[Federal Register: December 29, 2005 (Volume 70, Number 249)]
[Proposed Rules]
[Page 77261-77290]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29de05-24]
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Part II
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 401, 415 et al.
Human Space Flight Requirements for Crew and Space Flight Participants;
Proposed Rule
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 401, 415, 431, 435, 440, 450, and 460
[Docket No. FAA-2005-23449; Notice No. 05-17]
RIN 2120-AI57
Human Space Flight Requirements for Crew and Space Flight
Participants
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FAA proposes requirements for human space flight of crew
and space flight participants as required by the Commercial Space
Launch Amendments Act of 2004. If adopted, this rulemaking would
establish requirements for crew qualifications, training, and
notification. It would also establish training and informed consent
requirements for space flight participants. The rulemaking would also
modify existing financial responsibility requirements to account for
the FAA's new authority for space flight participants and crew, and to
issue experimental permits. The experimental permit is the subject of a
separate rulemaking. The FAA is conducting this rulemaking in order to
fulfill its responsibilities under the new act. The requirements are
designed to provide an acceptable level of safety to the general
public, and to notify individuals on board of the risks associated with
a launch or reentry.
DATES: Send your comments on or before February 27, 2006.
ADDRESSES: You may send comments [identified by Docket Number FAA-2005-
23449] using any of the following methods:
DOT Docket Web site: Go to http://dms.dot.gov and follow
the instructions for sending your comments electronically.
Government-wide rulemaking Web site: Go to http://www.regulations.gov
and follow the instructions for sending your
comments electronically.
Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590.
Fax: 1-202-493-2251.
Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For more information on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of this document.
Privacy: We will post all comments we receive, without change, to
http://dms.dot.gov, including any personal information you provide. For
more information, see the Privacy Act discussion in the SUPPLEMENTARY
INFORMATION section of this document.
Docket: To read background documents or comments received, go to
http://dms.dot.gov at any time or to Room PL-401 on the plaza level of
the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: For technical information, contact
Kenneth Wong, Deputy Manager, Licensing and Safety Division, Commercial
Space Transportation, AST-200, Federal Aviation Administration, 800
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
8465; facsimile (202) 267-3686, e-mail ken.wong@faa.gov. For legal
information, contact Laura Montgomery, Senior Attorney, Office of the
Chief Counsel, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone (202) 267-3150; facsimile
(202) 267-7971, e-mail laura.montgomery@faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. We also
invite comments relating to the economic, environmental, energy, or
federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. We ask that you send us two copies of written
comments.
We will file in the docket all comments we receive, as well as a
report summarizing each substantive public contact with FAA personnel
concerning this proposed rulemaking. The docket is available for public
inspection before and after the comment closing date. If you wish to
review the docket in person, go to the address in the ADDRESSES section
of this preamble between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. You may also review the docket using the
Internet at the web address in the ADDRESSES section.
Privacy Act: Using the search function of our docket Web site,
anyone can find and read the comments received into any of our dockets,
including the name of the individual sending the comment (or signing
the comment on behalf of an association, business, labor union, etc.).
You may review DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (65 FR 19477-78) or you may visit
http://dms.dot.gov.
Before acting on this proposal, we will consider all comments we
receive on or before the closing date for comments. We will consider
comments filed late if it is possible to do so without incurring
expense or delay. We may change this proposal in light of the comments
we receive.
If you want the FAA to acknowledge receipt of your comments on this
proposal, include with your comments a pre-addressed, stamped postcard
on which the docket number appears. We will stamp the date on the
postcard and mail it to you.
Proprietary or Confidential Business Information
Do not file in the docket information that you consider to be
proprietary or confidential business information. Send or deliver this
information directly to the person identified in the FOR FURTHER
INFORMATION CONTACT section of this document. You must mark the
information that you consider proprietary or confidential. If you send
the information on a disk or CD ROM, mark the outside of the disk or CD
ROM and also identify electronically within the disk or CD ROM the
specific information that is proprietary or confidential.
Under 14 CFR 11.35(b), when we are aware of proprietary information
filed with a comment, we do not place it in the docket. We hold it in a
separate file to which the public does not have access, and place a
note in the docket that we have received it. If we receive a request to
examine or copy this information, we treat it as any other request
under the Freedom of Information Act (5 U.S.C. 552). We process such a
request under the DOT procedures found in 49 CFR part 7.
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search); (2) Visiting the Office of Rulemaking's Web page at http://
http://www.faa.gov/avr/arm/index.cfm; or
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(3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html
.
You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the docket number, notice number, or amendment number
of this rulemaking.
Authority for This Rulemaking
The FAA's authority to issue rules regarding commercial space
transportation safety is found under the general rulemaking authority,
49 U.S.C. 322(a), of the Secretary of Transportation to carry out
Subtitle IX, Chapter 701, 49 U.S.C. 70101-70121 (Chapter 701).
Additionally, the recently enacted Commercial Space Launch Amendments
Act of 2004 (the CSLAA), describes in more detail the scope of the
agency's authority. Under 49 U.S.C. 70105(b)(4), no holder of a license
or permit may launch or reenter crew unless the crew has received
training and has satisfied medical or other standards specified in a
license or permit in accordance with FAA regulations. This rulemaking
would impose crew qualification and training requirements and implement
the statutory requirement that an operator advise the flight crew that
the U.S. Government has not certified the launch vehicle as safe.
Section 70105(b)(5) provides for the FAA to promulgate regulations for
the holder of a license or permit to inform a space flight participant
in writing about the risks of launch or reentry. Under the FAA's public
safety mandate, the FAA here proposes training and security
requirements for a space flight participant.
Table of Contents
I. Background
II. General Discussion of the Proposals
A. Launch and Reentry With Crew
1. Definitions Applicable to Crew
2. Authority and Process
3. Pilot and Remote Operator Qualifications
4. Medical Standards for Crew
5. Crew Training
6. Crew Notification
7. Environmental Control and Life Support System
8. Smoke Detection and Fire Suppression
9. Human Factors
10. Verification Program
11. Crew and Space Flight Participant Waiver of Claims Against
U.S. Government
B. Launch and Reentry With a Space Flight Participant
1. Risk to Space Flight Participants
2. Informed Consent
3. Physical Examination
4. Space Flight Participant Training
5. Security Requirements
C. Financial Responsibility and Waiver of Liability
1. Proposal To Combine Parts 440 and 450
2. Customers of Permittee
3. Space Flight Participants and Crew
III. Rulemaking Analyses and Notices
IV. The Proposed Amendment
I. Background
Chapter 701 authorizes the Secretary of Transportation and, through
delegations, the FAA's Associate Administrator for Commercial Space
Transportation, to oversee, license, and regulate both launches and
reentries, and the operation of launch and reentry sites when carried
out by U.S. citizens or within the United States. 49 U.S.C. 70104,
70105; U.S. Federal Aviation Administration, Commercial Space
Transportation Delegations of Authority, N1100.240 (Nov. 21, 1995).
Chapter 701 directs the FAA to exercise this responsibility consistent
with public health and safety, safety of property, and the national
security and foreign policy interests of the United States, and to
encourage, facilitate, and promote commercial space launch and reentry
by the private sector. 49 U.S.C. 70105, 70103.
In September 2000, the FAA issued regulations for licensing
reusable launch vehicle (RLV) missions and for the conduct of space
reentry activities. Commercial Space Transportation Reusable Launch
Vehicle and Reentry Licensing Regulations; Final Rule, 65 FR 56618,
56620 (Sept. 19, 2000). Later, the FAA developed ``Draft Guidelines for
Licensed Suborbital RLV Operations With Flight Crew,'' (Oct. 7, 2003).
Historically, license applicants have consisted of operators of
expendable launch vehicles, which do not carry crew or passengers.
Accordingly, the FAA's regulation of space launch activities has mainly
addressed the safety of the uninvolved public from launch hazards. New
developments in technology, potential markets, and the law have changed
this. Lured by a prize of $10 million, a group of inventors and
entrepreneurs began working to create suborbital reusable launch
vehicles to take private citizens into space for short periods of
weightlessness and a view of outer space and their home planet. The X
Prize Foundation, which set up a $10 million prize for this contest,
modeled the prize after early aviation prizes, intending the X Prize to
jumpstart the space tourism industry.
The FAA in April 2004, issued two RLV mission specific licenses:
one for Scaled Composites and one for XCOR Aerospace in accordance with
14 CFR parts 431 and 440. These licenses apply to suborbital RLV
missions with a pilot on board.\1\ The FAA used the draft flight crew
guidelines to assist in these two license application evaluations. To
protect the safety of the uninvolved public, the FAA imposed
operational requirements, as well as a system safety process to
identify hazards and risk mitigation measures, including operational
constraints. Operational constraints included restraints on the
trajectory of SpaceShipOne over specific populated areas.
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\1\ The FAA treats a pilot as part of a flight safety system for
protecting the public.
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Scaled Composites won the X Prize on October 4, 2004, by being the
first to finance privately, build, and launch a vehicle able to carry
three people to an altitude of 100 kilometers (62 statute miles).
Scaled Composites' SpaceShipOne had to return safely to Earth, and then
repeat the trip within two weeks.
Although Scaled Composites won the prize, other developers were
contestants and are still working to reach space. More than 20 teams
from seven countries registered to compete. Concurrent with Scaled
Composites winning the X Prize, a new company, Virgin Galactic,
announced that it would offer rides to space on a new model of the
vehicle that won the prize. Space may soon open up to citizen
explorers, businesses, and tourists.
In December 2004, Congress passed the Commercial Space Launch
Amendments Act. The CSLAA requires that a phased approach be used in
regulating commercial human space flight; that is, regulatory standards
governing human space flight must evolve as the industry matures. In
the near term, the CSLAA requires that the FAA: (1) Issue guidelines or
advisory circulars to guide the implementation of the CSLAA as soon as
practical after the date of its enactment; (2) issue proposed
regulations relating to crew, space flight participants, and permits
for launch or reentry of reusable suborbital rockets not later than
December 23, 2005; and (3) issue final regulations not later than June
23, 2006. On February 11, 2005, the FAA issued ``Draft Guidelines for
Commercial Suborbital Reusable Launch Vehicle Operations With Flight
Crew'' and ``Draft Guidelines for Commercial Suborbital Reusable Launch
Vehicle Operations With Space Flight Participants.''
The CSLAA made the FAA responsible for the safety of space flight
participants and crew. The CSLAA limits, however, the FAA's ability to
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carry out that responsibility for eight years from the date of
enactment. The CSLAA requires that a space flight participant be
informed of the risks of taking a ride on a rocket, and the FAA may
issue regulations requiring space flight participants to undergo an
appropriate physical examination.\2\
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\2\ The FAA has decided against prescribing specific medical
requirements for space flight participants at this time. Instead,
the FAA issued guidelines recommending that space flight
participants obtain an evaluation of their medical history to
determine whether a physical examination might be appropriate.
``Draft Guidelines for Commercial Suborbital Reusable Launch Vehicle
Operations with Space Flight Participants,'' Federal Aviation
Administration (Feb. 11, 2005).
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These rules also would apply to expendable launch vehicle (ELV)
launches with humans on board. Although the FAA prepared this NPRM to
accommodate reentry and reusable launch vehicles, the FAA is aware that
there are plans to launch crewed vehicles on ELVs. Expendable launch
vehicles could carry humans on board as they did during the Mercury,
Gemini and Apollo programs. This could involve mounting crew capsules
on ELVs in order to launch crew or space flight participants to orbit.
Unless the National Aeronautics & Space Administration (NASA) or the
Department of Defense conducted the launch for the Federal Government,
the FAA would license these activities as commercial launches and
reentries and the requirements proposed here would apply.
The requirements proposed as a new part 460 would apply to
licensees and permittees under Chapter 701, and to crew and space
flight participants on board a launch vehicle and to a remote operator.
This rulemaking proposes crew notification, medical, qualification, and
training requirements. The FAA would also establish requirements
governing environmental control and life support systems, smoke
detection and fire suppression, and human factors. The FAA would
require an operator to account for human factors whenever the crew must
perform safety-critical roles. Additionally, the FAA proposes to
require an operator to implement a verification program sufficient to
verify the integrated performance of a vehicle's hardware and any
software in an operational flight environment before allowing a space
flight participant to be on board.
The FAA would also impose requirements for space flight
participants. This rulemaking would require an operator to inform a
space flight participant of the risks of space travel generally and of
the operator's vehicle in particular. An operator would also have to
advise a space flight participant that the U.S. Government has not
certified the vehicle as safe for carrying flight crew or space flight
participants. Although the FAA continues to recommend that a
prospective space flight participant obtain a physical examination
before embarking on a journey to space, the FAA does not propose to
require it here. This rulemaking would require training and general
security requirements for a space flight participant.
Finally, the FAA proposes to implement the changes to its financial
risk sharing and responsibility requirements due to the recently
enacted Commercial Space Launch Amendments Act of 2004. In brief, the
CSLAA requires crew and space flight participants to enter into
reciprocal waivers of claims with the U.S. Government. Crew includes
flight crew and any remote operator. The CSLAA expressly excludes space
flight participants for eligibility from indemnification against third
party claims. Launches and reentries performed pursuant to a permit are
also excluded from eligibility for indemnification. The FAA is
otherwise addressing its new authority under the CSLAA to issue permits
in a separate rulemaking.
II. General Discussion of the Proposals
The proposed requirements would apply to licensees and permittees
under Chapter 701, and to crew and space flight participants on board a
launch vehicle. This rulemaking would define crew and flight crew and
propose crew notification, medical, qualification, and training
requirements. It would also impose informed consent and training
requirements for space flight participants.
A. Launch and Reentry With Crew
1. Definitions Applicable to Crew
This rulemaking would apply to flight crew and any remote operator
not on board the vehicle. The only ground crew to which this rulemaking
would apply is a remote operator.
In keeping with the statutory definition, the FAA would define crew
to mean any employee or independent contractor of a licensee,
transferee, or permittee, or of a contractor or subcontractor of a
licensee, transferee, or permittee, who performs activities in the
course of that employment directly relating to the launch, reentry, or
other operation of or in a launch vehicle or reentry vehicle that
carries human beings. Although the CSLAA only mentions employees as
being eligible for the status of crew, the FAA considers flight crew
part of the flight safety system. Therefore the FAA proposes to treat
as crew any human being who is part of the flight safety system,
regardless of whether the person's status is that of an employee or
independent contractor. The FAA would treat as crew those persons on
board a vehicle and any remote operator of the vehicle. A remote
operator would only include someone engaged actively in controlling the
vehicle, and not someone with some ability to affect the vehicle but no
ability to control its course. Congress provided the agency some
latitude in determining what individuals on the ground to include in
the definition of crew. This has implications for safety, notification
requirements, and crew waivers of liability against the U.S.
Government. The CSLAA itself defines crew broadly to include a person
``who performs activities in the course of that employment directly
relating to the launch, reentry, or other operation of or in a launch
vehicle or reentry vehicle that carries human beings.'' 49 U.S.C.
70102(2). The House proposed this definition in H.R. 3752, a
predecessor bill to H.R. 5382, which was enacted as the CSLAA.
Accordingly, the House Report accompanying H.R. 3752 may be useful in
interpreting the CSLAA. The report states that the FAA should not
interpret the definition of crew ``overly broadly'' to encompass
individuals with peripheral roles, such as sales agents or insurance
providers. Commercial Space Launch Amendments Act, H.R. 3752, H. Rep.
429, 108th Cong., 2d Sess. (Mar. 1, 2004). Nonetheless, the House
Science Committee contemplated that the FAA would apply it more broadly
than pilots or remote operators of a launch vehicle. Id.
The FAA's proposed definition of crew would include all crew on
board, namely the flight crew \3\, as part of the crew, and thus give a
broader meaning to ``crew'' than one consisting of only a pilot or
remote operator. Because Congress contemplated operation of or in a
vehicle (emphasis added), Congress appears to have intended some
persons on the ground to be included as part of the crew. A remote
operator of a vehicle satisfies the Congressional direction to include
some ground crew as part of the crew. Also, a remote operator is
someone whose employment would directly relate to a launch or reentry,
thus satisfying the other statutory prong.
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\3\ The FAA proposes to define flight crew as crew that is on
board a vehicle during a launch or reentry.
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If Congress meant to include as ground crew those who are involved
only in preparation but who are not on board during flight, certain
perverse consequences would ensue. For example, under such an
interpretation, the CSLAA would require an operator to inform employees
working on the ground that the U.S. Government has not certified a
vehicle as safe for carrying crew or space flight participants. 49
U.S.C. 70105(b)(4)(B). In light of the fact that those employees would
not be on board, this would not be a meaningful exercise because they
do not need the warning. A statute should not be read to reach an
irrational result, and the FAA will not do so here.
XCOR commented on the FAA's February 11, 2005 draft guidelines on
flight crew. Those comments are available in the docket. XCOR commented
that flight crew, in the RLV community, is usually taken to mean those
crewmembers whose roles are essential to public safety. XCOR believes
that the definition of flight crew in the guidelines is too broad
because it would include a pilot, a flight engineer, and a steward.
XCOR maintains that although a pilot's function is essential to public
safety, and a flight engineer's function may be essential to public
safety, a steward's duty to maintain the safety and comfort of
passengers is not essential to public safety if the vehicle is designed
or operated so that unruly or panicked passengers cannot interfere with
the operation of the vehicle. Consequently, XCOR would define what
commercial aviation calls ``cabin crew,'' those crewmembers aboard a
vehicle whose roles are not essential to public safety, to distinguish
them from those crewmembers aboard the vehicle whose roles are
essential to public safety. Furthermore, XCOR recommends a definition
of flight crew that excludes cabin crew so that the qualification,
training, and medical guidelines for flight crew would not apply to
such cabin crew as a steward.
The FAA's training proposal should alleviate XCOR's concerns in
this area. Although the FAA proposes to employ a definition of flight
crew that would encompass the same persons as the definition of the
draft guidelines, the FAA would not require all members of a flight
crew to undergo the same training or to possess the same
qualifications. Most of a flight attendant's or steward's duties will
not affect public safety. Those duties would not be the subject of
regulatory oversight. However, some duties might affect public safety,
such as preventing space flight participants from having access to the
flight deck and interfering with the pilot. In order to address the
various flight crew roles and responsibilities, the FAA proposes that
each flight crew member train for his or her role. This would mean that
a flight attendant or steward would not be required to undergo
unnecessary training, only that required for his or her role.
2. Authority and Process
The CSLAA allows the FAA to impose crew training requirements.
Additionally, the FAA retains full authority to continue protecting the
uninvolved public. Accordingly, as it has in the past, the FAA finds
that it needs to protect the crew when it is part of the flight safety
system, and proposes crew training requirements that are intended for
the safety of members of the public, including those on the ground, in
the air, and in space. In a piloted vehicle, the vehicle's flight crew
is an integral part of its flight safety system. This is because they
are in a position to respond to risk to the public, such as aborting
the flight or maneuvering a vehicle away from populated areas. For
purposes of public safety, therefore, the FAA proposes a number of crew
training requirements.
In brief, the FAA would require that crew be properly trained. As
authorized by the CSLAA, the FAA would require each crew member to
receive training and satisfy medical or other standards as specified in
a license or permit. 49 U.S.C. 70105(b)(4)(A). As is the case now, this
means that the FAA will be able to add terms and conditions specific to
a particular vehicle to a license or permit. If for example, a
particular situation required additional training measures, the FAA
would impose them through the license or permit process. Where the FAA
proposes a performance standard, the agency also proposes that an
operator describe to the FAA during the license or permit process the
measures it would take to satisfy that performance standard.
Accordingly, the FAA proposes some changes to parts 415, 431 and 435 to
ensure that an operator demonstrates how it will achieve compliance
before it obtains a license.\4\ Where the FAA requirements would be
more specific, the FAA does not propose to require a demonstration from
an applicant, merely compliance. For example, an applicant would not
have to demonstrate that informed consent has been obtained from a
space flight participant as part of its application process.
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\4\ Likewise, for an applicant seeking an experimental permit
under 49 U.S.C. 70105a, the FAA is currently conducting another
rulemaking to ensure that a permit applicant demonstrates compliance
with proposed part 460.
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3. Pilot and Remote Operator Qualifications
The FAA would require, for purposes of proposed part 460, that a
pilot and any remote operator of a launch or reentry vehicle that will
operate in the National Airspace System (NAS), possess an FAA pilot
certificate with an instrument rating and that they demonstrate the
knowledge of the NAS necessary to operate the vehicle. The pilot or
remote operator would also need to have the aeronautical experience and
skills necessary to pilot and control the vehicle. In order to obtain a
pilot certificate, a person must become educated in the rules of
operating in the NAS. A pilot certificate also provides evidence of a
person's skill level. When the FAA licensed SpaceShipOne missions, the
agency accepted the pilots' commercial pilot certificates as
demonstrating adequate skills. A person holding a sport pilot
certificate or a student pilot would be unlikely to satisfy this
standard.
The FAA does not propose to specify the particular kind of pilot
certificate required nor what category, class, type or instrument
ratings are needed because different operators are proposing vehicles
of varied and unique designs. For example, there are numerous possible
vehicle configurations and operations: vertical take-off and landing
and horizontal take-off and landing. A vehicle may or may not be a
winged vehicle, and it may or may not be air launched. It may land
powered like an airplane or unpowered like a glider. Accordingly, the
FAA would assess, through the licensing or permitting process, the type
of pilot certificate, flight experience, and mission-specific training
for proposed operations that a pilot possessed. For example, during its
licensing evaluation, the FAA took into consideration the extensive
mission-specific training that the SpaceShipOne pilots underwent with a
ground simulator and aircraft with operating characteristics similar to
SpaceShipOne and that these pilots possessed commercial pilot
certificates.
The FAA proposes to require an instrument rating as well. The FAA
anticipates that regardless of the kind of vehicle used, there will be
times when a pilot will be relying on instrument skills and competency.
Accordingly, a person who held an instrument rating would indicate an
appropriate level of skill and competency to pilot these launch and
reentry vehicles.
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The FAA's February 11, 2005 draft crew guidelines recommend that a
pilot hold ratings to operate one or more aircraft with similar
characteristics for as many phases of the mission as practicable. The
guidelines use the term ``as practicable'' because the FAA realizes
that some launch vehicles will not possess operating characteristics
similar to existing aircraft. The FAA continues to consider this
advisable, but because of the differences in proposed vehicles and the
likelihood that there will be vehicles without characteristics similar
to aircraft, the FAA will not, other than an instrument rating, mandate
such a requirement through regulation. Nonetheless, if an operator
proposed to demonstrate the adequacy of the training of its crew by
showing that a pilot held ratings for similar operations, the FAA would
look favorably on such a demonstration. In addition to holding
commercial pilot certificates, the SpaceShipOne pilots held ratings to
operate aircraft with similar characteristics for certain phases of
flight of SpaceShipOne and underwent rigorous training.
The FAA considered two alternatives to its proposed requirements.
The FAA considered not requiring a pilot certificate at all, and only
relying on the proposed performance requirement that a pilot possess
the necessary skills and experience. This is because possession of a
pilot certificate could demonstrate that a pilot possessed the skills
and experience necessary to control the vehicle. Thus, a requirement to
possess a pilot certificate might be redundant. Alternatively, the FAA
could require that the pilot or any remote operator possess a
commercial pilot certificate to demonstrate the minimum pilot skills
required by 14 CFR part 61. In that case, the FAA would likely require
in the final rule that a pilot or any remote operator hold a valid and
current commercial pilot certificate with an instrument rating.
Additionally, the FAA would require that the pilot or remote operator
possess aeronautical experience and skills necessary to pilot and
control the launch and reentry vehicle being applied for. The
aeronautical experience would include a certain amount of aeronautical
experience in an aircraft in flight, instrument training, and training
in the launch and reentry vehicle being applied for. The FAA may still
adopt one of these proposals and requests comment on these options as
well.
Conversely, the FAA considered proposing that a remote operator not
be required to possess a pilot certificate. In this case, a remote
operator would still have to demonstrate knowledge of the NAS and have
the aeronautical experience and skills necessary to pilot and control
the vehicle. In aviation, there is no consensus on whether requiring
piloting experience is necessary or appropriate for remote operators.
The U.S. Air Force currently requires such experience for remote
operators of unmanned aerial vehicles (UAVs).\5\ Thus, U.S. Air Force
remote operators are experienced pilots who have at least one
operational tour of duty in another combat aircraft. Unlike the U.S.
Air Force, the U.S. Army does not require a remote operator of a UAV to
be a pilot.
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\5\ The applicability depends, at least in part, on whether
controlling the vehicle involves ``stick-and-rudder'' control
inputs, or simply punching buttons to send commands to a vehicle
autopilot.
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Regardless of vehicle design, having a pilot certificate and
aeronautical experience provides evidence of a basic level of knowledge
of and experience with the NAS, such as communications, navigation,
airspace limitations, and other aircraft traffic avoidance, that will
help promote public safety. Furthermore, a pilot with an instrument
rating has been trained to fly and navigate entirely by reference to
flight instruments.
The FAA requests comments on whether a remote operator of a launch
or reentry vehicle with a human on board should possess a pilot
certificate. The FAA anticipates that a pilot certificate would serve
as the clearest indication that a person has the necessary knowledge of
the NAS and safety issues. The FAA recognizes, however, that there may
be other, less burdensome methods of demonstrating compliance and
requests comment accordingly.
4. Medical Standards for Crew
The FAA would require that each member of the flight crew and any
remote operator possess and carry a second-class airman medical
certificate issued in accordance with 14 CFR part 67 and issued within
12 months prior to launch or reentry. The physical and mental state of
the flight crew has to be sufficient to perform safety-related roles.
Second-class airman medical certification standards have provided
an acceptable level of safety for commercial pilots for many years.
Commercial pilots are medically certificated to a level between a
private pilot and an airline transport pilot; the former requiring less
stringent vision standards and having longer certificate validity, and
the latter requiring more stringent cardiovascular and certificate
validity standards. An FAA second-class airman medical certificate is
issued to an applicant who may reasonably be expected, for the year-
long duration of the certificate, to perform safely the duties required
to exercise commercial pilot privileges.
Different aviation pilot certificates require different medical
certificates. The validity of a particular airman medical certificate
relates to the aviation privilege being exercised. For example, a
first-class airman medical certificate is valid for 6 months for
aviation privileges requiring a first-class airman medical certificate,
for 12 months for those requiring a second-class airman medical
certificate, and for 24 or 36 months for those requiring a third-class
airman medical certificate. Because space operations are not defined in
terms of privileges being exercised, the FAA does not need to set forth
a particular validity structure. Furthermore, for purposes of space
operations, the FAA does not need to describe a medical certificate by
the aviation operations for which it is valid. In the space context,
the FAA only requires that it be issued within the past 12 months, in
keeping with the 12-month validity period used in aviation for pilots
exercising commercial pilot privileges.
Applicants for any class of airman medical certificate must meet
minimum vision, hearing, mental, neurological, and basic cardiovascular
standards. Such standards are required to ensure that pilots are able
to perform their aviation duties safely. For example, commercial pilots
need adequate intermediate vision to monitor aircraft instruments, and
other cockpit equipment, and adequate color vision to be able to
distinguish aviation signal colors. They need an acceptable level of
hearing to be able to communicate with Air Traffic Control, any flight
crew, other crewmembers, or passengers. They require mental stability
to exercise sound judgment.
Part 67 was developed for aviation. The FAA will, through licensing
and permitting, acquire experience with medical certification of space
flight crews. The FAA considers, however--at least during these early
stages, primarily of suborbital space flight--that second-class airman
medical certification standards would provide a minimum level of
medical certification adequate for space flight crews to perform
safety-critical roles.
In addition to requiring a second-class medical certificate, the
FAA proposes a performance standard, which could be tailored to the
different stresses caused by different vehicles. The performance
standard would require each member of the crew to be able to withstand
the
[[Page 77267]]
stresses of space flight sufficiently to carry out his or her role on
board so that the vehicle will not harm the public.
The FAA does not, at this early stage of development of the
industry, presume to anticipate what environmental stresses any
particular crew member may have to endure to operate a vehicle.
Nonetheless, although different vehicles may impose different stresses,
those stresses are likely to include microgravity, acceleration, and
vibration. Different vehicles and flight profiles may subject those on
board to different stresses. The FAA therefore would not want yet to
impose requirements that apply across the board, preferring, instead,
to evaluate each separately through the licensing or permitting
process. For example, SpaceShipOne's pilots underwent training that
included aerobatic maneuvers and unusual attitude recovery training to
match the anticipated stresses of the eventual flight environment.
Unusual attitudes may include high rates of roll and all-attitude
spins. The FAA found that SpaceShipOne's pilot training demonstrated
the ability to withstand the anticipated stresses, such as those due to
vehicle acceleration and deceleration.
The FAA would implement this broad performance standard on a case-
by-case basis. An operator would have to demonstrate satisfaction of
this standard in the course of applying for a license, a permit or a
modification to a license or permit. Grant of a license or permit would
be conditioned, as it is now, on an operator abiding by the
representations made in its application. The FAA anticipates that an
operator may change crew members from time to time. Because the initial
grant of a license or permit may have been conditioned on the
acceptability of the original crew, the FAA would have to modify the
license. Alternatively, the FAA could foresee an operator describing
its testing process sufficiently to demonstrate that the operator would
be able to ascertain whether an individual crew member could withstand
the specific stresses of a given vehicle.
The case-by-case assessments of whether a flight crew member
satisfied the proposed performance standard of withstanding the
stresses of space flight would serve two purposes. The assessments
would ensure that any particular member of the flight crew could
perform his or her duties in whatever environment was proposed.
Additionally, these assessments would provide data for the FAA to
develop more concrete standards as the industry progresses. The FAA
does not expect orbital commercial human space flight to occur in the
immediate future. Nonetheless, it does anticipate its eventual
appearance, and recognizes that different standards may be required for
orbital and suborbital flights. The FAA will gather data for the
development of those standards over time.
5. Crew Training
The FAA would require each member of a crew be trained to ensure
that the vehicle will not harm the public. The crew would also be
trained to respond to planned and anomalous events. The FAA would
require an operator to develop a mission- and configuration-specific
training program for a pilot and any remote operator and define
standards by which the pilot and remote operator would be trained so
that the vehicle would not harm the public. The operator's training
program would include for each mission, either simulation training,
training on a similar aircraft, flight testing, or another training
method approved by the FAA.
The FAA would require an operator to ensure that any crew-training
device used to meet the training program requirements realistically
represented the vehicle's configuration and mission or the operator
would have to inform the crew member being trained of the differences.
XCOR through its comments on the FAA's February 11, 2005 draft
guidelines on flight crew states that some early flight crew training
devices will not be realistic. According to XCOR, this lack of realism
will not mean they are useless as training devices because it may be
better to train the flight crew on a simulator with known differences
from the flight article than not to train them on a simulator at all.
XCOR recommended that training devices with known dissimilarities be
allowed but the dissimilarities should be minimized, and flight crew
should be aware of the differences in behavior between the training
device and the flight article.
The FAA would require crew training to include nominal (i.e.,
normal) and non-nominal flight conditions. Training to respond to
planned and unplanned events would allow the crew to better respond to
emergencies. The crew would obtain a competent understanding of vehicle
systems, vehicle characteristics, and vehicle capabilities, as well as
operational, malfunction, and contingency procedures. The non-nominal
situations would include aborts and emergencies.
The FAA would require additional training for a pilot and any
remote operator of a launch or reentry vehicle. A pilot would have to
undergo training in procedures that direct the vehicle away from the
public in the event the flight crew had to abandon the vehicle during
flight. The pilot and any remote operator would also have to train in
each mode of control or propulsion, including any transition between
modes, so that the pilot would be able to control the vehicle
throughout the flight regime. For example, the pilot and any remote
operator would have to be able to maintain control of a vehicle during
a transition from aerodynamic control surfaces to a reaction control
system and vice versa. Likewise, training would be necessary for any
transition from an air-breathing to a rocket propulsion system and
vice-versa.
The FAA proposes a number of requirements for a training program.
The FAA would require an operator to continually update its training
program to ensure that training incorporated lessons-learned from both
training and operational missions. This would be accomplished with a
documented system to track revisions and updates. To that end, the FAA
would require a training program to capture, in writing, lessons-
learned as experience was gained. Experience will reveal additional
events and anomalies to which a crew would have to respond. The flight
crew should be prepared for events and anomalies discovered during
training and mission operations. The FAA would require a licensee or
permittee to document the training completed by each member of the crew
and maintain the documentation for each active member of the crew.
Accurate documentation is important for tracking and ensuring that crew
are up-to-date with their training requirements.
The FAA would require an operator to establish a recurrent training
schedule and ensure that all crew qualifications and training were
current before starting to operate a vehicle with humans on board. This
would ensure that all crew were qualified and had received the
necessary training at the time of operation. The FAA's February 11,
2005 crew guidelines recommended that prior to each mission, the flight
crew receive vehicle and mission-specific training. Rocketplane
Limited, Inc. through its April 28, 2005 comments on the FAA's crew
guidelines stated that retraining would be an important requirement if
there were periods of inactivity between flights. Rocketplane Limited,
Inc. recommended retraining be required when more than thirty days
elapsed between flights rather than
[[Page 77268]]
requiring it prior to each mission. XCOR stated that common sense
should determine the appropriate level of training necessary to safely
conduct the flight. Hence, the FAA would require an operator to
establish a recurrent training schedule.
6. Crew Notification
The FAA would require an operator to inform, in writing, any
individual serving as flight crew and each remote operator, that the
United States Government has not certified the launch vehicle as safe
for carrying crew or space flight participants. If someone is operating
a vehicle remotely, the FAA believes that Congress intended that the
operator advise the remote operator of the risks he or she is taking
with the people on board.
7. Environmental Control and Life Support System
The proper functioning of the crew is necessary to ensure
protection of the public. The FAA would require an operator to provide
atmospheric conditions adequate to sustain life and consciousness for
all inhabited areas within a launch or reentry vehicle. The flight crew
could perform the roles necessary to carry out this proposed
requirement. Proper environmental control is essential for people and
for the functioning of safety-critical equipment on board a vehicle.
There are many aspects to controlling the atmosphere of a vehicle
that an operator would have to consider. The FAA proposes to require an
operator to monitor and control the composition and any revitalization
of the atmosphere to maintain safe levels for flight crew respiration
during nominal and non-nominal operations. The atmosphere in inhabited
areas should have safe levels of oxygen and carbon dioxide to allow
normal respiration. Because of normal human metabolic effluent, carbon
dioxide will accumulate and it may be necessary for it to be
removed.\6\
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\6\ Guidance on environmental control and life support systems
may be found in ``Designing For Human Presence in Space: An
Introduction to Environmental Control and Life Support Systems''
(NASA RP-1324) and ``Man-Systems Integration Standards'' (NASA-STD-
3000).
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The FAA would require a licensee, permittee or flight crew to
monitor and control the pressure of the atmosphere to maintain safe
levels for flight crew respiration. An essential aspect of the body's
ability to absorb oxygen from the air is the atmospheric pressure,
specifically the partial pressure of oxygen (pO2). Total
pressure and the partial pressure of carbon dioxide should also be
monitored and kept at levels sufficient to ensure consciousness and
proper functioning of the crew.
An operator would have to monitor and control the temperature of
the atmosphere to maintain safe levels for the flight crew. Although
humans can survive in a relatively wide range of temperatures, it is
essential to regulate the temperature within a cabin or suit. Requiring
proper temperature control would ensure the flight crew maintained a
degree of situational awareness sufficient for these individuals to
perform their job. An operator would also have to monitor and control
the ventilation and circulation of the cabin atmosphere to maintain
safe levels for the flight crew. Requiring proper ventilation would
ensure the flight crew maintained situational awareness by reducing
stagnant air, which could contain a high concentration of carbon
dioxide.
The FAA proposes to require an operator to monitor and control the
humidity of the cabin atmosphere to maintain safe levels for the flight
crew. If a flight crew depended on visual information through a window,
humidity control would be necessary to avoid windows fogging and
condensation that can hinder the pilot's vision. The FAA proposes to
require an operator to control contamination and particulate
concentrations for the flight crew to prevent interference with the
crew's ability to operate the vehicle. The atmosphere should be free
from harmful or hazardous concentrations of gases, vapors, and
particulates that can be inhaled.
The FAA proposes to require an operator to provide an adequate
redundant or secondary oxygen supply for the flight crew due to the
extreme importance of having sufficient oxygen to enable the flight
crew to function. In the event of a failure of the primary atmospheric
control system, the redundant or secondary system would supply oxygen
for the flight crew.
Lastly, the operator would have to provide a redundant means of
preventing cabin depressurization or prevent incapacitation of the
flight crew in the event of a loss of cabin pressure. If a loss of
pressure were to occur, it could have serious physiological effects on
the flight crew, including hypoxia, decompression sickness,
hypothermia, and vaporization of tissue fluids. This performance
standard could be satisfied by different means. For example, in
addition to conducting ground tests and prelaunch cabin leak checks,
Scaled Composites used dual pane windows, dual seals on cabin pass-
throughs, dual door seals, and dual pressurization systems for
SpaceShipOne. Use of a pressure suit to prevent incapacitation of the
flight crew if there were a loss of cabin pressure could be another
means to satisfy this performance standard.
8. Smoke Detection and Fire Suppression
The FAA would require an operator or flight crew to have the
ability to detect smoke and suppress a cabin fire to prevent
incapacitation of the flight crew. Prior to a fire occurring, smoke can
rapidly incapacitate a pilot or obscure the pilot's vision such that
the vehicle cannot be flown safely. A crew should be able to respond to
a vehicle fire so as not to risk the public.
9. Human Factors
The FAA would require an operator to account for human factors so
that the flight crew could perform safety-critical roles. Human factors
engineering is a discipline that applies knowledge of human
capabilities and limitations to the design of systems, machines, work
environment, and operations. Human factors considerations draw on
multiple disciplines such as psychology, physiology, engineering,
ergonomics, and medicine. The design and layout of displays and
controls and the amount of crew workload can affect the ability of the
crew to perform safety-critical roles. Therefore, the FAA would require
an operator to account for human factors that can affect the flight
crew's ability to perform safety-critical roles.
Mockups, simulators, and human factors analyses such as functional
and task analyses are examples of human factors-related applications to
assess human-machine interfaces or human-in-the loop functions and
performance. ``The Human Factors Design Standard'' (HF-STD-001, FAA),
``DOD Design Criteria Standard--Human Engineering'' (MIL-STD-1472),
``Flying Qualities of Piloted Aircraft'' (MIL-HDBK-1797), and ``Man-
Systems Integration Standards'' (NASA-STD-3000) may provide guidance on
applying human factors engineering. Human-related factors account for
the majority of fatal aircraft accidents. Conversely, aircraft system
malfunctions are involved in a relatively small fraction of aircraft
incidents and accidents. Some human factors-related lessons learned
from aviation may apply to suborbital RLVs with a flight crew on board.
The FAA proposes to require an operator to make provisions for
restraint or stowage of all individuals and objects in a cabin, so
moving objects would not interfere with the flight crew's operation of
the vehicle during flight. The FAA does not expect that this
requirement would prevent an operator from
[[Page 77269]]
allowing space flight participants to experience weightlessness during
a part of the mission. In order to allow this experience, the FAA would
look at whether the restraints on space flight participants would keep
those participants from interfering with flight crew activities. For
example, space flight participants separated by a bulkhead might be
considered adequately restrained.
10. Verification Program
The FAA proposes to require an operator to implement a verification
program sufficient to verify the integrated performance of a vehicle's
hardware and any software in an operational flight environment. The FAA
would require this verification program to include flight testing and
the program would have to be successfully completed before allowing any
space flight participant on board during a flight. An operator needs to
establish a safety record to disclose to a space flight participant as
required by the CSLAA. Furthermore, a space flight participant could
not be present during flight testing in order to avoid distracting the
flight crew from its public safety mission. The FAA intends early,
experimental flight testing to take place with the flight crew's entire
attention dedicated to the vehicle, not to anyone else on board.
XCOR through its comments on the FAA's February 11, 2005 draft
guidelines on space flight participants states that flight testing
plays an integral role in the provision of informed consent. Without a
flight test plan, and some number of flight tests, the RLV operator
cannot provide the space flight participant with a valid number \7\ for
demonstrated reliability. XCOR further noted that if an operator cannot
provide a valid number for demonstrated reliability, then the space
flight participant cannot give informed consent, and the operator
cannot fly the space flight participant.
---------------------------------------------------------------------------
\7\ The FAA interprets XCOR's use of the term ``valid number''
to mean a reliability number based on experience.
---------------------------------------------------------------------------
In addition to avoiding distraction of the crew and establishing a
safety record for disclosure to a space flight participant, flight
testing provides other benefits. Flight testing provides data to
validate analytical tools and models used to predict environments and
responses. The initial flights and envelope expansion flights of a new
vehicle typically pose the highest risk. Although flight testing does
not eliminate risk, it does mitigate risk by potentially uncovering
safety-related problems that may go undetected if relying only on
analysis and ground testing. Verification of performance by flight
testing can provide more information than ground testing and analysis
and should be conducted to the maximum extent possible. Ground testing
and analysis are often based on estimates and approximations, and may
not fully simulate possible subsystem interactions in flight
environments or may not accurately simulate actual flight conditions.
The FAA will initially determine the amount of verification and,
specifically, flight testing of launch or reentry vehicles on a case-
by-case basis through the licensing or permitting process. The
appropriate level of testing depends on many factors, including the
vehicle's mission profile, operational restrictions, test and flight
history, component and subsystem heritage, and design and operating
margins.
11. Crew and Space Flight Participant Waiver of Claims Against U.S.
Government
The CSLAA requires crew and each space flight participant to
execute a reciprocal waiver of claims with the FAA. 49 U.S.C.
70112(b)(2). This requirement would not apply to ground crew other than
remote operators.
The CSLAA does not require crew and space flight participants to
waive claims against each other or against a licensee or permittee. The
CSLAA does not, however, prevent an operator from making a waiver of
liability a condition of an agreement between it and a space flight
participant or crew.
B. Launch and Reentry With a Space Flight Participant
This rulemaking would also establish informed consent and training
requirements for a space flight participant on board a launch or
reentry authorized by the FAA. Regardless of whether a space flight
participant pays for a ride, the space flight participant must provide
informed consent and be trained.\8\
---------------------------------------------------------------------------
\8\ Although under the CSLAA a space flight participant may not
provide compensation for a space flight on a launch authorized by an
FAA permit, Congress did not foreclose the presence of a space
flight participant on a permitted launch. Under the CSLAA, the FAA
may issue a permit only for a reusable suborbital rocket that will
be launched or reentered solely for research and development to test
new design concepts, new equipment or new operating techniques;
showing compliance with requirements as part of the process for
obtaining a license under Chapter 701; or crew training prior to
obtaining a license for a launch or reentry using the design of the
rocket for which the permit would be issued. 49 U.S.C. 70105a(d)(1)-
(3). Although a space flight participant could not pay to ride on a
rocket operated under a permit, a space flight participant could be
on board. Congress contemplated as much in section 70105(b)(5), when
it imposed conditions on holders of a license or permit launching or
reentering a space flight participant.
---------------------------------------------------------------------------
1. Risk to Space Flight Participants
The CSLAA characterizes what is commonly referred to as a passenger
as a ``space flight participant.'' The statute defines this person to
mean ``an individual, who is not crew, carried within a launch vehicle
or reentry vehicle.'' 49 U.S.C. 70102(17). This characterization
signifies that someone on board a launch vehicle or reentry vehicle is
not a typical passenger with typical expectations of transport, but
someone going on an adventure ride.
Space flight remains inherently risky. Testimony concerning a
predecessor to the CSLAA highlights the situation. Michael S. Kelly, of
Northrop-Grumman/Xon Tech, testified that ``space flight is years from
being routine, or even a mode of transportation per se. Transportation
refers to reaching a desired destination. Space flight, for the
foreseeable future, will be an end in itself.'' Commercial Space Act of
2003, H.R. 3245, 108th Cong., (Nov. 5, 2003) (statement of Michael
Kelly). Mr. Kelly characterized the experience as an adventure ride.
Others have compared it to mountain climbing, skydiving, not wearing a
helmet while riding a motorcycle, and other risky endeavors.
New technologies carry new risks. Nonetheless, Congress recognizes
that ``private industry has begun to develop commercial launch vehicles
capable of carrying human beings into space, and greater private
investment in these efforts will stimulate the Nation's commercial
space transportation industry as a whole.'' 49 U.S.C. 70101(11). To
that end, the CSLAA finds that ``the public interest is served by
creating a clear legal, regulatory, and safety regime for commercial
human space flight.'' 49 U.S.C. 70101(14). With an infant industry,
Congress notes, ``regulatory standards must evolve as the industry
matures, so that regulations neither stifle technology development nor
expose crew or space flight participants to avoidable risks as the
public comes to expect greater safety for crew and space flight
participants from the industry.'' 49 U.S.C. 70101(15). The CSLAA is
structured to allow the same kind of risk that mountain climbers and
other adventurers seek in the context of space flight.
The CSLAA provides the FAA authority to issue rules to protect
space flight participants. 49 U.S.C. 70103. That authority, however, is
limited. The FAA is only able to impose ``additional
[[Page 77270]]
license requirements for a launch vehicle carrying a human being for
compensation or hire, necessary to protect the health and safety of
flight crew or space flight participants,'' if such requirements are
imposed pursuant to final regulations. 49 U.S.C. 70105(b)(2)(D). This
provision appears to limit the FAA's current approach of imposing
requirements on a case-by-case basis through license terms and
conditions. For purposes of protecting the public on the ground, when
an applicant proposes an operation not covered by existing rules, the
FAA has the ability to impose license restrictions to address new
proposals. For purposes of protecting space flight participants and
crew, however, Congress has limited the FAA's ability to impose safety
requirements until the FAA passes regulations. Space flight
participants should therefore have no expectations that the FAA is
imposing individualized or tailored requirements designed to achieve
their protection.
Those regulations, in turn, may only be promulgated under certain
circumstances. 49 U.S.C. 70105(c). For eight years, the CSLAA only
permits the FAA to issue regulations restricting or prohibiting design
features or operating practices that result in a serious injury,
fatality or a close call to those on board during an FAA authorized
flight. This means that the FAA has to wait for harm to occur or almost
occur before it can impose restrictions, even against foreseeable harm.
Instead, Congress requires that space flight participants be informed
of the risks. To that end, the FAA proposes notification requirements
in subpart B of proposed part 460.
2. Informed Consent
Congress requires that a licensed or permitted operator inform a
space flight participant in writing about the risks of the launch and
reentry, including the safety record of the launch or reentry vehicle
type. 49 U.S.C. 70105(b)(5)(A). The FAA's Sec. 460.45 would implement
this statutory provision. Additionally, the proposed regulations would
require an operator to describe these hazards and risks in a manner
that is understandable to the space flight participant. As with crew,
the CSLAA requires an operator to inform each space flight participant
that the United States Government has not certified the launch vehicle
as safe for carrying crew or space flight participants. The FAA would
also require a space flight participant to provide his or her consent
in writing before boarding a vehicle.
More specifically, under Sec. 460.45, an operator would have to
provide the safety record of all launch or reentry vehicles that have
carried one or more persons on board, including both U.S. Government
and private sector vehicles. The development of commercial launch
vehicles to carry space flight participants is in the early stages.
Consequently, newly developed launch vehicles will not have the
extensive flight-test history or operational experience that exists for
commercial airplanes. Because of the lack of flight-test and
operational experience, the risks of the operator's particular launch
vehicle and of vehicles like it should be disclosed. The House
Committee on Science report, H. Rep. 108-429, clarifies that Congress
intended all government and private sector vehicles to be included in
this disclosure. Because most human space flight to date has taken
place under government auspices, the government safety record currently
provides the most data. The operator should provide a record of all
vehicles that have carried a person because they are the most relevant
to what the operators propose. Regardless of whether humans traveled to
space on board a vehicle destined for a suborbital or orbital mission,
those persons traveled on new and unproven vehicles based on technology
as new then, as what may be developed now. The vehicle and technology
were therefore as risky. Likewise, because those vehicles were intended
for a human on board, greater care was likely to have been taken in its
design and construction. The same should be expected for commercial
human space flight. Accordingly, the historical record of human space
flight provides an appropriate and reasonable basis for comparison of
risks to current human space flight.
Additionally, this section would also require an operator to
describe the safety record of its own vehicle to each space flight
participant. The operator's safety record would have to include the
number of vehicle flights, the number of safety-related anomalies or
failures, including on the ground or in flight, and whether any
corrective actions were taken to resolve these anomalies or failures.
If a space flight participant requested more detail, the operator would
have to provide a description of the safety-related anomalies or
failures and what the corrective actions were. For the general public,
this technical information will not likely be useful, and the FAA does
not want the more dire possibilities obscured by a deluge of technical
data. Nonetheless, there will be space flight participants who will be
able to obtain useful information from this data and make better
informed choices as to whether they want to ride that particular
vehicle. Accordingly, the FAA proposes to require an operator to inform
each space flight participant that the safety-related data is available
and provide the data upon request.
In its February 11, 2005, guidelines, the FAA recommended that an
operator provide space flight participants an opportunity to ask
questions orally to acquire a better understanding of the hazards and
risks of the mission. An opportunity to ask questions allows a space
flight participant a chance to get clarification on any information
that may be confusing or unclear. Although the FAA does not now propose
to require this recommendation, the FAA continues to consider this good
practice, and believes such opportunities should be provided.
The CSLAA requires that before receiving compensation from a space
flight participant or making an agreement to fly a space flight
participant, an operator inform the space flight participant in writing
that the U.S. Government has not certified the launch vehicle as safe
for carrying crew or space flight participants. 49 U.S.C.
70105(b)(5)(B). Accordingly, the FAA proposes to implement this
statutory requirement in proposed 460.45(b).
3. Physical Examination
In its February 11, 2005 guidelines, the FAA recommended that a
space flight participant provide his or her medical history to a
physician experienced or trained in the concepts of aerospace medicine.
The physician would determine whether the space flight participant
should undergo an appropriate physical examination before boarding a
vehicle destined for space flight. 49 U.S.C. 70105(b)(6)(A). Guidance
for the medical assessment of space flight participants is provided in
a memorandum, ``Guidance for Medical Screening of Commercial Aerospace
Space Flight Participants,'' (Mar. 31, 2003). The Federal Air Surgeon
of the FAA's Office of Aerospace Medicine and the Director of the FAA's
Civil Aerospace Medical Institute provided this guidance to the
Associate Administrator for Commercial Space Transportation. Medical
conditions that may indicate that an individual should not participate
in a mission should be identified so that participation may be avoided
where a space flight participant's involvement in a mission could
aggravate or exacerbate a pre-existing medical condition that could put
the flight crew or other space flight participants at risk. The FAA
does not intend to propose that this
[[Page 77271]]
recommendation become a requirement, unless a clear public safety need
is identified. It is, of course, in a space flight participant's own
interest to obtain such medical advice for both suborbital and orbital
missions, and the FAA will rely on that self-interest until a
demonstrable need arises to mandate this through regulation. The FAA
highly recommends that a space flight participant seek such medical
advice if he or she plans to be on an orbital mission. Orbital missions
are longer in duration than suborbital missions and space flight
participants are exposed to flight conditions or environments such as
microgravity and radiation for a longer period of time.
4. Space Flight Participant Training
The FAA would require an operator to train each space flight
participant before flight on how to respond to emergency situations,
including loss of cabin pressure, fire, smoke, and emergency egress. If
a space flight participant did not receive this training, he or she
might interfere with the crew's ability to protect public safety.
5. Security Requirements
The FAA proposes to require an operator to implement security
requirements to prevent any space flight participant from jeopardizing
the safety of the flight crew or the public. Security restrictions
currently apply to passengers for airlines. Some of the restrictions
prohibit a person carrying explosives, firearms, knives, or other
weapons from boarding an airplane. Similar types of security
restrictions for launch or reentry vehicles would contribute to the
safety of the public by preventing a space flight participant from
potentially interfering with the flight crew's operation of the
vehicle. Any such interference might jeopardize the flight crew's
ability to protect the public. The FAA notes that one means of
satisfying part of this requirement would be for an operator to consult
the ``no-fly'' list of the Transportation Security Administration.
C. Financial Responsibility and Waiver of Liability
Under Chapter 701, Congress establishes risk sharing for licensees
by providing for the conditional payment of claims by the United States
Government of those claims in excess of the required financial
responsibility up to $1,500,000,000 for third party liability. After
those limits, the licensee is responsible for all claims. The U.S.
Government waives its claims for Government range property damage in
excess of required maximum probable loss (MPL)-based property
insurance. Under a permit, the Government is responsible for claims in
excess of the required insurance amount for Government range property
claims and the holder of the permit is responsible for all other
claims. In short, the Government property provisions remain the same
for both licensees and permittees. A licensee remains eligible for
indemnification from third party claims, however a permittee is not.
The FAA proposes to combine and modify 14 CFR parts 440 and 450,
which govern financial responsibility requirements for launch and
reentry. These proposed changes indicate where the CSLAA includes
permittees in the statutory scheme for financial and liability risk
sharing. Combining the two parts is intended only to streamline the
regulations, not to effect any substantive changes. In particular,
licensees who operate expendable launch vehicles without humans on
board should experience no change.
The CSLAA made changes to the financial responsibility and legal
risk sharing regime of Chapter 701. In brief, the CSLAA requires crew
and space flight participants to enter into reciprocal waiver of claims
with the U.S. Government. Crew includes flight crew and any remote
operator. The CSLAA expressly excludes space flight participants from
indemnification eligibility against third party claims. Launches
performed pursuant to a permit are also excluded from eligibility for
indemnification against third party claims.
The Committee Report accompanying H.R. 3752 explains Congress'
reasoning behind excluding space flight participants from eligibility
for indemnification. Commercial Space Launch Amendments Act of 2004,
H.R. 3752, H.R. Rep. 429, 11108th Cong., 2d Sess. (Mar. 1, 2004). The
Science Committee notes that a space flight participant is not subject
to any substantive government regulation. Additionally, a space flight
participant can purchase insurance, or a licensee or permittee may
purchase insurance that would cover claims against a space flight
participant.
The Report also addresses indemnification and insurance for
activities authorized by experimental permits. Again, because the
Committee anticipates that permitted activities will be more lightly
regulated and thus possess a correspondingly greater risk to the
federal government, the CSLAA does not provide for the possibility of
indemnification.
1. Proposal To Combine Parts 440 and 450
The FAA proposes, for purposes of efficiency, to combine parts 440
and 450. This has advantages and disadvantages, and the FAA requests
comment on the utility of this approach. When it first promulgated
parts 440 and 450 as separate parts, the FAA did so in order to avoid
confusing separate activities. It treated launch and reentry as
separate activities.\9\ A commercial equivalent to the U.S. Shuttle
would likely be operated by a single operator rather than the two
distinct operators currently contemplated under the approach to part
450. Accordingly, the FAA had to decide how to accommodate both the
suborbital missions and those that may eventually take place to orbit.
They each have a launch and reentry component. With a suborbital launch
it is harder to tell where launch ends and reentry begins. Given that a
suborbital flight is a single event with FAA jurisdiction covering the
entire flight, the distinction does not matter. However, with a vehicle
akin to the U.S. Space Shuttle, an operator would have to obtain
separate maximum probable loss determinations for launch and reentry,
and would enter into two sets of cross waivers with the government and
any customers, under proposed parts 1 and 2 of appendix B to part 440.
---------------------------------------------------------------------------
\9\ The 1998 legislation responded to a reentry vehicle called
COMET--a reentry vehicle with different launch and reentry
operators. Hence, there could be two licensees or permittees.
---------------------------------------------------------------------------
2. Customers of Permittee
The proposed requirements account for the possibility that a
permittee may have a customer. This is so even in light of the
statutory prohibition on a permittee offering to carry people or
property for compensation or hire. Because a permittee may carry people
or property for free, there may be situations where someone places
property such as a research experiment on board a vehicle operating
under a permit. This may, for example, include a student owned payload.
The FAA would consider the owner of the experiment a customer required
to sign a cross waiver under section 440.17. The FAA would not consider
a space flight participant riding for free a customer under this
requirement. A space flight participant remains subject to the rules
governing space flight participants.
3. Space Flight Participants and Crew
Proposed section 440.17 contains some differences from the current
[[Page 77272]]
scheme for a space flight participant. The CSLAA does not require a
space flight participant or crew to ``flow down'' to its contractors
the waiver of claims as Chapter 701 otherwise requires of licensees and
customers. Accordingly, the FAA does not propose to require that a
space flight participant or crew implement a reciprocal waiver of
claims with each of his or her customers, contractors or
subcontractors. They are all free to do so, of course, if they choose.
Likewise, as mentioned earlier in this notice, the CSLAA does not
require crew and space flight participants to waive claims against each
other or against a licensee or permittee. The CSLAA does not, however,
prevent an operator from making a waiver of liability a condition of an
agreement between it and a space flight participant or crew.
4. Waiver of Claims for U.S. Government Employees in Permittee Cross-
Waivers
Congress excluded permittees from eligibility for indemnification
against third party claims. The FAA treats employees of the U.S.
Government as third parties for purposes of implementing the financial
responsibility requirements of Chapter 701. 14 CFR 440.3(15)(ii).
Accordingly, because permittees are not eligible for third party
indemnification, the FAA does not propose that the U.S. Government
waive claims for bodily injury or property damage sustained by U.S.
Government personnel in excess of required insurance.
III. Rulemaking Analyses and Notices
Paperwork Reduction Act
This proposal contains the following new information collection
requirements. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the FAA has submitted the information requirements
associated with this proposal to the Office of Management and Budget
for its review.
Title: Human Space Flight Requirements for Flight Crew and Space
Flight Participants
Summary: This proposal requires the FAA to regulate private human
space flight. President Bush signed into law on December 23, 2004, the
Commercial Space Launch Amendments Act of 2004. The CSLAA promotes the
development of the emerging commercial space flight industry and makes
the DOT and the FAA responsible for regulating commercial human space
flight under 49 U.S.C. Subtitle IX, Chapter 701. CSLAA required the FAA
to: (1) Issue guidelines or advisory circulars to guide the
implementation of the CSLAA as soon as practical after the date of its
enactment on December 23, 2004; (2) issue proposed regulations that
include those relating to crew, space flight participants, and permits
for launch or reentry of reusable suborbital rockets not later than
December 23, 2005; and (3) issue final regulations not later than June
23, 2006.
Use of: This proposal would support the information needs of the
FAA to protect public safety and notify individuals on board of the
risks they face from launch or reentry.
Respondents (including number of): The likely respondents to this
proposed information requirement are commercial operators planning to
perform human space flight with crew and space flight participants. The
FAA estimates that there will be five to six companies that would offer
human space flight.
Frequency: The FAA finds that the frequency of information
requirements is dependent on the number of space flights, and estimates
that this number can range from one to more than 100 space flights
annually.
Annual Burden Estimate: The FAA expects that this proposed rule
would impose additional reporting and recordkeeping requirements on
launch operators who are subject to its provisions; it would have the
following impacts for each year over a 10-year period:
For the high mission scenario, the FAA estimates that it
would take 3,946.9 hours annually for the paperwork to inform flight
crew and space flight participants of the launch risks and to prepare
reciprocal waivers for flight crew and space flight participants. The
estimated cost would be $273,915.
For the low cost scenario, the FAA estimates that it would
take 2,003.2 hours annually for the paperwork to inform flight crew and
space flight participants of the launch risks and to prepare reciprocal
waivers for flight crew and space flight participants. The estimated
cost would be $139,023.
For purposes of this analysis, the FAA will assume the mid-point
between these two scenarios in estimating total cost and time; thus,
this proposed rulemaking would take 2,975.05 hours per year, costing
$206,469 annually.
The proposed regulation would cause increased paperwork for the
Federal Government, as it would have to review each mission and
ascertain compliance during oversight activities at commercial operator
facilities. The proposed rule would have the following impacts on the
Federal Government over a 10-year period:
For the high cost scenario, the FAA estimates that it
would take 2,028.4 hours annually, costing $105,558 in resources
expended.
For the low cost scenario, the FAA estimates that it would
take 1,016.2 hours annually, costing $52,883 in resources expended.
For purposes of this analysis, the FAA will assume the mid-point
between these two scenarios in estimating Federal Government revenues
expended; thus, this proposed rulemaking would take 1,522.3 hours per
year, costing $79,221 annually.
The agency is soliciting comments to--
(1) Evaluate whether the proposed information required is necessary
for the proper performance of the roles of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology.
Individuals and organizations may submit comments on the
information collection requirement by February 27, 2006, and should
direct them to the address listed in the ADDRESSES section of this
document. Comments also should be submitted to the Office of
Information and Regulatory Affairs, OMB, New Executive Building, Room
10202, 725 17th Street, NW., Washington, DC 20053, Attention: Desk
Officer for FAA.
According to the 1995 amendments to the Paperwork Reduction Act (5
CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the
collection of information, nor may it impose an information collection
requirement unless it displays a currently valid OMB control number.
The OMB control number for this information collection will be
published in the Federal Register, after the Office of Management and
Budget approves it.
Regulatory Evaluation
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs.
[[Page 77273]]
Second, the Regulatory Flexibility Act of 1980 requires agencies to
analyze the economic impact of regulatory changes on small entities.
Third, the Trade Agreements Act, (19 U.S.C. 2531-2533), prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, this Trade Act requires agencies to consider international
standards and, where appropriate, to use the international standards as
the basis for U.S. standards. Fourth, the Unfunded Mandates Reform Act
of 1995 (Public Law 104-4) requires agencies to prepare a written
assessment of the costs, benefits, and other effects of proposed or
final rules that include a Federal mandate likely to result in the
expenditure by State, local, or tribal governments, in the aggregate,
or by the private sector, of $100 million or more annually as adjusted
for inflation.
In conducting these analyses, FAA has determined this rule: (1) Has
benefits that justify its costs, (2) is a ``significant regulatory
action'' for non-economical reasons as defined in Executive Order
12866, and is ``significant'' as defined in DOT's Regulatory Policies
and Procedures; (3) will not have a significant economic impact on a
substantial number of small entities; (4) will not reduce barriers to
international trade; and (5) does not impose an unfunded mandate on
state, local, or tribal governments, or on the private sector. These
analyses are available in the docket.
1. Potentially Impacted Parties
Private Sector
Commercial operators who will be operating launch or
reentry vehicles with crew and space flight participants on board.
Flight crew.
Remote operator.
Space flight participants.
Government
Federal Aviation Administration.
2. Assumptions and Ground Rules Used in Analysis (Discount Rate, Period
of Analysis, Value of Life, Cost of Injuries)
All monetary values are expressed in 2004 dollars.
The time horizon for the analysis is 10 years (2006 to
2016).
Costs are discounted at 7%.
Hourly Burdened Industry Rate is $69.40
Hourly Burdened Government Rate is $52.04
The high launch forecast used in the analysis is 10,142
over ten years.
The low launch forecast used in the analysis is 5,081 over
ten years.
Proposed requirements that were fulfilled by the
SpaceShipOne launches or that constitute prudent business practice do
not impose costs.
Preparation time expended by commercial entities for
specific requirements that might cause industry to incur costs because
the proposed requirements are not current practice is as follows:
Benefits
The proposed rule would offer some benefit impacts that are not
readily quantified. The principal benefit would be to ensure that the
human commercial space flight industry understands and adheres to the
current practices that have worked thus far to protect public safety.
The proposed rule would help preserve the level of public safety
already achieved by commercial operations. Additionally, informing
space flight participants of mission hazards and risks may help
mitigate any behavior or reaction during space flight that would
jeopardize mission success and consequently public safety. For example,
a surprise noise or abrupt vehicle motion during flight could frighten
an ``uninformed'' space flight participant, causing that person to
behave or act (e.g., panic) in a manner that could adversely impact
mission performance and jeopardize public safety by causing a crash or
falling debris from an airborne explosion. Informing candidate space
flight participants of risks may deter an individual from participating
in space flight who otherwise would panic during flight and possibly
create a situation that would jeopardize public safety.
Total Costs
The proposed rule would result in a total cost impact ranging from
$1.9 to $3.8 million over the ten-year period from 2006 through 2015
(undiscounted 2004 dollars). The human space flight industry would
incur 72 percent of the total costs, ranging from $1.4 million to $2.7
million to comply with the proposed rule. The FAA would incur 28
percent of the total costs, ranging from $529,000 to $1.1 million to
administer the proposed regulatory requirements. Costs are summarized
in the following table.
Summary of Incremental Cost Impacts Attributable to the Proposed 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 1,055,579 528,830 656,445 328,890
Costs..........................................
-----------------
Total Costs Attributable to the Proposed 3,794,728 1,919,051 2,384,676 1,205,753
Rule.......................................
----------------------------------------------------------------------------------------------------------------
a Calculated using a discount factor of seven percent over a ten-year period.
Comparison of Benefits and Costs
The principal benefit of the proposed rule would be to ensure that
the human commercial space flight industry understands and adheres to
the current practices that have worked thus far to protect public
safety. Additionally, by requiring an operator to inform the crew and
space flight participants of the risks of spaceflight, the proposed
rule would protect the public from the hazards an uninformed crew
member or space flight participants could pose to the mission. We have
not quantified these benefits, but the FAA believes that the benefits
justify the costs of the proposed rule.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective
[[Page 77274]]
of the rule and of applicable statutes, to fit regulatory and
informational requirements to the scale of the business, organizations,
and governmental jurisdictions subject to regulation.'' To achieve that
principle, the RFA requires agencies to solicit and consider flexible
regulatory proposals and to explain the rationale for their actions.
The RFA covers a wide-range of small entities, including small
businesses, not-for-profit organizations and small governmental
jurisdictions. Agencies must perform a review to determine whether a
proposed rule would have a significant economic impact on a substantial
number of small entities. If the agency determines that it will, the
agency must prepare a regulatory flexibility analysis as described in
the Act.
However, if an agency determines that a proposed rule is not
expected to have a significant economic impact on a substantial number
of small entities, section 605(b) of the 1980 RFA provides that the
head of the agency may so certify and a regulatory flexibility analysis
is not required. The certification must include a statement providing
the factual basis for this determination, and the reasoning should be
clear.
The proposed rule would not have a significant economic impact on a
substantial number of small entities. Because almost all the companies
in the fledgling industry are small, the FAA concludes that a
substantial number of small entities in the human space flight industry
would be affected by the rule. However, we believe that the rule would
not have a significant impact on these entities as explained below.
The proposed rule would require launch and reentry operators to
perform certain actions that, although they may be considered prudent,
may not be performed in current practice in all instances. These
actions would cause a space transportation operator to incur minimal
additional costs relative to current practice.
The North American Industry Classification System does not have a
discrete code for commercial space transportation per se. However, it
does have the following codes that collectively capture entities
engaged in commercial space transportation: 336414, ``Guided Missile
and Space Vehicle Manufacturing,'' 336415, ``Guided Missile and Space
Vehicle Propulsion Unit and Parts Manufacturing,'' and 336419, ``Other
Guided Missile and Space Vehicle Parts and Auxiliary Equipment
Manufacturing.'' The Small Business Administration (SBA) has defined
small business entities engaged in the aforementioned activities as
those employing no more than 1,000 employees. Further, the SBA does not
apply a size standard based on maximum annual receipts to define small
business entities engaged in the above industries.
A substantial number of firms entering the human space flight
industry are very small. Because the industry is a nascent industry, it
is difficult to state how many and which entities will succeed in the
industry. There are two companies licensed to perform launches with
humans on board: Scaled Composites with about 135 employees and XCOR
with about 10 employees. Only Scaled Composites has actually launched
as of the date of this report: The industry therefore currently
consists of one company. There are about six more companies that the
FAA considers serious candidates in the industry because they have
committed financial resources and another twenty companies that have
expressed interest in entering the human spaceflight industry. The
number of employees of these companies ranges from 5 to 40. Based on
the definition of small business for the launch industry of entities
employing no more than 1,000 employees, all of the above mentioned
companies are small businesses with the exception of one: Virgin
Galactic which may be considered a large business because it is a
subsidiary of Virgin Airways which has over 1,000 employees. One may
therefore conclude that a substantial number of companies that are
either in the industry or interested in entering the industry are small
businesses with fewer than 136 employees.
The FAA estimates that five to six companies will successfully
enter the human space flight industry in the next ten years. We cannot
yet divide this small number into categories by size; we only know that
the vast majority of companies interested in entering the industry are
very small (from 5 to 135 employees). We expect that these companies
will be about the size of Scaled Composites, the only company thus far
to have launched humans, once they start launching. Given the
information we currently have the firms offering launches are very
small.
The FAA has determined that the impacts are not significant. In
order to make this estimate, we compared the incremental cost per
mission and the total cost to estimated revenue. It should be noted
that all of these estimates are extremely speculative due to the
difficulty of predicting the structure of such a nascent industry;
however, our projections of cost as a percent of revenue is extremely
small.
The first input to the calculation is the number of expected
missions, which FAA tentatively estimates is between 5,081 and 10,142
over the next 10 years, based on written proprietary information
received from three companies expecting to offer launch services. To
the extent that the industry develops more slowly than expected, these
may be overestimates. The incremental cost per expected flight,
however, is not affected by the estimated total number of flights.
The second input is the cost for the incremental safety activity
required by this rulemaking. In the absence of this regulation,
companies would certainly voluntarily engage in extensive testing and
safety training, therefore the cost per mission of less than $300 does
not represent the total investment in safety expected in this industry,
but rather the incremental increase in safety related activity expected
as a result of this regulation. As it is difficult to speculate on the
amount of safety improving behavior undertaken in the absence of this
regulation, FAA invites specific comment on this issue.
Putting the two inputs together, we estimate costs to perform
10,142 missions (upper bound) over ten years are $2,739,149 or an
average of $270 per mission. We estimate costs to perform 5,081 (lower
bound) over ten years are $1,390,221 or an average of $274 per mission.
Since the industry is in its infancy and has not yet begun offering
commercial flights, per mission costs and revenues are not known.
However, prospective companies have quoted ticket prices of $102,000 to
$250,000 per seat for early flights (with some predicting prices could
fall to about $25,000 per seat after eight or nine years). If these
prospective ticket prices and costs are accurate, then even under the
lowest ticket prices quoted above, the regulatory cost per mission
would be significantly less than 1% of revenues. The estimated $270 per
mission cost that the rule would impose would therefore not be
economically significant.
The FAA invites comments on the validity of the FAA's information,
assumptions and estimates and any potential impacts.
Accordingly, pursuant to the Regulatory Flexibility Act, 5 U.S.C.
605(b), the FAA Administrator certifies that the proposed rule would
not have a significant economic impact on a substantial number of small
entities.
[[Page 77275]]
International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. Because this rulemaking would be
largely consistent with current or prudent practice, it would not
create obstacles. The statute also requires consideration of
international standards and where appropriate, that they be the basis
for U.S. standards. The FAA has assessed the potential effect of this
proposed rule and determined that it would impose the same costs on
domestic and international entities, and thus has a neutral trade
impact.
Unfunded Mandates Assessments
The Unfunded Mandates Reform Act of 1995 (the Act) is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in an expenditure of $100 million or more (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $120.7 million in lieu of $100
million. This proposed rule does not contain such a mandate. The
requirements of Title II do not apply.
Executive Order 13132, Federalism
The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action would not have a substantial direct effect on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and therefore would not have federalism implications.
Environmental Analysis
FAA Order 1050.1E identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined this proposed rulemaking action qualifies for the
categorical exclusion identified in paragraph (4i) appendix F and
involves no extraordinary circumstances.
Regulations That Significantly Affect Energy Supply, Distribution, or
Use
The FAA has analyzed this NPRM under Executive Order 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). We have determined that it is not
a ``significant energy action'' under the executive order because it is
not a ``significant regulatory action'' under Executive Order 12866,
and it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.
List of Subjects
14 CFR Part 401
Human space flight, Organization and functions (Government
agencies), Space safety, Space transportation and exploration.
14 CFR Part 415
Human space flight, Rockets, Space safety, Space transportation and
exploration.
14 CFR Part 431
Human space flight, Reporting and recordkeeping requirements,
Rockets, Space safety, Space transportation and exploration.
14 CFR Part 435
Human space flight, Reporting and recordkeeping requirements,
Rockets, Space safety, Space transportation and exploration.
14 CFR Part 440
Armed forces, Federal buildings and facilities, Government
property, Indemnity payments, Insurance, Reporting and recordkeeping
requirements, Space transportation and exploration.
14 CFR Part 450
Armed forces, Federal buildings and facilities, Government
property, Human space flight, Indemnity payments, Insurance, Reporting
and recordkeeping requirements, Space transportation and exploration.
14 CFR Part 460
Human space flight, Reporting and recordkeeping requirements,
Rockets, Space safety, Space transportation and exploration.
IV. The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend parts 401, 415, 431, 435, and 440;
remove and reserve part 450 of Chapter III of title 14, Code of Federal
Regulations; and add part 460 as follows--
PART 401--ORGANIZATION AND DEFINITIONS
1. The authority citation for part 401 continues to read as
follows:
Authority: 49 U.S.C. 70101-70121.
2. Section 401.5 is amended by adding the following definitions in
alphabetical order to read as follows:
Sec. 401.5 Definitions.
* * * * *
Crew means any employee or independent contractor of a licensee,
transferee, or permittee, or of a contractor or subcontractor of a
licensee, transferee, or permittee, who performs activities in the
course of that employment directly relating to the launch, reentry, or
other operation of or in a launch vehicle or reentry vehicle that
carries human beings. A crew consists of flight crew and any remote
operator.
* * * * *
Flight crew means crew that is on board a vehicle during a launch
or reentry.
* * * * *
Operator means a holder of a license or permit under 49 U.S.C.
Subtitle IX, chapter 701.
* * * * *
Pilot means a flight crew member who has the ability to control, in
real time, a launch or reentry vehicle's flight path.
* * * * *
Remote operator means a crew member who
(1) Has the ability to control, in real time, a launch or reentry
vehicle's flight path, and
(2) Is not on board the controlled vehicle.
* * * * *
Space flight participant means an individual, who is not crew,
carried within a launch vehicle or reentry vehicle.
Suborbital rocket means a vehicle, rocket-propelled in whole or in
part, intended for flight on a suborbital trajectory, and the thrust of
which is greater than its lift for the majority of the rocket-powered
portion of its ascent.
Suborbital trajectory means the intentional flight path of a launch
vehicle, reentry vehicle, or any portion thereof, whose vacuum
instantaneous impact point does not leave the surface of the Earth.
* * * * *
[[Page 77276]]
PART 415--LAUNCH LICENSE
Subpart A--General
3. The authority citation for part 415 continues to read as
follows:
Authority: 49 U.S.C. 70101-70121.
4. Add Sec. 415.8 to read as follows:
Sec. 415.8 Human space flight.
To obtain a launch license, an applicant proposing to conduct a
launch with flight crew or a space flight participant on board must
provide documentation demonstrating compliance with Sec. Sec. 460.5,
460.7, 460.11, 460.13, 460.15, 460.17, 460.51 and 460.53 of this
subchapter.
PART 431--LAUNCH AND REENTRY OF A REUSABLE LAUNCH VEHICLE (RLV)
5. The authority citation for part 431 continues to read as
follows:
Authority: 49 U.S.C. 70101-70121.
6. Add Sec. 431.8 to read as follows:
Sec. 431.8 Human space flight.
To obtain a license, an applicant proposing to conduct a reusable
launch vehicle mission with flight crew or a space flight participant
on board must provide documentation demonstrating compliance with
Sec. Sec. 460.5, 460.7, 460.11, 460.13, 460.15, 460.17, 460.51 and
460.53 of this subchapter.
PART 435--REENTRY OF A REENTRY VEHICLE OTHER THAN A REUSABLE LAUNCH
VEHICLE (RLV)
7. The authority citation for part 435 continues to read as
follows:
Authority: 49 U.S.C. 70101-70121.
8. Add Sec. 435.8 to read as follows:
Sec. 435.8 Human space flight.
An applicant for a license to conduct a reentry with flight crew or
a space flight participant on board the vehicle must provide
documentation demonstrating compliance with Sec. Sec. 460.5, 460.7,
460.11, 460.13, 460.15, 460.17, 460.51 and 460.53 of this subchapter.
PART 450--[REMOVED]
9. Revise part 440 and remove part 450 to read as follows:
PART 440--FINANCIAL RESPONSIBILITY
Subpart A--Financial Responsibility for Licensed and Permitted
Activities
Sec.
440.1 Scope of part.
440.3 Definitions.
440.5 General.
440.7 Determination of maximum probable loss.
440.9 Insurance requirements for licensed or permitted activities.
440.11 Duration of coverage for suborbital and launch activities;
modifications.
440.12 Duration of coverage for reentry; modifications.
440.13 Standard conditions of insurance coverage.
440.15 Demonstration of compliance.
440.17 Reciprocal waiver of claims requirements.
440.19 United States payment of excess third-party liability claims.
Appendix A to Part 440--Information requirements for obtaining a
maximum probable loss determination for licensed or permitted
activities.
Appendix B to Part 440--Agreement for waiver of claims and
assumption of responsibility for licensed launch or reentry
Appendix C to Part 440--Agreement for waiver of claims and
assumption of responsibility for permitted activities
Appendix D to Part 440--Agreement for waiver of claims and
assumption of responsibility for a crew member
Appendix E to Part 440--Agreement for waiver of claims and
assumption of responsibility for a space flight participant
Authority: 49 U.S.C. 70101-70119; 49 CFR 1.47.
Subpart A--Financial Responsibility for Licensed and Permitted
Activities
Sec. 440.1 Scope of part.
This part establishes financial responsibility and allocation of
risk requirements for any launch or reentry authorized by a license or
permit issued under this subchapter.
Sec. 440.3 Definitions.
For purposes of this part--
Bodily injury means physical injury, sickness, disease, disability,
shock, mental anguish, or mental injury sustained by any person,
including death.
Contractors and subcontractors means those entities that are
involved at any tier, directly or indirectly, in licensed or permitted
activities, and includes suppliers of property and services, and the
component manufacturers of a launch vehicle, reentry vehicle or
payload.
Customer means
(1) Any person:
(i) Who procures launch or reentry services from a licensee or
permittee;
(ii) To whom the customer has sold, leased, assigned, or otherwise
transferred its rights in the payload (or any part of the payload) to
be launched or reentered by the licensee or permittee, including a
conditional sale, lease, assignment, or transfer of rights;
(iii) Who has placed property on board the payload for launch,
reentry or payload services; or
(iv) To whom the customer has transferred its rights to the launch
or reentry services.
(2) A space flight participant, for the purposes of this part, is
not a customer.
Federal range facility means a U.S. Government-owned installation
at which a launch or reentry takes place.
Financial responsibility means statutorily required financial
ability to satisfy a liability obligation as required by 49 U.S.C.
Subtitle IX, chapter 701.
Government personnel means employees of the United States, its
agencies, and its contractors and subcontractors, involved in launch or
reentry services for an activity authorized by an FAA license or
permit. Employees of the United States include members of the Armed
Forces of the United States.
Hazardous operations means activities, processes, and procedures
that, because of the nature of the equipment, facilities, personnel,
environment involved or function being performed, may result in bodily
injury or property damage.
Liability means a legal obligation to pay a claim for bodily injury
or property damage resulting from a licensed or permitted activity.
License means an authorization the FAA issues under this subchapter
to launch or reenter.
Licensed activity means the launch of a launch vehicle or the
reentry of a reentry vehicle conducted under a license the FAA issues.
Maximum probable loss (MPL) means the greatest dollar amount of
loss for bodily injury or property damage that is reasonably expected
to result from a licensed or permitted activity;
(1) Losses to third parties, excluding Government personnel and
other launch or reentry participants' employees involved in licensed or
permitted activities, that are reasonably expected to result from a
licensed or permitted activity are those having a probability of
occurrence on the order of no less than one in ten million.
(2) Losses to Government property and Government personnel involved
in licensed or permitted activities that are reasonably expected to
result from licensed or permitted activities are those having a
probability of occurrence on the order of no less than one in one
hundred thousand.
Permit means an authorization the FAA issues under this subchapter
for the launch or reentry of a reusable suborbital rocket.
[[Page 77277]]
Permitted activity means the launch or reentry of a reusable
suborbital rocket conducted under a permit the FAA issues.
Property damage means partial or total destruction, impairment, or
loss of tangible property, real or personal.
Regulations mean the Commercial Space Transportation Licensing
Regulations codified at 14 CFR Ch. III.
Third party means
(1) Any person other than:
(i) The United States, any of its agencies, and its contractors and
subcontractors involved in launch or reentry services for a licensed or
permitted activity;
(ii) A licensee, permittee, and its contractors and subcontractors
involved in launch or reentry services for a licensed or permitted
activity;
(iii) A customer and its contractors and subcontractors involved in
launch or reentry services for a licensed or permitted activity;
(iv) A member of a crew; and
(v) A space flight participant.
(2) Government personnel, as defined in this section, are third
parties.
United States means the United States Government, including each of
its agencies.
(b) Except as otherwise provided in this section, any term used in
this part and defined in 49 U.S.C. 70101-70121, or in. Sec. 401.5 of
this chapter shall have the meaning contained therein.
Sec. 440.5 General.
(a) No person may commence or conduct any launch or reentry
activity that requires a license or permit unless that person has
demonstrated compliance with the requirements of this part.
(b) The FAA will prescribe the amount of financial responsibility a
licensee or permittee is required to obtain and any additions to or
modifications of the amount in a license or permit order issued
concurrent with or subsequent to the issuance of a license or a permit.
(c) Demonstration of financial responsibility under this part shall
not relieve a licensee of ultimate responsibility for liability, loss,
or damage sustained by the United States resulting from a licensed
activity, except to the extent that:
(1) Liability, loss, or damage sustained by the United States
results from willful misconduct of the United States or its agents;
(2) Any covered claim of a third party for bodily injury or
property damage arising out of any particular licensed activity exceeds
the amount of financial responsibility required under Sec. 440.9(c) of
this part and does not exceed $1,500,000,000 (as adjusted for inflation
occurring after January 1, 1989) above such amount, and are payable
pursuant to 49 U.S.C. 70113 and Sec. 440.19 of this part. A claim of
an employee of any entity listed in subparagraphs (1)(ii) through
(1)(iii) in the Third party definition in Sec. 440.3 of this part for
bodily injury or property damage is not a covered claim;
(3) A covered claim for property loss or damage exceeds the amount
of financial responsibility required under Sec. 440.9 (e) of this part
and does not result from willful misconduct of the licensee; or
(4) The licensee has no liability for covered claims by third
parties for bodily injury or property damage arising out of any
particular launch or reentry that exceeds $1,500,000,000 (as adjusted
for inflation occurring after January 1, 1989) above the amount of
financial responsibility required under Sec. 440.9(c).
(d) Demonstration of financial responsibility under this part does
not relieve a permittee of ultimate responsibility for liability, loss,
or damage sustained by the United States resulting from a permitted
activity, except to the extent that:
(1) Liability, loss, or damage sustained by the United States
results from willful misconduct of the United States or its agents; or
(2) A covered claim for property loss or damage to the United
States exceeds the amount of financial responsibility required under
Sec. 440.9(e) and does not result from willful misconduct of the
permittee.
(e) A licensee's or permittee's failure to comply with any
requirement of this part may result in suspension or revocation of a
license or permit, and subject the licensee or permittee to civil
penalties as provided in part 405 of this chapter.
Sec. 440.7 Determination of maximum probable loss.
(a) The FAA will determine the maximum probable loss (MPL) from
covered claims by a third party for bodily injury or property damage,
and the United States, its agencies, and its contractors and
subcontractors for covered property damage or loss, resulting from a
permitted or licensed activity. The maximum probable loss determination
forms the basis for financial responsibility requirements issued in a
license or permit order.
(b) The FAA issues its determination of maximum probable loss no
later than ninety days after a licensee or permittee has requested a
determination and submitted all information required by the FAA to make
the determination. The FAA will consult with Federal agencies that are
involved in, or whose personnel or property are exposed to risk of
damage or loss as a result of, a licensed or permitted activity before
issuing a license or permit order prescribing financial responsibility
requirements, and shall notify the licensee, or permittee, if
interagency consultation may delay issuance of the MPL determination.
(c) Appendix A of this part contains information requirements for
obtaining a maximum probable loss determination. Any person requesting
a determination of maximum probable loss must submit the information
required by Appendix A, unless the FAA has waived a requirement. In
lieu of submitting required information, a person requesting a maximum
probable loss determination may designate and certify certain
information previously submitted for a prior determination as complete,
valid, and equally applicable to its current request. The requester is
responsible for the continuing accuracy and completeness of information
submitted under this part and must promptly report any changes in
writing.
(d) The FAA will amend a determination of maximum probable loss
required under this section at any time prior to completion of licensed
or permitted activities as warranted by supplementary information
provided to or obtained by the FAA after the MPL determination is
issued. Any change in financial responsibility requirements as a result
of an amended MPL determination shall be set forth in a license or
permit order.
(e) The FAA may make a determination of maximum probable loss at
any time other than as set forth in paragraph (b) of this section upon
request by any person.
Sec. 440.9 Insurance requirements for licensed or permitted
activities.
(a) As a condition of each license or permit, a licensee or
permittee must comply with all insurance requirements of this section
and of a license or permit issued by the FAA, or otherwise demonstrate
the required amount of financial responsibility.
(b) A licensee or permittee must obtain and maintain in effect a
policy or policies of liability insurance, in an amount determined by
the FAA under paragraph (c) of this section, that protects the
following persons as additional insureds to the extent of their
respective potential liabilities against covered claims by a third
party for bodily injury or property damage
[[Page 77278]]
resulting from a licensed or permitted activity:
(1) The licensee or permittee, its customer, and their respective
contractors and subcontractors, and the employees of each, involved in
a licensed or permitted activity;
(2) The United States, its agencies, and its contractors and
subcontractors involved in a licensed or permitted activity; and
(3) Government personnel.
(c) The FAA will prescribe for each licensee or permittee the
amount of insurance required to compensate the total of covered third-
party claims for bodily injury or property damage resulting from a
licensed or permitted activity in connection with any particular launch
or reentry. A covered third-party claim includes a claim by the United
States, its agencies, and its contractors and subcontractors for damage
or loss to property other than property for which insurance is required
under paragraph (d) of this section. The amount of insurance required
is based upon the FAA's determination of maximum probable loss;
however, it will not exceed the lesser of:
(1) $500 million; or
(2) The maximum liability insurance available on the world market
at a reasonable cost, as determined by the FAA.
(d) The licensee or permittee must obtain and maintain in effect a
policy or policies of insurance, in an amount determined by the FAA
under paragraph (e) of this section, that covers claims by the United
States, its agencies, and its contractors and subcontractors involved
in a licensed or permitted activity for property damage or loss
resulting from a licensed or permitted activity. Property covered by
this insurance must include all property owned, leased, or occupied by,
or within the care, custody, or control of, the United States and its
agencies, and its contractors and subcontractors involved in a licensed
or permitted activity, at a Federal range facility. Insurance must
protect the United States and its agencies, and its contractors and
subcontractors involved in a licensed or permitted activity.
(e) The FAA will prescribe for each licensee or permittee the
amount of insurance required to compensate claims for property damage
under paragraph (d) of this section resulting from a licensed or
permitted activity in connection with any particular launch or reentry.
The amount of insurance is based upon a determination of maximum
probable loss; however, it will not exceed the lesser of:
(1) $100 million; or
(2) The maximum available on the world market at a reasonable cost,
as determined by the FAA.
(f) In lieu of a policy of insurance, a licensee or permittee may
demonstrate financial responsibility in another manner meeting the
terms and conditions for insurance of this part. The licensee or
permittee must describe in detail the method proposed for demonstrating
financial responsibility and how it ensures that the licensee or
permittee is able to cover claims as required under this part.
Sec. 440.11 Duration of coverage for suborbital and launch
activities; modifications.
(a) Insurance coverage required under Sec. 440.9, or other form of
financial responsibility, shall attach when a licensed or permitted
launch activity starts, and remain in full force and effect as follows:
(1) Until completion of licensed or permitted launch activities at
a launch site; and
(2) For orbital launch, until the later of--
(i) Thirty days following payload separation, or attempted payload
separation in the event of a payload separation anomaly; or
(ii) Thirty days from ignition of the launch vehicle.
(3) For a suborbital launch, until the later of--
(i) Motor impact and payload recovery; or
(ii) The FAA's determination that risk to third parties and
Government property as a result of licensed or permitted launch
activities is sufficiently small that financial responsibility is no
longer necessary. That determination is made through the risk analysis
conducted before the launch to determine MPL and specified in a license
or permit order.
(b) Financial responsibility required under this part may not be
replaced, canceled, changed, withdrawn, or in any way modified to
reduce the limits of liability or the extent of coverage, nor expire by
its own terms, prior to the time specified in a license or permit
order, unless the FAA is notified at least 30 days in advance and
expressly approves the modification.
Sec. 440.12 Duration of coverage for reentry; modifications.
(a) For reentry, insurance coverage required under Sec. 440.9, or
other form of financial responsibility, shall attach upon commencement
of licensed or permitted reentry activities, and remain in full force
and effect as follows:
(1) For ground operations, until completion of licensed or
permitted reentry activities at the reentry site; and
(2) For other licensed or permitted reentry activities, thirty days
from initiation of reentry flight; however, in the event of an abort
that results in the reentry vehicle remaining on orbit, insurance shall
remain in place until the FAA's determination that risk to third
parties and Government property as a result of licensed or permitted
reentry activities is sufficiently small that financial responsibility
is no longer necessary, as determined by the FAA through the risk
analysis conducted to determine MPL and specified in a license or
permit order.
(b) Financial responsibility required under this part may not be
replaced, canceled, changed, withdrawn, or in any way modified to
reduce the limits of liability or the extent of coverage, nor expire by
its own terms, prior to the time specified in a license or permit
order, unless the FAA is notified at least 30 days in advance and
expressly approves the modification.
Sec. 440.13 Standard conditions of insurance coverage.
(a) Insurance obtained under Sec. 440.9 must comply with each of
the following terms and conditions of coverage:
(1) Bankruptcy or insolvency of an insured, including any
additional insured, shall not relieve an insurer of any of its
obligations under any policy.
(2) Policy limits shall apply separately to each occurrence and,
for each occurrence to the total of claims arising out of a licensed or
permitted activity in connection with any particular launch or reentry.
(3) Except as provided in this section, each policy must pay claims
from the first dollar of loss, without regard to any deductible, to the
limits of the policy. A licensee or permittee may obtain a policy
containing a deductible amount if the amount of the deductible is
placed in an escrow account or otherwise demonstrated to be
unobligated, unencumbered funds of the licensee or permittee, available
to compensate claims at any time claims may arise.
(4) No policy may be invalidated by any action or inaction of the
licensee or permittee or any additional insured, even by nonpayment by
the licensee or permittee of the policy premium, and each policy must
insure the licensee or permittee and each additional insured regardless
of any breach or violation of any warranties, declarations, or
conditions contained in the policies by the licensee or permittee or
any additional insured (other than a breach or violation by the
licensee, permittee or
[[Page 77279]]
an additional insured, and then only as against that licensee,
permittee or additional insured).
(5) Each exclusion from coverage must be specified.
(6) Insurance shall be primary without right of contribution from
any other insurance that is carried by the licensee or permittee or any
additional insured.
(7) Each policy must expressly provide that all of its provisions,
except the policy limits, operate in the same manner as if there were a
separate policy with and covering the licensee or permittee and each
additional insured.
(8) Each policy must be placed with an insurer of recognized
reputation and responsibility that either:
(i) Is licensed to do business in any State, territory, possession
of the United States, or the District of Columbia; or
(ii) Includes in each of its policies or insurance obtained under
this part a contract clause in which the insurer agrees to submit to
the jurisdiction of a court of competent jurisdiction within the United
States and designates an authorized agent within the United States for
service of legal process on the insurer.
(9) Except as to claims resulting from the willful misconduct of
the United States or any of its agents, the insurer shall waive any and
all rights of subrogation against each of the parties protected by
required insurance.
(b) [Reserved]
Sec. 440.15 Demonstration of compliance.
(a) A licensee or permittee must submit to the FAA evidence of
financial responsibility and compliance with allocation of risk
requirements under this part, as follows, unless a license or permit
order specifies otherwise due to the proximity of the intended date for
commencement of licensed or permitted activities:
(1) All reciprocal waiver of claims agreements required under Sec.
440.17(c) must be submitted at least 30 days before the start of any
licensed or permitted activity involving a customer, crew member, or
space flight participant;
(2) Evidence of insurance must be submitted at least 30 days before
commencement of any licensed or permitted activity, and for reentry no
less than 30 days before commencement of launch activities involving
the reentry licensee;
(3) Evidence of financial responsibility in a form other than
insurance, as provided under Sec. 440.9(f), must be submitted at least
60 days before commencement of a licensed or permitted activity; and
(4) Evidence of renewal of insurance or other form of financial
responsibility must be submitted at least 30 days in advance of its
expiration date.
(b) Upon a complete demonstration of compliance with financial
responsibility and allocation of risk requirements under this part, the
requirements of this part shall preempt each and any provision in any
agreement between the licensee or permittee and an agency of the United
States governing access to or use of United States launch or reentry
property or launch or reentry services for a licensed or permitted
activity which addresses financial responsibility, allocation of risk
and related matters covered by 49 U.S.C. 70112, 70113.
(c) A licensee or permittee must demonstrate compliance as follows:
(1) The licensee or permittee must provide proof of the existence
of the insurance required by Sec. 440.9 by:
(i) Certifying to the FAA that it has obtained insurance in
compliance with the requirements of this part and any applicable
license or permit order;
(ii) Filing with the FAA one or more certificates of insurance
evidencing insurance coverage by one or more insurers under a currently
effective and properly endorsed policy or policies of insurance,
applicable to a licensed or permitted activity, on terms and conditions
and in amounts prescribed under this part, and specifying policy
exclusions;
(iii) In the event of any policy exclusions or limitations of
coverage that may be considered usual under Sec. 440.19(c), or for
purposes of implementing the Government's waiver of claims for property
damage under 49 U.S.C. 70112(b)(2), certifying that insurance covering
the excluded risks is not commercially available at reasonable cost;
and
(iv) Submitting to the FAA, for signature by the Department on
behalf of the United States Government, the waiver of claims and
assumption of responsibility agreement required by Sec. 440.17(c),
executed by the licensee or permittee and its customer.
(v) Submitting to the FAA, for signature by the Department on
behalf of the United States Government, an agreement to waive claims
and assume responsibility required by Sec. 440.17(e), executed by each
space flight participant.
(vi) Submitting to the FAA, for signature by the Department on
behalf of the United States Government, an agreement to waive claims
and assume responsibility required by Sec. 440.17(f), executed by each
member of the crew.
(2) Any certification required by this section must be signed by a
duly authorized officer of the licensee or permittee.
(d) Each certificate of insurance required by paragraph (c)(1)(ii)
of this section must be signed by the insurer issuing the policy and
accompanied by an opinion of the insurance broker that the insurance
obtained by the licensee or permittee complies with all the
requirements for insurance of this part and any applicable license or
permit order.
(e) The licensee or permittee must maintain, and make available for
inspection by the FAA upon request, all required policies of insurance
and other documents necessary to demonstrate compliance with this part.
(f) In the event the licensee or permittee demonstrates financial
responsibility using means other than insurance, as provided under
Sec. 440.9(f), the licensee or permittee must provide proof that it
has met the requirements of this part and of a FAA issued license or
permit order.
Sec. 440.17 Reciprocal waiver of claims requirements.
(a) As a condition of each license or permit, the licensee or
permittee must comply with the reciprocal waiver of claims requirements
of this section.
(b) The licensee or permittee shall implement a reciprocal waiver
of claims with each of its contractors and subcontractors, each
customer and each of the customer's contractors and subcontractors,
under which each party waives and releases claims against all the other
parties to the waiver and agrees to assume financial responsibility for
property damage it sustains and for bodily injury or property damage
sustained by its own employees, and to hold harmless and indemnify each
other from bodily injury or property damage sustained by its employees,
resulting from a licensed or permitted activity, regardless of fault.
(c) For each licensed or permitted activity in which the U.S.
Government, any agency, or its contractors and subcontractors is
involved or where property insurance is required under Sec. 440.9(d),
the Federal Aviation Administration of the Department of
Transportation, the licensee or permittee, and its customer shall enter
into a three-party reciprocal waiver of claims agreement. The three-
party reciprocal waiver of claims shall be in the form set forth in
Appendix B, for licensed activity, or Appendix C, for permitted
activity, of this part or in a form that satisfies the requirements.
(d) The licensee or permittee, its customer, and the Federal
Aviation Administration of the Department of
[[Page 77280]]
Transportation on behalf of the United States and its agencies but only
to the extent provided in legislation, must agree in any waiver of
claims agreement required under this part to indemnify another party to
the agreement from claims by the indemnifying party's contractors and
subcontractors arising out of the indemnifying party's failure to
implement properly the waiver requirement.
(e) For each licensed or permitted activity in which the U.S.
Government, any of its agencies, or its contractors and subcontractors
are involved, the Federal Aviation Administration of the Department of
Transportation and each space flight participant shall enter into or
have in place a reciprocal waiver of claims agreement in the form of
the agreement in Appendix E of this part or that satisfies its
requirements.
(f) For each licensed or permitted launch or reentry in which the
U.S. Government, any of its agencies, or its contractors and
subcontractors is involved, the Federal Aviation Administration of the
Department of Transportation and each crew member shall enter into or
have in place a reciprocal waiver of claims agreement in the form of
the agreement in Appendix D of this part or that satisfies its
requirements.
Sec. 440.19 United States payment of excess third-party liability
claims.
(a) The United States pays successful covered claims (including
reasonable expenses of litigation or settlement) of a third party
against a licensee, a customer, and the contractors and subcontractors
of the licensee and the customer, and the employees of each involved in
licensed activities, and the contractors and subcontractors of the
United States and its agencies, and their employees, involved in
licensed activities to the extent provided in an appropriation law or
other legislative authority providing for payment of claims in
accordance with 49 U.S.C. 70113, and to the extent the total amount of
such covered claims arising out of any particular launch or reentry:
(1) Exceeds the amount of insurance required under Sec. 440.9(b);
and
(2) Is not more than $1,500,000,000 (as adjusted for inflation
occurring after January 1, 1989) above that amount.
(b) Payment by the United States under paragraph (a) of this
section shall not be made for any part of such claims for which bodily
injury or property damage results from willful misconduct by the party
seeking payment.
(c) The United States shall provide for payment of claims by third
parties for bodily injury or property damage that are payable under 49
U.S.C. 70113 and not covered by required insurance under Sec.
440.9(b), without regard to the limitation under paragraph (a)(1) of
this section, because of an insurance policy exclusion that is usual. A
policy exclusion is considered usual only if insurance covering the
excluded risk is not commercially available at reasonable rates. The
licensee must submit a certification in accordance with Sec.
440.15(c)(1)(iii) of this part for the United States to cover the
claims.
(d) Upon the expiration of the policy period prescribed in
accordance with Sec. 440.11(a), the United States shall provide for
payment of claims that are payable under 49 U.S.C. 70113 from the first
dollar of loss up to $1,500,000,000 (as adjusted for inflation
occurring after January 1, 1989).
(e) Payment by the United States of excess third-party claims under
49 U.S.C. 70113 shall be subject to:
(1) Prompt notice by the licensee to the FAA that the total amount
of claims arising out of licensed activities exceeds, or is likely to
exceed, the required amount of financial responsibility. For each
claim, the notice must specify the nature, cause, and amount of the
claim or lawsuit associated with the claim, and the party or parties
who may otherwise be liable for payment of the claim;
(2) Participation or assistance in the defense of the claim or
lawsuit by the United States, at its election;
(3) Approval by the FAA of any settlement, or part of a settlement,
to be paid by the United States; and
(4) Approval by Congress of a compensation plan prepared by the FAA
and submitted by the President.
(f) The FAA will:
(1) Prepare a compensation plan outlining the total amount of
claims and meeting the requirements set forth in 49 U.S.C. 70113;
(2) Recommend sources of funds to pay the claims; and
(3) Propose legislation as required to implement the plan.
(g) The FAA may withhold payment of a claim if it finds that the
amount is unreasonable, unless it is the final order of a court that
has jurisdiction over the matter.
Appendix A to Part 440--Information Requirements for Obtaining a
Maximum Probable Loss Determination for Licensed or Permitted
Activities
Any person requesting a maximum probable loss determination shall
submit the following information to the FAA, unless the FAA has waived
a particular information requirement under 14 CFR 440.7(c):
Part 1: Information Requirements for Licensed Suborbital and Launch
Activities
I. General Information
A. Mission description.
1. A description of mission parameters, including:
a. Launch trajectory;
b. Orbital inclination; and
c. Orbit altitudes (apogee and perigee).
2. Flight sequence.
3. Staging events and the time for each event.
4. Impact locations.
5. Identification of the launch site facility, including the launch
complex on the site, planned date of launch, and launch windows.
6. If the applicant has previously been issued a license or permit
to conduct licensed or permitted activities using the same vehicle from
the same launch site, a description of any differences planned in the
conduct of proposed activities.
B. Launch vehicle description.
1. General description of the launch vehicle and its stages,
including dimensions.
2. Description of major systems, including safety systems.
3. Description of rocket motors and type of fuel used.
4. Identification of all propellants to be used and their hazard
classification under the Hazardous Materials Table, 49 CFR 172.101.
5. Description of hazardous components.
C. Payload.
1. General description of the payload, including type (e.g.,
telecommunications, remote sensing), propellants, and hazardous
components or materials, such as toxic or radioactive substances.
D. Flight safety system.
1. Identification of any flight safety system (FSS) on the vehicle,
including a description of operations and component location on the
vehicle.
II. Pre-Flight Processing Operations
A. General description of pre-flight operations including vehicle
processing consisting of an operational flow diagram showing the
overall sequence and location of operations, commencing with arrival of
vehicle components at the launch site facility through final safety
checks and countdown sequence, and designation of hazardous operations,
as defined in 14 CFR 440.3. For purposes of these information
requirements, payload processing, as opposed to integration, is not a
hazardous operation.
[[Page 77281]]
B. For each hazardous operation, including but not limited to
fueling, solid rocket motor build-up, ordnance installation, ordnance
checkout, movement of hazardous materials, and payload integration:
1. Identification of location where each operation will be
performed, including each building or facility identified by name or
number.
2. Identification of facilities adjacent to the location where each
operation will be performed and therefore exposed to risk, identified
by name or number.
3. Maximum number of Government personnel and individuals not
involved in licensed or permitted activities who may be exposed to risk
during each operation. For Government personnel, identification of his
or her employer.
4. Identification of launch site policies or requirements
applicable to the conduct of operations.
III. Flight Operations
A. Identification of launch site facilities exposed to risk during
licensed or permitted flight.
B. Identification of accident failure scenarios, probability
assessments for each, and estimation of risks to Government personnel,
individuals not involved in licensed or permitted activities, and
Government property, due to property damage or bodily injury. The
estimation of risks for each scenario shall take into account the
number of such individuals at risk as a result of lift-off and flight
of a launch vehicle (on-range, off-range, and down-range) and specific,
unique facilities exposed to risk. Scenarios shall cover the range of
launch trajectories, inclinations and orbits for which authorization is
sought in the license or permit application.
C. On-orbit risk analysis assessing risks posed by a launch vehicle
to operational satellites.
D. Reentry risk analysis assessing risks to Government personnel
and individuals not involved in licensed or permitted launch activities
as a result of reentering debris or reentry of the launch vehicle or
its components.
E. Trajectory data as follows: Nominal and 3-sigma lateral
trajectory data in x, y, z and x (dot), y (dot), z (dot) coordinates in
one-second intervals, data to be pad-centered with x being along the
initial launch azimuth and continuing through impact for suborbital
flights, and continuing through orbital insertion or the end of powered
flight for orbital flights.
F. Tumble-turn data for guided vehicles only, as follows: For
vehicles with gimbaled nozzles, tumble turn data with zeta angles and
velocity magnitudes stated. A separate table is required for each
combination of fail times (every two to four seconds), and significant
nozzle angles (two or more small angles, generally between one and five
degrees).
G. Identification of debris lethal areas and the projected number
and ballistic coefficient of fragments expected to result from flight
termination, initiated either by command or self-destruct mechanism,
for lift-off, land overflight, and reentry.
IV. Post-Flight Processing Operations
A. General description of post-flight ground operations including
overall sequence and location of operations for removal of vehicle
components and processing equipment from the launch site facility and
for handling of hazardous materials, and designation of hazardous
operations.
B. Identification of all facilities used in conducting post-flight
processing operations.
C. For each hazardous operation:
1. Identification of location where each operation is performed,
including each building or facility identified by name or number.
2. Identification of facilities adjacent to location where each
operation is performed and exposed to risk, identified by name or
number.
3. Maximum number of Government personnel and individuals not
involved in licensed or permitted launch activities that may be exposed
to risk during each operation. For Government personnel, identification
of his or her employer.
4. Identification of launch site facility policies or requirements
applicable to the conduct of operations.
Part 2: Information Requirements for Licensed Reentry
I. General Information
A. Reentry mission description.
1. A description of mission parameters, including:
a. Orbital inclination; and
b. Orbit altitudes (apogee and perigee).
c. Reentry trajectories.
2. Reentry flight sequences.
3. Reentry initiation events and the time for each event.
4. Nominal landing location, alternative landing sites and
contingency abort sites.
5. Identification of landing facilities, (planned date of reentry),
and reentry windows.
6. If the applicant has previously been issued a license or permit
to conduct reentry activities using the same reentry vehicle to the
same reentry site facility, a description of any differences planned in
the conduct of proposed activities.
B. Reentry vehicle description.
1. General description of the reentry vehicle, including
dimensions.
2. Description of major systems, including safety systems.
3. Description of propulsion system (reentry initiation system) and
type of fuel used.
4. Identification of all propellants to be used and their hazard
classification under the Hazardous Materials Table, 49 CFR 172.101.
5. Description of hazardous components.
C. Payload.
1. General description of any payload, including type (e.g.,
telecommunications, remote sensing), propellants, and hazardous
components or materials, such as toxic or radioactive substances.
D. Flight termination system or flight safety system.
1. Identification of any flight termination system or flight safety
system on the reentry vehicle, including a description of operations
and component location on the vehicle.
II. Flight Operations
A. Identification of reentry site facilities exposed to risk during
vehicle reentry and landing.
B. Identification of accident failure scenarios, probability
assessments for each, and estimation of risks to Government personnel,
individuals not involved in licensed or permitted reentry activities,
and Government property, due to property damage or bodily injury. The
estimation of risks for each scenario shall take into account the
number of such individuals at risk as a result of reentry (flight) and
landing of a reentry vehicle (on-range, off-range, and down-range) and
specific, unique facilities exposed to risk. Scenarios shall cover the
range of reentry trajectories for which authorization is sought.
C. On-orbit risk analysis assessing risks posed by a reentry
vehicle to operational satellites during reentry.
D. Reentry risk analysis assessing risks to Government personnel
and individuals not involved in licensed or permitted reentry
activities as a result of inadvertent or random reentry of the launch
vehicle or its components.
E. Nominal and 3-sigma dispersed trajectories in one-second
intervals, from reentry initiation through landing or impact.
(Coordinate system will be specified on a case-by-case basis).
F. Three-sigma landing or impact dispersion area in downrange
() and crossrange () measured from the nominal
and contingency landing or
[[Page 77282]]
impact target. The applicant is responsible for including all
significant landing or impact dispersion constituents in the
computations of landing or impact dispersion areas. The dispersion
constituents should include, but not be limited to: Variation in
orbital position and velocity at the reentry initiation time; variation
in re-entry initiation time offsets, either early or late; variation in
the bodies' ballistic coefficient; position and velocity variation due
to winds; and variations in re-entry retro-maneuvers.
G. Malfunction turn data (tumble, trim) for guided (controllable)
vehicles. The malfunction turn data shall include the total angle
turned by the velocity vector versus turn duration time at one second
intervals; the magnitude of the velocity vector versus turn duration
time at one second intervals; and an indication on the data where the
re-entry body will impact the Earth, or breakup due to aerodynamic
loads. A malfunction turn data set is required for each malfunction
time. Malfunction turn start times shall not exceed four-second
intervals along the trajectory.
H. Identification of debris casualty areas and the projected number
and ballistic coefficient of fragments expected to result from each
failure mode during reentry, including random reentry.
III. Post-Flight Processing Operations
A. General description of post-flight ground operations including
overall sequence and location of operations for removal of vehicle and
components and processing equipment from the reentry site facility and
for handling of hazardous materials, and designation of hazardous
operations.
B. Identification of all facilities used in conducting post-flight
processing operations.
C. For each hazardous operation:
1. Identification of location where each operation is performed,
including each building or facility identified by name or number.
2. Identification of facilities adjacent to location where each
operation is performed and exposed to risk, identified by name or
number.
3. Maximum number of Government personnel and individuals not
involved in licensed or permitted reentry activities who may be exposed
to risk during each operation. For Government personnel, identification
of his or her employer.
4. Identify and provide reentry site facility policies or
requirements applicable to the conduct of operations.
Part 3: Information Requirements for Permitted Activities
In addition to the information required in part 437 subpart B, an
applicant for an experimental permit must provide, for each permitted
pre-flight and post-flight operation, the following information to the
FAA:
A. Identification of location where each operation will be
performed, including any U.S. Government or third party facilities
identified by name or number.
B. Identification of any U.S. Government or third party facilities
adjacent to the location where each operation will be performed and
therefore exposed to risk, identified by name or number.
C. Maximum number of Government personnel and individuals not
involved in permitted activities that may be exposed to risk during
each operation. For Government personnel, identification of his or her
employer.
Appendix B to Part 440--Agreement for Waiver of Claims and Assumption
of Responsibility for Licensed Launch or Reentry
Part 1--Waiver of Claims and Assumption of Responsibility for Licensed
Launches
This agreement is entered into this ----day of ----, by and among
[Licensee] (the ``Licensee''), [Customer] (the ``Customer'') and the
Federal Aviation Administration of the Department of Transportation, on
behalf of the United States Government (collectively, the ``Parties''),
to implement the provisions of section 440.17(c) of the Commercial
Space Transportation Licensing Regulations, 14 CFR Ch. III (the
``Regulations'').
In consideration of the mutual releases and promises contained
herein, the Parties hereby agree as follows:
1. Definitions
Customer means the above-named Customer on behalf of the Customer
and any person described in Sec. 440.3 of the Regulations.
License means License No. ------issued on ------, by the Associate
Administrator for Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation, to the Licensee,
including all license orders issued in connection with the License.
Licensee means the Licensee and any transferee of the Licensee
under 49 U.S.C. Subtitle IX, ch. 701.
United States means the United States and its agencies involved in
Licensed Launch Activities.
Except as otherwise defined herein, terms used in this Agreement
and defined in 49 U.S.C. Subtitle IX, ch. 701--Commercial Space Launch
Activities, or in the Regulations, shall have the same meaning as
contained in 49 U.S.C. Subtitle IX, ch. 701, or the Regulations,
respectively.
2. Waiver and Release of Claims
(a) Licensee hereby waives and releases claims it may have against
Customer and the United States, and against their respective
Contractors and Subcontractors, for Property Damage it sustains and for
Bodily Injury or Property Damage sustained by its own employees,
resulting from Licensed Launch Activities, regardless of fault.
(b) Customer hereby waives and releases claims it may have against
Licensee and the United States, and against their respective
Contractors and Subcontractors, for Property Damage it sustains and for
Bodily Injury or Property Damage sustained by its own employees,
resulting from Licensed Launch Activities, regardless of fault.
(c) The United States hereby waives and releases claims it may have
against Licensee and Customer, and against their respective Contractors
and Subcontractors, for Property Damage it sustains, and for Bodily
Injury or Property Damage sustained by its own employees, resulting
from Licensed Launch Activities, regardless of fault, to the extent
that claims it would otherwise have for such damage or injury exceed
the amount of insurance or demonstration of financial responsibility
required under sections 440.9(c) and (e), respectively, of the
Regulations.
3. Assumption of Responsibility
(a) Licensee and Customer shall each be responsible for Property
Damage it sustains and for Bodily Injury or Property Damage sustained
by its own employees, resulting from Licensed Launch Activities,
regardless of fault. Licensee and Customer shall each hold harmless and
indemnify each other, the United States, and the Contractors and
Subcontractors of each Party, for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Launch
Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage it
sustains, and for Bodily Injury or Property Damage sustained by its own
employees, resulting from Licensed Launch Activities, regardless of
fault, to the extent that claims it would otherwise have for such
damage or injury exceed the amount of insurance
[[Page 77283]]
or demonstration of financial responsibility required under sections
440.9(c) and (e), respectively, of the Regulations.
4. Extension of Assumption of Responsibility and Waiver
(a) Licensee shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold harmless,
and indemnification, as set forth in paragraphs 2(a) and 3(a),
respectively, to its Contractors and Subcontractors by requiring them
to waive and release all claims they may have against Customer and the
United States, and against the respective Contractors and
Subcontractors of each, and to agree to be responsible, for Property
Damage they sustain and to be responsible, hold harmless and indemnify
Customer and the United States, and the respective Contractors and
Subcontractors of each, for Bodily Injury or Property Damage sustained
by their own employees, resulting from Licensed Launch Activities,
regardless of fault.
(b) Customer shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold harmless,
and indemnification, as set forth in paragraphs 2(b) and 3(a),
respectively, to its Contractors and Subcontractors by requiring them
to waive and release all claims they may have against Licensee and the
United States, and against the respective Contractors and
Subcontractors of each, and to agree to be responsible, for Property
Damage they sustain and to be responsible, hold harmless and indemnify
Licensee and the United States, and the respective Contractors and
Subcontractors of each, for Bodily Injury or Property Damage sustained
by their own employees, resulting from Licensed Launch Activities,
regardless of fault.
(c) The United States shall extend the requirements of the waiver
and release of claims, and the assumption of responsibility as set
forth in paragraphs 2(c) and 3(b), respectively, to its Contractors and
Subcontractors by requiring them to waive and release all claims they
may have against Licensee and Customer, and against the respective
Contractors and Subcontractors of each, and to agree to be responsible,
for any Property Damage they sustain and for any Bodily Injury or
Property Damage sustained by their own employees, resulting from
Licensed Launch Activities, regardless of fault, to the extent that
claims they would otherwise have for such damage or injury exceed the
amount of insurance or demonstration of financial responsibility
required under sections 440.9(c) and (e), respectively, of the
Regulations.
5. Indemnification
(a) Licensee shall hold harmless and indemnify Customer and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any or them, and the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any or
them, from and against liability, loss or damage arising out of claims
that Licensee's Contractors and Subcontractors may have for Property
Damage sustained by them and for Bodily Injury or Property Damage
sustained by their employees, resulting from Licensed Launch
Activities.
(b) Customer shall hold harmless and indemnify Licensee and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any or them, and the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any of
them, from and against liability, loss or damage arising out of claims
that Customer's Contractors and Subcontractors, or any person on whose
behalf Customer enters into this Agreement, may have for Property
Damage sustained by them and for Bodily Injury or Property Damage
sustained by their employees, resulting from Licensed Launch
Activities.
(c) To the extent provided in advance in an appropriations law or
to the extent there is enacted additional legislative authority
providing for the payment of claims, the United States shall hold
harmless and indemnify Licensee and Customer and their respective
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them, from and against liability, loss or damage
arising out of claims that Contractors and Subcontractors of the United
States may have for Property Damage sustained by them, and for Bodily
Injury or Property Damage sustained by their employees, resulting from
Licensed Launch Activities, to the extent that claims they would
otherwise have for such damage or injury exceed the amount of insurance
or demonstration of financial responsibility required under sections
440.9(c) and (e), respectively, of the Regulations.
6. Assurances Under 49 U.S.C. 70112(e)
Notwithstanding any provision of this Agreement to the contrary,
Licensee shall hold harmless and indemnify the United States and its
agencies, servants, agents, employees and assignees, or any of them,
from and against liability, loss or damage arising out of claims for
Bodily Injury or Property Damage, resulting from Licensed Launch
Activities, regardless of fault, except to the extent that: (i) As
provided in section 7(b) of this Agreement, claims result from willful
misconduct of the United States or its agents; (ii) claims for Property
Damage sustained by the United States or its Contractors and
Subcontractors exceed the amount of insurance or demonstration of
financial responsibility required under section 440.9(e) of the
Regulations; (iii) claims by a Third Party for Bodily Injury or
Property Damage exceed the amount of insurance or demonstration of
financial responsibility required under section 440.9(c) of the
Regulations, and do not exceed $1,500,000,000 (as adjusted for
inflation after January 1, 1989) above such amount, and are payable
pursuant to the provisions of 49 U.S.C. 70113 and section 440.19 of the
Regulations; or (iv) Licensee has no liability for claims exceeding
$1,500,000,000 (as adjusted for inflation after January 1, 1989) above
the amount of insurance or demonstration of financial responsibility
required under section 440.9(c) of the Regulations.
7. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by Licensee, Customer or the United States of any claim by an
employee of the Licensee, Customer or the United States, respectively,
including a member of the Armed Forces of the United States, for Bodily
Injury or Property Damage, resulting from Licensed Launch Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility or
agreement to hold harmless and indemnify herein shall not apply to
claims for Bodily Injury or Property Damage resulting from willful
misconduct of any of the Parties, the Contractors and Subcontractors of
any of the Parties, and in the case of Licensee and Customer and the
Contractors and Subcontractors of each of them, the directors,
officers, agents and employees of any of the foregoing, and in the case
of the United States, its agents.
(c) In the event that more than one customer is involved in
Licensed Launch Activities, references herein to Customer shall apply
to, and be deemed to include, each such customer severally and not
jointly.
(d) This Agreement shall be governed by and construed in accordance
with United States Federal law.
[[Page 77284]]
In Witness Whereof, the Parties to this Agreement have caused the
Agreement to be duly executed by their respective duly authorized
representatives as of the date written above.
Licensee
By: --------
Its: --------
Customer
By: --------
Its: --------
Federal Aviation Administration of the Department of Transportation on
Behalf of the United States Government
By: --------
Its: --------
Associate Administrator for Commercial Space Transportation
Part 2--Waiver of Claims and Assumption of Responsibility for Licensed
Reentries
This Agreement is entered into this ---- day of ----, by and among
[Licensee] (the ``Licensee''), [Customer] (the ``Customer''), and the
Federal Aviation Administration of the Department of Transportation, on
behalf of the United States Government (collectively, the ``Parties''),
to implement the provisions of Sec. 440.17(c) of the Commercial Space
Transportation Licensing Regulations, 14 CFR Ch. III (the
``Regulations'').
In consideration of the mutual releases and promises contained
herein, the Parties hereby agree as follows:
1. Definitions
Contractors and Subcontractors means entities described in Sec.
440.3 of the Regulations.
Customer means the above-named Customer on behalf of the Customer
and any person described in Sec. 440.3 of the Regulations.
License means License No. ------ issued on ------, by the Associate
Administrator for Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation, to the Licensee,
including all license orders issued in connection with the License.
Licensee means the Licensee and any transferee of the Licensee
under 49 U.S.C. Subtitle IX, ch. 701.
United States means the United States and its agencies involved in
Licensed Activities.
Except as otherwise defined herein, terms used in this Agreement
and defined in 49 U.S.C. Subtitle IX, ch. 701--Commercial Space Launch
Activities, or in the Regulations, shall have the same meaning as
contained in 49 U.S.C. Subtitle IX, ch. 701, or the Regulations,
respectively.
2. Waiver and Release of Claims
(a) Licensee hereby waives and releases claims it may have against
Customer and the United States, and against their respective
Contractors and Subcontractors, for Property Damage it sustains and for
Bodily Injury or Property Damage sustained by its own employees,
resulting from Licensed Activities, regardless of fault.
(b) Customer hereby waives and releases claims it may have against
Licensee and the United States, and against their respective
Contractors and Subcontractors, for Property Damage it sustains and for
Bodily Injury or Property Damage sustained by its own employees,
resulting from Licensed Activities, regardless of fault.
(c) The United States hereby waives and releases claims it may have
against Licensee and Customer, and against their respective Contractors
and Subcontractors, for Property Damage it sustains, and for Bodily
Injury or Property Damage sustained by its own employees, resulting
from Licensed Activities, regardless of fault, to the extent that
claims it would otherwise have for such damage or injury exceed the
amount of insurance or demonstration of financial responsibility
required under sections 440.9(c) and (e) of the Regulations.
3. Assumption of Responsibility
(a) Licensee and Customer shall each be responsible for Property
Damage it sustains and for Bodily Injury or Property Damage sustained
by its own employees, resulting from Licensed Activities, regardless of
fault. Licensee and Customer shall each hold harmless and indemnify
each other, the United States, and the Contractors and Subcontractors
of each Party, for Bodily Injury or Property Damage sustained by its
own employees, resulting from Licensed Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage it
sustains, and for Bodily Injury or Property Damage sustained by its own
employees, resulting from Licensed Activities, regardless of fault, to
the extent that claims it would otherwise have for such damage or
injury exceed the amount of insurance or demonstration of financial
responsibility required under Sec. Sec. 440.9(c) and (e) of the
Regulations.
4. Extension of Assumption of Responsibility and Waiver
(a) Licensee shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold harmless,
and indemnification, as set forth in paragraphs 2(a) and 3(a),
respectively, to its Contractors and Subcontractors by requiring them
to waive and release all claims they may have against Customer and the
United States, and against the respective Contractors and
Subcontractors of each, and to agree to be responsible, for Property
Damage they sustain and to be responsible, hold harmless and indemnify
Customer and the United States, and the respective Contractors and
Subcontractors of each, for Bodily Injury or Property Damage sustained
by their own employees, resulting from Licensed Activities, regardless
of fault.
(b) Customer shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold harmless,
and indemnification, as set forth in paragraphs 2(b) and 3(a),
respectively, to its Contractors and Subcontractors by requiring them
to waive and release all claims they may have against Licensee and the
United States, and against the respective Contractors and
Subcontractors of each, and to agree to be responsible, for Property
Damage they sustain and to be responsible, hold harmless and indemnify
Licensee and the United States, and the respective Contractors and
Subcontractors of each, for Bodily Injury or Property Damage sustained
by their own employees, resulting from Licensed Activities, regardless
of fault.
(c) The United States shall extend the requirements of the waiver
and release of claims, and the assumption of responsibility as set
forth in paragraphs 2(c) and 3(b), respectively, to its Contractors and
Subcontractors by requiring them to waive and release all claims they
may have against Licensee and Customer, and against the respective
Contractors and Subcontractors of each, and to agree to be responsible,
for any Property Damage they sustain and for any Bodily Injury or
Property Damage sustained by their own employees, resulting from
Licensed Activities, regardless of fault, to the extent that claims
they would otherwise have for such damage or injury exceed the amount
of insurance or demonstration of financial responsibility required
under Sec. Sec. 440.9(c) and (e) of the Regulations.
[[Page 77285]]
5. Indemnification
(a) Licensee shall hold harmless and indemnify Customer and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any or them, and the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any or
them, from and against liability, loss or damage arising out of claims
that Licensee's Contractors and Subcontractors may have for Property
Damage sustained by them and for Bodily Injury or Property Damage
sustained by their employees, resulting from Licensed Activities.
(b) Customer shall hold harmless and indemnify Licensee and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them, and the United States and its agencies,
servants, agents, subsidiaries, employees assignees, or any of them,
from and against liability, loss or damage arising out of claims that
Customer's Contractors and Subcontractors, or any person on whose
behalf Customer enters into this Agreement, may have for Property
Damage sustained by them and for Bodily Injury or Property Damage
sustained by their employees, resulting from Licensed Activities.
(c) To the extent provided in advance in an appropriations law or
to the extent there is enacted additional legislative authority
providing for the payment of claims, the United States shall hold
harmless and indemnify Licensee and Customer and their respective
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them, from and against liability, loss or damage
arising out of claims that Contractors and Subcontractors of the United
States may have for Property Damage sustained by them, and for Bodily
Injury or Property Damage sustained by their employees, resulting from
Licensed Activities, to the extent that claims they would otherwise
have for such damage or injury exceed the amount of insurance or
demonstration of financial responsibility required under Sec. Sec.
440.9(c) and (e) of the Regulations.
6. Assurances Under 49 U.S.C. 70112(e)
Notwithstanding any provision of this Agreement to the contrary,
Licensee shall hold harmless and indemnify the United States and its
agencies, servants, agents, employees and assignees, or any of them,
from and against liability, loss or damage arising out of claims for
Bodily Injury or Property Damage, resulting from Licensed Launch
Activities, regardless of fault, except to the extent that: (i) As
provided in section 7(b) of this Agreement, claims result from willful
misconduct of the United States or its agents; (ii) claims for Property
Damage sustained by the United States or its Contractors and
Subcontractors exceed the amount of insurance or demonstration of
financial responsibility required under Sec. 440.9(e) of the
Regulations; (iii) claims by a Third Party for Bodily Injury or
Property Damage exceed the amount of insurance or demonstration of
financial responsibility required under Sec. 440.9(c) of the
Regulations, and do not exceed $1,500,000,000 (as adjusted for
inflation after January 1, 1989) above such amount, and are payable
pursuant to the provisions of 49 U.S.C. 70113 and Sec. 440.19 of the
Regulations; or (iv) Licensee has no liability for claims exceeding
$1,500,000,000 (as adjusted for inflation after January 1, 1989) above
the amount of insurance or demonstration of financial responsibility
required under Sec. 440.9(c) of the Regulations.
7. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by Licensee, Customer or the United States of any claim by an
employee of the Licensee, Customer or the United States, respectively,
including a member of the Armed Forces of the United States, for Bodily
Injury or Property Damage, resulting form Licensed Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility or
agreement to hold harmless and indemnify herein shall not apply to
claims for Bodily Injury or Property Damage resulting from willful
misconduct of any of the Parties, the Contractors and Subcontractors of
any of the Parties, and in the case of Licensee and Customer and the
Contractors and Subcontractors of each of them, the directors,
officers, agents and employees of any of the foregoing, and in the case
of the United States, its agents.
(c) In the event that more than one customer is involved in
Licensed Activities, references herein to Customer shall apply to, and
be deemed to include, each such customer severally and not jointly.
(d) This Agreement shall be governed by and construed in accordance
with United States Federal law.
In Witness Whereof, the Parties to this Agreement have caused the
Agreement to be duly executed by their respective duly authorized
representatives as of the date written above.
Licensee
By: --------
Its:--------
Customer
By: --------
Its: --------
Federal Aviation Administration of the Department of Transportation on
Behalf of the United States Government
By: --------
Its: --------
Associate Administrator for Commercial Space Transportation
Appendix C to Part 440--Agreement for Waiver of Claims and Assumption
of Responsibility for Permitted Activities
THIS AGREEMENT is entered into this ------ day of ------, by and
among [Permittee] (the ``Permittee''), [Customer] (the ``Customer'')
and the Federal Aviation Administration of the Department of
Transportation, on behalf of the United States Government
(collectively, the ``Parties''), to implement the provisions of section
440.17(c) of the Commercial Space Transportation Licensing Regulations,
14 CFR Ch. III (the ``Regulations'').
In consideration of the mutual releases and promises contained
herein, the Parties hereby agree as follows:
1. Definitions
Customer means the above-named Customer on behalf of the Customer
and any person described in Sec. 440.3 of the Regulations.
Permit means Permit No. ------ issued on ------, by the Associate
Administrator for Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation, to the Permittee,
including all permit orders issued in connection with the Permit.
Permittee means the holder of the Permit issued under 49 U.S.C.
Subtitle IX, ch. 701.
United States means the United States and its agencies involved in
Permitted Permit Activities.
Except as otherwise defined herein, terms used in this Agreement
and defined in 49 U.S.C. Subtitle IX, ch. 701--Commercial Space Launch
Activities, or in the Regulations, shall have the same meaning as
contained in 49 U.S.C. Subtitle IX, ch. 701, or the Regulations,
respectively.
2. Waiver and Release of Claims
(a) Permittee hereby waives and releases claims it may have against
Customer and the United States, and
[[Page 77286]]
against their respective Contractors and Subcontractors, for Property
Damage it sustains and for Bodily Injury or Property Damage sustained
by its own employees, resulting from Permitted Activities, regardless
of fault.
(b) Customer hereby waives and releases claims it may have against
Permittee and the United States, and against their respective
Contractors and Subcontractors, for Property Damage it sustains and for
Bodily Injury or Property Damage sustained by its own employees,
resulting from Permitted Activities, regardless of fault.
(c) The United States hereby waives and releases claims it may have
against Permittee and Customer, and against their respective
Contractors and Subcontractors, for Property Damage it sustains
resulting from Permitted Activities, regardless of fault, to the extent
that claims it would otherwise have for such damage exceed the amount
of insurance or demonstration of financial responsibility required
under section 440.9(e) of the Regulations.
3. Assumption of Responsibility
(a) Permittee and Customer shall each be responsible for Property
Damage it sustains and for Bodily Injury or Property Damage sustained
by its own employees, resulting from Permitted Activities, regardless
of fault. Permittee and Customer shall each hold harmless and indemnify
each other, the United States, and the Contractors and Subcontractors
of each Party, for Bodily Injury or Property Damage sustained by its
own employees, resulting from Permitted Activities, regardless of
fault.
(b) The United States shall be responsible for Property Damage it
sustains, resulting from Permitted Activities, regardless of fault, to
the extent that claims it would otherwise have for such damage exceed
the amount of insurance or demonstration of financial responsibility
required under section 440.9(e) of the Regulations.
4. Extension of Assumption of Responsibility and Waiver
(a) Permittee shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold harmless,
and indemnification, as set forth in paragraphs 2(a) and 3(a),
respectively, to its Contractors and Subcontractors by requiring them
to waive and release all claims they may have against Customer and the
United States, and against the respective Contractors and
Subcontractors of each, and to agree to be responsible, for Property
Damage they sustain and to be responsible, hold harmless and indemnify
Customer and the United States, and the respective Contractors and
Subcontractors of each, for Bodily Injury or Property Damage sustained
by their own employees, resulting from Permitted Activities, regardless
of fault.
(b) Customer shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold harmless,
and indemnification, as set forth in paragraphs 2(b) and 3(a),
respectively, to its Contractors and Subcontractors by requiring them
to waive and release all claims they may have against Permittee and the
United States, and against the respective Contractors and
Subcontractors of each, and to agree to be responsible for Property
Damage they sustain and to be responsible, hold harmless and indemnify
Permittee and the United States, and the respective Contractors and
Subcontractors of each, for Bodily Injury or Property Damage sustained
by their own employees, resulting from Permitted Activities, regardless
of fault.
(c) The United States shall extend the requirements of the waiver
and release of claims, and the assumption of responsibility as set
forth in paragraphs 2(c) and 3(b), respectively, to its Contractors and
Subcontractors by requiring them to waive and release all claims they
may have against Permittee and Customer, and against the respective
Contractors and Subcontractors of each, and to agree to be responsible
for any Property Damage they sustain, resulting from Permitted
Activities, regardless of fault, to the extent that claims they would
otherwise have for such damage exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(e) of the Regulations.
5. Indemnification
(a) Permittee shall hold harmless and indemnify Customer and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any or them, and the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any or
them, from and against liability, loss or damage arising out of claims
that Permittee's Contractors and Subcontractors may have for Property
Damage sustained by them and for Bodily Injury or Property Damage
sustained by their employees, resulting from Permitted Activities.
(b) Customer shall hold harmless and indemnify Permittee and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any or them, and the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any of
them, from and against liability, loss or damage arising out of claims
that Customer's Contractors and Subcontractors, or any person on whose
behalf Customer enters into this Agreement, may have for Property
Damage sustained by them and for Bodily Injury or Property Damage
sustained by their employees, resulting from Permitted Activities.
6. Assurances Under 49 U.S.C. 70112(e)
Notwithstanding any provision of this Agreement to the contrary,
Permittee shall hold harmless and indemnify the United States and its
agencies, servants, agents, employees and assignees, or any of them,
from and against liability, loss or damage arising out of claims for
Bodily Injury or Property Damage, resulting from Permitted Activities,
regardless of fault, except to the extent that it is provided in
section 7(b) of this Agreement, except to the extent that claims (i)
result from willful misconduct of the United States or its agents and
(ii) for Property Damage sustained by the United States or its
Contractors and Subcontractors exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(e) of the Regulations.
7. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by Permittee, Customer or the United States of any claim by an
employee of the Permittee, Customer or the United States, respectively,
including a member of the Armed Forces of the United States, for Bodily
Injury or Property Damage, resulting from Permitted Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility or
agreement to hold harmless and indemnify herein shall not apply to
claims for Bodily Injury or Property Damage resulting from willful
misconduct of any of the Parties, the Contractors and Subcontractors of
any of the Parties, and in the case of Permittee and Customer and the
Contractors and Subcontractors of each of them, the directors,
officers, agents and employees of any of the foregoing, and in the case
of the United States, its agents.
(c) In the event that more than one customer is involved in
Permitted Activities, references herein to Customer shall apply to, and
be deemed
[[Page 77287]]
to include, each such customer severally and not jointly.
(d) This Agreement shall be governed by and construed in accordance
with United States Federal law.
In witness whereof, the Parties to this Agreement have caused the
Agreement to be duly executed by their respective duly authorized
representatives as of the date written above.
Permittee
By: --------
Its: --------
Customer
By: --------
Its: --------
Federal Aviation Administration of the Department of Transportation on
Behalf of the United States Government
By: --------
Its: --------
Associate Administrator for Commercial Space Transportation
Appendix D to Part 440--Agreement for Waiver of Claims and Assumption
of Responsibility for a Crew Member
This agreement is entered into this -------- day of --------, by
and among [crew member] (the ``Crew Member'') and the Federal Aviation
Administration of the Department of Transportation, on behalf of the
United States Government (collectively, the ``Parties''), to implement
the provisions of section 440.17(f) of the Commercial Space
Transportation Licensing Regulations, 14 CFR Ch. III (the
``Regulations''). In consideration of the mutual releases and promises
contained herein, the Parties hereby agree as follows:
1. Definitions
Crew member means the above-named crew member.
License/Permit means License/Permit No. -------- issued on --------
, by the Associate Administrator for Commercial Space Transportation,
Federal Aviation Administration, Department of Transportation, to the
Licensee/Permittee, including all license/permit orders issued in
connection with the License/Permit.
Licensee/Permittee means the Licensee/Permittee and any transferee
of the Licensee under 49 U.S.C. Subtitle IX, ch. 701.
United States means the United States and its agencies involved in
Licensed/Permitted Activities.
Except as otherwise defined herein, terms used in this Agreement
and defined in 49 U.S.C. Subtitle IX, ch. 701--Commercial Space Launch
Activities, or in the Regulations, shall have the same meaning as
contained in 49 U.S.C. Subtitle IX, ch. 701, or the Regulations,
respectively.
2. Waiver and Release of Claims
(a) Crew member hereby waives and releases claims it may have
against the United States, and against their respective Contractors and
Subcontractors, for Bodily Injury or Property Damage sustained,
resulting from Licensed/Permitted Activities, regardless of fault.
(b) The United States hereby waives and releases claims it may have
against the crew member for Property Damage it sustains, and for Bodily
Injury or Property Damage sustained by its own employees, resulting
from Licensed/Permitted Activities, regardless of fault.
3. Assumption of Responsibility
(a) The crew member shall be responsible for Bodily Injury or
Property Damage sustained, resulting from Licensed/Permitted
Activities, regardless of fault. The crew member shall hold harmless
and indemnify the United States, and the Contractors and Subcontractors
of each Party, for Bodily Injury or Property Damage sustained by its
own employees, resulting from Licensed/Permitted Activities, regardless
of fault.
(b) The United States shall be responsible for Property Damage it
sustains, and for Bodily Injury or Property Damage sustained by its own
employees, resulting from Licensed Activities, regardless of fault, to
the extent that claims it would otherwise have for such damage or
injury exceed the amount of insurance or demonstration of financial
responsibility required under sections 440.9(c) and (e), respectively,
of the Regulations.
(c) The United States shall be responsible for Property Damage it
sustains, resulting from Permitted Activities, regardless of fault, to
the extent that claims it would otherwise have for such damage exceed
the amount of insurance or demonstration of financial responsibility
required under section 440.9(e) of the Regulations.
4. Extension of Assumption of Responsibility and Waiver
(a) The United States shall extend the requirements of the waiver
and release of claims, and the assumption of responsibility as set
forth in paragraphs 2(b) and 3(b), respectively, to its Contractors and
Subcontractors by requiring them to waive and release all claims they
may have against the crew member and to agree to be responsible for any
Property Damage they sustain and for any Bodily Injury or Property
Damage sustained by their own employees, resulting from Licensed
Activities, regardless of fault.
(b) The United States shall extend the requirements of the waiver
and release of claims, and the assumption of responsibility as set
forth in paragraphs 2(b) and 3(c), respectively, to its Contractors and
Subcontractors by requiring them to waive and release all claims they
may have against the crew member and to agree to be responsible for any
Property Damage they sustain, resulting from Permitted Activities,
regardless of fault.
5. Assurances Under 49 U.S.C. 70112(e)
Notwithstanding any provision of this Agreement to the contrary,
the crew member shall hold harmless the United States and its agencies,
servants, agents, employees and assignees, or any of them, from and
against liability, loss or damage arising out of claims for Bodily
Injury or Property Damage, resulting from Licensed/Permitted
Activities, regardless of fault, except to the extent that, as provided
in section 6(b) of this Agreement, claims result from willful
misconduct of the United States or its agents.
6. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by the United States of any claim by an employee of the United
States, respectively, including a member of the Armed Forces of the
United States, for Bodily Injury or Property Damage, resulting from
Licensed/Permitted Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility or
agreement to hold harmless and indemnify herein shall not apply to
claims for Bodily Injury or Property Damage resulting from willful
misconduct of any of the Parties, the Contractors and Subcontractors of
any of the Parties, and in the case of the United States, its agents.
(c) This Agreement shall be governed by and construed in accordance
with United States Federal law.
In witness whereof, the Parties to this Agreement have caused the
Agreement to be duly executed by their respective duly authorized
representatives as of the date written above.
Crew Member
Signature: --------
[[Page 77288]]
Printed Name: --------
Federal Aviation Administration of the Department of Transportation on
Behalf of the United States Government
By: ------------
Its: ------------
Associate Administrator for Commercial Space Transportation
Appendix E to Part 440--Agreement for Waiver of Claims and Assumption
of Responsibility for a Space Flight Participant
THIS AGREEMENT is entered into this -------- day of --------, by
and among [Space Flight Participant] (the ``Space Flight Participant'')
and the Federal Aviation Administration of the Department of
Transportation, on behalf of the United States Government
(collectively, the ``Parties''), to implement the provisions of section
440.17(e) of the Commercial Space Transportation Licensing Regulations,
14 CFR Ch. III (the ``Regulations'').
In consideration of the mutual releases and promises contained
herein, the Parties hereby agree as follows:
1. Definitions
Space Flight Participant means the above-named Space Flight
Participant, who is not crew, and is carried within a launch or reentry
vehicle.
License/Permit means License/Permit No. ------ issued on ------, by
the Associate Administrator for Commercial Space Transportation,
Federal Aviation Administration, Department of Transportation, to the
Licensee/Permittee, including all license/permit orders issued in
connection with the License/Permit.
Licensee/Permittee means the Licensee/Permittee and any transferee
of the Licensee under 49 U.S.C. Subtitle IX, ch. 701.
United States means the United States and its agencies involved in
Licensed/Permitted Activities.
Except as otherwise defined herein, terms used in this Agreement
and defined in 49 U.S.C. Subtitle IX, ch. 701--Commercial Space Launch
Activities, or in the Regulations, shall have the same meaning as
contained in 49 U.S.C. Subtitle IX, ch. 701, or the Regulations,
respectively.
2. Waiver and Release of Claims
(a) Space Flight Participant hereby waives and releases claims it
may have against the United States, and against its respective
Contractors and Subcontractors, for Bodily Injury or Property Damage
resulting from Licensed/Permitted Activities, regardless of fault.
(b) The United States hereby waives and releases claims it may have
against Space Flight Participant for Property Damage it sustains, and
for Bodily Injury or Property Damage sustained by its own employees,
resulting from Licensed/Permitted Activities, regardless of fault.
3. Assumption of Responsibility
(a) Space Flight Participant shall each be responsible for Bodily
Injury or Property Damage sustained resulting from Licensed/Permitted
Activities, regardless of fault. Space Flight Participant shall hold
harmless and indemnify the United States, and its Contractors and
Subcontractors, for Bodily Injury or Property Damage sustained from
Licensed/Permitted Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage it
sustains, and for Bodily Injury or Property Damage sustained by its own
employees, resulting from Licensed Activities, regardless of fault, to
the extent that claims it would otherwise have for such damage or
injury exceed the amount of insurance or demonstration of financial
responsibility required under sections 440.9(c) and (e), respectively,
of the Regulations.
(c) The United States shall be responsible for Property Damage it
sustains, resulting from Permitted Activities, regardless of fault, to
the extent that claims it would otherwise have for such damage exceed
the amount of insurance or demonstration of financial responsibility
required under section 440.9(e) of the Regulations.
4. Extension of Assumption of Responsibility and Waiver
(a) The United States shall extend the requirements of the waiver
and release of claims, and the assumption of responsibility as set
forth in paragraphs 2(b) and 3(b), respectively, to its Contractors and
Subcontractors by requiring them to waive and release all claims they
may have against Space Flight Participant, and to agree to be
responsible, for any Property Damage they sustain and for any Bodily
Injury or Property Damage sustained by their own employees, resulting
from Licensed Activities, regardless of fault.
(b) The United States shall extend the requirements of the waiver
and release of claims, and the assumption of responsibility as set
forth in paragraphs 2(b) and 3(c), respectively, to its Contractors and
Subcontractors by requiring them to waive and release all claims they
may have against the crew member and to agree to be responsible, for
any Property Damage they sustain, resulting from Permitted Activities,
regardless of fault.
5. Assurances Under 49 U.S.C. 70112(e)
Notwithstanding any provision of this Agreement to the contrary,
Space Flight Participant shall hold harmless the United States and its
agencies, servants, agents, employees and assignees, or any of them,
from and against liability, loss or damage arising out of claims for
Bodily Injury or Property Damage, resulting from Licensed/Permitted
Activities, regardless of fault, except to the extent that, as provided
in section 6(b) of this Agreement, claims result from willful
misconduct of the United States or its agents.
6. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by Space Flight Participant or the United States of any claim
by an employee of the Space Flight Participant or the United States,
respectively, including a member of the Armed Forces of the United
States, for Bodily Injury or Property Damage, resulting from Licensed/
Permitted Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility or
agreement to hold harmless and indemnify herein shall not apply to
claims for Bodily Injury or Property Damage resulting from willful
misconduct of any of the Parties, the Contractors, Subcontractors, and
agents of the United States, and Space Flight Participant.
(c) This Agreement shall be governed by and construed in accordance
with United States Federal law.
In witness whereof, the Parties to this Agreement have caused the
Agreement to be duly executed by their respective duly authorized
representatives as of the date written above.
Space Flight Participant
Signature: --------
Printed Name: --------
Federal Aviation Administration of the Department of Transportation on
Behalf of the United States Government
By: --------
Its: --------
Associate Administrator for Commercial Space Transportation
10. Add part 460 to read as follows:
[[Page 77289]]
PART 460--HUMAN SPACE FLIGHT REQUIREMENTS
Subpart A--Launch and Reentry With Crew
Sec.
460.1 Scope.
460.3 Applicability.
460.5 Crew qualifications and training.
460.7 Operator training of crew.
460.9 Informing crew of risk.
460.11 Environmental control and life support systems.
460.13 Smoke detection and fire suppression.
460.15 Human factors.
460.17 Verification program.
460.19 Crew waiver of claims against U.S. Government.
460.20-460.40 [Reserved]
Subpart B--Launch and Reentry With a Space Flight Participant
460.41 Scope.
460.43 Applicability.
460.45 Operator informing space flight participant of risk.
460.47 [Reserved]
460.49 Space flight participant waiver of claims against U.S.
Government.
460.51 Space flight participant training.
460.53 Security.
Authority: 49 U.S.C. 70105
Sec. 460.1 Scope.
This subpart establishes requirements for crew of a vehicle whose
operator is licensed or permitted under this chapter.
Sec. 460.3 Applicability.
(a) This subpart applies to:
(1) An applicant for a license or permit under this chapter who
proposes to have flight crew on board a vehicle or proposes to employ a
remote operator of a vehicle with a human on board.
(2) An operator licensed or permitted under this chapter who has
flight crew on board a vehicle or who employs a remote operator of a
vehicle with a human on board.
(3) A crew member participating in an activity authorized under
this chapter.
(b) Each member of the crew must comply with all requirements of
the laws of the United States that apply.
Sec. 460.5 Crew qualifications and training.
(a) Each crew member must--
(1) Possess and carry an FAA second-class airman medical
certificate issued in accordance with 14 CFR part 67 and issued within
12 months prior to launch or reentry;
(2) Complete training on how to carry out his or her role on board
or on the ground so that the vehicle will not harm the public; and
(3) Train for his or her role in nominal and non-nominal
conditions. The conditions must include--
(i) Abort scenarios; and
(ii) Emergency operations.
(b) Each member of a flight crew must demonstrate an ability to
withstand the stresses of space flight, sufficiently to carry out his
or her role on board so that the vehicle will not harm the public. The
stresses of space flight may include high acceleration or deceleration,
microgravity, and vibration.
(c) A pilot and a remote operator must--
(1) Possess and carry an FAA pilot certificate
(i) With an instrument rating; and
(ii) That demonstrates the knowledge of the National Airspace
System (NAS) necessary to operate the vehicle.
(2) Possess aeronautical experience and skills necessary to pilot
and control the vehicle for any launch or reentry vehicle that will
operate in the NAS. Aeronautical experience may include hours in
flight, ratings, and training.
(3) Receive vehicle and mission-specific training for each phase of
flight by using one or more of the following--
(i) A method or device that simulates the flight;
(ii) An aircraft whose characteristics are similar to the vehicle
or any phase of its flight;
(iii) Flight testing; or
(iv) An equivalent method of training as approved by the FAA
through the licensing or permitting process.
(4) Train in procedures that direct the vehicle away from the
public in the event the flight crew abandons the vehicle during flight;
and
(5) Train for each mode of control or propulsion, including any
transition between modes, such that the pilot or remote operator is
able to control the vehicle.
Sec. 460.7 Operator training of crew.
(a) Implementation of training. An operator must train each member
of its crew and define standards for successful completion in
accordance with Sec. 460.5.
(b) Training device fidelity. An operator must ensure that any
crew-training device used to meet the training requirements
realistically represents the vehicle's configuration and mission or the
operator must inform the crew member being trained of the differences.
(c) Maintenance of training records. An operator must continually
update the crew training to ensure that it incorporates lessons learned
from training and operational missions. An operator must--
(1) Track each revision and update in writing; and
(2) Document the completed training for each crew member and
maintain the documentation for each active crew member.
(d) Current qualifications and training. An operator must establish
a recurrent training schedule and ensure that all crew qualifications
and training required by Sec. 460.5 are current before launch or
reentry.
Sec. 460.9 Informing crew of risk.
An operator must inform in writing any individual serving as crew
that the United States Government has not certified the launch vehicle
as safe for carrying flight crew or space flight participants. An
operator must provide this information--
(a) Before entering into any contract or other arrangement to
employ that individual; or
(b) For any crew member employed as of December 23, 2004, as early
as possible and prior to any launch in which that individual will
participate as crew.
Sec. 460.11 Environmental control and life support systems.
(a) An operator must provide atmospheric conditions adequate to
sustain life and consciousness for all inhabited areas within a
vehicle. The operator or flight crew must monitor and control the
following atmospheric conditions in the inhabited areas--
(1) Composition of the atmosphere, which includes oxygen and carbon
dioxide, and any revitalization;
(2) Pressure, temperature and humidity;
(3) Contaminants that include particulates and any harmful or
hazardous concentrations of gases, or vapors; and
(4) Ventilation and circulation.
(b) An operator must provide an adequate redundant or secondary
oxygen supply for the flight crew.
(c) An operator must
(1) Provide a redundant means of preventing cabin depressurization;
or
(2) Prevent incapacitation of any of the flight crew in the event
of loss of cabin pressure.
Sec. 460.13 Smoke detection and fire suppression.
An operator or crew must have the ability to detect smoke and
suppress a cabin fire to prevent incapacitation of the flight crew.
Sec. 460. 15 Human factors.
An operator must take the precautions necessary to account for
human factors that can affect a crew's ability to perform safety-
critical roles, including in the following safety critical areas--
(a) Design and layout of displays and controls;
(b) Mission planning, which includes analyzing tasks and allocating
functions between humans and equipment;
[[Page 77290]]
(c) Restraint or stowage of all individuals and objects in a
vehicle; and
(d) Vehicle operation, so that the vehicle will be operated in a
manner that flight crew can withstand any physical stress factors, such
as acceleration, vibration, and noise.
Sec. 460.17 Verification program.
An operator must successfully verify the integrated performance of
a vehicle's hardware and any software in an operational flight
environment before allowing any space flight participant on board
during a flight. Verification must include flight testing.
Sec. 460. 19 Crew waiver of claims against U.S. Government.
Each member of a flight crew and any remote operator must execute a
reciprocal waiver of claims with the Federal Aviation Administration of
the Department of Transportation in accordance with the requirements of
part 440.
Sec. Sec. 460. 20-460.40 [Reserved]
Subpart B--Launch and reentry with a space flight participant
Sec. 460.41 Scope.
This subpart establishes requirements for space flight participants
on board a vehicle whose operator is licensed or permitted under this
chapter.
Sec. 460.43 Applicability.
This subpart applies to:
(a) An applicant for a license or permit under this chapter who
proposes to have a space flight participant on board a vehicle;
(b) An operator licensed or permitted under this chapter who has a
space flight participant on board a vehicle; and
(c) A space flight participant participating in an activity
authorized under this chapter.
Sec. 460.45 Operator informing space flight participant of risk.
(a) Before receiving compensation or making an agreement to fly a
space flight participant an operator must satisfy the requirements of
this section. An operator must inform each space flight participant in
writing about the risks of the launch and reentry, including the safety
record of the launch or reentry vehicle type. An operator must present
this information in a manner that is understandable to the space flight
participant and must disclose in writing--
(1) For each mission, the known hazards and risks that could result
in a serious injury, death, disability, total or partial loss of
physical and mental function; and
(2) That participation in space flight may result in death, serious
injury or total or partial loss of physical or mental function.
(b) An operator must inform each space flight participant that the
United States Government has not certified the launch vehicle as safe
for carrying crew or space flight participants.
(c) An operator must inform each space flight participant of the
safety record of all launch or reentry vehicles that have carried one
or more persons on board, including both U.S. government and private
sector vehicles. This information must include--
(1) The total number of people who have been on a suborbital or
orbital space flight and the total number of people who have died or
been seriously injured on these flights; and
(2) The total number of launches and reentries conducted with
people on board and the number of catastrophic failures of those
launches.
(d) An operator must describe the safety record of its vehicle to
each space flight participant. The operator's safety record must
include--
(1) The number of vehicle flights;
(2) The number of safety-related anomalies or failures that
occurred on the ground and in flight on all past launches and reentries
of that vehicle; and
(3) Whether any corrective actions were taken to resolve these
safety-related anomalies or failures.
(e) An operator must inform a space flight participant that he may
request additional information as described in (f) of this section.
(f) If a space flight participant asks, an operator must describe
the safety-related anomalies or failures that occurred on the ground
and in flight and what corrective actions were taken, if any.
(g) Before flight, each space flight participant must provide
informed consent in writing to participate in a launch or reentry. The
written informed consent must--
(1) Identify the specific launch vehicle the consent covers;
(2) State that the space flight participant understands the risk,
and his or her presence on board the launch vehicle is voluntary;
(3) Be signed and dated by the space flight participant.
Sec. 460.47 [Reserved]
Sec. 460.49 Space flight participant waiver of claims against U.S.
Government.
Each space flight participant must execute a reciprocal waiver of
claims with the Federal Aviation Administration of the Department of
Transportation in accordance with the requirements of part 440.
Sec. 460.51 Space flight participant training.
An operator must train each space flight participant before flight
on how to respond to emergency situations, including smoke, fire, loss
of cabin pressure, and emergency exit.
Sec. 460.53 Security.
An operator must implement security requirements to prevent any
space flight participant from jeopardizing the safety of the flight
crew or the public. A space flight participant may not carry on board
any explosives, firearms, knives, or other weapons.
Issued in Washington, DC, on December 22, 2005.
Patricia G. Smith,
Associate Administrator for Commercial Space Transportation.
[FR Doc. 05-24555 Filed 12-23-05; 10:26 am]
BILLING CODE 4910-13-P