[Federal Register Volume 71, Number 241 (Friday, December 15, 2006)]
[Rules and Regulations]
[Pages 75616-75645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21193]



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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, 431, 435, 440 and 460



Human Space Flight Requirements for Crew and Space Flight Participants; 
Final Rule

  Federal Register / Vol. 71, No. 241 / Friday, December 15, 2006 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 401, 415, 431, 435, 440 and 460

[Docket No. FAA-2005-23449]
RIN 2120-AI57


Human Space Flight Requirements for Crew and Space Flight 
Participants

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: The FAA is establishing requirements for human space flight as 
required by the Commercial Space Launch Amendments Act of 2004, 
including rules on crew qualifications and training, and informed 
consent for crew and space flight participants. The requirements should 
provide an acceptable level of safety to the general public and ensure 
individuals on board are aware of the risks associated with a launch or 
reentry. The rule also applies existing financial responsibility and 
waiver of liability requirements to human space flight and experimental 
permits. Experimental permits are the subject of a separate rulemaking.

Dates: Effective Date:
    These amendments become effective February 13, 2007.
    Compliance Date: Affected parties, however, do not have to comply 
with the information collection requirements in Sec. Sec.  460.5, 
460.7, 460.9, 460.19, 460.45, and 460.49 until the FAA publishes in the 
Federal Register the control number assigned by the Office of 
Management and Budget (OMB) for these information collection 
requirements. Publication of the control number notifies the public 
that OMB has approved these information collection requirements under 
the Paperwork Reduction Act of 1995.

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 [email protected]. 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 [email protected].

SUPPLEMENTARY INFORMATION:

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 FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or
    (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 amendment number or docket number of this 
rulemaking.
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted 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 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires the FAA to comply with small entity requests for 
information or advice about compliance with statutes and regulations 
within its jurisdiction. If you are a small entity and you have a 
question regarding this document, you may contact your local FAA 
official, or the person listed under FOR FURTHER INFORMATION CONTACT. 
You can find out more about SBREFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

Authority for This Rulemaking

    The FAA's authority to issue rules on commercial space 
transportation safety is found in Title 49 of the United States Codes, 
section 322(a), which authorizes the Secretary of Transportation to 
carry out Subtitle IX, Chapter 701, 49 U.S.C. 70101-70121 (Chapter 
701). The Commercial Space Launch Amendments Act of 2004 (the CSLAA) 
provides additional 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 satisfied medical or other conditions specified 
in a license or permit, all in accordance with FAA regulations. This 
rulemaking imposes crew qualification and training requirements and 
implements the statutory requirement that an operator advise the flight 
crew and any space flight participant that the U.S. Government has not 
certified the launch vehicle as safe. Section 70105(b)(5) directs the 
FAA to promulgate regulations requiring that the holder of a license or 
permit inform each space flight participant in writing about the risks 
of launch or reentry.

Table of Contents

I. Background
II. Description of Final Rule and Discussion of Comments
    A. Equivalent Level of Safety
    B. Launch and Reentry With Crew
    1. Definitions
    a. Cabin Crew Suggestion
    b. Recommendations Regarding Personnel on the Ground
    c. Carrier Aircraft Personnel
    d. Payment for Pilot or Remote Operator Training
    2. Authority
    3. Pilot Qualifications
    4. Remote Operator Qualifications
    5. Medical Standards for Crew
    a. Objections to Requiring Medical Certification of Crew Who Do 
Not Have a Safety-Critical Role
    b. Recommendations for More Stringent Medical Standards
    6. Crew Training
    7. Crew Notification
    8. Environmental Control and Life Support System
    a. Requiring Both Monitoring and Control of Atmospheric 
Conditions or Requiring Only Control
    b. Open-Loop System Versus Closed-Loop System
    c. Other Environmental Control and Life Support System Related 
Comments
    d. Guidance Plans
    9. Smoke Detection and Fire Suppression
    10. Human Factors
    11. Verification Program
    12. Crew Waiver of Claims Against U.S. Government
    13. Professional Engineer
    C. Launch and Reentry With a Space Flight Participant
    1. Risk to Space Flight Participants
    2. Informed Consent
    a. Space Flight Participant's Ability To Be Informed
    3. Physical Examination
    4. Space Flight Participant Waiver of Claims Against U.S. 
Government
    5. Space Flight Participant Training
    6. Security Requirements
    D. Financial Responsibility and Waiver of Liability
    1. Changes From What the FAA Proposed in the NPRM
    2. Waivers of Claims
    3. Federal Preemption
    4. Insurance
    5. Maximum Probable Loss

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III. Rulemaking Analyses
IV. The Amendment

I. Background

    On December 23, 2005, the FAA published a notice of proposed 
rulemaking (NPRM), ``Human Space Flight Requirements for Crew and Space 
Flight Participants'' 70 FR 77261 (Dec. 29, 2005), which discusses the 
background of the CSLAA and the nascent human space flight industry. 
The NPRM also discusses the safety considerations underlying the FAA's 
proposed requirements and each alternative that the agency considered.
    In the CSLAA, Congress also directed the FAA to issue guidelines or 
advisory materials to guide the implementation of the law as soon as 
practical, and to promulgate requirements governing experimental 
permits. 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.'' On March 31, 2006, 
the FAA published an NPRM, ``Experimental Permits for Reusable 
Suborbital Rockets.'' 71 FR 16251.

II. Description of Final Rule and Discussion of Comments

    In this final rule, the FAA changes parts 401, 415, 431, 435 and 
440 of Title 14 of the Code of Federal Regulations and establishes a 
new part 460 in response to the CSLAA's requirement to issue 
regulations governing crew and space flight participant, by June 23, 
2006. Revisions in part 440 codify the financial responsibility and 
risk allocation regime for activities authorized by a permit and for 
crew and space flight participants. These requirements supplement other 
launch and reentry regulations, including those in parts 415, 431, and 
435. For example, part 431 governs reusable launch vehicle operations, 
and contains system safety and risk requirements and operational 
constraints. An operator of a reusable launch vehicle with a person on 
board must comply with this rule and part 431.
    Part 460 applies to anyone applying for or having a license or 
permit under Title 14 Code of Federal Regulation (CFR) Chapter III, who 
conducts a flight with crew or space flight participants on board a 
vehicle, or employs a remote operator of a vehicle with a human on 
board.\1\ This part also applies to a space flight participant or crew 
member participating in an activity authorized under 14 CFR Chapter 
III. Part 460 defines crew and flight crew and imposes notification, 
medical, qualification, and training requirements. It also promulgates 
informed consent and training requirements for space flight 
participants.
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    \1\ For a vehicle with no one on board that is controlled by a 
remote operator part 460 does not apply. Instead, an operator will 
be governed by other parts, such as parts 431 and 435.
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    The FAA received comments from forty-two entities, including 
aerospace companies, associations, service providers, individuals and 
other agencies of the U.S. Government. Operators of launch and reentry 
vehicles who provided comments include Blue Origin, LLC (Blue Origin), 
the Personal Spaceflight Federation \2\ (Federation), Rocketplane 
Limited, Inc. (Rocketplane), TGV Rockets, Inc., and XCOR Aerospace 
(XCOR). The following associations, individuals and service providers 
also commented: Airline Pilots Association International (ALPA); 
Association of Space Explorers-USA (ASE), International Association of 
Space Entrepreneurs and Institute for Space Law and Policy (IASE and 
ISLAP); Knutson & Associates, Attorneys at Law (Knutson); Nickolaus 
Leggett (Leggett); Planehook Aviation Services, LLC (Planehook); 
Predesa, LLC (Predesa) and James Snead.
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    \2\ The Federation is a non-profit trade association consisting 
of companies whose business involves or will involve commercial 
human space flight. They provided consensus comments on the NPRM and 
consist of the following: Air Launch, Armadillo Aerospace, Bigelow 
Aerospace, Mojave Spaceport, RocketPlane Limited, Inc., Scaled 
Composites, Space Adventures, SpaceDev, Space Explorations 
Technologies Corporation (SpaceX), The SpaceShip Company, XCOR 
Aerospace, X PRIZE Foundation, and Virgin Galactic.
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    In general, the commenters supported the proposed requirements, but 
with several suggested changes.

A. Equivalent Level of Safety

    The Federation recommended that the FAA consider allowing means of 
compliance other than those identified in the regulations. In part 460, 
the FAA will allow an operator to demonstrate that an alternative 
method of compliance for certain requirements provides an equivalent 
level of safety and satisfies the rule. The FAA notes that many of the 
requirements of this part are performance standards that already offer 
operators a great deal of flexibility. Where a requirement is 
prescriptive, such as when the FAA requires a pilot certificate, the 
FAA does not contemplate approving alternatives through the license or 
permit process unless the requirement explicitly allows alternatives. 
As the Federation noted, the FAA also has the ability to grant waivers 
under 14 CFR 404.3. If an operator wishes to pursue a course that is 
not consistent with the requirements of part 460, the operator must 
apply for a waiver.

B. Launch and Reentry With Crew

    Subpart A of part 460 applies to the flight crew and any remote 
operator. The only ground crew covered is a remote operator.
1. Definitions
    The FAA is retaining the definition of crew required by the CSLAA, 
that is, any employee 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. As proposed in 
the NPRM, a crew consists of flight crew, crew on board a vehicle 
during a launch or reentry, and any remote operator. Also, crew members 
may be independent contractors as well as employees. As it explained in 
the NPRM, the FAA defines crew to include all personnel on board, 
namely the flight crew, as part of the crew, and thus give a broader 
meaning to crew than one consisting only of 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. Limiting ground crew to remote operators avoids 
providing notice to personnel on the ground about the dangers of a 
vehicle they are not going to board. Were the FAA to include more 
ground personnel as crew, the CSLAA would require an operator to inform 
those persons that the U.S. Government has not certified the vehicle as 
safe for carrying crew or space flight participants, 49 U.S.C. 
70105(b)(4)(B), which seems an exercise of no benefit.
    Commenters raised a number of questions regarding the definition of 
crew. With the exception of those related to the requirement for a 
second-class airman medical certificate, they are addressed here.
    a. Cabin Crew. The IASE and ISLAP suggested that distinguishing 
between ``cabin crew'' and ``flight crew'' would ensure that the 
fundamental difference between them--direct involvement in

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vehicle operation as opposed to passenger safety and comfort--would be 
recognized in future regulations while facilitating clearer discussion 
of the regulatory responsibilities of each crew member. This suggestion 
is premature. The FAA will address the recommendation when those 
circumstances arise.
    b. Personnel on the Ground. The FAA, as it proposed in the NPRM, 
defines a remote operator as a crew member who has the ability to 
control, in real time, a launch or reentry vehicle's flight path, and 
is not on board the vehicle. This means that a remote operator is the 
only member of the ground crew.\3\
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    \3\ ASE commented that it believes the portion of the definition 
of crew ``A crew consists of flight crew and any remote operator'' 
to mean if a person is not a flight crew member or a remote 
operator, then that person is not crew. ASE recommended that the 
definition read ``A crew consists only of flight crew and any remote 
operator'' to avoid any misinterpretation. The FAA does not 
incorporate the suggested change because it is unnecessary but 
confirms in this document that if a person is not a flight crew 
member or a remote operator, then that person is not crew.
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    Blue Origin requested that the FAA clarify the definition of remote 
operator to ensure the exclusion of persons on the ground from the 
definition of crew. Blue Origin recommended that the FAA clarify that 
``control'' means navigation and control of the vehicle, rather than 
merely being in the chain of command. Blue Origin's clarification would 
preclude someone who initiated a launch or an abort from being 
considered part of the crew. Blue Origin reasoned that launch decisions 
will often be made by a launch director after receiving input from all 
groups, including air traffic control.
    As explained in the NPRM, a remote operator is someone who actively 
controls the vehicle, and does more than initiate or abort a launch in 
progress. Active control encompasses navigation as well as control. A 
mission flight control officer in charge of terminating the flight of 
an errant expendable launch vehicle would not be treated as a remote 
operator because he or she does not have the ability to control, in 
real time, the vehicle's flight path. Accordingly, the FAA does not 
need to adopt Blue Origin's suggestion.
    Predesa suggested expanding ground crew to include ``specialists 
who monitor and maintain vehicle systems via telemetry'' as they may 
assist a remote operator or pilot, and provide information or modify 
the operations of vehicle systems during flight. Predesa recommended 
that these personnel possess FAA flight engineer certification or FAA 
pilot certification. Predesa does not believe that persons who are not 
on board should be subjected to lesser standards merely because of 
their location.
    The FAA has decided against expanding the definition because the 
personnel, even though not covered under part 460 if not on board the 
launch or reentry vehicle, will be subjected, during the license or 
permit process, to the standards appropriate to their roles. For 
example, an applicant proposing a reusable launch vehicle mission would 
have to meet part 431, which requires that a licensed operator 
implement a system safety process and operational restrictions and 
satisfy risk requirements. As part of the system safety process, 
personnel on the ground will receive training to carry out their roles 
safely, and it is through this training that the personnel on the 
ground will be held to standards appropriate to their roles. As part of 
the proposed requirements for obtaining an experimental permit, the FAA 
intends to require an applicant conduct a hazard analysis. Human error 
issues and training of ground personnel would be addressed through this 
analysis. Also, part 431 requirements address the readiness of vehicle 
safety operations personnel to support flight under nominal and non-
nominal conditions.
    c. Carrier Aircraft Personnel. Dassault Aviation and Spaceport 
Associates asked whether the crew of a carrier aircraft \4\ would be 
included as crew under part 460. Spaceport Associates pointed out that, 
in one sense, crew of a carrier aircraft are effectively providing the 
first stage of the launch although not themselves subject to 
extraordinary biomedical stresses. Planehook commented that adopting 
the term ``spacecraft pilot'' would reduce confusion when 
distinguishing between the pilot of an aircraft and the pilot of a 
launch vehicle. According to Planehook, the training of crew on a 
carrier aircraft should be addressed in 14 CFR part 61 because the 
vehicle is most likely to remain an air-breathing aircraft. This 
rulemaking does not treat crew on board a carrier aircraft as crew 
under part 460.
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    \4\ Some licensees have used aircraft to assist in space launch. 
Orbital Sciences Corporation's Pegasus launch vehicle is air-
launched from an L-1011 carrier aircraft. Scaled Composites' 
SpaceShipOne was air-launched from a White Knight carrier aircraft. 
The L-1011 was issued a supplemental type certificate and operates 
under two FAA airworthiness certificates: A standard airworthiness 
certificate for operation without Pegasus and a restricted 
airworthiness certificate for operations with the Pegasus launch 
vehicle. White Knight operated under a special airworthiness 
certificate in the experimental category when it was operating alone 
or carrying SpaceShipOne. The FAA did not impose requirements on the 
crew of the carrier aircraft other than those required by the FAA's 
aviation requirements.
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    The FAA defines flight crew to mean crew that is on board a vehicle 
during a launch or reentry. The crew aboard the aircraft are already 
covered by existing FAA regulations. Thus, new terms such as spacecraft 
pilot are not necessary to distinguish between aviation and space 
flight crew.
    d. Payment for Pilot or Remote Operator Training. Under this final 
rule, the FAA will not allow a space flight participant to act as a 
pilot or remote operator of a launch or reentry vehicle. ASE noted that 
it is possible that a qualified, medically-certified person may wish to 
pay an operator to pilot the operator's vehicle. The FAA notes that 
someone paying to fly, whether as a passenger or at the controls, is a 
space flight participant rather than an employee.
    For public safety reasons, the FAA will not allow space flight 
participants to pilot launch or reentry vehicles at this time. A space 
flight participant who wants to pilot a launch or reentry vehicle would 
have to become an employee or independent contractor of the operator to 
acquire vehicle and mission-specific training. The operator will be in 
a better position to evaluate the skills of an employee or independent 
contractor than of a space flight participant, particularly as those 
skills relate to the requirements of the operator's particular vehicle. 
The FAA acknowledges that this restriction may create a dilemma for 
someone who wishes to acquire training in order to become employed, 
but, while the technology is so new, it is important for public safety 
that pilots be highly skilled at the outset.
2. Authority
    The FAA has the authority to protect crew. Spaceport Associates 
questioned the FAA's authority to protect crew when it commented that 
the FAA should not implement design requirements to protect crew, 
particularly in light of the requirement to notify crew members that a 
vehicle has not been certified as safe. The commenter observed, in 
effect, that the FAA was limited to protecting the general public. 
Under the CSLAA, the FAA has the authority to protect the crew because 
they are part of the flight safety system that protects the general 
public.\5\
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    \5\ Even before the passage of the CSLAA, this has been the 
case. In April 2004 the FAA issued two RLV mission specific 
licenses: one to Scaled Composites and one to XCOR. These licenses 
apply to suborbital RLV missions with a pilot on board, where the 
FAA addressed the safety of the crew in order to protect the public. 
See also, Notice of Policy, 68 FR 56039, 56040 (Sept. 29, 2003).

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3. Pilot Qualifications
    As proposed in the NPRM, Sec.  460.5 requires a pilot of a launch 
or reentry vehicle to possess and carry an FAA pilot certificate with 
an instrument rating. The FAA invited public comment on the proposed 
requirement and received differing views.
    Some commenters considered the requirement too lenient. TGV 
suggested that a pilot certificate might only partially address the 
knowledge, skills, and abilities necessary for safety. TGV recommended 
that, in addition to a pilot certificate, the FAA require test pilot 
credentials or military supersonic experience for single piloted 
suborbital and orbital vehicles. Because having a pilot certificate may 
not be sufficient, Sec.  460.5(c)(2) requires aeronautical experience 
and skills necessary to pilot and control the vehicle.
    The Federation and Planehook agreed with the requirement for a 
pilot to have an instrument rating because, as Planehook commented, the 
trajectory of a vehicle will pass through Class A airspace at least 
twice. ALPA also agreed that the pilots or flight crew, including any 
remote operators acting under part 460, should be certificated.
    Focusing on a possible exception to the utility of requiring a 
pilot certificate, Mr. Nickolaus Leggett recommended against requiring 
pilots and remote operators of launch vehicles that do not have 
aircraft characteristics to possess an FAA pilot certificate with an 
instrument rating. He pointed out that a strictly ballistic suborbital 
vehicle consisting of a capsule and parachute does not require 
conventional piloting skills at all. Similarly, Starchaser recommended 
not requiring a pilot certificate at all and relying only on the 
performance requirement that a pilot possess the necessary skills and 
experience for the vehicle. An Air Force member of the Common Standards 
Working Group (CSWG) \6\ recommended that the FAA not require that a 
pilot be certified when a vehicle is unique and lacks any similarity to 
an airplane.\7\ The commenter suggested that a properly trained 
engineer may be a better choice as a pilot for the vehicles that do not 
resemble aircraft. If the key criterion is to protect the public, an 
individual intimately familiar with the unique vehicle design, 
capabilities, and properly trained in the operation and recovery of 
such vehicles could be a better choice to operate the vehicle than a 
pilot.
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    \6\ The CSWG consists of Air Force, FAA, and other government 
agencies. The CSWG develops, documents, and maintains common safety 
standards for public safety of the launch and reentry of launch and 
reentry vehicles.
    \7\ The commenter agreed with requiring pilot certification 
where a vehicle has many characteristics in common with an airplane.
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    The FAA requires a pilot certificate so that a pilot of a reusable 
launch vehicle has a basic level of aeronautical experience, an 
understanding of the National Airspace System (NAS), and an 
understanding of the regulatory requirements under which aircraft in 
the NAS operate, including cloud clearance requirements and airspace 
restrictions. This awareness will enhance overall safety of the NAS, 
regardless of whether a vehicle has wings. An instrument rating should 
ensure that pilots of launch and reentry vehicles have acquired the 
skills of scanning cockpit displays, correctly interpreting the 
instruments, and responding with correct control inputs. The FAA 
expects that regardless of the kind of vehicle used, there will be 
times when a pilot will be relying on instrument skills and competency. 
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.
    Planehook commented that a pilot or remote operator of a vehicle 
should have a commercial pilot certificate appropriate to the type of 
vehicle flown. The FAA's guidelines contain such a recommendation. The 
FAA did not, however, propose in the NPRM to implement this guideline 
as a requirement. The FAA did not 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. The pilot certification is not directly 
transferable from aircraft to launch or reentry vehicles. Rocket-
powered vehicles do not operate as aircraft. As Mr. Leggett noted, even 
for a more manually controlled ballistic vehicle, the skills required 
differ from those of an aircraft pilot.
    The FAA recognizes the validity of these comments. Accordingly, the 
agency is adopting a performance requirement, Sec.  460.5(c)(2), that 
requires a pilot and remote operator to possess aeronautical experience 
and skills necessary to pilot and control the vehicle for any launch or 
reentry vehicle that will operate in the NAS. To avoid overly burdening 
the industry, and in recognition of the diverse range of vehicles 
proposed, the FAA does not require an RLV pilot to hold a pilot 
certificate for a specific category of aircraft or to have a specific 
instrument rating on that certificate.
4. Remote Operator Qualifications
    Section 460.5 requires a remote operator to possess and carry a 
pilot certificate with an instrument rating. Section 460.5(c)(1)(iii), 
however, allows an operator to demonstrate through the license or 
permit process that an alternative approach provides an equivalent 
level of safety. In the NPRM, the FAA invited public comment on the 
proposed requirement that a remote operator of a launch or reentry 
vehicle with a human on board possess an FAA pilot certificate with an 
instrument rating and that he or she demonstrate the knowledge of the 
NAS necessary to operate the vehicle.
    Predesa questioned whether it was safe to allow remote operators at 
all. Predesa pointed out that remote operation of a vehicle could lead 
to concerns over the security and integrity of telemetry from the 
vehicle and of the commands sent to control the vehicle. Predesa 
recommended redundancy in the communications channel or on-board back 
up in the form of a trajectory controller or, preferably, a pilot on 
board. James Snead also recommended that a pilot be on board because 
there is no precedent for flight without one.
    The FAA notes that there is precedence for permitting remote 
operators to control a vehicle. Unmanned aerial vehicles (UAVs) are 
already operated by the National Aeronautics and Space Administration 
(NASA) and the military services, and authorized by the FAA. The FAA 
will address whether the operators can sufficiently control a vehicle 
through the license or permit process on a case-by-case basis. The 
safety issues, such as those raised by Predesa, will also be addressed 
in that process.
    The Federation and Starchaser recommended against requiring remote 
operators to possess pilot certificates at all, let alone with an 
instrument rating. The Federation recommended that remote operators 
still demonstrate knowledge, albeit with wide latitude, of the NAS and 
the deconfliction of airspace necessary to safely operate the vehicle. 
The Federation claimed the variety of possible vehicles and control 
schemes renders unnecessary a requirement that remote operators possess 
a pilot's certificate. According to the Federation, operators can and 
should be allowed to demonstrate their knowledge of the NAS in other 
ways, such as by written test. The Federation noted that John Carmack 
of Armadillo

[[Page 75620]]

Aerospace successfully operated a vertical takeoff, vertical landing 
vehicle remotely at the 2005 X PRIZE Cup, without the use of a pilot's 
license or instrumentation resembling that of an aircraft cockpit.\8\
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    \8\ It should be noted that Armadillo's vertical-take off 
vehicle, which hovered about 25 feet above the ground for a few 
seconds and had no human on board, was not an FAA licensed launch. 
Nor did the vehicle have an impact on the NAS.
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    One commenter, t/Space, suggested that in some instances, remote 
operation of a launch or reentry vehicle with a human on board may 
provide backup command and control of the vehicle if the pilot or 
flight crew is incapacitated or otherwise unable to function. When not 
intended for nominal flight operations, remote operation from the 
ground is likely to be limited to execution of pre-planned flight, 
reentry, or abort scenarios. According to t/Space, the remote operator 
in these situations would not require the same level of knowledge and 
experience as a pilot with an instrument rating.
    The FAA acknowledges that there may be a variety of vehicle types 
and control schemes, such as back up remote operators that may be used. 
Accordingly, for a remote operator, the FAA will allow an operator to 
demonstrate that something other than a pilot certificate provides an 
equivalent level of safety.
5. Medical Standards for Crew
    Section 460.5(e) requires that each crew member with a safety-
critical role possess and carry an FAA second-class airman medical 
certificate issued in accordance with 14 CFR part 67 \9\ and issued no 
more than 12 calendar months prior to the month of launch and reentry. 
For example, this means that if a launch were to take place on May 1, 
2007, or May 31, 2007, a medical certificate issued anytime in May 2006 
would satisfy the requirement. Because the requirement applies to both 
launch and reentry, operators who plan on a reentry in a different 
month than the launch should ensure that their crews' medical 
certificates are still timely for the reentry.
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    \9\ In the NPRM, the FAA proposed to require that the medical 
certificate be issued within 12 months of launch or reentry as 
opposed to 12 months prior to the month of launch or reentry. The 
proposed time limit might have created confusion because a second-
class medical certificate expires at the end of the last day of the 
twelfth month after the month of the date of examination. 14 CFR 
61.23(d)(2). The requirement now provides the same expiration date 
as part 61.
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    Requiring a medical certificate only for crew with a safety-
critical role marks a change from the NPRM, where the FAA proposed that 
all crew members, regardless of whether they were safety-critical, 
possess and carry such a certificate.
    a. Objections to Requiring Medical Certification of Crew Who Do Not 
Have a Safety-Critical Role. Rather than creating a separate class of 
crew who are not safety critical or modifying the definition of crew as 
some commenters suggested, the FAA can better address medical risk to 
the mission by more precisely identifying what triggers the need for a 
medical certification. In section 460.5(e), the FAA distinguishes 
between crew members with a safety-critical and non-safety-critical 
role to determine whether they must satisfy the medical requirements.
    Several commenters, including ALPA, generally concurred with the 
FAA that requiring medical certification is appropriate, particularly 
for those crew members whose duties are associated with operation of 
the launch or reentry vehicles. Several suggested that it may not be 
necessary for all crew members. Planehook and David J. Sullivan-
Nightengale commented that a second-class medical certificate was 
appropriate for the pilot but unnecessary for other crew members. The 
Federation, t/Space, and XCOR asked the FAA to reconsider requiring a 
second-class medical certificate for non-safety-critical crew on the 
grounds that it would be impractical and unnecessary. The Federation 
claimed that where a regulatory requirement does not respond to a real 
need, it can negatively impact a flight test. XCOR commented that 
members of a rocket engine development team will likely serve as flight 
test engineers on some test flights to permit them to observe engine 
operation in real time and possibly to adjust parameters of the 
propulsion system in flight. According to XCOR, these operations are 
not safety-critical because the flight is aborted if the flight test 
engineer is incapacitated, and the worst case effect is the loss of 
some data from that flight.
    Blue Origin commented that a person should not be required to have 
a second-class medical certificate if he or she is only involved in 
pushing an ignition button or initiating an abort of a vehicle 
experiencing non-nominal telemetry. TGV Rockets recommended against 
medical certification for remote operators.
    Under today's rule, crew members must complete training on how to 
perform their duties on board or on the ground so that the vehicle will 
not harm the public. They also must complete training to be able to 
perform duties in emergency operations or abort scenarios. Crew members 
who are not medically stable likely would not be able to meet training 
or performance requirements.
    The FAA agrees that requiring second-class medical certification 
for crew members who do not perform safety-critical functions is 
unnecessary. There may be missions when a flight attendant or flight 
test engineer has duties that would not affect public safety. The FAA, 
however, anticipates that there may be missions when a flight attendant 
or flight test engineer does have a safety critical role. Rather than 
specifying which crew members must have a medical certificate, the FAA 
requires that only crew members who have a safety-critical role must 
possess and carry a second-class airman medical certificate.
    Jonathan Goff suggested that alternatives to the second-class 
medical be accepted if they demonstrate an equivalent level of safety. 
The FAA has decided against this approach because a demonstration of 
equivalence would likely require the same level of examination and 
information as a medical certificate. The most straightforward approach 
is to obtain a second-class medical certificate.
    b. Recommendations for More Stringent Medical Standards. Several 
commenters recommended the FAA adopt more stringent medical standards. 
The Aerospace Medical Association commented that a second-class medical 
certificate is acceptable for suborbital flight but more stringent 
physical standards should be applied to orbital missions. It further 
posited that the examination should be conducted by a physician with 
aerospace medicine training and include screening tests consistent with 
prudent aeromedical practice and recommendations of the U.S. Preventive 
Services Task Force. Dii Aerospace Laboratories commented that 
different standards should apply to space flight because the effects of 
weightlessness and reentry are vastly different for space flight than 
for standard commercial air travel. If a candidate for a medical 
certificate had significant medical issues, he or she would not receive 
certification. The physician would refer that person to a specialist 
for further evaluation. TGV Rockets commented that a first-class 
medical certificate should be required for pilots carrying space flight 
participants.
    The FAA proposed requiring a second-class medical certificate so 
that crew members would demonstrate a basic level of health within 12 
months of launch or reentry. Recognizing that second-class medical 
certification is insufficient for spaceflight, the FAA is also 
establishing a performance

[[Page 75621]]

standard that requires the flight crew to demonstrate an ability to 
withstand the stresses of space flight sufficiently so that the vehicle 
will not harm the public. This requirement may be more stringent than 
the suggested first-class medical certificate for pilots. The stresses 
experienced in space flight may include high acceleration or 
deceleration, microgravity, and vibration. The performance standard 
provides an additional level of safety beyond basic medical 
certification because flight crew members will have to demonstrate an 
ability to perform duties in the spaceflight environment in which they 
plan to operate. As discussed in the NPRM, the FAA 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 and they may be implemented on a case-by-case basis or through 
future rulemaking.
6. Crew Training
    As proposed in the NPRM, Sec.  460.5(a)(1) requires each member of 
a crew to 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. 
Section 460.7 requires an operator to train each member of its crew and 
define standards for successful completion in accordance with Sec.  
460.5. The FAA received comments on hours of training, simulator 
training, and the training standard itself.
    Starchaser recommended a minimum number of hours of training, but 
did not provide its reasons for this suggestion. Depending on the role 
the crew members will have, different amounts of training will be 
necessary for a crew member to learn his or her role. The FAA will 
evaluate this need on a case-by-case basis during the license and 
permit process.
    Section 460.5(c)(3) requires a pilot and a remote operator to 
receive vehicle and mission-specific training for each phase of flight 
by using a simulator, a similar aircraft, flight testing, or an 
equivalent method. Mr. Leggett commented that because development of a 
vehicle would likely include a significant amount of simulation, the 
FAA should require simulator training. The benefit would be that 
training could take place in a safe environment. Dii commented that 
simulator training should be mandatory because realism is critical. Dii 
noted that a pilot needs to be able to deal with simulator sickness and 
spatial disorientation.
    The FAA does not require the use of simulators in all circumstances 
because simulators may not exist for all the proposed vehicles. While 
the use of simulators is recommended, the FAA intends to maximize the 
training approaches that are acceptable by allowing methods of training 
other than simulators.
    The FAA notes that some simulators intended for aircraft may be 
used for different launch or reentry vehicles. Section 460.7(b) 
requires that an operator ensure that either the crew-training device 
used to meet the training requirements realistically represents the 
vehicle's configuration and mission or the operator has informed the 
crew member being trained of the differences. Predesa took issue with 
this proposed requirement, noting that just because an operator knows 
of differences between the systems, does not mean that the operator can 
describe those differences and train crew accordingly. Such training 
may be possible with data available from vehicle flight tests, but, 
without such data, Predesa recommended that operators remind the crew 
of the experimental nature of flight. This is sound guidance that is 
already encompassed within the requirement.
    Alteon Training, L.L.C. (Alteon) observed that requiring that ``an 
operator must train each member of its crew and define standards for 
successful completion'' could be interpreted to mean that only the 
operator could conduct the required training. According to Alteon, an 
operator should have the ability to arrange with an approved training 
provider for the development of training programs. Alteon further 
commented that the operator would have the responsibility for oversight 
of the training provider to ensure that the training satisfied the 
FAA's regulatory requirements. The FAA agrees that an operator can have 
a contractor provide training, a concept that is already encompassed by 
Sec.  460.7(a). Ultimately, however, it will be the responsibility of 
the operator to ensure that crew members are trained properly.
    Section 460.7(d) also requires that an operator ensure that all 
required crew qualifications and training are current before launch and 
reentry. The NPRM proposed that an operator ensure currency prior to 
launch or reentry, but, as Predesa pointed out, this language 
incorrectly implied that an operator could postpone its currency check 
on a suborbital mission to just prior to reentry. Accordingly, the 
regulatory text has been changed to specify that currency checks be 
complete prior to a suborbital launch.
    At various points in the crew training requirements, the FAA 
requires operators to meet certain requirements. For example, as 
discussed above, an operator must ensure training currency. Ms. Knutson 
commented that requiring an operator to ``ensure'' something may create 
a warranty at odds with the risky nature of space travel at this stage 
in its evolution. The FAA notes that requiring an operator to ensure to 
the FAA that an event does or does not take place identifies the 
purpose of a requirement in order to impose a flexible yet enforceable 
performance standard. When the regulations require an operator to 
satisfy a performance standard, the FAA requires that an operator 
demonstrate the means by which it would satisfy that standard in its 
application for a license or permit. Grant of authorization constitutes 
approval of that approach as one that the FAA thinks will ensure 
satisfaction of the intent of the performance requirement. It is then 
up to the operator to carry out its method of compliance as described 
in its application. Because a license requires that an operator amend 
its application when it would no longer be accurate, the method an 
operator describes in its application has the same legal effect as a 
prescriptive requirement.
7. Crew Notification
    As proposed in the NPRM, Sec.  460.9 requires an operator to 
inform, in writing, any individual serving as crew that the United 
States Government has not certified the launch or reentry vehicle as 
safe for carrying flight crew or space flight participants.\10\ An 
operator must provide this notification prior to employing someone as 
crew or, if the individual is already employed by the operator, as soon 
as possible and prior to any launch in which that person will serve as 
crew.
---------------------------------------------------------------------------

    \10\ The Federation requested that the FAA create a form by 
which operators could provide this notice. The FAA will not adopt 
this suggestion in order to preserve flexibility. The required 
notifications are described in Sec.  460.9.
---------------------------------------------------------------------------

    Blue Origin commented on the logistical difficulties associated 
with the timing requirements. Blue Origin is concerned that the rule 
makes no provision for lawful notification when an existing employee is 
promoted or reassigned to a flight crew position. Section 460.9 
requires that an operator provide the notification before entering into 
any contract or other arrangement to employ an individual. A promotion 
or reassignment would constitute such ``other arrangement,'' and the 
FAA expects an operator to inform the prospective crew member of the 
required notice prior to the person accepting the new assignment.

[[Page 75622]]

    Predesa also commented that the FAA does not require the experience 
and background necessary for crew to identify design or operational 
flaws that would stop them from participating in a mission. Predesa 
appears to base this comment on a belief that the CLSAA asks the crew 
to accept the risk of space flight with full information. The FAA does 
not interpret the statute in this manner. Rather, the CSLAA and the 
FAA's attendant regulations impose a duty on a launch operator to 
inform crew of the absence of U.S. Government certification. Just as 
with a space flight participant, a crew member may not have the 
schooling and experience required to discern operational or design 
flaws. Part of the risk associated with the flights anticipated by this 
rule is the presence of unknown hazards. The notification requirement 
requires only that an operator inform the crew that risks exist, not 
that it identify all potential operational and design hazards.
8. Environmental Control and Life Support System (ECLSS)
    Section 460.11 requires that an operator 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 specific atmospheric conditions in inhabited areas or 
demonstrate through the license or permit process that an alternative 
means of compliance provides an equivalent level of safety. This 
requirement reflects a change from what the FAA proposed in the NPRM in 
that the FAA will now allow an alternative means of compliance.
    Blue Origin suggested that the ECLSS requirements not be applied to 
short suborbital flights, such as those that are ten to twenty minutes. 
The FAA notes that the vehicle's atmospheric conditions have to last 
from the time the cabin is sealed from the external environment until 
it is opened. When humans are in a closed environment and dependent 
upon manmade life support systems, a failure to monitor or control the 
environment even for a short duration could lead to a loss of life or 
injury. The FAA also understands, however, that some of the atmospheric 
constituents and conditions may not change significantly in a short 
duration flight, and the ECLSS for a suborbital mission typically will 
not be as complex as one for an orbital mission. Therefore, the FAA 
will continue to require the operator or flight crew to monitor and 
control atmospheric conditions in inhabited areas but will allow the 
operator to show an alternate means of compliance that demonstrates an 
equivalent level of safety.
    a. Requiring Both Monitoring and Control of Atmospheric Conditions 
or Requiring Only Control. The Federation commented that not every life 
support system must be both monitored and controlled. For example, it 
is asserted that a dehumidification system may not require monitoring 
because a proper verification test, which may be performed on the 
ground, may show that the system has ample capacity to keep humidity 
below acceptable limits.\11\ Additionally, the Federation noted some 
atmospheric conditions need only be monitored without constant, active 
controls. Similarly, Blue Origin suggested that the FAA clarify that 
``control'' can include passive measures rather than active 
instrumentation. According to the Federation, if followed literally, 
the requirement to monitor and control every life support system would 
drive up the cost and complexity of space vehicles and, as a 
consequence, possibly drive down reliability with adverse public safety 
implications. Paragon commented that the requirement to monitor and 
control contaminants that include particulates and any harmful or 
hazardous concentrations of gases or vapors should be restricted to 
those that reasonably can be expected to build up during the course of 
the spaceflight due to metabolic or other processes occurring in the 
cabin, or to those potential contaminants for which a source is present 
in the cabin.
---------------------------------------------------------------------------

    \11\ The FAA notes that in a condensing heat exchanger, the 
separation of liquid condensate from air, and the collection of 
liquid condensate, are difficult processes in the expected 
microgravity environment, and so ground testing may not necessarily 
provide adequate verification.
---------------------------------------------------------------------------

    The FAA agrees with the Federation and Paragon that only control 
may be needed in some cases. Control of particulate contaminants in the 
atmosphere of inhabited areas is an example where the FAA would 
consider control without requiring monitoring. The passive control 
method commonly employed is to provide filters, especially high 
efficiency particulate air filters, for the cabin air return duct 
inlets. When used with a recirculation fan, filters effectively 
maintain low concentrations of particulate contaminants in the 
atmosphere for extended times, with neither rapid nor large changes 
during spaceflight operation. Consequently, monitoring of the 
atmospheric concentration of particulate contaminants may not be 
necessary, especially for a suborbital mission. In order to address 
these types of systems, the FAA will require the operator or flight 
crew to monitor and control atmospheric conditions in the inhabited 
areas as proposed in the NPRM, but will allow the operator to show an 
alternate means of compliance that will demonstrate an equivalent level 
of safety. This alternate means of compliance must be approved by the 
FAA through the license or permit process.
    b. Open-Loop System Versus Closed-Loop System. According to the 
Federation and Blue Origin, any undesirable atmospheric condition can 
be controlled with an open-loop, rather than closed-loop system.\12\ 
The FAA agrees that in some cases an atmospheric condition can be 
controlled with an open-loop system rather than a closed-loop system 
with automatic feedback from the monitoring device.
---------------------------------------------------------------------------

    \12\ A closed loop system is a control system with an active 
feedback loop. A typical example of a closed loop system is one that 
uses a thermostat to control temperature. The thermostat compares 
the actual temperature with the desired temperature; if the actual 
temperature is less than the desired temperature an actuating signal 
causes the control elements to supply more heat. An open loop system 
does not have active feedback that compares the controlled variable 
with the desired input.
---------------------------------------------------------------------------

    For example, carbon dioxide concentrations in the atmosphere in 
inhabited areas should be monitored and controlled. A carbon dioxide 
(CO2) control device, however, may operate without automatic 
feedback from the monitoring device. Without controls, CO2 
from human respiration would accumulate in the cabin atmosphere. The 
resulting increase in the concentration of CO2 would depend 
upon the habitable volume of the vehicle, the number of persons on 
board, and the overall mission duration. To avoid elevated 
CO2 concentrations, an operator must provide controls to 
remove CO2 from the atmosphere at a rate comparable to the 
respiration rate of the crew members and space flight participants. 
CO2 may be removed by using lithium hydroxide (LiOH) 
canisters. The LiOH canisters could be replaced on a schedule based on 
the number of persons on board. Under this scenario, an operator would 
monitor the carbon dioxide concentration in the cabin atmosphere, to 
verify in flight that the CO2 control devices are operating 
and are effective in avoiding elevated CO2 concentrations. 
Because any increase in CO2 concentration would occur 
slowly, and because there is a considerable margin between the expected 
concentration with controls and the threshold concentration where 
chronic physiological changes begin to appear, a closed-loop control 
would not be required. Should the crew observe increasing 
CO2 concentrations, there

[[Page 75623]]

should be sufficient time to diagnose and remedy any abnormal operation 
of the control device, or if that fails, to safely terminate the 
mission.
    Oxygen concentration in the atmosphere is another example of what 
must be monitored and controlled. Very low oxygen partial pressure 
constitutes a severe hazard, results in impaired judgment and ability 
to concentrate, shortness of breath, nausea, and fatigue, affecting the 
proper functioning of the crew, and so potentially results in 
catastrophic consequences. Control of oxygen concentration must be 
closed loop, with the automatic addition of oxygen depending upon the 
oxygen-measuring device indication.
    c. Other ECLSS-related Comments. ASE noted that the FAA did not 
propose to require protecting safety-critical equipment, such as heat-
generating avionics. ASE commented that vehicle designers must 
recognize the need to cool avionics, which may be in the space-unique 
environment of low, or no pressure. The FAA agrees on the need to 
design for adequate thermal control of safety-critical equipment, but 
the suggested requirement would not be appropriate in the context of a 
performance based rule. Design requirements for spacecraft avionics 
equipment are outside the scope of this rule. However, the FAA will 
evaluate the design, including thermal control, of safety-critical 
equipment when it reviews a license application.
    Predesa requested that the ECLSS requirements be specifically 
applied to all normal, non-normal and emergency operations, to 
emphasize the need for secondary or backup environment systems or other 
means to preserve the atmospheric conditions for the crew. The FAA may 
find that redundancy is necessary on a case-by-case basis, depending on 
a particular design, to ensure the crew's ability to protect public 
safety. At this point, the only redundancies the FAA anticipates 
requiring for all designs are specified in the regulations, including 
the requirement for an adequate redundant or secondary oxygen supply 
for the flight crew.
    ASE commented that the space environment offers unique 
environmental challenges, such as micro-meteorites and orbital debris. 
It noted dual seals will not address a hull breach by orbital debris. 
Although a low probability during suborbital flight, a hull breach is 
not impossible, and the risk dramatically increases during orbital 
flight due to the increased exposure time. ASE recommended that this 
and other space-unique hazards be addressed, at least during the 
licensing or permitting phase. The FAA acknowledges the potential for 
micro-meteorites and orbital debris, and notes that these details will 
surface through an applicant's hazard analysis and be resolved during 
the license or permit process.
    d. Guidance Plans. The FAA recognizes and anticipates that there 
will be many ECLSS designs. The ECLSS requirements are performance 
based rather than design based with prescriptive requirements. The 
following factors should be considered in determining if both 
monitoring and control of an atmospheric condition is needed and 
whether an open-loop system or closed-loop system with automatic 
feedback from the monitoring device is necessary:
     Severity of the hazards presented to humans;
     Likelihood for catastrophic or critical consequences of 
exposure;
     Potential for rapid changes in conditions;
     Potential for changes in conditions of large magnitude;
     Availability of practicable in-flight measurement 
techniques and devices;
     Access to emergency breathing equipment; and
     Mission duration.
    The FAA plans to develop an ECLSS advisory circular or guidance 
document. This document will address some of the concerns and 
suggestions of the IASE and ISLAP. The IASE and ISLAP believe that it 
is premature for the FAA to issue regulations pertaining to ECLSS at 
this time. Instead, they believe it would make more sense for the FAA 
to issue guidelines and to refine such guidelines with industry input 
over time as operators gain experience. According to the IASE and 
ISLAP, at this time there is simply too much untested diversity of 
design and proposed operation for ``one size fits all'' regulation in 
environmental control and life support areas.
9. Smoke Detection and Fire Suppression
    Section 460.13 requires an operator or crew to have the ability to 
detect smoke and suppress a cabin fire to prevent incapacitation of the 
flight crew. This requirement is adopted as proposed in the NPRM. 
Predesa inquired whether the FAA meant to imply that an operator could 
employ remote systems for fire detection and suppression. Predesa 
raised operational safety concerns regarding the security and integrity 
of telemetry to and from the vehicle. The FAA will address these issues 
during the license and permit process.
10. Human Factors
    Section 460.15 requires an operator to take necessary precautions 
to account for human factors that can affect a crew's ability to 
perform safety-critical roles. The FAA received no comments on this 
requirement, and it is adopted as proposed in the NPRM.
11. Verification Program
    Section 460.17 requires an operator to 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. Predesa requested clarification of this requirement, observing 
that the NPRM appeared to allow a space flight participant to be 
carried during first time flight testing in a different operational 
environment than what was tested. For example, an operator might flight 
test a reentry from a high altitude. Predesa inquired whether a space 
flight participant could board for the first flight test into a 
suborbital micro-gravity environment. The FAA expects that more than a 
single flight test will be required to verify the integrated 
performance of a vehicle. Because the FAA did not identify how much 
flight testing would be required, Starchaser commented that the 
requirement was open to subjective judgment and potential manipulation. 
The FAA believes that it would be premature at this time to specify the 
number of hours of flight testing needed given the variety of launch 
and reentry vehicle designs and concepts. 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. 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 license or permit process.
    A space flight participant would not be allowed on an envelope 
expansion flight, that is, a space flight participant would not be 
allowed to be carried during first time flight testing in a different 
operational environment than what was tested.
12. Crew Waiver of Claims Against U.S. Government
    Section 460.19 requires each member of a flight crew and any remote 
operator to execute a reciprocal waiver of claims with the Federal 
Aviation Administration of the Department of

[[Page 75624]]

Transportation in accordance with the requirements of part 440. The FAA 
received no comments on this requirement, and it is adopted as 
proposed.
13. Professional Engineer
    James Snead commented that the FAA should require a professional 
engineer to prepare and approve an application for an FAA license to 
launch or reenter. Mr. Snead recommended this requirement as an 
alternate means to protect public safety where there is no government 
certification.\13\ Opposing the recommendation, XCOR commented that 
FAA's oversight function should not be transferred to a private party 
because of the potential for conflicts of interest. A professional 
engineer would be paid by the applicant and thus be under subtle 
pressure to make decisions in favor of the vehicle developer. The FAA 
notes that applicants may choose to engage professional engineers, but 
will not require them.
---------------------------------------------------------------------------

    \13\ Although the licensing process differs from certification, 
the licensing process also protects public safety.
---------------------------------------------------------------------------

C. Launch and Reentry With a Space Flight Participant

    Subpart B establishes requirements for space flight participants on 
board a vehicle whose operator is licensed or permitted under this 
chapter. The subpart applies to a license or permit applicant, licensed 
or permitted operators and space flight participants.
1. Risk to Space Flight Participants
    Several commenters urged that the FAA establish requirements to 
protect space flight participants. Nicholas Leggett recommended that a 
pilot have at least one solo flight before transporting passengers. 
Starchaser advocated pressure suits for space flight participants. As 
the FAA noted in the NPRM, the CSLAA does not provide the authority to 
protect space flight participants except in certain circumstances. 49 
U.S.C. 70105(c)); 70 FR at 77270. The CSLAA only allows the FAA to 
issue regulations restricting or prohibiting design features or 
operating practices that result in a human space flight incident or a 
fatality or serious injury to space flight participants during an FAA 
authorized flight until December 23, 2012. For the next six years, the 
FAA has to wait for harm to occur or almost occur before it can impose 
restrictions. Instead, Congress requires that space flight participants 
be informed of the risks. To that end, the FAA is establishing 
notification requirements.
2. Informed Consent
    Section 460.45 requires that before receiving compensation or 
agreeing to fly a space flight participant, 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. For each mission, an operator must inform a space flight 
participant, in writing, of the known hazards and risks that could 
result in a serious injury, death, disability, or total or partial loss 
of physical and mental function. Although the FAA did not propose to 
require the identification of unknown hazards as a risk in the NPRM, 
the FAA is now requiring notice of unknown hazards in response to Ms. 
Knutson's comment that an operator should inform a space flight 
participant that there are also unknown hazards. The operator also must 
disclose that participation in space flight may result in death, 
serious injury, or total or partial loss of physical or mental 
function. An operator must inform each space flight participant that 
the United States Government has not certified the launch vehicle and 
any reentry vehicle as safe for carrying crew or space flight 
participants. If there is a separate operator for each vehicle, each 
operator must provide this statement for the space flight participants 
on its vehicle.
    Predesa commented that the FAA should also require disclosure of 
the fact that the law only permits the FAA to issue regulations for the 
safety of crew and space flight participants relating to vehicle design 
and operations if a serious injury or fatality occurs or nearly occurs. 
The FAA will leave it up to the operator to choose whether to disclose 
this information. The FAA does not see a need to require additional 
disclosure because the statutorily required disclosure encompasses this 
information.
    Predesa also commented that it is the duty of the space flight 
participant to research and recognize design features or operating 
practices that elevate personal risk. The FAA does not agree. A space 
flight participant may not have the training and background to conduct 
such research and analysis. The FAA expects space flight participants 
to come from all walks of life, with varying degrees of technical 
expertise and understanding. Congress requires that a space flight 
participant be informed of the risks, not that he or she acquire an 
understanding of basic engineering principles in order to understand 
that risk.
    A commenter from NASA Headquarters Office of Safety and Mission 
Assurance recommended requiring that an operator prepare a hazard 
analysis with a specific focus on keeping the crew and any participants 
alive and functioning and that defines each hazard and how it is 
mitigated. According to the commenter, a space flight participant would 
likely want to see such an analysis. The FAA notes that hazard analyses 
will be conducted by an applicant during the license or permit process. 
For example, during the license process, Scaled Composites conducted 
hazard analyses pertaining to the SpaceShipOne pilot. The analyses 
identified and characterized the potential hazards and assessed the 
risks to the pilot because his performance had implications for public 
safety given that the pilot was part of the flight safety system. 
Because Sec.  460.45(1) requires that an operator inform each space 
flight participant of the known hazards and risks that could result in 
a serious injury, death, or disability, the FAA anticipates that a 
hazard analysis focusing on keeping the space flight participant alive 
will be conducted by the operator to identify these hazards.
    The FAA also requires, under Sec.  460.45, that an operator provide 
the safety record of all launch or reentry vehicles that have carried 
one or more persons on board, including U.S. government and private 
sector vehicles. The FAA will not, as suggested by the Federation, 
require that all foreign government vehicles be included in this 
disclosure. The Federation recommended that ``all government vehicles'' 
be clarified to specifically include Soviet/Russian and Chinese 
government vehicles, and suggested that the FAA include non-U.S. 
Government vehicles in its list of vehicle accidents in order to expand 
the knowledge base. The FAA did not propose to require disclosure of 
foreign launch or reentry accidents because the information may not 
always be publicly available and its accuracy will be difficult to 
verify. However, if an operator is able to obtain accurate data 
regarding foreign launch accidents, the operator may use that data as 
part of the safety record.
    Blue Origin, the Federation, Predesa, and t/Space all suggested 
that the FAA provide a standardized summary of the historical safety 
record of all launch or reentry vehicles that have carried one or more 
persons on board for all U.S. Government vehicles for use by all 
applicants, and that the FAA maintain a standard summary of the safety 
record of all private sector vehicles on behalf of the public. The 
Federation and t/Space commented that the FAA needed to provide the 
operator with the safety record in order to ensure an

[[Page 75625]]

accurate and impartial list, used equally by all operators. Blue Origin 
commented that this approach would help avoid litigation.
    The FAA is exploring available options. The agency is considering 
developing a database on the safety record of U.S. Government and 
private sector space transport with one or more persons on-board. If it 
were possible to do so, the FAA could include foreign data. Although a 
database, whether developed by the FAA or commercially, may eventually 
be used by an operator to help fulfill the requirements of Sec.  
460.45, ultimately it is the responsibility of the launch vehicle 
operator to inform each space flight participant of that safety record.
    Section 460.45 also requires an operator to describe the safety 
record of its own vehicle to each space flight participant. The 
operator's safety record must include the number of vehicle flights, 
the number of launch and reentry accidents and human space flight 
incidents (including on the ground or in flight), and whether any 
corrective actions were taken to resolve the causes of the accident or 
human space flight incident. The FAA is revising its definitions of 
launch and reentry accident and adding the definition of human space 
flight incident to ensure that all relevant information is included in 
this safety record. For a launch that takes place with a person on 
board, launch and reentry ``accidents'' as defined in section 401.5 now 
include a fatality or serious injury to a space flight participant or 
crew. ``Human space flight incident'' means an unplanned event that 
poses a high risk of causing a serious or fatal injury to a space 
flight participant or crew.
    In the NPRM the FAA proposed to require disclosure of ``anomalies'' 
and ``failures.'' The Federation recommended that the FAA require 
disclosure of accidents rather than failures or anomalies because the 
FAA does not define anomaly or failure by regulation, and the 
Federation thought that the definitions proposed in the May 2005 
experimental permit guidelines were overly broad. According to the 
Federation, under these definitions operators could be required to 
provide an unreasonably large amount of data to space flight 
participants, and such ``information overload'' could actually decrease 
the ability of a prospective space flight participant to properly 
evaluate the risk involved.
    Likewise, t/Space commented that the terms ``anomalies'' and 
``failures'' are not adequately defined. According to t/Space, 
different operators are likely to use different definitions, with 
competitive pressures possibly influencing these definitions. It 
recommended clearer definitions to ensure a level playing field between 
operators. In response, rather than requiring the disclosure of 
failures and anomalies as proposed, paragraphs 460.45(d) and (f) 
require an operator to describe accidents and human space flight 
incidents, and the FAA now defines launch and reentry accidents to 
include a fatality or serious injury to a space flight participant or 
crew. Without these revisions, the definitions of launch and reentry 
accidents would fail to require an operator to disclose all relevant 
information.\14\ Under the current definition of reentry accident, if 
an RLV crashed inside a designated landing site, the FAA's definition 
would not encompass that event and an operator would not have to 
disclose it to a space flight participant. Another example of an 
instance where relevant information would be left undisclosed is if 
someone associated with a flight, such as a space flight participant or 
crew member, were injured or killed. That event would not be 
characterized as an accident. All of these events must now be disclosed 
under section 460.45.
---------------------------------------------------------------------------

    \14\ Section 401.5 currently defines launch accident to mean a 
fatality or serious injury (as defined in 49 CFR 830.2) to any 
person who is not associated with the flight; any damage estimated 
to exceed $25,000 to property not associated with the flight that is 
not located at the launch site or designated recovery area; an 
unplanned event occurring during the flight of a launch vehicle 
resulting in the known impact of a launch vehicle, its payload or 
any component thereof: (i) For an expendable launch vehicle (ELV), 
outside designated impact limit lines; and (ii) for an RLV, outside 
a designated landing site. Section 401.5 states that a reentry 
accident means any unplanned event occurring during the reentry of a 
reentry vehicle resulting in the known impact of the reentry 
vehicles, its payload, or any component thereof outside a designated 
reentry site; a fatality or serious injury (as defined in 49 CFR 
830.2) to any person who is not associated with the reentry; any 
damage estimated to exceed $25,000 to property not associated with 
the reentry and not located within a designated reentry site.
---------------------------------------------------------------------------

    The Federation commented that the FAA should restrict disclosure to 
the vehicle verification and commercial operations phases only, and 
should not require the disclosure of accidents occurring on the ground. 
Blue Origin requested that the FAA clarify that disclosures relate only 
to the licensed model vehicle and not to earlier developmental 
iterations of that model. It noted that, in developing a vehicle, most 
operators plan on successive versions or models. Thus, safety 
performance related to an earlier, experimental model is not directly 
relevant to a final, passenger-carrying model. Requiring disclosure of 
earlier models would discourage operators from iterative experimenting 
and testing of non-passenger models, which would undermine the goal of 
developing safer vehicles.
    The FAA agrees that an operator need only disclose its safety 
record created during and after vehicle verification performed in 
accordance with Sec.  460.17. This includes all subsequent launches and 
reentry. Earlier models that predate the verification of the vehicle 
are not part of the safety record. The FAA is including accidents 
occurring on the ground because those are relevant to the risks a space 
flight participant faces. Accordingly, if a launch vehicle exploded 
upon ignition while on the ground, the explosion would have to be 
included as part of the vehicle safety record.
    Under Sec.  460.45(e), an operator must inform a space flight 
participant that he or she may request additional information. Under 
Sec.  460.45(f) if a space flight participant asks, an operator must 
describe each accident and human space flight incident at a system 
level. Blue Origin and the Federation commented that the proposed 
requirement would effectively stop companies from being hired by 
foreign space flight participants because of conflicts with 
International Traffic in Arms Regulations (ITAR). The Federation urged 
the FAA to consider the ITAR ramifications of any proposed requirement 
for describing corrective actions to space flight participants. Blue 
Origin, the Federation and the New Mexico Office for Space 
Commercialization were all concerned that an operator would have to 
disclose information that is restricted by the ITAR.
    Blue Origin suggested a clarification to prevent a potential 
conflict between the FAA's regulations, which require disclosure to a 
space flight participant who is a foreign national, and the ITAR, which 
would restrict or prohibit disclosure to the same foreign national. 
Blue Origin suggested that the FAA establish the same standard for 
disclosure to a U.S. and a foreign national, and limit that disclosure 
obligation to only ``general systems descriptions.'' This would conform 
to the ITAR's exclusion of ``general systems descriptions'' from 
``Technical Data'' as defined in ITAR 22 CFR 120.10(a)(5). The FAA 
agrees and will require only a general system description. An operator 
only needs to disclose, for example, that a propulsion system exploded, 
not the details of how the explosion occurred.
    Blue Origin and the Federation commented that describing corrective

[[Page 75626]]

actions could require the disclosure of proprietary data and company 
secrets. The Federation commented that the intellectual property of its 
members could be placed at risk. Competitors could seek to fly on one 
another's vehicles for the purpose of obtaining data.
    The FAA agrees with the commenters that requiring a description of 
any system in detail or any corrective action could require the 
disclosure of proprietary data or technical sensitive information to 
space flight participants; therefore, the FAA will require an operator 
to disclose only accidents and human space flight incidents if a space 
flight participant asks and then only at the system level; it will not, 
as originally proposed, require an operator to also describe what 
corrective actions were taken.
    a. Space Flight Participant's Ability To Be Informed. Section 
460.45(f) requires each space flight participant to provide written 
informed consent. The consent must state that the space flight 
participant understands the risk associated with being a space flight 
participant aboard the specific vehicle and that his or her presence on 
board is voluntary. In response to comments, the FAA does not consider 
a person under the age of 18 someone who can provide informed consent.
    Commenters claimed that persons under the age of 21 do not have a 
basis for making an informed consent. James Snead pointed to age 
limitations on drinking, driving, operating heavy construction 
equipment and selling liquor. Mr. Snead felt that persons under 21 
could be more likely to view space flight as a thrill ride and not 
appreciate the risks or have the mental capacity to act responsibly 
during the excitement of flight. For the same reasons, a parent or 
guardian should not be able to provide the consent for the minor. Dii 
recommended a minimum age of 18.
    Societally, the United States has acknowledged that it is 
reasonable to place restrictions on individuals under the age of 18, 
including restrictions on their ability to legally consent. In the 
United States, a person may vote in federal elections at the age of 18. 
A person may not enlist for military service without parental consent 
until the age of 18. While some states classify a person as a minor 
until the age of 21, in many states the age of majority is 18. In no 
state is the age of majority less than 18.
    The FAA is aware that most persons under the age of 18 will not be 
able to afford the price of a ride on a rocket at the prices currently 
being discussed. Prices, however, drop over time, and the FAA agrees 
with the commenters that a minor could not be adequately informed. 
Given the risks involved, parental consent may not substitute for the 
minor's inability to be informed.
    Although not proposed in the NPRM, under Sec.  460.45(g) the FAA 
requires operators to provide each space flight participant an 
opportunity to ask questions orally to acquire a better understanding 
of the hazards and risks of the mission. 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. In the NPRM, the 
FAA stated that 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. XCOR agreed both with 
the desirability of this practice and with the FAA's decision not to 
require it at this time. According to XCOR, it is difficult to phrase a 
regulation in such a way that achieves the desired effect without being 
burdensome, and therefore it should be left in the guidelines. XCOR 
further added that responsible operators, with insurance companies, 
will doubtless pay close attention to such guidelines.
    After further consideration and review of other informed consent 
practices such as those in the medical profession, the FAA believes 
that an opportunity to ask questions allows a space flight participant 
a chance to get clarification on any information that may be confusing 
or unclear. Therefore, Sec.  460.45(g) now requires that an operator 
provide each space flight participant an opportunity before flight to 
ask questions orally. In addition to receiving informed consent in 
writing from a space flight participant, this requirement serves as 
another ``cognizance test'' or affirmation that the space flight 
participant understands what he or she is getting into before embarking 
on a mission. An operator must provide an opportunity for an oral 
discussion; the discussion does not have to occur if the space flight 
participant declines it.
3. Physical Examination
    The FAA is not requiring that a space flight participant obtain a 
physical examination. The Federation agreed with this decision in its 
comments. As it discussed in the guidelines and the NPRM, the FAA 
recommends such an examination.
4. Space Flight Participant Waiver of Claims Against U.S. Government
    Section 460.49 requires each space flight participant to execute a 
reciprocal waiver of claims with the Federal Aviation Administration of 
the Department of Transportation in accordance with the requirements of 
part 440. The FAA received no comments, and adopts this requirement as 
proposed in the NPRM, with some modifications which are discussed in 
the context of part 440.
5. Space Flight Participant Training
    Section 460.51 requires an operator to train each space flight 
participant before flight on how to respond to emergency situations, 
including smoke, fire, and loss of cabin pressure. This remains 
unchanged from what was proposed in the NPRM. Mr. Snead commented that 
all space flight participants should be tested to ensure that each 
space flight participant could respond properly in emergencies. Because 
the FAA requires an applicant proposing to conduct a launch or reentry 
with a space flight participant on board to demonstrate compliance with 
this section, the FAA will review the adequacy of the operator's 
training plan, which may include testing, during the license or permit 
process.
6. Security Requirements
    The FAA requires an operator to implement security requirements to 
prevent any space flight participant from jeopardizing the safety of 
the flight crew or the public. As in the NPRM, under Sec.  460.53, a 
space flight participant may not carry on board any explosives, 
firearms, knives, or other weapons.
    XCOR inquired whether the FAA had the authority to impose security 
requirements under its statute and the U.S. Constitution. The Second 
Amendment to the Constitution provides that ``[a] well regulated 
Militia, being necessary to the security of a free State, the right of 
the people to keep and bear Arms, shall not be infringed.'' This right 
is not unfettered. Nearly every statute restricting the right to bear 
arms has been upheld. For example, in 1958, Congress made it a criminal 
offense to knowingly carry a firearm onto an airplane engaged in air 
transportation. 49 U.S.C. 46505. Additionally, nearly all courts have 
also held that the Second Amendment is a collective right, rather than 
a personal right. Therefore, despite the Second Amendment collective 
right to bear arms, the FAA has the authority to prohibit firearms on 
launch and

[[Page 75627]]

reentry vehicles for safety and security purposes.
    Planehook commented that the Transportation Security Administration 
(TSA) is charged with the responsibility for aviation security as well 
as other modes of transportation within the U.S. Therefore, according 
to Planehook, security regulations should come from the TSA. Under 
Chapter 701, the FAA is responsible for security as well as safety, and 
thus shares jurisdiction on this issue with TSA.
    The FAA will work with and rely on the expertise of the 
Transportation Security Administration and the intelligence community 
at large. Threat assessments will be conducted to determine the 
sufficiency of an operator's security plans. Although the threats may 
be the same, different vehicles may require different security plans. 
The FAA will look to the security community for developing guidelines 
in reviewing the different plans. The FAA plans to coordinate initial 
guidelines with the TSA. As the commercial activity in this sector 
expands, the TSA will likely take a larger role in developing standards 
and monitoring compliance. In the meantime, the FAA intends its 
security requirements to provide a foundation that is both effective 
and flexible.

D. Financial Responsibility and Waiver of Liability

    The FAA implements the financial responsibility requirements and 
waiver of claims required by Chapter 701 through part 440.\15\ With the 
exception of clarifications to the crew and space flight participant 
waivers of claims discussed below, the FAA only made editorial changes 
from what it proposed in the NPRM. The FAA received comments concerning 
the cross-waivers between space flight participants, the operators and 
the U.S. Government. It also received comments regarding insurance 
requirements.
---------------------------------------------------------------------------

    \15\ This rulemaking makes effective the FAA decision to combine 
parts 440 and 450 in light of the fact that they were almost 
identical, except that part 440 only applied to launch and part 450 
addressed reentry of reentry vehicles. The FAA requested comments on 
whether this would cause any concerns for those persons having to 
abide by these requirements. In supporting the FAA decision to 
combine the parts to reduce the regulatory burden on service 
providers, t/Space observed that a single part, would simplify the 
process of establishing maximum probable loss and implementing 
reciprocal waivers of claims. Rocketplane, on the other hand, 
commented that reentry conditions from orbit are more severe than 
those from a suborbital RLV launch. The FAA agrees with this 
observation, but notes that this part imposes no technical 
requirements.
---------------------------------------------------------------------------

1. Changes From What the FAA Proposed in the NPRM
    Tracey Knutson, Esq. commented that the FAA should clearly specify 
that claims arising out of the death of crew or space flight 
participants are part of what is covered by the cross-waivers. The FAA 
notes that its definition of ``bodily injury,'' 14 CFR 440.3, includes 
death, but is adopting the suggestion in the waivers of claims that 
will be signed by space flight participants and crew members. The 
courts have stressed the importance of individuals understanding what 
they are waiving. Thus, to avoid confusion, the FAA will make clear 
that the waivers encompass claims arising out of an individual's own 
death.
    Mr. James Snead commented that the reciprocal waivers of claims 
required by part 440 should identify a particular operator, the vehicle 
being flown and the manner of its use. Mr. Snead pointed out that the 
proposed appendices omitted information necessary to describe that to 
which the waivers apply. The FAA now requires that the operator, the 
vehicle, any payload, and the location of the licensed or permitted 
flight be included in the reciprocal waivers of claims. This change 
clarifies the subject of the waiver.
    This final rule contains a provision in the waivers of claims for 
crew and space flight participant that the FAA did not propose in the 
NPRM, but is necessary to carry out Congress' intent that crew and 
space flight participants not bring claims against the U.S. Government. 
The waivers require that crew members and space flight participants 
hold harmless and indemnify 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 
brought by anyone for property damage or bodily injury, including 
death, sustained by a crew member or space flight participant, 
resulting from licensed or permitted activities.
    The crew and space flight participant must agree to this 
indemnification in order to prevent claims brought by others as well as 
on their own behalf. For example, if a crew member or space flight 
participant were to die during a licensed launch, the waivers will 
prevent that individual or his estate from bringing claims against the 
U.S. Government. Some states, however, allow a surviving spouse to 
bring separate wrongful death claims for his or her own losses arising 
out of the death of the spouse. Accordingly, the indemnification 
requirement under this final rule provides that the estate of the crew 
member or space flight participant must indemnify the U.S. Government 
for claims arising out of the bodily injury, including death, of the 
individual. This indemnification will cover all costs and fees incurred 
by the U.S. Government in defending itself against claims by the 
individual, his or her family, or estate.
    Also of note, although not proposed in the NPRM, the waivers of 
claims for crew and space flight participants now define these 
individuals to include not only themselves, but all the heirs, 
administrators, executors, assignees, next of kin, and estate of the 
individuals, and anyone who attempts to bring a claim on behalf of the 
crew member or space flight participant or for damage or harm arising 
out of that person's bodily injury, including death.
2. Waivers of Claims
    As the FAA proposed in the NPRM, Sec.  440.17(e) and (f) requires a 
space flight participant and each crew member to waive any claims he or 
she may have against the U.S. Government for participation in a launch 
or reentry in which the U.S. Government, any of its agencies, or its 
contractors and subcontractors is involved.
    Mr. James Snead commented that for the U.S. Government to require a 
crew member or space flight participant to waive claims against an 
operator could deprive the space flight participant or crew member of a 
normal expectation of customary behavior on the part of the operator by 
virtue of the normal potential for legal liability. As noted in the 
NPRM, the CSLAA and the FAA regulations do not require either a space 
flight participant or a crew member to agree to waive claims against an 
operator of a launch or reentry vehicle. The waiver is with the U.S. 
Government for its participation in a launch or reentry. In the NPRM, 
the FAA only noted that nothing in the CSLAA prevents an operator from 
making a waiver of liability a condition of an agreement between it and 
a space flight participant or crew member. 70 FR 77272 (Dec. 29, 2005). 
Neither Congress nor the FAA mandated waivers of claims against an 
operator.
    Blue Origin commented that the FAA should clarify the nature of 
government involvement triggering the need for waivers of claims. Blue 
Origin commented that FAA oversight in the form of authorizing a launch 
or reentry would not constitute government ``involvement.'' The FAA 
agrees. In that context, the FAA would be acting in its regulatory 
capacity, and would not be involved. Blue Origin also suggested,

[[Page 75628]]

however, that coordination with local FAA air traffic control and 
issuance of notices to airmen would not constitute the kind of U.S. 
Government involvement requiring crew to sign a waiver of claims. 
Instead, Blue Origin suggested, U.S. Government involvement requiring 
cross-waivers would be limited to when an operator transports a U.S. 
Government payload or personnel acting in their official capacities, or 
when launching from a U.S. Government facility. Adopting this 
suggestion would constitute a change from what the law currently 
requires. Where the U.S. Government is involved in a launch or reentry 
by providing services, the requirements of part 440 apply. For example, 
the federal launch ranges currently provide launch safety services for 
the launch of expendable launch vehicles, and the Air Traffic 
Organization manages the NAS to ensure the safety of all participants. 
Congress intended the statutory revisions of 1988 and of 2004 to reduce 
litigation expenses by requiring launch participants to assume 
responsibility for their own losses, except in cases of gross 
negligence. See Report of the Committee on Science, Space, and 
Technology, Sen. Rep. No. 639, 100th Cong., 2d Sess., 14 (1988); 
Report, H.R. Rep. No. 429, 108th Cong., 2d Sess., VII (2004). 
Accordingly, the FAA cannot adopt the interpretation suggested by Blue 
Origin.
    Sections 440.15(c)(1)(iv) and (v), and 440.17(b) and (e) require a 
licensee or permittee to submit reciprocal waivers of claims to the FAA 
for signature. Mr. Garrett Smith commented that a launch should not be 
held up because of the delay that could be caused by waiting for the 
U.S. Government to sign a reciprocal waiver of claims. To date, a 
launch has never been delayed on account of waiting for a signature 
from the U.S. Government on a cross-waiver. Timely submission of a 
cross-waiver that complies with part 440 will avoid unnecessary delay.
3. Federal Preemption
    Ms. Tracey Knutson submitted additional material to the docket in 
response to a request for clarification regarding her comments on the 
waivers of claims to be signed by crew and space flight participants. 
The materials highlight the differences in state law, including that 
many states view waivers of claims as contrary to public policy. 
Accordingly, the FAA now emphasizes that the waivers required by the 
CSLAA and part 440 are not to be construed under state law. As proposed 
in the NPRM and adopted now, the waivers provide that federal law 
applies. Chapter 701 provides, in relevant part, that a state or 
political subdivision of a state ``may not adopt or have in effect a 
law, regulation, standard, or order inconsistent with this chapter; * * 
*.'' 49 U.S.C. 70117(c)(1). In its 2004 amendments to 49 U.S.C. 70112, 
Congress required crew and space flight participants to sign waivers of 
claims against the U.S. Government. Accordingly, in order to avoid 
conflicts with any state law to the contrary, federal law must apply.
4. Insurance
    Mr. James Snead commented that the FAA should require an operator 
to provide pre-paid health and accidental death insurance for space 
flight participants. The FAA does not have authority to impose such 
requirements under its statute. Chapter 701 requires the FAA to impose 
insurance requirements for damage or harm to third parties, that is, 
the general public, and to U.S. Government property and personnel. 
Legislative history shows that Congress expected space flight 
participants to purchase insurance on their own.
5. Maximum Probable Loss
    Space Adventures and XCOR commented that the probability threshold 
for the determination of liability insurance requirements for 
commercial launch sites should be changed from 1 x 10-\7\ to 
1 x 10-\5\. Space Adventures commented that under the FAA's 
definition of maximum probable loss (MPL), a different probability 
threshold is applied for the determination of liability insurance 
requirements for government property (primarily government property at 
a government launch site) exposed to risk from a commercial launch (1 x 
10-\5\) than is applied for third party property (1 x 
10-\7\). Space Adventures noted that this can have a very 
real effect on the insurance costs to an operator operating from a 
government launch site as opposed to one operating from a commercial 
launch site. This is because the current third party threshold 
encompasses more potential for harm, likely requiring the purchase of 
more insurance.
    Space Adventures believes that a commercial launch site's property 
should also fall under the higher 1 x 10-\5\ threshold, and 
that the same threshold should extend to all other property located on 
a commercial launch site. The FAA will not adopt this suggestion 
because it is outside the scope of this rulemaking. The FAA did not 
propose this change in the NPRM, and others have not had an opportunity 
to comment. The economic effect of such a change could be significant 
and would merit a more thorough study than is available now.

III. Rulemaking Analyses

Paperwork Reduction Act

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the FAA submitted a copy of the new information collection 
requirements in this final rule to the Office of Management and Budget 
(OMB) for its review. Affected parties, however, do not have to comply 
with the information collection requirements in Sec. Sec.  460.5, 
460.7, 460.9, 460.19, 460.45, and 460.49 until the FAA publishes in the 
Federal Register the control number assigned by the OMB for these 
information collection requirements. Publication of the control number 
notifies the public that OMB has approved these information collection 
requirements under the Paperwork Reduction Act of 1995.

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. Second, 
the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires 
agencies to analyze the economic impact of regulatory changes on small 
entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, this Trade Act requires agencies to consider international 
standards and, where appropriate, that they be the basis of U.S. 
standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4) requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation with the base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this final rule.
    In conducting these analyses, FAA has determined this rule: (1) Has 
benefits that justify its costs, (2) is a ``significant regulatory 
action'' as defined in Executive Order 12866 because it raises novel 
policy issues under the legal mandate of the CSLAA,

[[Page 75629]]

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 have a neutral impact on 
international trade; and (5) will 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
 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 Wage Rate is $69.40
 Hourly Burdened Government Wage 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
 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 new 
requirements are not current practice is as follows:

------------------------------------------------------------------------
               Requirement                 Hrs/operator     Hrs/mission
------------------------------------------------------------------------
Sec.   460.9: Informing Crew of Risk....               4               1
Sec.   460.19 (Sec.   440.17()): Crew                  4               1
 Waiver of Claims Against U.S.
 Government.............................
Sec.   460.45: Operator Informing Space              120               2
 Flight Participant of Risk.............
Sec.   460.49 (Sec.   440.17(e)): Space                4               1
 Flight Participant waiver of claims
 against U.S. Government................
------------------------------------------------------------------------

Benefits
    The rule will offer some benefit impacts that are not readily 
quantified. The principal benefit will be the assurance that the human 
commercial space flight industry understands and adheres to the current 
practices that have worked thus far to protect public safety. The rule 
will 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 rule will 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 will incur 
72 percent of the total costs, ranging from $1.4 million to $2.7 
million to comply with the rule. The FAA will incur 28 percent of the 
total costs, ranging from $529,000 to $1.1 million to administer the 
regulatory requirements. Costs are summarized in the following table.

    Summary of Incremental Cost Impacts Attributable to the Rule Over the Ten-Year Period, 2006 Through 2015
                                                [In 2004 dollars]
----------------------------------------------------------------------------------------------------------------
                                                           Undiscounted                   Discounted \a\
                    Category                     ---------------------------------------------------------------
                                                    Upper bound     Lower bound     Upper bound     Lower bound
----------------------------------------------------------------------------------------------------------------
Human Space Flight Industry Compliance Costs....      $2,739,149      $1,390,221      $1,728,231        $876,863
Federal Aviation Administration Administrative         1,055,579         528,830         656,445         328,890
 Costs..........................................
                                                 ---------------------------------------------------------------
    Total Costs Attributable to the Rule........       3,794,728       1,919,051       2,384,676      1,205,753
----------------------------------------------------------------------------------------------------------------
\a\ Calculated using a discount factor of seven percent over a ten-year period.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objective 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 consider flexible regulatory proposals, to explain the rationale for 
their actions, and to solicit comments. 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 or 
final rule will 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 RFA.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the RFA

[[Page 75630]]

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 final rule will 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 
will be affected by the rule. However, we believe that the rule will 
not have a significant impact on these entities as explained below.
    The rule will 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 will 
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 it is a nascent industry, it is 
difficult to state how many and which entities will succeed. 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 rule; therefore, the industry currently consists of one 
company. There are about six more companies that the FAA considers 
serious candidates 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 may be considered a large business 
because it is a subsidiary of Virgin Airways which has over 1,000 
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.
    The FAA has determined that the impacts are not significant. In 
order to make this determination, 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 the 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 significantly 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.
    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 
missions (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). 
Regardless of seat prices, the estimated $270 per mission incremental 
compliance cost that the rule will impose will be a very small 
percentage of the revenues of a commercial operator entity offering 
human space flight and is not economically significant.
    Therefore as the FAA Administrator, I certify that this rule will 
not have a significant economic impact on a substantial number of small 
entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) 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 will be 
largely consistent with current or prudent practice, it will 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 rule and 
determined that it will impose the same costs on domestic and 
international entities, and thus has a neutral trade impact.

Unfunded Mandates Assessments

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(adjusted annually for inflation with the base year 1995) 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 final rule does not 
contain such a mandate.

Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of 
Executive Order 13132, Federalism. We have determined that this action 
would not have a substantial direct effect on the

[[Page 75631]]

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 will 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 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 rule 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, 
although it is a ``significant regulatory action'' under Executive 
Order 12866, 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 Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
will 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

0
1. The authority citation for part 401 continues to read as follows:

    Authority: 49 U.S.C. 70101-70121.


0
2. Section 401.5 is amended by revising the definitions of ``Launch 
Accident'' and ``Reentry Accident'' and 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 or contract 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.
* * * * *
    Human space flight incident means an unplanned event that poses a 
high risk of causing a serious or fatal injury to a space flight 
participant or crew.
* * * * *
    Launch accident means
    (1) An event that causes a fatality or serious injury (as defined 
in 49 CFR 830.2) to any person who is not associated with the flight;
    (2) An event that causes damage estimated to exceed $25,000 to 
property not associated with the flight that is not located at the 
launch site or designated recovery area;
    (3) An unplanned event occurring during the flight of a launch 
vehicle resulting in the impact of a launch vehicle, its payload or any 
component thereof:
    (i) For an expendable launch vehicle, outside designated impact 
limit lines; and
    (ii) For a reusable launch vehicle, outside a designated landing 
site.
    (4) For a launch that takes place with a person on board, a 
fatality or serious injury to a space flight participant or crew 
member.
* * * * *
    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.
* * * * *
    Reentry accident means
    (1) Any unplanned event occurring during the reentry of a reentry 
vehicle resulting in the impact of the reentry vehicle, its payload, or 
any component thereof, outside a designated reentry site;
    (2) An event that causes a fatality or serious injury (as defined 
in 49 CFR 830.2) to any person who is not associated with the reentry;
    (3) An event that causes damage estimated to exceed $25,000 to 
property not associated with the reentry and not located within a 
designated reentry site; and
    (4) For a reentry that takes place with a person on board, a 
fatality or serious injury to a space flight participant or crew 
member.
* * * * *
    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 aboard 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

[[Page 75632]]

impact point does not leave the surface of the Earth.
* * * * *

PART 415--LAUNCH LICENSE

0
3. The authority citation for part 415 continues to read as follows:

    Authority: 49 U.S.C. 70101-70121.

Subpart A--General

0
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 
demonstrate 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)

0
5. The authority citation for part 431 continues to read as follows:

    Authority: 49 U.S.C. 70101-70121.


0
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 demonstrate 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)

0
7. The authority citation for part 435 continues to read as follows:

    Authority: 49 U.S.C. 70101-70121.


0
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 demonstrate 
compliance with Sec. Sec.  460.5, 460.7, 460.11, 460.13, 460.15, 
460.17, 460.51 and 460.53 of this subchapter.

0
9. Revise part 440 to read as set forth below:

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 licensed launch, including 
suborbital launch, or permitted activities; modifications.
440.12 Duration of coverage for licensed 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 activities.
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.

    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. 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 level, 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) With 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 capable of satisfying 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 a launch or reentry vehicle.
    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 that have a probability of 
occurrence 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 that have a 
probability of occurrence of

[[Page 75633]]

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.
    Permitted activity means the launch or reentry of a reusable 
suborbital rocket conducted under a permit issued by the FAA.
    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.


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 must obtain and any adjustments 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) 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 paragraphs (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) 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 resulting from a licensed or 
permitted activity:

[[Page 75634]]

    (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 licensed launch, including 
suborbital launch, or permitted activities; modifications.

    (a) Insurance coverage required under Sec.  440.9, or other form of 
financial responsibility, shall attach when a licensed launch or 
permitted activity starts, and remain in full force and effect as 
follows:
    (1) Until completion of licensed launch or permitted activities at 
a launch or reentry 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 launch or permitted 
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 licensed reentry; modifications.

    (a) For reentry, insurance coverage required under Sec.  440.9, or 
other form of financial responsibility, shall attach upon commencement 
of licensed reentry, and remain in full force and effect as follows:
    (1) For ground operations, until completion of licensed reentry at 
the reentry site; and
    (2) For other licensed reentry activities, 30 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 reentry 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 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 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 an additional insured, and then only as

[[Page 75635]]

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 launch or permitted activity, and for 
licensed 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 of this part, for licensed activity, or Appendix C of this 
part, 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

[[Page 75636]]

Administration of the Department of 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 activity 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 Launch, Including 
Suborbital Launch

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 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 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.
    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

[[Page 75637]]

licensed 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 flight.
    B. Identification of accident failure scenarios, probability 
assessments for each, and estimation of risks to Government 
personnel, individuals not involved in licensed 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 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 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 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 Safety System.
    1. Identification of any 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 reentry, 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 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 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 reentry activities who may be exposed to risk 
during each operation. For

[[Page 75638]]

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 Activities

Part 1--Waiver of Claims and Assumption of Responsibility for 
Licensed Launch, including Suborbital Launch

    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''). This agreement 
applies to the launch of [Payload] payload on a [Launch Vehicle] 
vehicle at [Location of Launch Site]. 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), 
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 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 sections 440.9(c) and (e), 
respectively, of the Regulations.

4. Extension of Assumption of Responsibility and Waiver and Release of 
Claims

    (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 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 of 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 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 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 
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

[[Page 75639]]

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 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 
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 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

Part 2--Waiver of Claims and Assumption of Responsibility for 
Licensed Reentry

    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''). This agreement 
applies to the reentry of the [Payload] payload on a [Reentry 
Vehicle] vehicle.
    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 and Release of 
Claims

    (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

[[Page 75640]]

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.

5. Indemnification

    (a) Licensee shall hold harmless and indemnify Customer 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 and assignees, or any of 
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 
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 from 
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''). This agreement 
applies to [describe permitted activity].
    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 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 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

[[Page 75641]]

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 and Release of 
Claims

    (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 of 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 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 of 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 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 [name of 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''). This agreement applies to the Crew 
Member's participation in activities that the FAA has authorized by 
license or permit during the Crew Member's employment with [Name of 
licensee or permittee].
    In consideration of the mutual releases and promises contained 
herein, the Parties hereby agree as follows:

1. Definitions

    Crew Member means
    (a) The above-named Crew Member,
    (b) All the heirs, administrators, executors, assignees, next of 
kin, and estate of the above-named Crew Member, and
    (c) Anyone who attempts to bring a claim on behalf of the Crew 
Member or for damage or harm arising out of the Bodily Injury, 
including Death, of the Crew Member.

[[Page 75642]]

    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 its respective Contractors 
and Subcontractors, for Bodily Injury, including Death, or Property 
Damage sustained by Crew Member, 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, including Death, 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, 
including Death, or Property Damage sustained by Crew Member, 
resulting from Licensed/Permitted Activities, regardless of fault. 
The Crew Member shall hold harmless the United States, and the 
Contractors and Subcontractors of each Party, for Bodily Injury, 
including Death, or Property Damage sustained by Crew Member, 
resulting from Licensed/Permitted Activities, regardless of fault.
    (b) The United States shall be responsible for Property Damage 
it sustains, and for Bodily Injury, including Death, 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 and Release of 
Claims

    (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 Crew Member and to agree to 
be responsible, for any Property Damage the Contractors and 
Subcontractors sustain and for any Bodily Injury, including Death, 
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 the Contractors and Subcontractors may have 
against Crew Member and to agree to be responsible, for any Property 
Damage they sustain, resulting from Permitted Activities, regardless 
of fault.

5. Indemnification

    Crew Member shall hold harmless and indemnify 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 brought by anyone for Property Damage 
or Bodily Injury, including Death, sustained by Crew Member, 
resulting from Licensed/Permitted Activities.

6. Assurances Under 49 U.S.C. 70112(e)

    Notwithstanding any provision of this Agreement to the contrary, 
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, including Death, or Property Damage, sustained by Crew 
Member, 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.

7. 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 herein shall not apply to claims for 
Bodily Injury, including Death, 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.
    I [name of Crew Member] have read and understand this agreement 
and agree that I am bound by it.

CREW MEMBER

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

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 [name of 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''). This agreement applies to Space Flight 
Participant's travel on [name of launch or reentry vehicle] of [name 
of Licensee or Permittee]. In consideration of the mutual releases 
and promises contained herein, the Parties hereby agree as follows:

1. Definitions

    Space Flight Participant means
    (a) The above-named Space Flight Participant,
    (b) All the heirs, administrators, executors, assignees, next of 
kin, and estate of the above-named Space Flight Participant , and
    (c) Anyone who attempts to bring a claim on behalf of the Space 
Flight Participant or for damage or harm arising out of the Bodily 
Injury, including Death, of the Space Flight Participant.
    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, including Death, 
or Property Damage sustained by Space Flight Participant,

[[Page 75643]]

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, including Death, 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 be responsible for Bodily 
Injury, including Death, or Property Damage sustained by the Space 
Flight Participant resulting from Licensed/Permitted Activities, 
regardless of fault. Space Flight Participant shall hold harmless 
the United States, and its Contractors and Subcontractors, for 
Bodily Injury, including Death, or Property Damage sustained by 
Space Flight Participant from Licensed/Permitted Activities, 
regardless of fault.
    (b) The United States shall be responsible for Property Damage 
it sustains, and for Bodily Injury, including Death, 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 and Release of 
Claims

    (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, including Death, 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 Space Flight Participant, 
and to agree to be responsible, for any Property Damage the 
Contractors and Subcontractors sustain, resulting from Permitted 
Activities, regardless of fault.

5. Indemnification

    Space Flight Participant shall hold harmless and indemnify 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 brought by anyone for Property 
Damage or Bodily Injury, including Death, sustained by Space Flight 
Participant, resulting from Licensed/Permitted Activities.

6. 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, including Death, or Property Damage, 
sustained by Space Flight Participant, 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.

7. Miscellaneous

    (a) Nothing contained herein shall be construed as a waiver or 
release by the United States of any claim by an employee 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 herein shall not apply to claims for 
Bodily Injury, including Death, 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.
    I [name of Space Flight Participant] have read and understand 
this agreement and agree that I am bound by it.

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

PART 450--[REMOVED]

0
10. Remove part 450.

0
11. Add part 460 to read as follows:

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.

Subpart A--Launch and reentry with crew


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 to crew.


Sec.  460.5  Crew qualifications and training.

    (a) Each crew member must--
    (1) 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
    (2) 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, which may include high 
acceleration or deceleration, microgravity, and

[[Page 75644]]

vibration, in sufficient condition to safely carry out his or her 
duties so that the vehicle will not harm the public.
    (c) A pilot and a remote operator must--
    (1) Possess and carry an FAA pilot certificate with an instrument 
rating.
    (2) Possess aeronautical knowledge, experience, and skills 
necessary to pilot and control the launch or reentry vehicle that will 
operate in the National Airspace System (NAS). Aeronautical experience 
may include hours in flight, ratings, and training.
    (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 that has similar phases of flight to the vehicle ;
    (iii) Flight testing; or
    (iv) An equivalent method of training approved by the FAA through 
the license or permit 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.
    (d) A remote operator may demonstrate an equivalent level of safety 
to paragraph (c)(1) of this section through the license or permit 
process.
    (e) Each crew member with a safety-critical role must possess and 
carry an FAA second-class airman medical certificate issued in 
accordance with 14 CFR part 67, no more than 12 months prior to the 
month of launch and reentry.


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
    (1) Ensure that any crew-training device used to meet the training 
requirements realistically represents the vehicle's configuration and 
mission, or
    (2) Inform the crew member being trained of the differences between 
the two.
    (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 and 
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 
and any reentry 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 or demonstrate 
through the license or permit process that an alternate means provides 
an equivalent level of safety--
    (1) Composition of the atmosphere, which includes oxygen and carbon 
dioxide, and any revitalization;
    (2) Pressure, temperature and humidity;
    (3) Contaminants that include particulates and any harmful or 
hazardous concentrations of gases, or vapors; and
    (4) Ventilation and circulation.
    (b) An operator must provide an adequate redundant or secondary 
oxygen supply for 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;
    (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 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

[[Page 75645]]

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 can be readily understood by a space 
flight participant with no specialized education or training, and must 
disclose in writing--
    (1) For each mission, each known hazard and risk that could result 
in a serious injury, death, disability, or total or partial loss of 
physical and mental function;
    (2) That there are hazards that are not known; and
    (3) 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 and any 
reentry 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 and reentries.
    (d) An operator must describe the safety record of its vehicle to 
each space flight participant. The operator's safety record must cover 
launch and reentry accidents and human space flight incidents that 
occurred during and after vehicle verification performed in accordance 
with Sec.  460.17, and include--
    (1) The number of vehicle flights;
    (2) The number of accidents and human space flight incidents as 
defined by section 401.5; and
    (3) Whether any corrective actions were taken to resolve these 
accidents and human space flight incidents.
    (e) An operator must inform a space flight participant that he or 
she may request additional information regarding any accidents and 
human space flight incidents reported.
    (f) Before flight, an operator must provide each space flight 
participant an opportunity to ask questions orally to acquire a better 
understanding of the hazards and risks of the mission, and each space 
flight participant must then provide consent in writing to participate 
in a launch or reentry. The 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; and
    (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 of this 
chapter.


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 1, 2006.
Marion C. Blakey,
Administrator.
[FR Doc. E6-21193 Filed 12-14-06; 8:45 am]
BILLING CODE 4910-13-P