U.S. Commercial Space Launch Competitiveness Act Incorporation

SUPPLEMENTARY INFORMATION:

List of Abbreviations and Acronyms Frequently Used in This Document

Expendable Launch Vehicle (ELV)

International Civil Aviation Organization (ICAO)

Maximum Probable Loss (MPL)

National Aeronautics and Space Administration (NASA)

Reusable Launch Vehicle (RLV)

United States Commercial Space Launch Competitiveness Act (CSLCA)

United States Government (USG)

Table of Contents

I. Authority for This Rulemaking

II. Executive Summary

A. Purpose of the Regulatory Action

B. Changes From the Proposed Rule

C. Summary of the Costs and Benefits

III. Background

A. Summary of the NPRM

B. General Overview of Comments

C. Differences Between the NPRM and the Final Rule

IV. Discussion of Comments and the Final Rule

V. Regulatory Notices and Analyses

A. Regulatory Impact Analysis

B. Regulatory Flexibility Act

C. International Trade Impact Assessment

D. Unfunded Mandates Assessment

E. Paperwork Reduction Act

F. Environmental Analysis

VI. Executive Order Determinations

A. Executive Order 13132, Federalism

B. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

C. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

D. Executive Order 13609, Promoting International Regulatory Cooperation

VII. Additional Information

A. Electronic Access and Filing

B. Small Business Regulatory Enforcement Fairness Act

List of Subjects

I. Authority for This Rulemaking

The Commercial Space Launch Act of 1984, as amended and codified at 51 U.S.C. 50901-50923 (the Act), authorizes the Secretary of Transportation to oversee, license, and regulate commercial launch and reentry activities, and the operation of launch and reentry sites within the United States (U.S.) or as carried out by U.S. citizens. Section 50905 directs the Secretary to exercise this responsibility consistent with public health and safety, safety of property, and the national security and foreign policy interests of the United States. In addition, section 50903 requires the Secretary to encourage, facilitate, and promote commercial space launches and reentries by the private sector. As codified in 49 CFR 1.83(b), the Secretary has delegated authority to the FAA Administrator to carry out these functions.

II. Executive Summary

A. Purpose of the Regulatory Action

This rule makes several changes to incorporate government astronauts in the regulations, in accordance with the United States Commercial Space Launch Competitiveness Act (CSLCA). It amends title 14 of the Code of Federal Regulations (14 CFR) parts 401, 413, 415, 431, 435, 437, 440, 450, and 460 by incorporating statutory changes resulting from the CSLCA. Specifically, it adds definitions for “Government astronaut,” “International partner astronaut,” and “International Space Station Intergovernmental Agreement,” and revises definitions of “Human space flight incident,” “Launch,” “Launch accident,” “Reenter; reentry” “Reentry accident,” and “Space flight participant,” to incorporate changes required by adding the definition of “Government astronaut.” The rule also creates two new subparts in 14 CFR part 460 that include requirements for operators and applicants whose licensed or permitted operations involve government astronauts with and without safety-critical roles on board a vehicle. The rule revises the human space flight sections of parts 415, 431, 435, 437, and 450 to add government astronauts to the list of people who can be on board a launch or reentry vehicle, and adds certain additional provisions in part 460 to the list of provisions with which an operator must comply.

Additionally, this rule expands the applicability of part 437 to include launching or reentering certain reusable suborbital vehicles. The rule also revises parts 401, 413, 415, 431, 435, 437, 440, 450, and 460 to make conforming amendments to expand the eligibility for an experimental permit from reusable suborbital rockets to reusable suborbital vehicles.

The rule revises part 440 in accordance with the statute and makes conforming amendments. Specifically, it updates the financial responsibility requirements in part 440 to exclude government astronauts from the definitions of “Third party” and “Maximum probable loss (MPL)”. It also adds space flight participants to the insurance requirements in § 440.9 and the reciprocal waiver of claims requirements in § 440.17. Finally, this rule removes the templates for waiver of claims and assumption of responsibilities in appendices B through E of part 440 from the regulations and places them in a separate advisory circular (AC).

B. Changes From the Proposed Rule

The final rule makes several changes from the proposed rule. It replaces the proposed term “human being,” proposed in the notice, with “crew, space flight participant, or government astronaut” in the human space flight requirements of 14 CFR 415.8, 431.8, 435.8, and 437.21(b)(3). In 14 CFR 440.3, the final rule does not adopt the proposed change to government personnel; and excludes government astronaut from the definitions of MPL and third party. The final rule amends the proposed language regarding the reciprocal waiver of claims templates to specify that the templates contained in advisory circular AC 440.17-1 satisfy the reciprocal waiver of claims requirements in 14 CFR 440.17. The final rule replaces the proposed requirement in 14 CFR 460.59(d)(1) to track and update government astronaut training in writing with the requirement to provide traceability to revisions or changes to government astronaut training. Finally, the final rule changes the proposed requirement for operators to train government astronauts in 14 CFR 460.59 and 460.67 to a requirement that operators ensure government astronauts are trained.

C. Summary of the Costs and Benefits

These changes have a minimal impact on licensed commercial space activity with government astronauts because the changes align regulations with the current statutory requirements and practices for crew, space flight participants, and government astronauts. The FAA has been applying the statutory changes since they went into effect in 2015. Since this rule codifies these current practices, there is effectively no change from the baseline practice without the rule, and therefore no measurable resulting benefits or costs.

III. Background

A. Summary of the NPRM

On August 18, 2023, the FAA published the notice of proposed rulemaking (NPRM) titled “U.S. Commercial Space Launch Competitiveness Act Incorporation” (88 FR 56546). The FAA also posted draft guidance material for the proposal in the form of a draft “AC 440.17-1 Reciprocal Waiver of Claims Requirements” for comment in the NPRM docket. This NPRM proposed to amend 14 CFR parts 401, 413, 415, 431, 435, 437, 440, 450, and 460 by incorporating statutory changes resulting from the CSLCA. The NPRM proposed to add definitions for “Government astronaut,” “International partner astronaut,” and “International Space Station Intergovernmental Agreement” and revise other definitions required to address the addition of “Government astronaut.” The NPRM also proposed expanding applicability of permitted operations for suborbital rockets to suborbital launch and reentry vehicles; revising the human space flight sections of parts 415, 431, 435, 437, and 450 to include the term “human being” to incorporate government astronauts; updating the financial responsibility requirements to exclude government astronauts from the definitions of “Third party” and “Government personnel” in part 440; adding space flight participants to the insurance requirements in § 440.9, and the reciprocal waiver of claims requirements in § 440.17; and removing the templates for waiver of claims and assumption of responsibilities in appendices B through E of part 440 from the regulations and placing them in a separate advisory circular (AC). Finally, the NPRM proposed creating two new subparts in 14 CFR part 460 to include requirements for operators and applicants who's licensed or permitted operations involve government astronauts with and without safety-critical roles on board a vehicle.

B. General Overview of Comments

The FAA received 15 comments from individuals, industry associations, and launch and reentry operators. All of the commenters generally supported the proposed changes; however, some suggested changes to the proposal, as discussed more fully in Section IV.

The FAA received comments on the following general areas of the proposal:

1. Removing government astronauts from the definition of third party

2. Duplication of requirements

3. Informed consent of government astronauts

4. Government astronauts without a safety-critical role

5. Moving waiver of claims templates to an advisory circular

6. Government astronauts on permitted operations

7. Tracking government astronaut training requirements

8. Environmental controls

9. Use of the term “human being”

10. Aeronautical knowledge requirement

11. Permit eligibility

12. Government astronauts on foreign vehicles

13. Clarification on the role of international partner astronauts

14. Training of space flight participants for safety critical roles

15. Use of American National Standards Institute (ANSI) standard for human spaceflight ontology

16. Transparency of MPL Methodology

17. Commercial Use of Asteroid or Space Resources

C. Differences Between the NPRM and the Final Rule

The final rule does not adopt the proposed change to the definition of “government personnel” in 14 CFR 440.3; and excludes government astronauts from the definitions of third party and maximum probable loss in the same section. The final rule replaces the proposed term “human being” with “crew, space flight participant, or government astronaut” in 14 CFR 415.8, 431.8, 435.8, and 437.21(b)(3). The FAA also amends the government astronaut training requirements in the final rule to make clear that an operator must ensure government astronauts are appropriately trained but is not required to conduct that training itself. Finally, the final rule allows electronic means of tracking government astronaut training.

IV. Discussion of Comments and the Final Rule

The FAA makes changes to this final rule in response to comments made by the public. Summaries of the comments and the FAA's responses are grouped by category in the following subsections.

A. Treatment of Government Astronauts Under Part 440

In accordance with the CSLCA, this rule excludes government astronauts from the definition of third party. It also revises the definition of maximum probable loss (MPL) such that government astronauts are not included in MPL calculations. It makes no change to the definition of government personnel.

Title 51 U.S.C. chapter 509 requires a licensee to obtain insurance or demonstrate financial responsibility in amounts to compensate for the maximum probable loss from claims by third parties and the United States Government (USG) for certain specified claims. 51 U.S.C. 50914(a)(1). By excluding government astronauts from the definition of third party, government astronauts must also necessarily be excluded from the MPL calculation in § 50914(a)(1)(A). The NPRM proposed to exclude government astronauts from the definition of “third party” and consequently the definition of “government personnel” because government personnel are third parties under 14 CFR 440.3. Under the proposal, the presence of government astronauts during licensed or permitted activities would not affect the amount of insurance coverage operators are required to obtain under 14 CFR 440.9. Additionally, by excluding government astronauts from the definition of “government personnel” in § 440.3, government astronauts would have also necessarily been excluded as additional insureds under § 440.9(b).

Multiple commenters indicated that it is not clear in the NPRM who is responsible for losses to government astronauts during licensed activities. Sierra Space commented that it believes section 112(j) of the CSLCA amended the definition of “third party” in 51 U.S.C. 50902(26) to exclude government astronauts. Sierra Space found that this is a logical exclusion, as government astronauts are intentionally incorporated and integrated into launch missions and should not be treated as third parties for liability purposes.

Virgin Galactic commented that the removal of government astronauts from the definition of government personnel removes the requirement for licensees to obtain an insurance policy to protect government astronauts from their potential liability in their involvement in launch or reentry services. Virgin Galactic also commented that the exclusion of government astronauts from the definition of third party will prevent the FAA from including potential government astronaut claims in MPL calculations. Virgin Galactic requested that the FAA address the implications the exclusion of government astronauts from the definition of third party will have on MPL determinations and indemnification eligibility under 51 U.S.C. 50915. Virgin Galactic noted that it understands the proposed rule as preventing licensees from being eligible for government indemnification when carrying government astronauts as government astronauts are neither third parties nor government personnel.

In the final rule, the FAA explicitly excludes government astronauts from the definition of “third party” in § 440.3 by adding the phrase “excluding government astronauts” and adding text that excludes government astronauts from government personnel as it is used in the definition of “third party.” Excluding government astronauts from being considered a third party effectively means that government astronauts are not included in MPL calculations and are therefore prevented from bringing claims as third parties. The presence of government astronauts on board a launch or reentry vehicle would therefore not increase MPL values. Because government astronauts are not third parties, they cannot recover for bodily injury or property damage they may suffer during licensed activities using the licensee's or permittee's insurance required under § 440.9. However, the USG could be responsible for losses to government astronauts who are USG employees because the USG agrees to be responsible for personal injury to, death of, or property damage or loss sustained by its own employees through the waiver of claims.

Excluding government astronauts from the definition of third parties does not affect the government indemnification provisions in 51 U.S.C. 50915. Section 50915 states that the USG, subject to appropriation or additional legislative authority, shall provide for the payment of certain successful claims by a third party as a result of licensed activity to the extent the total amount of successful claims related to one launch or reentry exceeds the insurance or demonstration of financial responsibility values and is less than the maximum amount set in § 50915(a)(1)(B). Virgin Galactic stated that it understands the proposal would prevent licensees from being eligible for government indemnification when carrying government astronauts as the government astronauts are neither third parties nor government personnel under the proposed rule.

The characterization of government astronauts as not being third parties under the CSLCA and part 440 does not affect whether a licensee receives government indemnification under § 50915. Rather, the total number of successful claims, along with the necessary appropriations or legislation, are determining factors in whether a licensee receives government indemnification. A licensed activity with only government astronauts on board would not render that activity ineligible for government indemnification of a successful claim of a third party.

In the final rule, the FAA does not amend the definition of government personnel in 14 CFR 440.3. By rulemaking finalized in 1998, the FAA added the term “government personnel” to part 440 and added government personnel to the list of additional insureds. Financial Responsibility Requirements for Licensed Launch Activities, Final Rule, 63 FR 45592 (Aug. 26, 1998). As it explained in the preamble to the final rule, the FAA made these changes in response to a Senate Report stating that Congress intended for government personnel directly associated with the commercial launch operations to be classified as third parties. S. Rep. No. 100-593 (1988). The FAA additionally stated in the Financial Responsibility Requirements for Licensed Launch Activities NPRM, published in 1996, that treating government personnel as third parties and naming them as additional insureds is in accord with the definition of third party contained in the statute. Financial Responsibility Requirements for Licensed Launch Activities, NPRM, 61 FR 38992 (July 25, 1996). This is because employees of the USG are different than the USG as an entity. Because of this distinction, treating USG employees as third parties did not conflict with the statute.

In 2015, Congress explicitly excluded government astronauts from the definition of third parties. There is no legislative history to suggest that Congress also wanted the FAA to exclude government astronauts who are USG personnel from being protected as additional insureds. In fact, under the CSLCA, Congress made changes to the additional insureds requirement in 51 U.S.C. 50914(a)(4) by adding space flight participants as additional insureds but did not make any changes to explicitly exclude government astronauts. Therefore, government astronauts who are USG personnel should also be treated as additional insureds. The FAA need not make any changes to § 440.9(b) to include government astronauts because any government astronauts who are employees of the USG are necessarily included as additional insureds by being government personnel.

B. Duplication of Requirements

This rule finalizes the proposal to create two new subparts in part 460 to address the training of government astronauts with safety-critical and non-safety-critical roles during licensed activity. The FAA revises the language in the proposal regarding training government astronauts to clarify that while an operator is responsible for ensuring that a government astronaut is appropriately trained, the operator itself is not required to conduct the training.

SpaceX commented that the FAA's proposed changes to part 460 would duplicate training requirements with no material increase to public safety and would place additional regulatory burden on operators. SpaceX argued that NASA's training requirements are sufficient and should automatically be accepted by the FAA. SpaceX also noted that it believes the NPRM could potentially conflict with NASA's or other government agencies' training requirements in the future. SpaceX stated that the FAA already recognizes the appropriateness of certain NASA training requirements by referring to them in the NPRM. SpaceX also noted that all or nearly all of the part 460 regulations could be met by current Crew Dragon training approved by NASA as part of the Commercial Crew Program. While SpaceX agreed with the FAA's statements in the NPRM that the FAA has broader regulatory authority to protect public safety, SpaceX does not believe the FAA has articulated why a streamlined acceptance of NASA training requirements is insufficient to protect public safety. To support its position, SpaceX stated that the part 450 payload review and determination requirements explicitly remove any duplication of government oversight in § 450.43(b) in which the FAA defers payload review to agencies with principal regulatory responsibility. SpaceX noted that the FAA should adopt the same approach as it relates to government astronaut training requirements in part 460. SpaceX recommended that the FAA revise the final rule to codify that its training requirements are “not intended to duplicate, conflict with, or replace NASA's training requirements for government astronauts” by following the § 450.43(b) model. SpaceX suggested a single update in § 460.59 applicable only to government astronauts that states “An operator must certify that each government astronaut is trained in accordance with requirements established or approved by the National Aeronautics and Space Administration for government astronauts.” SpaceX stated that these revisions will provide flexibility for any future updates to training processes with NASA or the incorporation of NASA-approved training regimens with other government agencies, both domestically and internationally.

Under 51 U.S.C. chapter 509, the FAA has the authority and responsibility to protect public safety during launches and reentries. NASA does not share this public safety oversight authority. Because government astronauts may have the ability to affect public safety, the FAA must establish regulations to mitigate any public safety risk. Furthermore, the FAA notes that NASA does not currently provide all government astronaut training for a commercially operated mission. An operator would provide vehicle- and mission-specific training because it is the most familiar with the specific vehicle and operation. The FAA chose to use part 460 crew training requirements to evaluate past licenses involving government astronauts because crew similarly have the capability to affect public safety. An operator can meet part 460 requirements by leveraging the contractual obligations between NASA and the operator. NASA contractual obligations require the operator to comply with requirements NASA uses to certify operations to the International Space Station contained in the Crew Transportation Technical Management Process CCT-PLN-1120 Section 6.3.1, Crew Transportation and Services Requirements Document CCT-REQ-1130 Section 3.8.5.1, and Crew Transportation Operations Standards CCT-STD-1150 Section 5. NASA certifies that government astronauts received the training required by contract, and the FAA uses that certification as verification that the operator meets the FAA regulations. NASA provides certification and the FAA evaluates the contractual requirements during the licensing process. The FAA notes that there will be no change to how licenses involving government astronauts are evaluated and issued as a result of this rule.

The payload review requirements in 14 CFR 450.43(b) specify that the FAA will not make a payload determination for those aspects of payloads that are subject to regulation by the Federal Communications Commission (FCC) or the Department of Commerce. The FAA will review all payloads to determine their effect on safety of launch but will not make a determination on those aspects of payloads that are subject to regulation by the FCC or the Department of Commerce. Streamlined Launch and Reentry License Requirements, Final Rule, 85 FR 79566, 79589 (Dec. 10, 2020). Similarly, in this rule, the FAA finalizes requirements that allow the FAA to satisfy its responsibility to evaluate licenses for operations including government astronauts for the purposes of a government astronaut's potential to affect public safety.

While the FAA maintains its authority to issue regulations relating to the training of government astronauts to protect public safety, it acknowledges that the operator may not always be the entity conducting the training. For example, some training may be provided by NASA or by a contractor. Therefore, in this final rule the FAA changes the text in §§ 460.59 and 460.67 training sections for government astronauts from “an operator must train each government astronaut” to “an operator must ensure that each government astronaut is trained”. Instead of requiring operators to train each government astronaut, the FAA rule specifies that an operator must ensure that training has been provided to each government astronaut. This change clarifies that operators do not necessarily need to be the entity providing the training; however, the requirement is still levied on the operator to ensure that government astronauts have been trained in accordance with the regulatory requirements.

C. Informed Consent of Government Astronauts

This final rule does not require government astronauts to sign informed consent forms with operators. Two commenters disagreed with this approach.

Virgin Galactic commented that not all potential government astronauts may be in the NASA Astronaut Corps or have the level of training to understand the inherent risks associated with spaceflight activities. Virgin Galactic also commented that there are several state statutes that protect licensees from liability when informed consent is provided.

Blue Origin commented that the requirements in § 460.45 are intended to illuminate the specific risks and hazards associated with the commercial safety record of each launch vehicle, as well as the general risks of spaceflight. Blue Origin noted that it remains prudent to provide government astronauts with the same information and opportunities for dialogue available to space flight participants. Blue Origin also recommended that government astronauts without safety-critical roles be informed of the risks associated with spaceflight, similar to the informed consent space flight participants must provide. Blue Origin suggested that the FAA adopt language similar to § 460.45 in its proposed subpart D to apply the same requirement to government astronauts without a safety-critical role.

The FAA is not adding a requirement that government astronauts provide informed consent to the final rule because, as it stated in the NPRM, government astronauts are aware of the risks of space flight. As explained in the NPRM, the NASA Administrator designates government astronauts, and that designation implies appropriate knowledge and training for the performance of official duties. In addition, there is no statutory requirement for government astronauts to sign informed consent forms and doing so may interfere with their rights under the Federal Employees' Compensation Act. Therefore, the U.S. government should inform government astronauts of any risks they may be exposed to while performing official duties. This applies to all government astronauts, including those with a safety-critical role.

In response to Virgin Galactic's concern that state statutes protect licensees from liability when informed consent is provided, in most, if not all, of these states the respective statutes provide specific informed consent language that serves as a waiver of claims between the operator and the participant. The consideration of informed consent as a waiver of claims is further reason why a government astronaut should not sign an informed consent agreement with the operator because government astronauts do not waive claims.

In response to Blue Origin's comment that government astronauts should receive the same mission information and opportunity to discuss that information with the operator, the FAA notes that the fact that there is not a regulatory requirement for government astronauts to sign an informed consent form does not preclude operators from providing information to and speaking with government astronauts. An operator may inform a government astronaut about the unique risks and safety record of the vehicle, but the FAA will not require a government astronaut's signature on an informed consent agreement.

D. Moving Waiver of Claims Templates to an AC

This rule finalizes the proposal to move the templates for waiver of claims in appendix B through E of part 440 to a separate advisory circular and adds language to clarify that these templates are approved by the FAA and may be used to meet the requirements in § 440.17.

SpaceX disagreed with moving the templates to a separate advisory circular. Specifically, SpaceX noted that the inclusion of cross-waivers in the part 440 appendices has streamlined negotiations related to cross-waivers between licensees or permittees and customers and has therefore also lessened FAA's burden to review cross-waiver submissions to ensure compliance with the regulations. SpaceX stated that although the current language of § 440.17 allows for submission of a “form that otherwise provides all the same obligations and benefits” as the cross-waivers contained in the part 440 appendices, as a practical matter, licensees simply submit the cross-waiver forms contained in the appendices. SpaceX emphasized that moving the sample forms out of an appendix into a separate advisory circular will be confusing to less frequent signers of cross-waivers and will encourage more negotiation between the licensee or permittee and the individuals or entities required to sign cross-waivers. SpaceX noted that any such negotiation that results in changes to the cross-waiver language will then add to the FAA's burden by requiring the FAA to spend additional time reviewing the submission to ensure compliance with § 440.17.

Sierra Space commented that the language proposed in § 440.17 could potentially be read to imply that the Administrator must approve the form used for the waivers in each case. Sierra Space recommended rewording the language in § 440.17 to clarify that review or approval by the Administrator is not required if a licensee adopts the language already set forth in a template published by the FAA.

An individual commented that they support the FAA's proposal to move the cross-waiver templates to an advisory circular because the templates are merely examples of how to meet a regulation and are not themselves regulatory.

This rule moves the waiver of claims templates from the part 440 appendices to an advisory circular because these templates are not regulatory, but simply examples, and moving them to an advisory circular provides greater flexibility to update or revise as needed. These templates are provided to assist operators with meeting the reciprocal waiver of claims requirements but are not the only means by which an operator may meet those requirements. They are, therefore, more appropriately located in an advisory circular. SpaceX and Sierra Space commented that the language in the NPRM's proposed § 440.17 was not clear that the waiver of claims forms in the advisory circular would be acceptable and approved by the FAA without the need for additional legal review, unless modified. Therefore, the FAA is revising the language in § 440.17 to state: “The reciprocal waiver of claims must be in a form acceptable to the Administrator, such as those contained in advisory circular AC 440.17-1.” This change will clarify that the reciprocal waiver of claims templates found in AC 4401.17-1, or any future updates, are acceptable to the FAA and may be used to meet the requirements in § 440.17.

E. Government Astronauts on Permitted Operations

The final rule would not prohibit government astronauts from being onboard during permitted operations. Some commenters questioned whether government astronauts would ever be part of a permitted operation.

Ascendant Spaceflight Services (Ascendant) commented that the FAA should delete references to “government astronaut” in permitted operations because suborbital vehicles in the development or experimental phase would not be carrying government astronauts. Rather, those vehicles would only be carrying crew. Ascendant asserted that experimental permit human space flight requirements in § 437.5 only apply to crew.

The FAA does not agree. While § 437.5 does identify launch or reentry for the purpose of crew training as eligible for an experimental permit, § 437.5(b) states that eligibility for a permit also includes a showing of compliance with requirements for obtaining a license. An operator may choose to conduct an operation with government astronauts on board under an experimental permit to demonstrate compliance with a requirement to obtain a license. Although no government astronauts have flown on a permitted vehicle to date, it is possible they might in the future to train for a licensed mission.

F. Tracking Astronaut Training Requirements

The final rule revises proposed § 460.59(d)(1) to require operators ensure government astronaut training is up to date by incorporating lessons learned from training and operational missions by providing traceability to revisions or changes. The proposed rule would have required operators to track each revision of the training plan and update training in writing.

The FAA received two comments on this issue. ALPA supported the FAA's proposals requiring operators to track and update the training of government astronauts. SpaceX, however, recommended providing more flexibility for tracking changes to training. SpaceX explained that it utilizes a sophisticated change control system to track updates to training and suggested revising proposed § 460.59(d)(1) to require an operator to update the government astronaut training continually to ensure the training incorporates lessons learned from training and operational missions by providing traceability to revisions or changes.

The FAA agrees with SpaceX's suggested change. Proposed § 460.59(d)(1) would require all revisions to training to be tracked in written form. The FAA finds that SpaceX's recommended change would provide FAA with sufficient compliance insight through traceability, which meets the intent of the FAA's initial proposed § 460.59(d)(1), while also permitting operators to use modern electronic systems. The FAA adopts SpaceX's proposed language in the final rule.

G. Environmental Controls

This rule finalizes the proposal to require operators to establish environmental controls for operations involving government astronauts with a safety-critical role because, as with crew, the FAA found that government astronauts would likewise need to be protected from atmospheric conditions and receive training that is necessary for the safety of the public on the ground, in air, and in space.

The FAA received two comments on this issue. An individual questioned whether environmental controls referred to life support systems or environmental impacts. Environmental controls in these regulations do refer to life support systems. SpaceX commented that humidity is not a safety-critical metric of determining suitable atmospheric conditions for human beings and that compared to other conditions listed within the subparts to § 460.61, humidity is an outlier given that it is not a direct risk to life and consciousness.

The FAA retains humidity in § 460.61(a)(2) in the final rule. The FAA notes that while very high humidity environments could influence core body temperature, the time high humidity would take to cause an impact would be much longer than impacts from pressure and temperature changes in the inhabited area of a vehicle. However, if a flight crew depended on visual information through a window, humidity control would be necessary to avoid windows fogging and condensation that can hinder a pilot's vision and could therefore impact public safety.

H. Use of the Term “Human Beings”

In this rule, the FAA replaces the proposed term “human beings” with the defined terms “space flight participant,” “crew,” and “government astronaut” where appropriate. In the NPRM, the FAA proposed to use the term “human being” to encompass all three categories of persons who can currently be carried on board a vehicle: government astronaut, space flight participant, and crew.

The FAA received two comments on this issue. Sierra Space commented that the NPRM's use of the term “human beings” could potentially lead individuals, lawmakers, courts, and licensees to incorrectly assume that there is some other category of humans who may be present on board licensed operations besides those that have already been defined (space flight participants, crew, and government astronauts). Sierra Space stated that the FAA should remove the use of “human beings” and instead revert to listing each category of individuals to which the language applies. An individual similarly commented that the classification of non-astronaut workers as “human beings” is an unnecessary classification that would only overcomplicate future requirements on these workers.

The FAA finds that using the term “human beings” could cause unnecessary confusion among stakeholders and therefore is removing that term in the final rule. Instead, the FAA is replacing “human beings” with the defined terms “space flight participant,” “crew,” and “government astronaut” where appropriate.

I. Aeronautical Knowledge Requirement

This rule finalizes proposed § 460.59(b)(3), which requires an operator to ensure any government astronaut with a safety-critical role possesses aeronautical knowledge, experience, and skills necessary to pilot and control the launch or reentry vehicle that will operate in the National Airspace System (NAS). The regulation specifies that aeronautical experience may include hours in flight, ratings, and training.

SpaceX commented that proposed § 460.59(b)(3) would transfer an existing requirement onto operators to ensure government astronauts are trained, and that NASA should continue to hold this responsibility and set forth any requirements it deems suitable for designated astronauts as set forth in 51 U.S.C. 50902(4). To support its position, SpaceX noted that the training requirement is tailored to winged vehicles rather than fully automated capsules, such as its Crew Dragon, which are not maneuverable during launch and reentry, and which utilize Notices to Air Missions and Notices to Mariners to remove the need for in-flight and real-time coordination within airspace. SpaceX therefore found that the aeronautical knowledge, including hours in aircraft flight, required by proposed § 460.59(b)(3) is irrelevant to safe vehicle operation and recommended that FAA remove this requirement as overly prescriptive and inapplicable.

The FAA disagrees that proposed § 460.59(b)(3) should be removed from the final rule. The requirement for aeronautical knowledge only applies to government astronauts who have the capability to control, in real time, a launch or reentry vehicle's flight path during a phase of flight capable of endangering the public. The requirement is not a blanket requirement for all government astronauts. Autonomous vehicles where government astronauts do not have any input for phases of flight going through the NAS would not need to comply with this requirement as such aeronautical knowledge, experience, and skills would not be necessary. Any NASA requirement for aeronautical knowledge for government astronauts that pilot a vehicle is not redundant because it can be used to demonstrate compliance with the FAA requirement.

J. Permit Eligibility

This rule finalizes the proposal to replace the term “reusable suborbital rocket” with “reusable suborbital vehicle” in § 437.5. It also finalizes the proposal to remove the term “new” from § 437.5(a) to allow research and development of existing design concepts, equipment, or operating techniques, consistent with the CSLCA.

Ascendant commented that experimental permits should not be limited to suborbital launch vehicles. Ascendant stated that there is no difference in risk to the public between any experimental launch or reentry vehicle, suborbital or orbital, which does not carry commercial payloads and paid occupants. Ascendant noted that the limited applicability of experimental permits places additional burden on developers of orbital or expendable suborbital vehicles which require licenses before test flight can begin. Ascendant also asked for clarification regarding whether the training referenced in § 437.5 refers to training crew in flight to operate a licensed vehicle, or training crew to operate a vehicle for which a license would be issued (for example, to complete integrated testing with humans).

The training referenced in § 437.5 refers to training crew in flight to operate a licensed vehicle. The FAA's statutory authority to issue experimental permits only applies to suborbital vehicles, and therefore the FAA does not have the authority to expand the applicability of experimental permits to any orbital vehicles. Title 51 U.S.C. 50906 states that the Secretary may issue a permit only for reusable suborbital rockets or reusable launch vehicles that will be launched into a suborbital trajectory or reentered under that permit solely for research and development to test design concepts, equipment, or operating techniques; showing compliance with requirements as part of the process for obtaining a license under this chapter; or crew training for a launch or reentry using the design of the rocket or vehicle for which the permit would be issued. The FAA is only expanding eligibility to launch or reentry vehicles on a suborbital trajectory to align with the CSLCA. Therefore, the FAA will not expand the applicability of experimental permits to any orbital vehicles.

K. Government Astronauts on Foreign Vehicles

This rule defines “government astronaut” to match the statutory definition and provides regulatory clarity to applicants seeking FAA licenses for space flight operations involving government astronauts.

An individual commented that it may be beneficial to acknowledge U.S. government astronauts flying on board international partner spacecraft and international launch providers. The individual noted that the International Space Station (ISS) currently uses Soyuz vehicles from Russia and that there could be advances in vehicles from ESA and JAXA, for example.

The FAA does not license foreign launch or reentry vehicles that are launching or reentering outside the U.S., and therefore addressing government astronauts flying on board foreign spacecraft that launch or reenter outside the U.S. is outside the scope of the FAA's regulatory authority and this rulemaking.

L. Clarification on the Role of International Partner Astronauts

This rule defines an “International partner astronaut” as an individual designated under Article 11 of the International Space Station Intergovernmental Agreement, by a partner to that agreement other than the U.S., as qualified to serve as an ISS crew member. This definition was taken directly from the CSLCA.

Sierra Space encouraged the FAA to further clarify the role of international partner astronauts, including clarifying who would not qualify as an international partner astronaut. Sierra Space stated that since the NPRM's definition of “international partner astronaut” applies only to astronauts contributed by ISS partner states who are crewmembers on board the ISS, the term would not apply to international astronauts from non-partner states, nor would it apply to any international astronaut serving missions unrelated to the ISS. Sierra Space concluded that all such individuals would be considered space flight participants under the proposed regulations and would therefore be subject to the waiver and informed consent requirements applicable to space flight participants.

Sierra Space noted that there may be cases in which foreign governments may be unwilling to allow or require their employees to enter the waivers of claims required of space flight participants, or to personally assume the risk of human space flight operations as required by the informed consent regime. Sierra Space stated that the FAA should consider granting latitude to operators carrying astronauts from foreign countries by waiving informed consent and individual waiver requirements, especially if those countries have sufficiently mature astronaut training programs and are willing to accept financial responsibility for claims brought by their employees.

The FAA is adopting the statutory definition of international partner astronaut. The FAA realizes that the statutory definition only applies to ISS partner astronauts. Any foreign astronaut who does not meet the definition of international partner astronaut would be considered a space flight participant under FAA regulations and would have to comply with space flight participant regulations. An operator may request a waiver to the waiver of claims requirement for space flight participants for those instances in which a foreign astronaut is characterized as a space flight participant rather than an international partner astronaut.

M. Training of Space Flight Participants for Safety Critical Roles

SpaceX commented that, in the interest of public safety and the safety of those on board launch and reentry vehicles, the FAA should update the final rule to reflect in its regulations that space flight participants should be trained appropriately to conduct potentially lifesaving functions during an emergency to protect both themselves and the public, including operating a vehicle during launch or reentry in a manner to protect public safety. SpaceX noted that the definitions for crew, government astronaut, and space flight participant within 51 U.S.C. 50902 were developed at a time when Congress anticipated all crewed vehicles to be operated either by crew or by government astronauts. However, SpaceX noted that while the statute provides training for crew and government astronauts, missions that have only had space flight participants on board have occurred for both orbital and suborbital systems. Furthermore, SpaceX stated that the statutory definition of space flight participants, defined in 51 U.S.C. 50902 to be any person that is not crew or a government astronaut, does not prohibit the FAA from requiring an operator to train space flight participants to operate a vehicle during launch or reentry. SpaceX concluded that, therefore, the FAA should revise its regulations to allow an operator to train space flight participants to operate a vehicle during launch or reentry because the underlying statute does not prohibit space flight participant training.

Sierra Space similarly commented that the FAA should adopt common requirements for training which apply to any passenger or remote operator in a safety critical role, regardless of how that individual is classified under the regulations. Sierra Space stated these common requirements should clarify what constitutes a “safety-critical role” to limit the definition to those individuals who are essential to ensuring that the vehicle operates in real time to ensure public safety.

In the NPRM, the FAA did not propose to add training requirements for space flight participants. The FAA explained that whereas the definition of crew in title 51 expressly acknowledges a crew member's ability to perform activities directly relating to operation of the vehicle, the definition of space flight participant contains no express authority to do so. Furthermore, current crew qualification and training requirements include a demonstration of the ability to withstand the stresses of space in sufficient condition to safely carry out duties so the vehicle will not harm the public. Each crew member with a safety-critical role is also required to possess and carry an FAA second-class medical certificate. Similarly, government astronauts who perform a safety-critical role must be trained to carry out that role because it may affect the safety of the public. An operator may choose to train space flight participants to conduct potentially lifesaving functions during an emergency to protect themselves, however, the regulations do not require this training because it is not necessary to protect public safety.

The FAA has already addressed training requirements for those missions that only have space flight participants onboard. Under § 460.51, an operator must train each space flight participant before flight on how to respond to emergency situations, including smoke, fire, loss of cabin pressure, and emergency exits. An operator may also provide mission-specific training to space flight participants for missions without crew or government astronauts. The FAA therefore finds that the training required by § 460.51 is sufficient to satisfy missions with only space flight participants on board.

N. Use of ANSI Standard for Human Spaceflight Ontology

This rule updates definitions relating to commercial space launch and reentry vehicles and occupants to reflect current legislative definitions.

Both the Space Infrastructure Foundation (SIF) and an individual commented that the FAA should use terms identified in AIAA/ANSI S-153 2021 Human Spaceflight: Spacecraft Architecture and Systems Engineering Ontology Standard (S-153) in its applicable commercial space regulations.

SIF stated that because the National Technology Transfer Advancement Act (NTTAA) compels government organizations to adopt industry standards developed under a voluntary consensus process, and failure to do so must be justified to Congress on a case-by-case basis, the FAA should use the standards identified in S-153. An individual stated that S-153 is critical for U.S. commercial spaceflight because it establishes the baseline of the ontology, streamlines interdisciplinary communication, and enables strategic planning, and the FAA should consider S-153's integration into the current rulemaking.

The FAA does not adopt S-153 into its regulations because the updated definitions are required by Congress to reflect current legislative definitions in 51 U.S. Code 50902. Furthermore, the terminology in S-153 does not align with the purpose of this rulemaking because the terminology in S-153 focuses on human spaceflight spacecraft from an architectural and system engineering perspective, rather than on the statutorily required definitions the FAA must incorporate into its regulations.

O. Transparency of MPL Methodology

An individual commented that publishing the MPL methodology would provide greater transparency and reduce uncertainty for commercial space businesses, insurance companies, and investors. The commenter noted that this transparency would pose no risks to national security and that publishing the MPL methodology in an AC would not require notice and comment for modification. The commenter recommended amending § 440.7(a) or (b) to include that the method for determining MPL is set forth in an AC.

The scope of this rulemaking is to codify current statutory requirements mandated by the CSLCA. The FAA finds that providing MPL methodology in an AC is beyond the scope of the rulemaking because it is not a change required by the CSLCA, and this final rule does not pertain to MPL methodology.

P. Commercial Use of Asteroid or Space Resources

Space Law & Policy Solutions noted that the CSLCA contains a provision in title IV which authorizes U.S. citizens to perform non-governmental space activities aimed at the recovery, possession, ownership, use, and sale of asteroid or space resources. Space Law & Policy Solutions noted that the NPRM does not mention title IV nor its enactment in 51 U.S.C. 51303 and asked the FAA a series of related questions. Such questions included (i) why space resources are not mentioned in the NPRM; (ii) whether the FAA deems title IV of the CSLCA as providing the FAA with congressional authority to license space resource activities and if so, whether an amendment is required to its regulations; (iii) whether the FAA deems itself the proper Article VI authorizing agency to review and license a space resource activity; and (iv) whether the FAA believes it requires additional authority from Congress to include on orbit authority to oversee space resource activities. Space Law & Policy Solutions noted that it understands its questions are beyond the scope of the FAA's request in the NPRM, but that the FAA should address the lack of clarity on the licensing and implementation of space resources.

The FAA does not have statutory authority to regulate space resources, and the commenter's questions are out of scope for the current rulemaking.

V. Regulatory Notices and Analyses

Federal agencies consider impacts of regulatory actions under a variety of Executive orders and other requirements. First, Executive Order 12866, Executive Order 13563, and Executive Order 14094 (“Modernizing Regulatory Review”), direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify the costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $183 million using the most current (2023) Implicit Price Deflator for the Gross Domestic Product.

In conducting these analyses, the FAA has determined that this rule: will result in benefits that justify costs; is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, as amended; will not have a significant economic impact on a substantial number of small entities; will not create unnecessary obstacles to the foreign commerce of the United States; and will not impose an unfunded mandate on State, local, or Tribal governments, or on the private sector.

A. Regulatory Impact Analysis

This rule amends 14 CFR parts 401, 413, 415, 431, 435, 437, 440, 450, and 460 by incorporating statutory changes resulting from the CSLCA. This rule adds a definition for “government astronaut” and updates other definitions to account for that addition. This rule also updates financial responsibility requirements in part 440 to exclude government astronauts from the definitions of “third party” and adds space flight participants to the insurance requirements in § 440.9. Templates for reciprocal waiver of claims agreements are moved from part 440 appendices B through E to an AC. This rule also adds two new subparts to part 460 to address operator requirements for government astronauts playing safety-critical and non-safety-critical roles during launches and reentries. In addition, the FAA replaces the terms “crew” and “space flight participant” with “crew, space flight participant, or government astronaut” in §§ 415.8, 431.8, and 435.8 for applicants seeking a license for operations involving human space flight and that must demonstrate compliance with human space flight requirements. This change accommodates the creation of the government astronaut category in part 460.

This rule affects all U.S. commercial space operators and launches and reentries licensed under 14 CFR parts 401, 413, 415, 431, 435, 437, 440, 450, and 460 that will carry a government astronaut on board. Table 1 details the changes in each part.

There are no changes in the final rule from the proposed rule that notably change the analysis presented for the proposed rule.