Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Rules and Regulations 20531 

provide greater clarity to the 

stakeholders by answering those 

questions. 

Procedures for Submitting Clarifying 

Questions 

If you wish to submit a request to the 

FAA for clarification of the Flightcrew 

Member Duty and Rest Requirements 

final rule, you must send your request 

using the below method by June 4, 2012. 

1. Post your request on the Federal 

eRulemaking Portal. To access this 

electronic docket, go to http:// 

www.regulations.gov, enter Docket 

Number FAA–2012–0358, and follow 

the online instructions for sending your 

request electronically. 

2. In addition to sending your request 

to the electronic docket, send a copy via 

email to the subject matter expert as 

noted below. 

Technical Questions: Dale E. Roberts, 

Air Transportation Division, Flight 

Standards Service, Federal Aviation 

Administration; email 

dale.e.roberts@faa.gov. 

Legal Questions: Alex Zektser, Office 

of the Chief Counsel, Regulations 

Division, Federal Aviation 

Administration; email 

alex.zektser@faa.gov. 

The FAA will attempt to reply to the 

clarifying questions that are submitted 

by June 4, 2012. 

Issued in Washington, DC, on March 26, 

2012. 

Rebecca B. MacPherson, 

Assistant Chief Counsel for Regulations, 

AGC–200. 

[FR Doc. 2012–7739 Filed 4–4–12; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Parts 400, 401, 404, 405, 406, 

413, 414, 415, 417, 420, 431, 433, 435, 

437, 440, 460 

49 CFR Part 1 

[Docket No. FAA–2012–0232; Amendment 

Nos. 400–3, 401–7, 404–5, 405–5, 406–7, 

413–10, 414–2, 415–5, 417–3, 420–5, 431– 

3, 433–2, 435–2, 437–1, 440–3, 460–1; 1– 

114; related to Docket Nos. 28851, 43810, 

FAA–1999–5535, FAA–1999–5833, FAA– 

1999–5835, FAA–2000–7953, FAA–2001– 

8607, FAA–2005–21332, FAA–2005–23449, 

FAA–2006–24197, FAA–2007–27390; OST 

Docket No. 1] 

[RINs 2120–AF99, 2120–AG71, 2120–AG15, 

2120–AG72, 2120–AG37, 2120–AH18, 2120– 

AI50, 2120–AI57, 2120–AI56, 2120–AI88] 

Correction of Authority Citations for 

Commercial Space Transportation 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Technical amendment. 

SUMMARY: In 2010, Congress transferred 

the statute authorizing the FAA’s 

commercial space transportation 

regulations. This action is necessary to 

correct affected citations in the Code of 

Federal Regulations to reflect this 

transfer of authority. The intended effect 

of this action is to make the affected 

regulations comply with the statute. 

DATES: These amendments become 

effective April 5, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Laura Montgomery, Senior Attorney for 

Commercial Space Transportation, 

Office of the Chief Counsel, Regulations 

Division, AGC–200, Federal Aviation 

Administration, 800 Independence 

Avenue SW., Washington, DC 20591; 

telephone (202) 267–3150; facsimile 

(202) 267–7971; email 

laura.montgomery@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Since 1994, the FAA has operated in 

the area of commercial space launch 

activities under the authority delegated 

by Congress in 49 U.S.C. chapter 701. 

See Revision of Title 49, United States 

Code Annotated, ‘‘Transportation,’’ 

Public Law 103–272, 108 Stat. 745, 1130 

(1994). The FAA implements these 

regulations through Title 14, Code of 

Federal Regulations (14 CFR) chapter III, 

Commercial Space Transportation. 

In 2010, Congress consolidated 

commercial space laws into a single, 

unified title of the United States Code. 

See Enactment of Title 51—National 

and Commercial Space Programs, Public 

Law 111–314, 124 Stat. 3328 (2010). 

Congress’ purpose was ‘‘to codify 

certain existing laws related to national 

and commercial space programs as a 

positive law title of the United States 

Code.’’ Id. During this process, 49 U.S.C. 

chapter 701 was transferred and 

redesignated as 51 U.S.C. chapter 509. 

The recodification makes no substantive 

changes. 

The congressional transfer of 

authority made a number of citations in 

the Code of Federal Regulations 

obsolete. See 14 CFR chapter III (2011); 

49 CFR 1.47 (2010). This amendment 

corrects the affected citations to 

accurately reference the new citations. 

This amendment does not make 

substantive changes to the affected 

regulations. 

List of Subjects 

14 CFR Part 400 

Space transportation and exploration. 

14 CFR Part 401 

Organization and functions 

(Government agencies), Space safety, 

Space transportation and exploration. 

14 CFR Part 404 

Administrative practice and 

procedure, Space safety, Space 

transportation and exploration. 

14 CFR Part 405 

Investigations, Penalties, Space safety, 

Space transportation and exploration. 

14 CFR Part 406 

Administrative practice and 

procedure, Space safety, Space 

transportation and exploration. 

14 CFR Part 413 

Confidential business information, 

Human space flight, Reporting and 

recordkeeping requirements, Space 

safety, Space transportation and 

exploration. 

14 CFR Part 414 

Airspace, Aviation safety, Space 

transportation and exploration. 

14 CFR Part 415 

Aviation safety, Environmental 

protection, Rockets, Space safety, Space 

transportation and exploration. 

14 CFR Part 417 

Aviation safety, Reporting and 

recordkeeping requirements, Rockets, 

Space safety, Space transportation and 

exploration. 


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14 CFR Part 420 

Airspace, Human space flight, Space 

safety, Space transportation and 

exploration. 

14 CFR Part 431 

Aviation safety, Environmental 

protection, Human space flight, 

Reporting and recordkeeping, Rockets, 

Space safety, Space transportation and 

exploration. 

14 CFR Part 433 

Aviation safety, Environmental 

protection, Investigations, Reporting 

and recordkeeping requirements, Space 

transportation and exploration. 

14 CFR Part 435 

Aviation safety, Environmental 

protection, Investigations, Reporting 

and recordkeeping requirements, Space 

safety, Space transportation and 

exploration. 

14 CFR Part 437 

Aviation safety, Airspace, Human 

space flight, Rockets, Space safety, 

Space transportation and exploration. 

14 CFR Part 440 

Armed forces, Claims, Federal 

building and facilities, Government 

property, Indemnity payments, 

Insurance, Reporting and recordkeeping 

requirements, Rockets, Space 

transportation and exploration. 

14 CFR Part 460 

Human space flight, Reporting and 

recordkeeping requirements, Rockets, 

Space safety, Space transportation and 

exploration. 

49 CFR Part 1 

Authority delegations (Government 

agencies), Organizations and functions 

(Government agencies). 

The Amendments 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends chapter III of title 14, Code of 

Federal Regulations, and subtitle A of 

title 49, Code of Federal Regulations, as 

follows: 

Title 14—Aeronautics and Space 

CHAPTER III—COMMERCIAL SPACE 

TRANSPORTATION, FEDERAL AVIATION 

ADMINISTRATION, DEPARTMENT OF 

TRANSPORTATION 

PART 400—BASIS AND SCOPE 

■ 1. The authority citation for part 400 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

■ 2. Revise § 400.2 to read as follows: 

§ 400.2 Scope. 

The regulations in this part set forth 

the procedures and requirements 

applicable to the authorization and 

supervision under 51 U.S.C. Subtitle V, 

chapter 509, of commercial space 

transportation activities conducted in 

the United States or by a U.S. citizen. 

The regulations in this chapter do not 

apply to amateur rockets activities, as 

defined in 14 CFR 1.1, or to space 

activities carried out by the United 

States Government on behalf of the 

United States Government. 

PART 401—ORGANIZATION AND 

DEFINITIONS 

■ 3. The authority citation for part 401 

is revised to read as follows: 

Authority: 51 U.S.C. 50101–50923. 

■ 4. Revise the definitions of ‘‘act’’ and 

‘‘operator’’ in § 401.5 to read as follows: 

§ 401.5 Definitions. 

* * * * * 

Act means 51 U.S.C Subtitle V, 

Programs Targeting Commercial 

Opportunities, chapter 509— 

Commercial Space Launch Activities, 51 

U.S.C. 50901–50923. 

* * * * * 

Operator means a holder of a license 

or permit under 51 U.S.C. Subtitle V, 

chapter 509. 

* * * * * 

PART 404—REGULATIONS AND 

LICENSING REQUIREMENTS 

■ 5. The authority citation for part 404 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

■ 6. Revise § 404.1 to read as follows: 

§ 404.1 Scope. 

This part establishes procedures for 

issuing regulations to implement 51 

U.S.C. Subtitle V, chapter 509, and for 

eliminating or waiving requirements for 

licensing or permitting of commercial 

space transportation activities under 

that statute. 

PART 405—INVESTIGATIONS AND 

ENFORCEMENT 

■ 7. The authority citation for part 405 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

PART 406—INVESTIGATIONS, 

ENFORCEMENT, AND 

ADMINISTRATIVE REVIEW 

■ 8. The authority citation for part 406 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

■ 9. Revise § 406.1(a) introductory text 

to read as follows: 

§ 406.1 Hearings in license, permit, and 

payload actions. 

(a) Pursuant to 51 U.S.C. 50912, the 

following are entitled to a determination 

on the record after an opportunity for a 

hearing in accordance with 5 U.S.C. 

554. 

* * * * * 

■ 10. Revise § 406.9(a) to read as 

follows: 

§ 406.9 Civil penalties. 

(a) Civil penalty liability. Under 51 

U.S.C. 50917(c), a person found by the 

FAA to have violated a requirement of 

the Act, a regulation issued under the 

Act, or any term or condition of a 

license or permit issued or transferred 

under the Act, is liable to the United 

States for a civil penalty of not more 

than $110,000 for each violation, as 

adjusted for inflation. A separate 

violation occurs for each day the 

violation continues. 

* * * * * 

■ 11. Revise § 406.117(b), (c)(2), and 

(c)(3) to read as follows: 

§ 406.117 Confidential information. 

* * * * * 

(b) Marked information not made 

public. If a party files a document in a 

sealed envelope clearly marked 

‘‘CONFIDENTIAL’’ the document may 

not be made available to the public 

unless and until the administrative law 

judge or the FAA decisionmaker decides 

it may be made available to the public 

in accordance with 51 U.S.C. 50916. 

(c) * * * 

(2) If the party claims that the 

information is protected under 51 U.S.C. 

50916, and if both the complainant and 

the respondent agree that the 

information is protected under that 

section, the administrative law judge 

must grant the motion. If one party does 

not agree that the information is 

protected under 51 U.S.C. 50916 the 

administrative law judge must decide. 

Either party may file an interlocutory 

appeal of right under § 406.173(c). 

(3) If the party claims that the 

information should be protected on 

grounds other than those provided by 51 

U.S.C. 50916 the administrative law 

judge must grant the motion if, based on 

the motion and any response to the 

motion, the administrative law judge 

determines that disclosure would be 

detrimental to safety, disclosure would 

not be in the public interest, or that the 

information is not otherwise required to 

be made available to the public. 

* * * * * 


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■ 12. Revise § 406.159(c) to read as 

follows: 

§ 406.159 Subpoenas. 

* * * * * 

(c) Enforcement of subpoena. Upon a 

showing that a person has failed or 

refused to comply with a subpoena, the 

Secretary may apply to the appropriate 

district court of the United States to 

seek enforcement of the subpoena in 

accordance with 51 U.S.C. 50917(c). A 

party may request the Secretary to seek 

such enforcement. 

■ 13. Revise § 406.173(c)(3) to read as 

follows: 

§ 406.173 Interlocutory appeals. 

* * * * * 

(c) * * * 

(3) Failure of the administrative law 

judge to grant a motion for a 

confidentiality order based on 51 U.S.C. 

50916, under § 406.117(c)(2). 

* * * * * 

PART 413—LICENSE APPLICATION 

PROCEDURES 

■ 14. The authority citation for part 413 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

PART 414—SAFETY APPROVALS 

■ 15. The authority citation for part 414 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

PART 415—LAUNCH LICENSE 

■ 16. The authority citation for part 415 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

PART 417—LAUNCH SAFETY 

■ 17. The authority citation for part 417 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

PART 420—LICENSE TO OPERATE A 

LAUNCH SITE 

■ 18. The authority citation for part 420 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

■ 19. Revise § 420.41(a) to read as 

follows: 

§ 420.41 License to operate a launch site— 

general. 

(a) A license to operate a launch site 

authorizes a licensee to operate a launch 

site in accordance with the 

representations contained in the 

licensee’s application, with terms and 

conditions contained in any license 

order accompanying the license, and 

subject to the licensee’s compliance 

with 51 U.S.C. Subtitle V, chapter 509 

and this chapter. 

* * * * * 

■ 20. Revise § 420.51(b) to read as 

follows: 

§ 420.51 Responsibilities—general. 

* * * * * 

(b) A licensee is responsible for 

compliance with 51 U.S.C. Subtitle V, 

chapter 509 and for meeting the 

requirements of this chapter. 

PART 431—LAUNCH AND REENTRY 

OF A RESUSABLE LAUNCH VEHICLE 

(RLV) 

■ 21. The authority citation for part 431 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

■ 22. Revise § 431.11 to read as follows: 

§ 431.11 Additional license terms and 

conditions. 

The FAA may amend an RLV mission 

license at any time by modifying or 

adding license terms and conditions to 

ensure compliance with 51 U.S.C. 

Subtitle V, chapter 509, and applicable 

regulations. 

PART 433—LICENSE TO OPERATE A 

REENTRY SITE 

■ 23. The authority citation for part 433 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

PART 435—REENTRY OF A REENTRY 

VEHICLE OTHER THAN A REUSABLE 

LAUNCH VEHICLE 

■ 24. The authority citation for part 435 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

■ 25. Revise § 435.11 to read as follows: 

§ 435.11 Additional license terms and 

conditions. 

The FAA may amend a reentry license 

at any time by modifying or adding 

license terms and conditions to ensure 

compliance with 51 U.S.C. Subtitle V, 

chapter 509, and applicable regulations. 

PART 437—EXPERIMENTAL PERMITS 

■ 26. The authority citation for part 437 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

■ 27. Revise § 437.13 to read as follows: 

§ 437.13 Additional experimental permit 

terms and conditions. 

The FAA may modify an 

experimental permit at any time by 

modifying or adding permit terms and 

conditions to ensure compliance with 

51 U.S.C. Subtitle V, chapter 509. 

PART 440—FINANCIAL 

RESPONSIBILITY 

■ 28. The authority citation for part 440 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

■ 29. Revise the introductory text and 

definition of ‘‘financial responsibility’’ 

in § 440.3 to read as follows: 

§ 440.3 Definitions. 

Except as otherwise provided in this 

section, any term used in this part and 

defined in 51 U.S.C. 50901–50923, or in 

§ 401.5 of this chapter shall have the 

meaning contained therein. For 

purposes of this part— 

* * * * * 

Financial responsibility means 

capable of satisfying a liability 

obligation as required by 51 U.S.C 

Subtitle V, chapter 509. 

* * * * * 

■ 30. Revise § 440.5(c)(2) to read as 

follows: 

§ 440.5 General. 

* * * * * 

(c) * * * 

(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 § 440.9(c) 

of this part and does not exceed 

$1,500,000,000 (as adjusted for inflation 

occurring after January 1, 1989) above 

such amount, and are payable pursuant 

to 51 U.S.C. 50915 and § 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 § 440.3 of this part for 

bodily injury or property damage is not 

a covered claim; 

* * * * * 

■ 31. Revise § 440.15(b) and (c)(1)(iii) to 

read as follows: 

§ 440.15 Demonstration of compliance. 

* * * * * 

(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 


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related matters covered by 51 U.S.C. 

50914, 50915. 

* * * * * 

(c) * * * 

(1) * * * 

(iii) In the event of any policy 

exclusions or limitations of coverage 

that may be considered usual under 

§ 440.19(c), or for purposes of 

implementing the Government’s waiver 

of claims for property damage under 51 

U.S.C. 50914(b), certifying that 

insurance covering the excluded risks is 

not commercially available at 

reasonable cost; and 

* * * * * 

■ 32. Revise § 440.19(a), (d), (e) 

introductory text, and (f)(1) to read as 

follows: 

§ 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 51 U.S.C. 

50915, and to the extent the total 

amount of such covered claims arising 

out of any particular launch or reentry: 

* * * * * 

(d) Upon the expiration of the policy 

period prescribed in accordance with 

§ 440.11(a), the United States shall 

provide for payment of claims that are 

payable under 51 U.S.C. 50915 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 51 

U.S.C. 50915 shall be subject to: 

* * * * * 

(f) * * * 

(1) Prepare a compensation plan 

outlining the total amount of claims and 

meeting the requirements set forth in 51 

U.S.C. 50915; 

* * * * * 

■ 33. Revise Appendix D to part 440 to 

read as follows: 

Appendix D to Part 440—Agreement for 

Waiver of Claims and Assumption of 

Responsibility for a Crew Member 

THIS AGREEMENT is entered into this 

ll day of llll, 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 chapter 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. 

License/Permit means License/Permit No. 

llll issued on llll, 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 51 U.S.C. Subtitle V, chapter 509. 

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 51 

U.S.C. Subtitle V, chapter 509—Commercial 

Space Launch Activities, or in the 

Regulations, shall have the same meaning as 

contained in 51 U.S.C. Subtitle V, chapter 

509, 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 51 U.S.C. 50914(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 


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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: llllllllllllllll

Printed Name: llllllllllllll

Federal Aviation Administration of the 

Department of Transportation on Behalf of 

the United States Government 

By: lllllllllllllllllll

Its: lllllllllllllllllll

Associate Administrator for Commercial 

Space Transportation 

■ 34. Revise Appendix E to part 440 to 

read as follows: 

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 ll 

day of llll, 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 chapter 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. 

llll issued on llll, 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 51 U.S.C. Subtitle V, chapter 509. 

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 51 

U.S.C. Subtitle V, chapter 509—Commercial 

Space Launch Activities, or in the 

Regulations, shall have the same meaning as 

contained in 51 U.S.C. Subtitle V, chapter 

509, 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, 

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 51 U.S.C. 50914(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 

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, 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. 


rmajette on DSK2TPTVN1PROD with RULES
20536 Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Rules and Regulations 

1 15 U.S.C. 77a et seq. 

2 15 U.S.C. 78a et seq. 

3 15 U.S.C. 77aaa et seq. 

4The Dodd-Frank Wall Street Reform and 

Consumer Protection Act, Public Law 111–203, 124 

Stat. 1376 (2010). 

5Section 712(d) of the Dodd-Frank Act provides 

that the Commission and the CFTC, in consultation 

with the Board of Governors of the Federal Reserve 

System, shall jointly further define the terms 

‘‘swap,’’ ‘‘security-based swap,’’ ‘‘swap dealer,’’ 

‘‘security-based swap dealer,’’ ‘‘major swap 

participant,’’ ‘‘major security-based swap 

participant,’’ ‘‘eligible contract participant,’’ and 

‘‘security-based swap agreement.’’ These terms are 

defined in Sections 721 and 761 of the Dodd-Frank 

Act and, with respect to the term ‘‘eligible contract 

participant,’’ in Section 1a(18) of the Commodity 

Exchange Act (‘‘CEA’’) [7 U.S.C. 1a(18)], as redesignated and amended by Section 721 of the 

Dodd-Frank Act. In April 2011, the SEC and the 

CFTC jointly proposed rules and interpretations to 

further define the terms ‘‘swap,’’ ‘‘security-based 

swap,’’ and ‘‘security-based swap agreement.’’ See 

Further Definition of ‘‘Swap,’’ ‘‘Security-Based 

Swap,’’ and ‘‘Security-Based Swap Agreement’’; 

Mixed Swaps; Security-Based Swap Agreement 

Recordkeeping, Release No. 33–9204 (Apr. 29, 

2011), 76 FR 29818 (May 23, 2011), corrected in 

Release No. 33–9204A (June 1, 2011), 76 FR 32880 

(June 7, 2011). In December 2010, the SEC and the 

CFTC jointly proposed rules and interpretations to 

further define the terms ‘‘Swap Dealer,’’ ‘‘SecurityBased Swap Dealer,’’ ‘‘Major Swap Participant,’’ 

‘‘Major Security-Based Swap Participant’’ and 

‘‘Eligible Contract Participant.’’ See Further 

Definition of ‘‘Swap Dealer,’’ ‘‘Security-Based Swap 

Dealer,’’ ‘‘Major Swap Participant,’’ ‘‘Major 

Security-Based Swap Participant’’ and ‘‘Eligible 

Contract Participant’’, Release No. 34–63452 (Dec. 

7, 2010), 75 FR 80174 (Dec. 21, 2010) 

(‘‘Intermediaries Definitions Release’’). 

6See Public Law 111–203, § 763(a) (adding 

Exchange Act Section 3C [15 U.S.C. 78c–3]). 

7See Public Law 111–203, §§ 763(i) and 766(a) 

(adding Exchange Act Sections 13(m)(1)(G) and 

13A(a)(1) [15 U.S.C. 78m(m)(1)(G) and 78m–1(a)(1)], 

respectively). 

8See Public Law 111–203, § 763(a) (adding 

Exchange Act Section 3C [15 U.S.C. 78c–3]). See 

also Public Law 111–203, § 761 (adding Exchange 

Act Section 3(a)(77) [15 U.S.C. 78c(a)(77)] (defining 

the term ‘‘security-based swap execution facility’’)), 

and Registration and Regulation of Security-Based 

Swap Execution Facilities, Release No. 34–63825 

(Feb. 2, 2011) 76 FR 10948 (Feb. 28, 2011) 

(‘‘Security-Based SEF Proposing Release’’). See 

footnote 12 below for a discussion of the clearing 

exception in Exchange Act Section 3C(g) [15 U.S.C. 

78c–3(g)]. 

9See, e.g., Report of the Senate Committee on 

Banking, Housing, and Urban Affairs regarding The 

Restoring American Financial Stability Act of 2010, 

S. Rep. No. 111–176 at 34 (stating that ‘‘[s]ome parts 

of the OTC market may not be suitable for clearing 

and exchange trading due to individual business 

needs of certain users. Those users should retain 

the ability to engage in customized, uncleared 

Space Flight Participant 

Signature: llllllllllllllll

Printed Name: llllllllllllll

Federal Aviation Administration of the 

Department of Transportation on Behalf 

of the United States Government 

By: lllllllllllllllllll

Its: lllllllllllllllllll

Associate Administrator for Commercial 

Space Transportation 

PART 460—HUMAN SPACE FLIGHT 

REQUIREMENTS 

■ 35. The authority citation for part 460 

is revised to read as follows: 

Authority: 51 U.S.C. 50901–50923. 

Title 49—Transportation 

Subtitle A—Office of the Secretary of 

Transportation 

PART 1—ORGANIZATION AND 

DELEGATION OF POWERS AND 

DUTIES 

■ 36. The authority citation for part 1 

continues to read as follows: 

Authority: 49 U.S.C. 322; 46 U.S.C. 

2104(a); 28 U.S.C. 2672; 31 U.S.C. 3711(a)(2); 

Pub. L. 101–552, 104 Stat. 2736; Pub. L. 106– 

159, 113 Stat. 1748; Pub. L. 107–71, 115 Stat. 

597; Pub. L. 107–295, 116 Stat. 2064; Pub. L. 

108–136, 117 Stat. 1392; Pub. L. 101–115, 

103 Stat. 691; Pub. L. 108–293, 118 Stat. 

1028; Pub. L. 109–364, 120 Stat. 2083; Pub. 

L. 110–140, 121 Stat. 1492; Pub. L. 110–432, 

122 Stat. 4848. 

■ 37. Revise § 1.47(v) to read as follows: 

§ 1.47 Delegations to Federal Aviation 

Administrator. 

* * * * * 

(v) Carry out the functions vested in 

the Secretary by 51 U.S.C. Subtitle V. 

* * * * * 

Issued in Washington, DC, on March 25, 

2012. 

Pamela Hamilton-Powell, 

Director, Office of Rulemaking. 

[FR Doc. 2012–8196 Filed 4–4–12; 8:45 am] 

BILLING CODE 4910–13–P 

SECURITIES AND EXCHANGE 

COMMISSION 

17 CFR Parts 230, 240 and 260 

[Release Nos. 33–9308; 34–66703; 39–2484; 

File No. S7–22–11] 

RIN 3235–AL16 

Exemptions for Security-Based Swaps 

Issued by Certain Clearing Agencies 

AGENCY: Securities and Exchange 

Commission. 

ACTION: Final rule. 

SUMMARY: We are adopting exemptions 

under the Securities Act of 1933, the 

Securities Exchange Act of 1934, and 

the Trust Indenture Act of 1939 for 

security-based swaps issued by certain 

clearing agencies satisfying certain 

conditions. The final rules exempt 

transactions by clearing agencies in 

these security-based swaps from all 

provisions of the Securities Act, other 

than the Section 17(a) anti-fraud 

provisions, as well as exempt these 

security-based swaps from Exchange 

Act registration requirements and from 

the provisions of the Trust Indenture 

Act, provided certain conditions are 

met. 

DATES: Effective Date: The final rules are 

effective April 16, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Schoeffler, Special Counsel, 

Office of Capital Markets Trends, 

Division of Corporation Finance, at 

(202) 551–3860, U.S. Securities and 

Exchange Commission, 100 F Street, 

NE., Washington, DC 20549–3628. 

SUPPLEMENTARY INFORMATION: We are 

adopting Rule 239 under the Securities 

Act of 1933 (‘‘Securities Act’’).1 We are 

also adopting Rule 12a–10 and an 

amendment to Rule 12h–1 under the 

Securities Exchange Act of 1934 

(‘‘Exchange Act’’) 2 and Rule 4d–11 

under the Trust Indenture Act of 1939 

(‘‘Trust Indenture Act’’).3

I. Background and Summary 

On July 21, 2010, the President signed 

the Dodd-Frank Act into law.4 Title VII 

of the Dodd-Frank Act (‘‘Title VII’’) 

provides the Securities and Exchange 

Commission (‘‘SEC’’ or the 

‘‘Commission’’) and the Commodity 

Futures Trading Commission (‘‘CFTC’’) 

with the authority to regulate over-thecounter (‘‘OTC’’) derivatives in light of 

the recent financial crisis. 

Title VII provides that the CFTC will 

regulate ‘‘swaps,’’ the SEC will regulate 

‘‘security-based swaps,’’ and the CFTC 

and SEC will jointly regulate ‘‘mixed 

swaps.’’ 5 Title VII amends the Exchange 

Act to require, among other things, the 

following: (1) Transactions in securitybased swaps must be submitted for 

clearing to a clearing agency if such 

security-based swap is one that the 

Commission has determined is required 

to be cleared, unless an exception from 

mandatory clearing applies; 6 (2) 

transactions in security-based swaps 

must be reported to a registered 

security-based swap data repository 

(‘‘SDR’’) or the Commission; 7 and (3) if 

a security-based swap is subject to 

mandatory clearing, transactions in 

security-based swaps must be executed 

on an exchange or a registered or 

exempt security-based swap execution 

facility (‘‘security-based SEF’’), unless 

no exchange or security-based SEF 

makes such security-based swap 

available for trading or the securitybased swap transaction is subject to the 

clearing exception in Exchange Act 

Section 3C(g).8

Title VII seeks to ensure that, 

wherever possible and appropriate, 

security-based swaps are cleared.9


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