America's Rules for Riding Rockets

For the past few years each December, an important new space law development -- legislation, proposed rulemaking, final rule -- has turned up in our holiday stockings.

In case you missed it last Friday, a bit short of the two-year anniversary of President Bush signing into law the
Commercial Space Launch Amendments Act of 2004 (CSLAA) (Dec. 23, 2004), and almost a year after the commercial space transportation regulators first circulated proposed human space flight requirements (NPRM, Dec. 29, 2005), FAA has published the final rule, Human Space Flight Requirements for Crew and Space Flight Participants (14 CFR Parts 401, 415, 431, 435, 440 and 460).

Ring in the new. As we know, Congress gave FAA/AST no authority to protect space flight passenger safety until 2012. Pursuant to the CSLAA, in this final rule the regulators mandate informed consent for space flight participants and crew, and set forth requirements for qualifications and training of crew. The rule ensures "an acceptable level of safety" for the uninvolved public and that "individuals on board are aware of the risks associated with a launch or reentry." The rule finalizes issues involving waiver of liability and financial responsibility. Ready to fly? You must consent to go at your own risk and promise not to sue the US government. Climb aboard.

(Unspoken rules: 1. FAA does not say "space tourist." At least while rulemaking. 2. As far as the federal government is concerned, space flight participant is three words. However, spaceflight industry can be two.)

In carefully promulgating these requirements for the newborn human space flight industry, as is
the agency's style in exercising its space transportation regulatory authority, FAA/AST paid close attention to the thoughtful and varied public comments it received. (Our attentive regulatory agency tallied up comments submitted in response to the NPRM and noted for the federal record that, "forty-two entities, including aerospace companies, associations, service providers, individuals and other agencies of the U.S. Government" commented, including operators of launch and reentry vehicles which FAA listed separately: Blue Origin, Rocketplane, TGV Rockets, XCOR, as well as the Personal Spaceflight Federation - which includes pretty much every rocket company that stands to be impacted by these rules any time soon.)

As FAA modestly noted, "In general, the commenters supported the proposed requirements, [yes, here in blogspace we could not help
noting the love fest ourselves--JL] but with several suggested changes." And in its for-the-record discussion of the final rule, FAA responds to those comments and suggested changes.

On FAA/AST's new web pages we find no in-depth summary of the final rule, just this
announcement. Here's a news article or two on the newly published regs, being heralded as the world's first rules for space tourism.

We've had the NPRM all year. What I found particularly interesting today in reading through the final rule in the Federal Register (holiday champagne in hand,) was to note changes FAA has made in response to comments by industry. (FAA also gleaned relevant insight from experts in other areas who now have an interest in private space travel. For example, Tracey Knutson, an Anchorage, Alaska trial attorney who specializes in recreation and adventure sports, helped FAA with valuable input on issues regarding informed consent and waivers. Ms. Knutson's phone will be ringing in 2007.)

Just a few highlights . . .

- FAA is retaining the definition of crew required by the CSLAA.
- The recommendation that FAA distinguish between cabin crew and flight crew is premature; will address when those circumstances arise.
- Regarding ASE's recommendation that to avoid any misinterpretation FAA specify a "crew consists only of flight crew and any remote operator," FAA felt "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." (Footnote 3)
- Regarding personnel on the ground, FAA declined to adopt Blue Origin's suggestion that the agency clarify the definition of remote operator. FAA explained, 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."
- The agency has "decided against expanding the definition" of ground crew to include "specialists who monitor and maintain vehicle systems via telemetry" as Predesa suggested, "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.
- In response to Dassault Aviation and Spaceport Associates, FAA said this rulemaking does not treat crew on board a carrier aircraft as crew under part 460. 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.
- Regarding payment for pilot or remote operator training, FAA will not allow a space flight participant to act as a pilot or remote operator of a launch or reentry vehicle for public safety reasons.

FAA authority:
- The agency responds to Spaceport Associates' implied question regarding FAA's authority to protect crew: "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." (Footnote 5, even before CSLAA this was the case -- April 2004, FAA issued two RLV mission specific licenses: to Scaled Composites and XCOR.)

Pilot qualifications:
- FAA discusses "differing views" in response to § 460.5 requirement that pilot of a launch or reentry vehicle to possess and carry an FAA pilot certificate with an instrument rating. The agency is adopting a performance requirement, § 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."

[Reaction from
Prof. Reynolds: "I predict that the requirement that rocket pilots possess an airplane pilot's license will one day be seen as silly, like requiring that jet pilots first learn to fly blimps."]

Remote operators:
- FAA will address whether the operators can sufficiently control a vehicle through the license or permit process on a case-by-case basis; will allow an operator to demonstrate that something other than a pilot certificate provides an equivalent level of safety.

Medical standards for crew:
- § 460.5(e) requires 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 and issued no more than 12 calendar months prior to the month of launch and reentry. This marks a change from the NPRM, where the FAA proposed that all crew members regardless of whether they were safety-critical carry such a certificate.
- The agency responded to recommendations from the Aerospace Medical Association and others that it adopt more stringent medical standards. Regarding different standards for suborbital and orbital flights, 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.

Crew training:
- FAA will evaluate different amounts of training necessary for a crew member on a case-by-case basis during the license and permit process.
- FAA does not require the use of simulators in all circumstances because
simulators may not exist for all the proposed vehicles.
- FAA agrees that an operator can have a contractor provide training, a concept
that is already encompassed by § 460.7(a).
- § 460.7(d) now specifies currency checks be complete prior to a suborbital launch.

Crew notification:
- § 460.9 requires an operator to inform, in writing, any individual serving as crew that the US government has not certified the launch or reentry vehicle as safe for carrying flight crew or space flight participants. To "preserve flexibility," the FAA declined the Federation's request that the FAA create a form by which operators could provide this notice. (See § 460.9.10 for the required notification.)

Environmental control and life support:
- In a change from the NPRM, per Blue Origin's comments, § 460.11 now allows for an alternative means of compliance that provides an equivalent level of safety.
- As in NPRM, FAA will require operator or flight crew to monitor and control atmospheric conditions in inhabited areas, but will allow operator to show alternative compliance.
- 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.
- 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.
- FAA acknowledges the potential for micrometeorites 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.
- FAA sets forth "factors" that "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..." And FAA "plans to develop an ECLSS advisory circular or guidance document."

Human factors:
- No comments submitted on § 460.15 - requirement an operator take necessary precautions to account for human factors that can affect a crew's ability to perform safety-critical roles; adopted as proposed in the NPRM.

- § 460.17; 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; will initially determine on a case-by-case basis through the license or permit process.

Crew waiver of claims against U.S. government:
- § 460.19: no comments here; adopted as proposed.

Risk to space flight participants:
- In response to suggestions that FAA require pilots have solo flight before transporting passengers, and passengers wear pressure suits, FAA reminds that under CSLAA it has no authority to protect passengers and must wait until 2012 or for harm to occur.

Informed consent:
- § 460.45; now requiring notice of "unknown hazards" (per Ms. Knutson).
- 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. FAA will leave it up to the operator to choose whether to disclose this information.
- FAA does not agree space flight participants have a duty to research and recognize design features or operating practices that elevate personal risk.
- FAA will not require that all foreign government vehicles be included in disclosure under § 460.45, requiring 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 agency is considering developing a database on the safety record of U.S. Government and private sector space transport; may eventually be used to help fulfill the requirements of § 460.45.
- Also, under § 460.45 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 § 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 response to comments by the Federation, rather than requiring disclosure of failures and anomalies, § 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 participants.
- FAA agrees that an operator need only disclose its safety record created during and after vehicle verification performed in accordance with § 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.
- Regarding concerns as expressed by the Federation, Blue Origin and the New Mexico Office for Space Commercialization that disclosures requested by a space flight participant under § 460.45(e) and (f) may conflict with ITAR, the "FAA 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 also commented that describing corrective actions could disclose proprietary data and company secrets. FAA agrees with the commenters; 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.

Space flight participant's ability to be informed:
- FAA says it "does not consider a person under the age of 18 someone who can provide informed consent." [Where is this codified?]
- FAA now 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 (this was in the guidelines but not in the NPRM; now it is back in). [However, the discussion (at FR p.75626) twice cites this new section as § 460.45(g), but in the regs there is no § 460.45(g).]

Physical Exams:
- FAA is not requiring that a space flight participant obtain a physical examination and notes that the Federation in its comments agreed with this decision.

Waiver of claims:
- § 460.49 requires each space flight participant to execute a reciprocal waiver of claims with the FAA in accordance with the requirements of part 440. No comments, adopted as proposed, with some modifications which are discussed in the context of part 440.

Space flight participant training:
- § 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. Unchanged from NPRM.

Security requirements:
§ 460.49, unchanged. FAA responding to XCOR says the agency has authority to prohibit firearms on vehicles for safety and security. Responding to Planehook, FAA says it will work with TSA to develop guidelines.

Financial responsibility and waiver of liability:
- FAA implements the financial responsibility requirements and waiver of claims required by Chapter 701 through part 440. "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."
- Death: FAA will make clear that the waivers encompass claims arising out of an individual's own death. (Per Knutson.)
- FAA now requires additional particular info to clarify the subject of waivers. (Per James Snead.)
- 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 was not in the NPRM.
- Also not 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."

Waiver of claims:
- FAA agrees with Blue Origin that FAA oversight in the form of authorizing a launch or reentry would not constitute government "involvement."
- FAA cannot adopt the interpretation suggested by Blue Origin that 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.

Federal preemption:
- FAA now emphasizes that the waivers required by the CSLAA and part 440 are to be construed under federal law, not state law as proposed in the NPRM. (49 U.S.C. 70117(c)(1)).

- FAA does not have authority to require an operator to provide pre-paid health and accidental death insurance for space flight participants. Chapter 701 requires the FAA to impose insurance requirements for damage or harm to third parties, and to U.S. government property and personnel. Legislative history shows that Congress expected space flight participants to purchase insurance on their own.

Maximum probable loss:
- FAA does not adopt suggestions by Space Adventures and XCOR for change in probablity threshold. (You do the math.)

What else? I suppose no one commented on the rulemaking analysis section?

Of course, some lawyers will think the best part of these regs are those juicy 'agreement for waiver of claims' forms provided at Part 440 Appendix B through D. (Ah, I see
TortsProf Blog has already posted one in full.)

OK... That got a bit lengthy. (Although as a lawyer I might call those notes brief.) Read the whole document yourself. And no, FAA is not seeking comments here.

These are the rules.

Effective February 13, 2007.

Rocket on. ;)

And happy New Year.

* * *
Image: SpaceShipOne, Scaled Composites.

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