury, including (c) The United States shall be responsible for Property Damage it sustains, resulting Death, or Property Damage resulting from chapter. willful misconduct of any of the Parties, the from Permitted Activities, regardless of fault, § 460.3 Applicability. Contractors, Subcontractors, and agents of to the extent that claims it would otherwise the United States, and Space Flight (a) This subpart applies to: have for such damage exceed the amount of Participant. insurance or demonstration of financial (c) This Agreement shall be governed by (1) An applicant for a license or responsibility required under section 440.9(e) permit under this chapter who proposes and construed in accordance with United of the Regulations. States Federal law. to have flight crew on board a vehicle 4. Extension of Assumption of Responsibility IN WITNESS WHEREOF, the Parties to this or proposes to employ a remote operator and Waiver and Release of Claims Agreement have caused the Agreement to be of a vehicle with a human on board. (a) The United States shall extend the duly executed by their respective duly (2) An operator licensed or permitted requirements of the waiver and release of authorized representatives as of the date under this chapter who has flight crew claims, and the assumption of responsibility written above. I [name of Space Flight Participant] have on board a vehicle or who employs a as set forth in paragraphs 2(b) and 3(b), remote operator of a vehicle with a respectively, to its Contractors and read and understand this agreement and agree that I am bound by it. human on board. Subcontractors by requiring them to waive and release all claims they may have against SPACE FLIGHT PARTICIPANT (3) A crew member participating in an Space Flight Participant, and to agree to be activity authorized under this chapter. Signature: llllllllllllllll responsible, for any Property Damage they Printed Name: llllllllllllll (b) Each member of the crew must sustain and for any Bodily Injury, including comply with all requirements of the Death, or Property Damage sustained by their FEDERAL AVIATION ADMINISTRATION OF THE DEPARTMENT OF laws of the United States that apply to own employees, resulting from Licensed crew. Activities, regardless of fault. TRANSPORTATION ON BEHALF OF THE (b) The United States shall extend the UNITED STATES GOVERNMENT § 460.5 Crew qualifications and training. requirements of the waiver and release of By: lllllllllllllllllll claims, and the assumption of responsibility Its: lllllllllllllllllll (a) Each crew member must— as set forth in paragraphs 2(b) and 3(c), (1) Complete training on how to carry ASSOCIATE ADMINISTRATOR FOR respectively, to its Contractors and COMMERCIAL SPACE TRANSPORTATION out his or her role on board or on the Subcontractors by requiring them to waive ground so that the vehicle will not harm and release all claims they may have against PART 450—[REMOVED] the public; and Space Flight Participant, and to agree to be (2) Train for his or her role in nominal responsible, for any Property Damage the I 10. Remove part 450. and non-nominal conditions. The Contractors and Subcontractors sustain, I 11. Add part 460 to read as follows: resulting from Permitted Activities, conditions must include— regardless of fault. (i) Abort scenarios; and PART 460—HUMAN SPACE FLIGHT (ii) Emergency operations.mstockstill on PROD1PC61 with RULES2 5. Indemnification REQUIREMENTS Space Flight Participant shall hold (b) Each member of a flight crew must harmless and indemnify the United States Subpart A—Launch and reentry with crew demonstrate an ability to withstand the and its agencies, servants, agents, Sec. stresses of space flight, which may subsidiaries, employees and assignees, or any 460.1 Scope. include high acceleration or of them, from and against liability, loss or 460.3 Applicability. deceleration, microgravity, and VerDate Aug<31>2005 18:26 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 30. 75644 Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations vibration, in sufficient condition to (2) Document the completed training § 460.15 Human factors. safely carry out his or her duties so that for each crew member and maintain the An operator must take the precautions the vehicle will not harm the public. documentation for each active crew necessary to account for human factors (c) A pilot and a remote operator member. that can affect a crew’s ability to must— (d) Current qualifications and perform safety-critical roles, including (1) Possess and carry an FAA pilot training. An operator must establish a in the following safety critical areas— certificate with an instrument rating. recurrent training schedule and ensure (a) Design and layout of displays and (2) Possess aeronautical knowledge, that all crew qualifications and training controls; experience, and skills necessary to pilot required by § 460.5 are current before (b) Mission planning, which includes and control the launch or reentry launch and reentry. analyzing tasks and allocating functions vehicle that will operate in the National between humans and equipment; Airspace System (NAS). Aeronautical § 460.9 Informing crew of risk. (c) Restraint or stowage of all experience may include hours in flight, An operator must inform in writing individuals and objects in a vehicle; and ratings, and training. any individual serving as crew that the (d) Vehicle operation, so that the (3) Receive vehicle and mission- United States Government has not vehicle will be operated in a manner specific training for each phase of flight certified the launch vehicle and any that flight crew can withstand any by using one or more of the following— reentry vehicle as safe for carrying flight physical stress factors, such as (i) A method or device that simulates crew or space flight participants. An acceleration, vibration, and noise. the flight; operator must provide this (ii) An aircraft whose characteristics § 460.17 Verification program. information— are similar to the vehicle or that has An operator must successfully verify (a) Before entering into any contract similar phases of flight to the vehicle ; the integrated performance of a vehicle’s or other arrangement to employ that (iii) Flight testing; or hardware and any software in an individual; or (iv) An equivalent method of training operational flight environment before approved by the FAA through the (b) For any crew member employed as allowing any space flight participant on license or permit process. of December 23, 2004, as early as board during a flight. Verification must (4) Train in procedures that direct the possible and prior to any launch in include flight testing. vehicle away from the public in the which that individual will participate as event the flight crew abandons the crew. § 460.19 Crew waiver of claims against vehicle during flight; and U.S. Government. § 460.11 Environmental control and life (5) Train for each mode of control or support systems. Each member of a flight crew and any propulsion, including any transition remote operator must execute a between modes, such that the pilot or (a) An operator must provide reciprocal waiver of claims with the remote operator is able to control the atmospheric conditions adequate to Federal Aviation Administration of the vehicle. sustain life and consciousness for all Department of Transportation in (d) A remote operator may inhabited areas within a vehicle. The accordance with the requirements of demonstrate an equivalent level of operator or flight crew must monitor part 440. safety to paragraph (c)(1) of this section and control the following atmospheric conditions in the inhabited areas or §§ 460.20–460.40 [Reserved] through the license or permit process. (e) Each crew member with a safety- demonstrate through the license or permit process that an alternate means Subpart B—Launch and reentry with a critical role must possess and carry an space flight participant FAA second-class airman medical provides an equivalent level of safety— certificate issued in accordance with 14 (1) Composition of the atmosphere, § 460.41 Scope. CFR part 67, no more than 12 months which includes oxygen and carbon This subpart establishes requirements prior to the month of launch and dioxide, and any revitalization; for space flight participants on board a reentry. (2) Pressure, temperature and vehicle whose operator is licensed or humidity; permitted under this chapter. § 460.7 Operator training of crew. (3) Contaminants that include (a) Implementation of training. An particulates and any harmful or § 460.43 Applicability. operator must train each member of its hazardous concentrations of gases, or This subpart applies to: crew and define standards for successful vapors; and (a) An applicant for a license or completion in accordance with § 460.5. permit under this chapter who proposes (4) Ventilation and circulation. (b) Training device fidelity. An to have a space flight participant on operator must (b) An operator must provide an adequate redundant or secondary board a vehicle; (1) Ensure that any crew-training (b) An operator licensed or permitted device used to meet the training oxygen supply for the flight crew. under this chapter who has a space requirements realistically represents the (c) An operator must flight participant on board a vehicle; vehicle’s configuration and mission, or (1) Provide a redundant means of and (2) Inform the crew member being preventing cabin depressurization; or (c) A space flight participant in an trained of the differences between the (2) Prevent incapacitation of any of activity authorized under this chapter. two. the flight crew in the event of loss of (c) Maintenance of training records. cabin pressure. § 460.45 Operator informing space flight An operator must continually update participant of risk. § 460.13 Smoke detection and firemstockstill on PROD1PC61 with RULES2 the crew training to ensure that it (a) Before receiving compensation or incorporates lessons learned from suppression. making an agreement to fly a space training and operational missions. An An operator or crew must have the flight participant, an operator must operator must— ability to detect smoke and suppress a satisfy the requirements of this section. (1) Track each revision and update in cabin fire to prevent incapacitation of An operator must inform each space writing; and the flight crew. flight participant in writing about the VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2
  • 31. Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / Rules and Regulations 75645 risks of the launch and reentry, (2) The total number of launches and or her presence on board the launch including the safety record of the launch reentries conducted with people on vehicle is voluntary; and or reentry vehicle type. An operator board and the number of catastrophic (3) Be signed and dated by the space must present this information in a failures of those launches and reentries. flight participant. manner that can be readily understood (d) An operator must describe the by a space flight participant with no safety record of its vehicle to each space § 460.47 [Reserved] specialized education or training, and flight participant. The operator’s safety § 460.49 Space flight participant waiver of must disclose in writing— record must cover launch and reentry claims against U.S. Government. (1) For each mission, each known accidents and human space flight Each space flight participant must hazard and risk that could result in a incidents that occurred during and after execute a reciprocal waiver of claims serious injury, death, disability, or total vehicle verification performed in with the Federal Aviation or partial loss of physical and mental accordance with § 460.17, and include— Administration of the Department of function; (1) The number of vehicle flights; Transportation in accordance with the (2) That there are hazards that are not (2) The number of accidents and requirements of part 440 of this chapter. known; and human space flight incidents as defined (3) That participation in space flight by section 401.5; and § 460.51 Space flight participant training. may result in death, serious injury, or (3) Whether any corrective actions An operator must train each space total or partial loss of physical or mental were taken to resolve these accidents flight participant before flight on how to function. and human space flight incidents. respond to emergency situations, (b) An operator must inform each (e) An operator must inform a space including smoke, fire, loss of cabin space flight participant that the United flight participant that he or she may pressure, and emergency exit. States Government has not certified the request additional information regarding launch vehicle and any reentry vehicle any accidents and human space flight § 460.53 Security. as safe for carrying crew or space flight incidents reported. An operator must implement security participants. (f) Before flight, an operator must requirements to prevent any space flight (c) An operator must inform each provide each space flight participant an participant from jeopardizing the safety space flight participant of the safety opportunity to ask questions orally to of the flight crew or the public. A space record of all launch or reentry vehicles acquire a better understanding of the flight participant may not carry on that have carried one or more persons hazards and risks of the mission, and board any explosives, firearms, knives, on board, including both U.S. each space flight participant must then or other weapons. government and private sector vehicles. provide consent in writing to participate This information must include— in a launch or reentry. The consent Issued in Washington DC on December 1, (1) The total number of people who 2006. must— have been on a suborbital or orbital (1) Identify the specific launch Marion C. Blakey, space flight and the total number of vehicle the consent covers; Administrator. people who have died or been seriously (2) State that the space flight [FR Doc. E6–21193 Filed 12–14–06; 8:45 am] injured on these flights; and participant understands the risk, and his BILLING CODE 4910–13–Pmstockstill on PROD1PC61 with RULES2 VerDate Aug<31>2005 15:54 Dec 14, 2006 Jkt 211001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:FRFM15DER2.SGM 15DER2