Federal Register / Vol. 72, No. 66 / Friday, April 6, 2007 / Rules and Regulations 17001 

review copies at the FAA, New England 

Region, Office of the Regional Counsel, 12 

New England Executive Park, Burlington, 

MA; or at the National Archives and Records 

Administration (NARA). For information on 

the availability of this material at NARA, call 

202–741–6030, or go to: http:// 

www.archives.gov/federal-register/cfr/ibrlocations.html. 

TABLE D.—INCORPORATION BY REFERENCE

Alert Service Bulletin No. Page No. Revision Date 

CF34–AL S/B 72–A0231 .........................................................................................

Total Pages: 94 ........................................................................................................

All ........................... Original .................. March 7, 2007. 

CF34–AL S/B 72–A0233 .........................................................................................

Total Pages: 91 ........................................................................................................

All ........................... 2 ............................. March 22, 2007 

CF34–BJ S/B 72–A0212 ..........................................................................................

Total Pages: 95 ........................................................................................................

All ........................... 2 ............................. March 22, 2007 

Issued in Burlington, Massachusetts, on 

March 30, 2007. 

Peter A. White, 

Acting Manager, Engine and Propeller 

Directorate, Aircraft Certification Service. 

[FR Doc. E7–6345 Filed 4–5–07; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Parts 401, 404, 405, 406, 413, 

415, 420, 431, and 437 

[Docket No.: FAA–2006–24197; Amendment 

Nos. 401–5, 404–4, 405–3, 406–4, 413–9, 

420–3, 431–2, 437–0] 

RIN 2120–AI56 

Experimental Permits for Reusable 

Suborbital Rockets 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: The Federal Aviation 

Administration (FAA) is amending its 

commercial space transportation 

regulations under the Commercial Space 

Launch Amendments Act of 2004. The 

FAA is establishing application 

requirements for an operator of a 

manned or unmanned reusable 

suborbital rocket to obtain an 

experimental permit. The FAA is also 

establishing operating requirements and 

restrictions on launch and reentry of 

reusable suborbital rockets operated 

under a permit. 

DATES: These amendments become 

effective June 5, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Randy Repcheck, Office of Commercial 

Space Transportation, Systems 

Engineering and Training Division, 

AST–300, Federal Aviation 

Administration, 800 Independence 

Avenue, SW., Washington, DC 20591; 

telephone (202) 267–8760; facsimile 

(202) 267–5463, e-mail 

randy.repcheck@faa.gov. For legal 

information, contact Laura Montgomery, 

Senior Attorney, Office of the Chief 

Counsel, Federal Aviation 

Administration, 800 Independence 

Avenue, SW., Washington, DC 20591; 

telephone (202) 267–3150; facsimile 

(202) 267–7971, e-mail 

laura.montgomery@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Availability of Rulemaking Documents 

You can get an electronic copy using 

the Internet by: 

(1) Searching the Department of 

Transportation’s electronic Docket 

Management System (DMS) web page 

(http://dms.dot.gov/search); 

(2) Visiting the FAA’s Regulations and 

Policies web page at http:// 

www.faa.gov/regulations_policies/; or 

(3) Accessing the Government 

Printing Office’s web page at http:// 

www.gpoaccess.gov/fr/index.html. 

You can also get a copy by sending a 

request to the Federal Aviation 

Administration, Office of Rulemaking, 

ARM–1, 800 Independence Avenue 

SW., Washington, DC 20591, or by 

calling (202) 267–9680. Make sure to 

identify the amendment number or 

docket number of this rulemaking. 

Anyone is able to search the 

electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78) or you 

may visit http://dms.dot.gov. 

Small Business Regulatory Enforcement 

Fairness Act 

The Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 requires the FAA to comply with 

small entity requests for information or 

advice about compliance with statutes 

and regulations within its jurisdiction. If 

you are a small entity and you have a 

question regarding this document, you 

may contact the person listed under FOR

FURTHER INFORMATION CONTACT. You can 

find out more about SBREFA on the 

Internet at http://www.faa.gov/ 

regulations_policies/rulemaking/ 

sbre_act/. 

Authority for This Rulemaking 

The FAA’s authority to issue rules 

regarding space transportation safety is 

found under the general rulemaking 

authority, 49 U.S.C. 322(a), of the 

Secretary of Transportation to carry out 

49 U.S.C. Subtitle IX, chapter 701, 49 

U.S.C. 70101–70121 (Chapter 701). 

Also, the recently enacted Commercial 

Space Launch Amendments Act of 2004 

(the CSLAA) mandates this rulemaking 

through section 70105a, which creates 

the FAA’s new permit authority, and 

section 70120, which requires that this 

rulemaking be complete by June 23, 

2006. If the FAA does not issue a final 

rule by December 23, 2007, Congress 

prohibits the FAA from issuing any 

permits for launch or reentry until the 

final regulations are issued. 

I. Background 

Chapter 701 authorizes the Secretary 

of Transportation and, through 

delegations, the FAA’s Associate 

Administrator for Commercial Space 

Transportation, to oversee, authorize, 

and regulate both launches and reentries 

of launch and reentry vehicles, and the 

operation of launch and reentry sites 

when carried out by U.S. citizens or 

within the United States. 49 U.S.C. 

70104, 70105, 70105a; U.S. Federal 

Aviation Administration, Commercial 

Space Transportation Delegations of 

Authority, N1100.240 (Nov. 21, 1995). 

Chapter 701 directs the FAA to exercise 

this responsibility consistent with 

public health and safety, safety of 

property, and the national security and 

foreign policy interests of the United 

States, and to encourage, facilitate, and 

promote commercial space launch and 

reentry by the private sector. 49 U.S.C. 

70103, 70105, 70105a. 

On December 23, 2004, President 

Bush signed into law the Commercial 


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1The Federation is a non-profit trade association 

consisting of companies whose business involves or 

will involve commercial human space flight. The 

Federation provided consensus comments on the 

NPRM and consists of the following entities: Air 

Launch, Armadillo Aerospace, Bigelow Aerospace, 

Mojave Spaceport, RocketPlane Limited, Inc., 

Scaled Composites, Space Adventures, SpaceDev, 

Space Explorations Technologies Corporation 

(SpaceX), The SpaceShip Company, XCOR 

Aerospace, the X PRIZE Foundation, and Virgin 

Galactic. 

2The FAA is adopting the following sections 

without modification from what it proposed in the 

NPRM: §§ 437.1, 437.9, 437.13, 437.15, 437.17, 

437.27, 437.29, 437.31, 437.35, 437.37, 437.39, 

437.41, 437.59, 437.75, 437.81, 437.83, 437.87, and 

437.93. Sections 437.27, 437.29, 437.31, 437.33, 

437.35, 437.37, 437.39, and 437.41 require that an 

applicant demonstrate satisfaction of subpart C 

safety requirements by providing the FAA with 

operational safety documentation. These 

requirements remain the same as proposed in the 

NPRM, except for § 437.33, which was modified to 

be consistent with § 437.61. 

3Historically, the FAA has treated the whole of 

a suborbital operation as a launch because it did not 

obtain reentry authority until 1998. 

Space Launch Amendments Act of 2004 

(CSLAA). The CSLAA changes current 

law in several significant ways. One 

such change, which establishes an 

experimental permit regime for manned 

and unmanned developmental reusable 

suborbital rockets, is the subject of this 

rulemaking. The FAA is implementing 

other terms of the CSLAA in a 

companion rule, ‘‘Human Space Flight 

Requirements for Crew and Space Flight 

Participants’’ 71 FR 75616 (Dec. 15, 

2006). 

A permit provides an alternative to 

licensing for operators of reusable 

suborbital rockets. The CSLAA defines 

a suborbital rocket as a vehicle, rocketpropelled in whole or in part, intended 

for flight on a suborbital trajectory, and 

the thrust of which is greater than its lift 

for the majority of the rocket-powered 

portion of ascent. 49 U.S.C. 70102. To 

be eligible for an experimental permit, 

a reusable suborbital rocket may only be 

flown for the following purposes: 

• Research and development to test 

new design concepts, new equipment, 

or new operating techniques, 

• Showing compliance with 

requirements to obtain a license under 

Chapter 701, or 

• Crew training before obtaining a 

license for the same design. 49 U.S.C. 

70105a(d). 

The reusable suborbital rocket must 

also be flown on a suborbital trajectory, 

which the CSLAA defines as the 

intentional flight path of a launch 

vehicle, reentry vehicle, or any portion 

thereof, whose vacuum instantaneous 

impact point (the location on Earth 

where a vehicle would impact if it were 

to fail, calculated in the absence of 

atmospheric drag effects) does not leave 

the surface of the Earth. 49 U.S.C. 

70102. 

On March 31, 2006, the FAA 

published a notice of proposed 

rulemaking (NPRM) containing 

proposed requirements for operators of 

experimental reusable suborbital 

rockets. Experimental Permits for 

Reusable Suborbital Rockets, 71 FR 

16251 (Mar. 31, 2006). In the notice, the 

FAA proposed part 437, which contains 

requirements for obtaining and 

operating under an experimental permit. 

The FAA also proposed changes to 

existing regulations to reflect the 

agency’s new authority to issue permits. 

II. Description of Final Rule and 

Discussion of Comments 

The FAA received comments from 12 

entities, including aerospace companies, 

associations, individuals, service 

providers, and other agencies of the U.S. 

Government. Aerospace companies who 

provided comments include Blue 

Origin, LLC (Blue Origin), Masten Space 

Systems (Masten), the Personal 

Spaceflight Federation 1 (Federation), 

Rocketplane Limited, Inc. 

(Rocketplane), and XCOR Aerospace 

(XCOR). The following associations, 

individuals, and service providers also 

commented: Beyond Earth Enterprises 

(Beyond Earth), Paul T. Breed, Air Line 

Pilots Association International (ALPA), 

the National Association of Rocketry, 

Spaceport Associates, SpaceShot, Inc. 

(SpaceShot). The FAA also received 

consolidated comments from Tripoli 

Rocketry Association, Experimental 

Rocketry of the Pacific, Stratofox 

Aerospace Tracking Team, and a 

number of individuals from those 

organizations (Tripoli). 

In general, the commenters supported 

the proposed requirements, but with 

several suggested changes to what the 

FAA proposed in its NPRM. Permit 

requirements and the comments 

addressing them are discussed in 

section A below.2 Changes to other 

regulations as proposed in the NPRM 

are discussed in section B. 

A. Part 437—Experimental Permits 

1. Eligibility for an Experimental Permit 

Section 437.5 contains the eligibility 

requirements for an experimental 

permit. As proposed in the NPRM, the 

FAA will issue a permit for the launch 

or reentry of a reusable suborbital rocket 

only for research and development, 

demonstrating compliance with FAA 

license requirements or crew training. 

a. Reentry 

A suborbital rocket may engage in 

reentry.3 For most suborbital launches, 

whether the flight entails a reentry will 

not matter from a regulatory 

perspective. The FAA will authorize the 

flight under a single license or permit, 

implementing safety requirements 

suitable to the safety issues involved. 

Recognizing suborbital reentry matters 

for two reasons. First, if a suborbital 

rocket is flown from a foreign country 

by a foreign entity into the United 

States, that entity may require a reentry 

license or permit from the FAA, 

depending on whether the planned 

trajectory of the rocket includes flight in 

outer space. Second, a permanent site 

that supports the landing of suborbital 

rockets may now be considered a 

reentry site depending, once again, on 

whether the planned trajectory reaches 

outer space. 

Blue Origin notes that use of 

‘‘reentry’’ to describe descent of a 

suborbital vehicle entails a change in 

FAA’s regulatory terminology. The FAA 

previously took the position that 

suborbital rockets do not ‘‘reenter’’ and 

are not ‘‘reentry vehicles.’’ This change 

is made necessary by the CSLAA. As 

acknowledged by Blue Origin, the 

CSLAA describes suborbital rockets as 

reentering. See 49 U.S.C. 70105(b)(4). 

Congress made clear that a suborbital 

rocket can ‘‘reenter’’ for purposes of 

licensing or permitting. 

Blue Origin stated that treating a 

suborbital mission in part as a ‘‘reentry’’

creates definitional inconsistency under 

Chapter 701. In particular, it points to 

the definition of ‘‘reenter’’ and 

‘‘launch.’’ Reenter means ‘‘to return or 

attempt to return, purposefully, a 

reentry vehicle and its payload, crew, or 

space flight participants, if any, from 

Earth orbit or from outer space to 

Earth.’’ 49 U.S.C. 70102(13). Blue Origin 

stated that a suborbital reusable launch 

vehicle (RLV) is neither in ‘‘orbit’’ nor 

in ‘‘outer space.’’

It is not necessary to reach orbit to be 

in outer space. Outer space has yet to be 

defined, but is commonly understood to 

mean something more than orbit. 

Although a suborbital rocket does not 

reach the velocity necessary to orbit the 

Earth, the vehicle can reach altitudes 

sufficient to be considered outer space. 

With respect to the term ‘‘launch,’’ the 

FAA proposed in the NPRM that for a 

suborbital RLV, ‘‘flight ends after 

vehicle landing or impact on Earth, and 

after activities necessary to return the 

reusable suborbital rocket to a safe 

condition on the ground end.’’ Blue 

Origin pointed out that this definition 

fails to account for ‘‘reentry.’’ The FAA 

agrees, and now defines launch to end 

‘‘after reaching apogee if the flight 

includes a reentry, or otherwise after 

vehicle landing or impact on Earth and 

after activities necessary to return the 

reusable suborbital rocket to a safe 


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condition on the ground.’’ This 

definition thus accounts for the two 

types of suborbital rockets: those that 

reenter and those that do not. Because 

Congress defines reentry as, in relevant 

part, the return of a reentry vehicle 

‘‘from Earth orbit or from outer space to 

Earth,’’ a suborbital rocket that reaches 

outer space reenters as part of its 

mission. Suborbital rockets that do not 

reach outer space are treated as just 

launching and landing. 

Lastly, Blue Origin stated that this 

change has other regulatory 

implications, particularly for financial 

responsibility. These implications have 

been covered in a companion 

rulemaking on human space flight and 

financial responsibility 71 FR 75616 

(Dec. 15, 2006). 

b. Amateur Rocketry 

Tripoli Rocketry Association 

requested that any amateur rocketry 

project of its members that exceeded the 

thresholds for amateur rocket activity be 

covered under the experimental permit 

regime. To that end, Tripoli suggested 

that the FAA include ‘‘non-profit 

rocketry research, education, recreation, 

and sporting competition projects’’ as 

eligible for a permit under § 437.5. Paul 

T. Breed would like the experimental 

permit rules to apply to non-reusable 

expendable flights, including launches 

of sounding rockets. The FAA is bound 

by the restrictions of Congress, which 

plainly defined the eligibility 

requirements by statute. Whether any 

particular rocketry project can be 

covered under an experimental permit 

regime depends on whether the rocket 

in question is a reusable suborbital 

rocket, and whether the purpose of the 

flight program meets the requirements 

of § 437.5. The FAA thus cannot 

accommodate Tripoli’s request to make 

recreation and sporting competition 

projects eligible for permits. Similarly, 

Congress determined that expendable 

launch vehicles, including sounding 

rockets, are not eligible for a permit. 

c. Foreign Entities 

Spaceport Associates recommended 

that the FAA re-examine the 

applicability of FAA space 

transportation regulations to U.S. 

citizens or U.S. entities outside the 

United States. It believes that the 

requirement for FAA authorization 

might prevent foreign operators from 

using American spacecraft or personnel 

in creating their own domestic space 

tourism operations. This, in turn, would 

reduce the market opportunity for U.S. 

manufacturers of suborbital spacecraft. 

This requirement is governed by statute. 

Under 49 U.S.C. 70104(a), a U.S. citizen 

must obtain a license or permit to 

launch, regardless of whether he does so 

outside the United States or not. 

d. Single License or Permit 

For operators of vehicles that have 

characteristics common to both rockets 

and aircraft, the CSLAA’s definitions of 

suborbital rocket and suborbital 

trajectory establish the circumstances 

under which the operator will be 

required to conduct vehicle flights 

under an experimental permit or launch 

license, rather than through a special 

airworthiness certificate in the 

experimental category (referred to as 

experimental airworthiness certificates 

for the remainder of this discussion). 

The FAA noted in the NPRM that for 

some vehicles an operator could 

conduct early test flights, including 

glide tests or flights under jet power 

only, under a special airworthiness 

certificate, before transitioning to an 

experimental permit. 71 FR 16252. The 

Federation requested that the FAA 

further emphasize that reusable 

suborbital rocket operators and 

developers will not be required to 

obtain an experimental airworthiness 

certificate to obtain a permit or license. 

The Federation is correct that reusable 

suborbital rocket operators and 

developers will not be required to 

obtain an experimental airworthiness 

certificate to obtain a permit or license. 

However, an operator cannot fly under 

a permit or license unless its vehicle is 

a reusable suborbital rocket or otherwise 

subject to Chapter 701. A suborbital 

rocket is a vehicle, rocket-propelled in 

whole or in part, intended for flight on 

a suborbital trajectory, and the thrust of 

which is greater than its lift for the 

majority of the rocket-powered portion 

of ascent. 49 U.S.C. 70102(19). If an 

operator plans to fly its vehicle as a 

suborbital rocket, the operator must fly 

it in accordance with the requirements 

of an experimental permit or license. 

The Federation also asked that the 

FAA clarify that it will not require 

someone to obtain a permit to obtain a 

license. A permit is not a prerequisite 

for a license. Nonetheless, data obtained 

while operating under a permit may be 

useful in applying for a license. 

2. Scope of an Experimental Permit 

Section 437.7 states that an 

experimental permit authorizes launch 

and reentry of a reusable suborbital 

rocket, as proposed in the NPRM. The 

authorization includes pre- and postflight ground operations. A permit could 

be issued for a launch, a reentry, or both 

a launch and a reentry. 

Paul T. Breed asked that the FAA 

distinguish between manned vehicles 

and unmanned vehicles. The 

requirements do make these 

distinctions. Part 437 of 14 CFR applies 

whether a vehicle is manned or 

unmanned. If a person is on board a 

permitted vehicle, 14 CFR part 461 

contains added requirements. 

3. Duration of an Experimental Permit 

As proposed in the NPRM, § 437.11 

provides that an experimental permit 

will last one year from the date of 

issuance. Spaceport Associates and Blue 

Origin questioned whether one year was 

long enough to complete a flight test 

program, and proposed a duration of 18 

months or longer. 

As the FAA has learned in its 

licensing program, combining a specific 

end date for an authorization with the 

ability to renew allows the FAA and a 

vehicle operator to re-examine the 

assumptions that went into and the 

requirements arising out of the earlier 

determination. The FAA chose a oneyear permit because of the dynamic 

nature of a flight test program. A flight 

test program will likely result in design 

and operational changes. The FAA also 

based the term on experimental 

airworthiness certificates used for 

aircraft, consistent with Congress’s 

desire for the FAA to model 

experimental permits after experimental 

airworthiness certificates. An 

experimental airworthiness certificate 

for research and development and 

showing compliance with regulations is 

effective for one year or less after the 

date of issuance. 14 CFR 21.181(a)(4). 

The duration of an experimental 

permit does not need to be longer, 

because a permittee may obtain a 

renewal. If the permittee has been 

operating in compliance with the 

regulations and terms and conditions of 

its permit, it should not be difficult to 

obtain a renewal. To avoid any 

disruption to the schedule, a permittee 

should apply for renewal at least 60 

days before its permit expires, in 

accordance with 14 CFR 413.23. 

4. General Application Requirements for 

Obtaining an Experimental Permit 

Section 437.21 requires an applicant 

to make demonstrations and provide 

information in order to obtain a permit. 

These requirements include 

demonstrating compliance with part 

437; providing enough information for 

the FAA to analyze the environmental 

impacts associated with a proposed 

launch or reentry; providing 

information for the FAA to conduct a 

maximum probable loss analysis under 

part 440; complying with human space 

flight requirements under part 460; and 

making each reusable suborbital rocket 


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4The FAA can issue a safety approval for (1) a 

launch vehicle, reentry vehicle, safety system, 

process, service, or any identified component 

thereof; or (2) qualified and trained personnel, 

performing a process or function related to licensed 

launch activities or vehicles. A safety approval is 

an FAA determination that the defined safety 

element, when used or employed within a defined 

envelope, parameter, or situation, will not 

jeopardize public health and safety of property. 14 

CFR 414.3. 

5 In the NPRM, the FAA, as XCOR pointed out, 

mistakenly said ‘‘and’’ rather than ‘‘or.’’

to be flown available to the FAA for 

inspection. Section 437.21 also states 

that if an applicant proposes to use any 

launch vehicle, reentry vehicle, safety 

system, process, service, or personnel 

for which the FAA has issued a safety 

approval under part 414 of this 

subchapter, the FAA will not reevaluate 

that safety element to the extent its use 

is within its approved envelope.4

a. Private Use Launch Site 

In 2000, the FAA announced that a 

launch licensee who operated a private 

site for its own launches did not need 

a license to operate a launch site. The 

FAA announced in the NPRM that it 

had to revisit this issue for both licenses 

and permits. The FAA proposed that a 

reusable suborbital rocket operator 

operating a private launch site that 

contains permanent facilities or 

supports continuous operations would 

have to obtain a launch site operator 

license in accordance with part 420. 

Several commenters objected to the 

FAA’s proposed change in policy. 

According to Blue Origin, the 

Federation, and XCOR, the FAA should 

impose requirements related to the 

operation of a launch site through a 

launch license or permit. They objected 

not to the safety issues themselves but 

to having to satisfy part 420 in its 

entirety. 

The FAA has decided against 

adopting the proposed change in this 

rulemaking. Today’s rule addresses 

launches conducted under a permit 

rather than a license, and the agency 

believes the rulemaking should be 

limited to those differences. Because the 

proposed change in policy would apply 

to all private launch sites, the FAA has 

determined that any change in policy is 

more appropriately addressed by a 

separate rulemaking. The FAA will 

consider the comments submitted to the 

NPRM in evaluating whether a change 

to part 420 is merited. 

b. Use of Safety Approval 

Section 437.21(c) states that the FAA 

will not evaluate those portions of an 

application from an applicant who 

proposes to use any reusable suborbital 

rocket, safety system, process, service, 

or personnel for which the FAA has 

issued a safety approval under part 414. 

Although the FAA did not obtain any 

comment regarding safety approvals, the 

FAA is adopting this provision as part 

of 437.21 to clarify that an applicant for 

a permit may rely on a safety approval 

obtained under part 414. 

c. Inspection 

As proposed in the NPRM, under 

§ 437.21(c), an applicant must make its 

reusable suborbital rocket available to 

the FAA for inspection before the FAA 

issues an experimental permit. XCOR 

agreed with the requirement because it 

believes someone should ‘‘come out and 

kick the tires and make sure the vehicle 

isn’t a piece of junk.’’ Blue Origin 

recommended that the FAA conduct 

this inspection before flight rather than 

before issuing a permit to promote 

regulatory certainty and predictability, 

and because the focus of a permit is on 

the safety of launch and reentry as 

opposed to certification of the vehicle 

design. Such an approach, according to 

Blue Origin, would allow vehicle 

operators to obtain regulatory approval 

for a vehicle prior to paying the expense 

of building the vehicle. The FAA has 

decided against Blue Origin’s approach, 

because a determination on the safety of 

the vehicle is difficult to make before 

the safety systems have been built and 

verified. Also, the FAA will inspect the 

vehicle to ensure compliance with 

application representations. 

5. Program Description 

Section 437.23 requires an applicant 

to provide a program description. Under 

§ 437.23(b)(1), a permit applicant must 

describe all reusable suborbital rocket 

systems, including any structural, flight 

control, thermal, pneumatic, hydraulic, 

propulsion, electrical, environmental 

control, software and computing 

systems, avionics, and guidance systems 

used in the reusable suborbital rocket. 

In response to a comment from the 

Federation, this requirement marks a 

slight change from what the FAA 

proposed in the NPRM. The 

requirement recognizes, by the 

inclusion of ‘‘any’’ before the different 

kinds of systems, that not all vehicles 

will have all systems. 

The Federation recommended that 

FAA describe the intent of the program 

description, and clarify the expected 

level of detail required. As suggested by 

the Federation, the FAA agrees that the 

description required for any system is a 

general overview or basic description of 

the system. However, when showing 

compliance with the containment 

requirements of § 437.31, an applicant 

will need to provide a more detailed 

description of any system that has been 

identified in its hazard analysis as safety 

critical. 

Requiring a description of ‘‘software 

and computing systems,’’ rather than 

just software systems as proposed in the 

NPRM, clarifies that computer system 

hardware, which includes physical 

devices that assist in the transfer of data 

and perform logic operations, are 

included in the description of vehicle 

systems. Computing systems may 

include such hardware as central 

processing units (CPU), busses, display 

screens, memory cards, or peripherals, 

and may include stand-alone systems, 

such as off-the-shelf digital controllers. 

6. Flight Test Plan 

Section 437.25 requires an applicant 

to provide a flight test plan. Under 

§ 437.25(a), an applicant must describe 

any flight test program, including the 

estimated number of flights and key 

flight-safety events. For each operating 

area, an applicant must also provide the 

maximum altitude it expects the 

reusable suborbital rocket to reach. This 

represents a clarification of what the 

FAA originally proposed. In the NPRM, 

the FAA proposed to require an 

applicant to describe the maximum 

altitude without reference to the 

operating area. 

7. Rest Requirements 

As proposed in the NPRM, § 437.51 

requires that a permittee comply with 

crew rest rules. The rules require that 

vehicle safety operations personnel not 

work more than 12 consecutive hours, 

more than a total of 60 hours in the 7 

days preceding a permitted activity, or 

more than 14 consecutive work days.5

ALPA agreed that prescriptive duty 

limits are suitable and necessary to 

mitigate the likelihood of human error 

related to fatigue. ALPA did not agree, 

however, that the rules adequately or 

accurately incorporate principles 

established by current scientific 

research and literature. 

ALPA cited a June 1987 Report of the 

Presidential Commission on the Space 

Shuttle Challenger Accident (The 

Rogers Report). The Rogers Report noted 

that a number of authoritative scientific 

studies have shown: (1) That multiple 

strings of 11 to 12-hour workdays 

produce worker fatigue, negatively 

impact worker effectiveness, and 

present a threat to public safety; 2) that 

night work and shift changes produce 

sleep loss and fatigue by disrupting 

workers’ circadian rhythms; and (3) that 

shift workers often require a week or 


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more to adapt to new shifts, especially 

if one of the shifts is a night shift. 

ALPA stated that the rules fail to mitigate 

against these known risks. 

First, the proposed rule would allow a 

string of workdays for vehicle safety 

operations personnel, with shifts each up to 

11 hours and 59 minutes, without any 

required rest period at all. Second, requiring 

a ‘‘rest’’ period of 8 hours after a 12-hour 

shift simply fails to provide an adequate 

period for sleep, increasing the likelihood of 

both acute and accumulated or chronic, 

fatigue. Further, the combination of 12 hours 

on and 8 hours off would tend to generate 

schedules for safety sensitive personnel 

based on a 20-hour clock, rather than the 24- 

hour clock, potentially disrupting the 

workers’ circadian rhythms and introducing 

a significant potential for fatigue related 

error. Third, the proposed rule fails to 

provide any mechanism to compensate for 

the time period required for workers to 

readjust to changes in the time of day for 

commencement of shift work. This lack of 

time to adapt to a new sleep/wake cycle is 

a factor that could lead to safety critical tasks 

being performed during a worker’s 

physiological window of circadian low, a 

factor that has been scientifically shown to be 

a major and recurring factor in industrial 

accidents. 

Although the FAA is adopting the 

requirements as proposed, it does, 

however, intend to give ALPA’s 

comments and this issue the study and 

attention they deserve. The FAA would 

need to assess the cost and operational 

effects of these changes. The crew rest 

rules in part 437 are similar to those in 

part 431 that apply to the licensing of 

reusable launch vehicle missions. The 

rest rules were originally based on crew 

rest requirements imposed by the Air 

Force at Federal launch ranges. 

Moreover, the FAA cannot impose more 

rigorous requirements without 

providing additional notice and seeking 

additional comment. 

8. Pre-Flight and Post-Flight Operations 

Section 437.53 requires a permittee to 

establish a safety clear zone and verify 

that the public is outside that zone 

before and during any hazardous 

operation. Masten Space Systems 

recommended that the FAA clarify how 

this requirement applies to post-flight 

‘‘safing’’ where the vehicle lands, shuts 

off its engines, and then waits some 

period of time before it restarts its 

engines and takes off again. A permit is 

not required for operations between 

flights. Under § 437.53, ‘‘pre-flight’’

operation begins when a permittee 

prepares a reusable suborbital rocket for 

flight and ‘‘post-flight’’ operation ends 

when a permittee returns the reusable 

suborbital rocket to a safe condition 

after flight. In the X Prize Cup’s Lunar 

Lander Challenge and Rocket Racing 

League examples provided by Masten, 

post-flight activities would begin once 

the vehicle is no longer in flight. Preflight activities would begin when 

preparations for the next flight meet the 

four-part test addressed in the scope of 

launch. However, operations between 

landing and take-off may all be covered 

under a permit if the vehicle is never 

safed. 

9. Hazard Analysis 

Section 437.55 requires a permittee to 

identify and characterize each of the 

hazards resulting from each permitted 

flight. An applicant would then assess 

the risks of each hazard. A pemittee 

must also carry out the risk elimination 

and mitigation measures derived from 

its hazard analysis, and ensure the 

continued accuracy and validity of its 

hazard analysis throughout the term of 

its permit. 

The hazard analysis required by 

§ 437.55 must determine the likelihood 

of occurrence and the potential 

consequence of each hazard before risk 

elimination or mitigation. In the NPRM, 

the FAA proposed that the applicant 

determine the likelihood of occurrence 

and consequence for each hazard. It was 

not clear in the NPRM that the applicant 

must analyze the risk of each hazard 

before identifying measures to mitigate 

or eliminate that risk. This step helps 

distinguish between those hazards 

requiring mitigation and those that pose 

little apparent risk to the public, and 

allows the operator to focus its system 

safety effort on the most significant risks 

to the public. 

As part of the hazard analysis 

required by § 437.55, an applicant must 

identify and describe the risk 

elimination and mitigation measures 

necessary to ensure that the likelihood 

of adverse consequence of each hazard 

meets the following criteria: 

(A) The likelihood of any hazardous 

condition that may cause death or 

serious injury to the public must be 

extremely remote. 

(B) The likelihood of any hazardous 

condition that may cause major property 

damage to the public, major safetycritical system damage or reduced 

capability, a significant reduction in 

safety margins, or a significant increase 

in crew workload must be remote. 

These qualitative criteria are 

statements of risk, including both the 

severity of the consequences and the 

likelihood. They are necessary to define 

an acceptable inverse relationship 

between likelihood and the severity of 

each hazard. The qualitative criteria are 

derived from FAA aircraft regulations 

and standards that the military has 

historically applied to launch safety. 

These standards have not quantified the 

likelihood of a hazard occurring. The 

probability of some hazards occurring 

cannot be quantified with certainty. For 

example, the likelihood of a procedure 

failing is difficult to quantify prior to 

obtaining experience with that 

procedure. The failure rate may not be 

available for the new systems being 

created. Even if the aircraft regulations 

and launch safety requirements assigned 

quantitative criteria to the likelihood of 

all hazards, the commercial launch 

industry is still too new to provide the 

data necessary for quantitative criteria. 

The Federation pointed out that 

Advisory Circular (AC) 25.1309–1A 

does not identify all decreased safety 

margins or all increased workload as 

areas of concern. Instead, the AC refers 

only to reductions or increases that are 

significant. The Federation and XCOR 

were concerned that they could not 

meet the proposed requirement that any 

hazardous condition that could lead to 

either a decreased safety margin or an 

increased workload be remote. The FAA 

did not intend so broad a requirement 

and is, therefore, requiring that the 

likelihood of significant changes be 

remote. 

Section 437.55(a)(1)(ii) requires an 

applicant to identify and describe 

hazards, including but not limited to 

software errors, if an operator uses 

software. XCOR was concerned that this 

requirement could be used to deny a 

permit to an applicant whose vehicle 

used no software, and thus had no 

software error hazards to describe. The 

FAA agrees that if the operator does not 

use software there is no potential for 

software errors. 

Although the FAA requires that a 

permittee conduct a hazard analysis, the 

FAA does not require a permittee to 

have a System Safety Program Plan 

(SSPP). An SSPP defines the 

methodology and products of a system 

safety program. The SSPP helps ensure 

that safety, consistent with overall 

system objectives and requirements, is 

designed into the system. An SSPP can 

also ensure that methods employed to 

remove hazards and reduce risks are 

properly applied and documented, and 

that changes in system design, 

configuration, or application are 

evaluated and analyzed for impacts to 

overall system safety. Spaceport 

Associates agreed with the FAA that no 

SSPP should be required for a permit. 

While the FAA does not require a SSPP 

for experimental permits, the FAA 

strongly encourages an operator to 

develop its own plan as part of a strong 

safety culture. 


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10. Operating Area Containment 

As proposed in the NPRM, § 437.57(a) 

requires that during each permitted 

flight, a permittee contain its reusable 

suborbital rocket’s instantaneous impact 

point (IIP) within an operating area and 

outside any exclusion area. During the 

application process, an applicant must 

demonstrate, at a minimum, either that 

there are physical limits on the ability 

of the reusable suborbital rocket to leave 

the operating area, or that an operator 

will use abort procedures and other 

safety measures derived from a system 

safety engineering process to contain the 

IIP. Section 437.57(b) defines an 

acceptable operating area, and 

§ 437.57(c) states that the FAA may 

prohibit a reusable suborbital rocket’s 

IIP from traversing certain areas within 

an operating area, by designating one or 

more areas as exclusion areas. These 

sections are the same as proposed in the 

NPRM, except for § 437.57(b). 

The FAA has clarified § 437.57(b)(3) 

and (4). Section 437.57(b)(3) requires 

that an operating area not contain or be 

adjacent to a densely populated area or 

large concentrations of members of the 

public. The reference to large 

concentrations of members of the public 

was moved from proposed § 437.57(b)(4) 

to § 437.57(b)(3) for consistency. Section 

437.57(b)(4) now requires that an 

operating area not contain or be adjacent 

to significant automobile traffic, railway 

traffic, or waterborne vessel traffic. This 

new requirement is important to ensure 

that hazards associated with a failure do 

not harm the public, as pointed out by 

a NASA commenter. 

a. Reliability 

A representative from NASA 

recommended during interagency 

coordination that the FAA require 

information on the reliability of any 

system used to ensure containment. 

Information on reliability can include 

reliability prediction, reliability test 

data, and corrective actions taken as a 

result of operational anomalies. 

Reliability predictions may not be 

necessary or valid in all cases. 

Reliability test data, on the other hand, 

will likely be developed because of the 

requirement for verification evidence, 

which is measurable evidence that 

safety measures are effective and have 

been properly implemented. The 

requirement for verification evidence 

may be satisfied by the submission of 

reliability analysis and test data 

necessary to support an applicant’s 

demonstration of vehicle containment. 

As stated in the FAA Guide to Reusable 

Launch and Reentry Vehicle Reliability 

Analysis, reliability analysis techniques 

such as Fault Tree Analysis and 

Reliability Block Diagrams, 

supplemented by reliability test data, 

are acceptable approaches for design 

verification. Therefore, reliability 

analysis and test methods could be used 

in verifying containment systems. In 

addition, § 437.73(b) requires that a 

permittee report any anomaly (and 

corrective actions for each anomaly) of 

any system necessary to keep the 

vehicle within its operating area. 

Anomaly reporting is part of a strong 

reliability engineering effort, and 

provides the operator and the FAA with 

added information to evaluate the 

reliability of those systems. 

The NASA representative also noted 

that the hazards associated with a 

failure are what should be contained, 

not the vehicle’s instantaneous impact 

point. NASA defines containment as a 

‘‘technique that precludes hazards (such 

as vehicle, debris, explosive, or toxic) 

from reaching the public, the workforce, 

or property in the event of a vehicle 

failure or other mishap.’’ NASA 

Procedural Requirement 8715.5, Range 

Safety Program, 29 (Jul. 8 2005). The 

commenter made a similar comment 

about § 437.57(b)(1), which requires that 

an operating area be large enough to 

contain each planned trajectory and all 

expected vehicle dispersions. The 

commenter noted that this requirement 

seems to imply that it would be 

acceptable to run a planned 

instantaneous impact point trajectory 

right along the boundary of the 

operating area. The commenter 

suggested also requiring a margin that 

accounts for the potential dispersions of 

debris and any other hazard caused by 

a vehicle failure. The FAA agrees that 

what is important for public safety is 

that hazards are contained, not a 

rocket’s IIP. For this reason, 

§ 437.57(b)(3) mandates that a densely 

populated area may not be adjacent to 

an operating area. The separation of the 

edge of the operating area from densely 

populated area effectively creates a 

buffer around an applicant’s operating 

area. That buffer will serve to keep 

hazards away from the public in the 

event of a mishap. 

b. Operating Area Publication 

In the NPRM, the FAA stated that it 

would publish approved experimental 

permit operating areas on its Web site. 

Although XCOR Aerospace agreed with 

informing the public of potential 

hazards, it was concerned that doing so 

might encourage members of the public 

to converge on that area to watch the 

flights, potentially creating an unsafe 

condition. Although the FAA agrees that 

publication may invite undesirable 

attention, the FAA believes it is 

important to inform the public of 

potential hazardous operations so that 

they can be aware of potential hazards. 

In addition, the FAA intends to use its 

Web site as a repository for locations 

and characteristics of acceptable 

operating areas to provide guidance to 

future applicants proposing operating 

areas. In this fashion, the operating area 

list will provide examples of acceptable 

operating area characteristics, such as 

amounts of unpopulated and sparsely 

populated areas and automobile, 

railway, and waterborne vessel traffic. 

c. Definitions of Unpopulated, Sparsely 

Populated, and Densely Populated 

Areas 

In the NPRM, the FAA requested 

comments as to whether it should adopt 

specific definitions for ‘‘unpopulated,’’

‘‘sparsely populated,’’ and ‘‘densely 

populated’’ areas for purposes of 

determining an acceptable operating 

area. The Federation and XCOR agree 

that the FAA should not define these 

terms. The Federation commented that 

operating areas are site dependent. The 

Federation’s statement is true because 

similarly sized operating areas with 

identical total populations may have a 

different distribution of the population, 

leading to different risks. Likewise, how 

the calculations are performed may 

change the apparent population density. 

For example, there may be an area of 

100 square miles, with all the 

population clustered in the southeast 

corner in a town. The density would 

appear to be low if the population were 

distributed over the whole 100 square 

miles. On the other hand, if the 

operating area were assessed in blocks 

of one square mile at a time, certain 

areas would show high density. 

Because the FAA wants to gain 

experience in assessing these questions, 

the FAA will define these terms on a 

case-by-case basis for now. However, 

the FAA may in the future define these 

terms if experience shows the merits of 

doing so. Those definitions could be 

provided as guidance material rather 

than as a change to the regulation. 

d. Risk Criteria: Qualitative or 

Quantitative 

As the FAA discussed in the NPRM, 

the FAA will not require an applicant to 

perform a quantitative risk analysis to 

obtain a permit. This means that a 

permittee will not have to calculate 

expected casualty and individual risk, 

which are the measures of acceptable 

risk for licensed activities. In their 

stead, the FAA is mandating qualitative 

risk criteria under section 437.55(a)(3), 

containment within an operating area, 


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Federal Register / Vol. 72, No. 66 / Friday, April 6, 2007 / Rules and Regulations 17007 

6A launch accident means: 

(1) A fatality or serious injury (as defined in 49 

CFR 830.2) to any person who is not associated 

with the flight; 

(2) Any damage estimated to exceed $25,000 to 

property not associated with the flight that is not 

located at the launch site or designated recovery 

area; or 

(3) An unplanned event occurring during the 

flight of a launch vehicle resulting in the known 

impact of a launch vehicle, its payload or any 

component thereof: 

(i) For an expendable launch vehicle (ELV), 

outside designated impact limit lines; and 

(ii) For an RLV, outside a designated landing site. 

14 CFR 401.5. 

7 XCOR raised the closing of runways at Mojave 

Airport for the landing of SpaceShipOne as an 

example of the FAA not permitting overflight 

because of concerns of any impact. The runways 

were closed not because of potential crashes during 

overflight as XCOR suggests, but because of the 

need to account for the debris of a potential impact 

on landing. Runways that intersected the landing 

runway also had to be closed so that no planes 

would enter the landing location. 

risk mitigation measures derived from 

hazard analyses, and corrective actions 

that respond to anomalies. 

Most commenters agreed with not 

requiring a permittee to meet 

quantitative risk criteria. SpaceShot 

stated that the FAA’s current 30 in a 

million expected casualty criterion is 

too stringent, even under a launch 

license. Spaceport Associates agreed 

that no quantitative risk should be 

required under a permit because there is 

not enough real data. Blue Origin agreed 

with the FAA that the reliability data 

necessary for a quantitative analysis 

typically can be obtained by the very 

research and development testing that 

Congress intended permits to enable. 

Blue Origin also considered the 

approach consistent with the legislative 

history of the CSLAA, where the FAA 

was urged to assess the appropriateness 

of requiring risk calculations for 

permits, and to explore alternatives. 

XCOR also agreed that expected 

casualty was not a proper tool for 

assessing risk. 

The Federation stated that calculating 

a probability of failure for newly 

developed reusable suborbital rockets 

would be extremely difficult, if not 

impossible. Any vehicle operating 

under an experimental permit will be 

testing new technologies and, by 

definition, will lack the flight history 

and operational experience needed to 

determine the probability of failure. 

Also, the capability of most reusable 

suborbital rockets to use incremental 

testing and envelope expansion may 

provide for a higher probability of 

success for a vehicle’s ultimate design 

as compared to the initial launches of 

expendable launch vehicles. For these 

reasons, the Federation believes it 

would be inapposite to apply commonly 

accepted probabilities of failure for 

expendable launch vehicles to early 

launches of reusable suborbital rockets. 

XCOR suggested that the FAA should 

encourage applicants to perform 

quantitative risk analyses and that, if an 

applicant were to submit such an 

analysis, the FAA would have to accept 

it. The FAA agrees that performing valid 

quantitative risk analyses should be 

encouraged, even if these analyses are 

not required to obtain a permit. In 

addition to the added perspective on 

safety that these analyses provide, the 

experience gained in performing such 

an analysis could prove valuable if the 

permit applicant wishes to apply for a 

launch license. However, a quantitative 

risk analysis is not a substitute for any 

of the other analyses required to obtain 

a permit, and the performance and 

submission of such an analysis does not 

excuse an applicant from any of the 

requirements of part 437. 

Quantitative risk analysis by itself 

does not minimize the risk to the 

uninvolved public. Rather, the decisions 

made based on the results of the 

assessment reduce the risk. At this 

stage, the hazard analysis and the 

qualitative risk assessment provide the 

best route to making those informed 

decisions. 

Rocketplane stated that requiring an 

estimate of the probability of a thirdparty catastrophic event, which it 

described as ‘‘expected casualty,’’

would ensure adequate safety analyses 

to minimize the risk to the uninvolved 

public, especially in the case of flight 

over a populated area. Rocketplane 

stated that without an expected casualty 

calculation, the industry would be 

subjected to a major setback if an 

experimental vehicle were to crash and 

harm members of the public. 

Although the FAA shares some of 

Rocketplane’s concerns, it is not 

practicable to mandate quantitative risk 

assessments for experimental permits at 

this time. As discussed in the NPRM, 

the FAA considered requiring 

quantitative risk analyses. However, 

uncertainties in launch vehicle 

reliability, operating environments, and 

the consequences of a failure prevent a 

straightforward application of this 

analysis technique. The data concerning 

reliability, operating environment, and 

consequences typically can be obtained 

by the very research and development 

testing that Congress intends permits to 

enable. 

11. Key Flight-Safety Events 

‘‘Key flight-safety event’’ means a 

permitted flight activity that has an 

increased likelihood of causing a launch 

accident compared with other portions 

of flight. In the NPRM, the FAA 

proposed a similar definition, but 

referred to ‘‘failure’’ instead of ‘‘launch 

accident,’’ which is already defined by 

§ 401.5.6 Under § 437.59, a permittee 

must conduct any key flight-safety event 

so that the reusable suborbital rocket’s 

instantaneous impact point, including 

its expected dispersion, is over an 

unpopulated or sparsely populated area. 

12. Landing and Impact Locations 

Section 437.61 requires a permittee to 

use a landing or impact location that is 

big enough to contain an impact, 

including debris dispersion; and that 

does not contain any members of the 

public at the time of landing or impact. 

This requirement applies for nominal 

landing or any contingency abort 

landing of a reusable suborbital rocket, 

or for any nominal or contingency 

impact or landing of a component of 

that rocket. 

This section is a clarified version of 

that proposed in the NPRM. It requires 

an operator to account for nominal or 

contingency impacts or landings of a 

rocket component rather than all 

possible impacts. This clarification 

should assuage XCOR’s concern that the 

requirement could be interpreted to 

mean that wherever a component could 

possibly impact must not contain any 

members of the public, thus precluding 

any flight over any members of the 

public. 

XCOR and the Federation were also 

concerned that this section could be 

interpreted to mean that a spaceport 

operator would have to close its 

spaceport to all other traffic during 

every flight of a reusable suborbital 

rocket. They believe that at Mojave 

Airport, where the FAA has defined the 

launch site as all active runways, 

taxiways and hangars, this 

interpretation would effectively close 

the airport for the duration of every 

suborbital rocket flight.7 This was never 

the FAA’s intent. The requirement says 

that a landing location has to be big 

enough to contain impact hazards. The 

landing or impact location, not the 

whole launch site, has to be clear of 

members of the public. A landing area 

could be a runway. A landing area may 

or may not include the whole launch 

site and could simply be a runway. The 

size of the landing area must be large 

enough to contain impact hazards in the 

case of a hard landing or impact at the 

planned location. An entire spaceport, 

including hangar areas, would only 

have to be closed if necessary to contain 

impact hazards. 


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13. Agreements With Other Entities 

Involved in a Launch or Reentry 

Section 437.63 requires an applicant 

to have a written agreement with a 

Federal launch range operator, a 

licensed launch site operator, or any 

other party that provides access to or 

use of property and services required to 

support the safe launch or reentry under 

a permit. Although the FAA did not 

receive a comment about this, the 

agency is adopting a narrower version of 

the requirement than originally 

proposed. In the NPRM, the FAA 

proposed that the applicant enter into a 

written agreement with ‘‘* * * any 

other party that provides access to or 

use of property and services required to 

support a permitted flight’’ regardless of 

whether the property or services were 

required for safety. 

Blue Origin commented that the FAA 

should not require that a permittee enter 

into such agreements if the permittee 

intends to use its own launch site 

exclusively. Such agreements may not 

be necessary if the private use operator 

has no need for the property or services 

of another. However, even operators of 

private sites may need the safety 

services of outside parties. For example, 

a local fire department may be used for 

emergency response. 

When a launch occurs over navigable 

waters, § 437.63 requires that a 

permittee enter into and comply with a 

written agreement between the 

applicant and the local United States 

Coast Guard (USCG) district to establish 

procedures for issuing a Notice to 

Mariners before flight. In the NPRM, the 

FAA proposed that this requirement 

apply to overflight of any water. The 

Federation and XCOR recommended 

limiting this requirement to overflight of 

‘‘navigable’’ water. Because the U.S. 

Coast Guard only has jurisdiction over 

navigable water, the FAA is adopting 

this narrower version. Section 437.63 

also requires a written agreement 

between the applicant and the Air 

Traffic Control authority with 

jurisdiction over the airspace through 

which a flight is to take place, for 

measures necessary to ensure the safety 

of aircraft, such as launch notification 

procedures and limitations on days or 

times of launches. This is the same as 

proposed in the NPRM, but now 

specifically identifies that the agreement 

must demonstrate satisfaction of 

§§ 437.69(a) and 437.71(d). This 

clarification will ensure that the 

agreement covers the communications 

and airspace issues addressed in those 

sections. 

14. Collision Avoidance Analysis 

Section 437.65 requires a collision 

avoidance analysis for a suborbital 

launch with a planned maximum 

altitude greater than 150 kilometers. A 

permitted launch may not pass within 

200 kilometers of a manned or 

mannable orbital object throughout 

flight. Although Spaceport Associates 

supported a minimum altitude for 

requiring a collision avoidance analysis, 

it suggested that the FAA continue to 

work with the U.S. Strategic Command 

(USSTRATCOM) to determine an 

alternate distance, because as flight rates 

increase it could be more difficult to 

schedule suborbital flights in general. 

The FAA consulted with 

USSTRATCOM during the development 

of the NPRM and intends to continue 

the partnership to explore methods of 

improving the process as activity 

increases. Efforts are underway to 

modernize the collision avoidance 

analysis. Meanwhile, the FAA will 

continue to allow an applicant to 

propose an alternate distance, provided 

the distance demonstrates an equivalent 

level of safety and accounts for all 

uncertainties. 

15. Tracking a Reusable Suborbital 

Rocket 

Under § 437.67, a permittee must, 

during permitted flight, measure in real 

time the position and velocity of its 

reusable suborbital rocket. This is a 

change from the NPRM, which proposed 

that a permittee provide Air Traffic 

Control with the ability to know the real 

time position and velocity of the 

reusable suborbital rocket while 

operating in the National Airspace 

System. The purpose of this proposal 

was to allow Air Traffic Control to track 

a permitted vehicle if it were to fly 

outside its operating area. The proposal 

prompted opposition from Blue Origin, 

the Federation, and XCOR. Blue Origin 

commented that the proposed tracking 

and data requirements may not be 

possible to fulfill for short duration, 

low-altitude testing, and asked that the 

FAA not mandate such tracking. 

The Federation and XCOR had no 

objection, in principle, to being required 

to make real time position and velocity 

information available to Air Traffic 

Control, but felt they could not accept 

responsibility for what Air Traffic 

Control did, or failed to do, with the 

information. Nor, the Federation 

pointed out, could permittees be 

responsible for overcoming the 

limitations of the air traffic control 

system, or for fulfilling a technical 

requirement if no technology was 

available at a reasonable price. 

The Federation noted that the most 

likely method of complying with the 

proposed requirement was to use a 

standard, commercially available 

transponder. However, commercially 

available Mode C transponders cannot 

currently report an altitude greater than 

62,000 feet. In addition, by FAA 

regulations, such transponders must 

report pressure altitude, and for a 

vehicle going faster than the speed of 

sound while increasing in altitude, the 

pressure altitude can lag actual altitude 

by thousands of feet. The Federation 

described ADS–B as much more 

appropriate, and affordable, but noted 

that its use is constrained by the fact 

that the FAA’s air traffic control system 

does not offer ADS–B throughout the 

United States. 

The FAA agrees with the comments 

for the reasons provided. The 

requirement for a permittee to measure 

in real time the position and velocity of 

its reusable suborbital rocket, coupled 

with the requirement, discussed below, 

that a permittee communicate with Air 

Traffic Control during all phases of 

flight, should provide Air Traffic 

enough information to protect the 

public if a permitted vehicle flies 

outside its assigned operating area. 

However, the FAA may require the 

permittee to carry a transponder or 

similar device to allow Air Traffic 

Control to know directly the real time 

position and velocity of the reusable 

suborbital rocket if a vehicle is flying 

below 62,000 feet and slowly enough to 

communicate with Air Traffic Control’s 

system. Satisfaction of these conditions 

is extremely unlikely given the 

velocities of suborbital rockets. The 

FAA will implement this requirement 

on a case-by-case basis through the 

terms and conditions of a permit, 

because the agency does not believe that 

the need for such a requirement is 

sufficiently widespread to implement a 

requirement of general applicability. 

Nor may it always be necessary. The 

characteristics of both the vehicle and 

the surrounding area will have to 

necessitate imposing the requirement. 

As proposed in the NPRM, § 437.67 

also requires a permittee to provide 

position and velocity data for post-flight 

use. 

16. Communications 

Section 437.69 requires that a 

permittee communicate with Air Traffic 

Control during all phases of flight, as 

proposed in the NPRM. XCOR agreed 

that continuous communication is 

necessary, even when flying above 

60,000 feet. This requirement has 

greater import now that the FAA does 

not require Air Traffic tracking of a 


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Federal Register / Vol. 72, No. 66 / Friday, April 6, 2007 / Rules and Regulations 17009 

8The Federation also recommended against using 

or defining the term ‘‘anomaly’’ and replacing it 

with the term ‘‘failure.’’ The FAA agrees that some 

confusion could have resulted from defining 

‘‘anomaly’’ in terms of failure. Anomalies are meant 

to encompass not only failures in flight but also 

problems that could result in flight failures in the 

future, including human errors, software faults, and 

incorrect procedures. Because ‘‘problem’’

encompasses failures, reference to ‘‘failure’’ is not 

necessary. 

launch vehicle. If a vehicle leaves an 

operating area, this communication link 

will allow a permittee to relay position 

and velocity information to Air Traffic. 

17. Flight Rules 

Section 437.71 requires that a 

permittee follow certain flight rules. 

They are the same as proposed in the 

NPRM, with one exception. In the 

NPRM, the FAA proposed that a 

permittee could not operate a reusable 

suborbital rocket within Class A, Class 

B, Class C, or Class D airspace or within 

the boundaries of the surface of Class E 

airspace designated for an airport, 

unless the permitee had prior 

authorization from the air traffic control 

facility having jurisdiction over that 

airspace. The FAA is not adopting this 

provision because it is unnecessary. The 

agreement with the responsible Air 

Traffic Control authority required by 

§ 437.63 should include any need for 

prior authorization. 

18. Anomaly Recording and Reporting 

and Implementation of Corrective 

Actions 

Section 437.3 defines ‘‘anomaly’’ as a 

problem that occurs during verification 

or operation of a system, subsystem, 

process, facility or support equipment. 

Section 437.73 requires a permittee to 

record and report anomalies and 

implement corrective actions for those 

anomalies. A permittee must also report 

to the FAA any anomaly to, and 

corrective action for, any system that is 

necessary for compliance with the 

requirements to perform a hazard 

analysis, to contain a rocket within an 

operating area, and to conduct key 

flight-safety events properly. A 

permittee must take each corrective 

action before the next flight. 

The FAA had proposed to define 

‘‘anomaly’’ as an apparent problem or 

failure that occurs during verification or 

operation and affects a system, a 

subsystem, a process, support 

equipment, or facilities. The Federation 

questioned whether, by defining 

‘‘anomaly’’ to include failures while 

simultaneously defining failures to 

include any anomalous condition, the 

definitions created a circular loop 

whose real meaning would be open to 

broad interpretation.8

Spaceport Associates suggested that 

the FAA limit anomalies to those that 

were potentially safety-critical. The 

FAA recognizes that the term anomaly 

is a broad term, and chose it to include 

issues during verification and operation 

of systems and subsystems that are not 

necessarily flight failures but could put 

the public at risk. The FAA is adopting 

the term anomaly with the 

modifications discussed above, but is 

clarifying the anomaly reporting 

requirements of § 437.73 to reduce 

concerns about the standard being too 

broad and burdensome. The FAA is 

only concerned about anomalies of 

systems, subsystems, processes, 

facilities, and support equipment that 

are essential for safe performance or 

operation. Therefore, the FAA is only 

requiring, under § 437.73, a permittee to 

report anomalies that are safety-critical. 

Spaceport Associates commented that 

hazard analysis and anomaly reporting 

are good ideas, and will normally be 

done internally in any case by an 

operator conducting the test flights. 

Blue Origin suggested limiting the 

recording requirement to anomalies that 

occur during permitted flight. Blue 

Origin also recommended that the FAA 

only require an operator to report 

anomalies for specific systems, such as 

guidance and propulsion systems. 

Anomalies that occur during system 

and subsystem verification testing are 

potential precursors to launch 

accidents. Recording and reporting 

these anomalies allow the operator and 

the FAA to analyze and evaluate 

problems that could lead to launch 

accidents. The goal of a strong system 

safety program is to prevent mishaps. 

Analyses of accidents often show that 

clues existed before the mishap in the 

form of anomalies during the project life 

cycle, including before flight. 

Anomalies that occur throughout the 

life cycle can provide important 

information about what conditions an 

operator needs to control. Therefore, it 

is prudent for the launch vehicle 

operator to identify, analyze, and 

mitigate not just anomalies that occur 

during flight, but also anomalies in 

vehicles and safety-related subsystems 

and components that occur on the 

ground. Although the FAA will not 

limit the reporting requirement to 

anomalies that occur during flight, the 

FAA does not wish to impose an 

unnecessary recordkeeping burden on 

the launch vehicle industry. Therefore, 

the FAA is not requiring that an 

operator report all anomalies, but only 

those that are safety-related. 

The FAA is not limiting the reporting 

requirement to specific systems, but 

does limit the reporting requirement to 

anomalies associated with those systems 

necessary for complying with the hazard 

analysis, operating area, and key flightsafety event requirements. Therefore, 

the requirements are sufficiently 

narrowly drawn. 

19. Additional Safety Requirements 

Under § 437.77, the FAA may impose 

additional safety requirements on an 

applicant or permittee proposing an 

activity with a hazard not otherwise 

addressed in part 437. This activity may 

include a toxic hazard or the use of 

solid propellants. The FAA may also 

require the permittee to conduct 

additional analyses of the cause of any 

anomaly and corrective actions. XCOR 

agrees that the FAA needs this 

regulation because no one can predict 

every vehicle concept that will come 

along. XCOR stated, however, that the 

FAA must use common sense in its 

application. 

20. Allowable Design Changes; 

Modification of an Experimental Permit 

Section 437.85(a) states the FAA will 

identify in an experimental permit the 

type of changes that a permittee may 

make to the reusable suborbital rocket 

design without invalidating the permit. 

This is the same as proposed in the 

NPRM. 

Blue Origin was concerned that the 

requirement might restrict modifications 

to the vehicle design, other than 

changes to the rocket motor. The 

requirement’s reference to a ‘‘suborbital 

rocket’’ includes the entire vehicle, not 

just the rocket motor. 

21. Pre-Flight Reporting 

Section 437.89 requires a permittee to 

provide information regarding its 

payload, timing of flights, the operating 

area for each flight, and the planned 

maximum altitude not later than 30 

days before each flight or series of 

flights conducted under an 

experimental permit. In addition, not 

later than 15 days before each permitted 

flight of greater than 150 km altitude, a 

permittee must provide the FAA its 

planned trajectory for a collision 

avoidance analysis. This requirement is 

the same as that proposed in the NPRM. 

Spaceport Associates was concerned 

with submitting a flight trajectory at 

least two weeks before each flight, 

because an operator may want to insert 

a new mission with minimal changes 

just a few days after a previous flight. As 

Spaceport Associates recognized, this 

information is for USSTRATCOM so it 

can perform a collision avoidance 

analysis. Spaceport Associates asked 

what flexibility would be possible as 

flight rates increased. The FAA will 


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9Masten questioned why space flight participants 

could board a flight under a permit but an operator 

could not charge for carriage of property. There is 

no difference: an operator may not charge for the 

carriage of either. 

facilitate an agreement with 

USSTRATCOM to accommodate the 

needs of any particular flight test 

program, but operators must still 

provide the information 15 days in 

advance so the collision avoidance 

analysis may be conducted. The FAA 

does entertain requests for waivers to its 

timing requirements, but any flexibility 

in that regard will depend on the 

availability of USSTRATCOM resources. 

22. For-Hire Prohibition 

Section 437.91 states that no person 

may operate a reusable suborbital rocket 

under a permit for carrying any property 

or human being for compensation or 

hire. This is unchanged from the NPRM. 

In the NPRM, the FAA proposed that, 

with one exception, the definition of 

‘‘compensation or hire’’ is the same as 

that used in the aviation context. The 

FAA explained that compensation may 

include any form of payment including 

payment of operating costs such as fuel, 

a tax deduction if a flight is for charity, 

payment by a third-party, any nonmonetary exchange for carrying a person 

for free (for example, the operator 

receives free advertising, parts, or 

maintenance, and the like), or any 

exchange of value including the 

bartering of goods or services in 

exchange for the transportation. The one 

exception, as stated in the NPRM, is that 

the FAA does not consider goodwill 

compensation. The FAA also explained 

that winning prize money, advertising 

revenue from logos, and flying space 

flight participants for free 9 would be 

allowed under this section. The 

Federation and XCOR applauded the 

FAA’s proposal and requested no 

changes. 

Masten, Mr. Paul T. Breed, Spaceport 

Associates, and Beyond Earth suggested 

that inert payloads such as souvenirs 

and trinkets should be allowed for 

compensation to help fund 

entrepreneurial companies during 

vehicle development. The FAA is bound 

by the CSLAA and unable to make this 

exception. The CSLAA prohibits 

carrying property for compensation or 

hire under a permit. Any payload, 

including a souvenir, constitutes 

property and its carriage for hire is not 

allowed. Masten inquired about the sale 

of images from onboard cameras. The 

sale of images from onboard still or 

video cameras would violate § 437.91. 

Mr. Breed requested clarification on 

whether the sale of used rocket parts 

would be permissible. The sale of a used 

rocket part would not violate § 437.91 if 

the rocket part was not carried on board 

for compensation or hire. The FAA can, 

however, envision a launch operator 

changing out a component of a vehicle 

that has flown in space if, due to the 

component having flown in space, the 

used component is worth more than a 

replacement. Or, as Paul Breed also 

suggests, selling used propellant tank 

insulation that has been imprinted with 

post card images. These practices are 

prohibited under § 437.91. 

Tripoli commented that some high 

power rocket practitioners partner with 

universities to fly student research 

payloads, generally no bigger than a 

coffee can. The university pays for the 

rocket motors. Tripoli wants to ensure 

that this kind of cooperation is not 

considered ‘‘for hire.’’ This type of 

cooperation would not be allowed 

under an experimental permit. A launch 

operator may not receive any 

compensation, including the cost of a 

motor, for transporting a payload. 

Any interpretation of the statutory 

prohibition will be guided by the 

principle that a permit is to be used for 

research and development, crew 

training, or showing compliance with 

license requirements. An operator 

seeking to generate revenue may do so 

under a license. 

23. Inspection 

As proposed in the NPRM, under 

§ 437.95, a permittee may launch or 

reenter additional reusable suborbital 

rockets of the same design under the 

permit after the FAA inspects each 

additional reusable suborbital rocket. 

Blue Origin commented that inspecting 

any additional vehicles once a permit 

has been issued ‘‘seems particularly 

unnecessary.’’ This inspection, 

however, is necessary to ensure that any 

new vehicle is built as represented in 

the original application for the permit 

issued. 

B. Other Regulatory Provisions Affected 

by Permit Authority and This 

Rulemaking 

In addition to proposing a new part 

437, the FAA proposed changes, mostly 

administrative in nature, to existing 

regulations to reflect the FAA’s new 

authority to issue permits. Specifically, 

the FAA proposed changes to parts 401, 

404, 405, 406, 413, 420, and 431. The 

FAA did not receive any substantive 

comments on parts 404, 405, 406, or 

415. The FAA received comments on 

parts 401, 413, 420, and 431, as 

discussed below. 

1. Activities Exempt From Licensing or 

Permitting 

In § 401.5, the FAA defines amateur 

rocket activities as unmanned launch 

activities conducted at private sites 

involving rockets powered by a motor or 

motors having a total impulse of 

200,000 pound-seconds or less and a 

total burning or operating time of less 

than 15 seconds, and a rocket having a 

ballistic coefficient—that is, gross 

weight in pounds divided by frontal 

area of rocket vehicle—less than 12 

pounds per square inch. Under § 400.2, 

the licensing and permitting 

requirements do not apply to amateur 

rocket activities. As proposed in the 

NPRM, the definition of amateur rocket 

activities now only applies to 

unmanned activities, because the 

CSLAA prohibits the FAA from 

authorizing the launch or reentry of a 

launch vehicle or a reentry vehicle 

without a license or permit if a human 

being will be on board. 

Paul T. Breed recommended that the 

FAA incorporate a waiver process in the 

proposed regulations for ‘‘flying 

unmanned hovering/control 

development flights.’’ The FAA notes 

that under § 400.2, the launch of 

unmanned vehicles does not require a 

license or permit, provided that the 

launch falls under the definition of 

amateur rocket activities. If a hovering 

vehicle does not meet the definition of 

amateur rocket activities, it must 

operate under a license or permit. Part 

404 provides a process for otherwise 

obtaining a waiver. 

XCOR suggested that, if the definition 

of amateur rocket activities requires 

everyone who proposes to fly a human 

being on a rocket to get an experimental 

permit, FAA oversight of rocket belt 

flights would be required. XCOR 

believes this would be a mistake in that 

rocket belt operators have made over 

2000 public demonstration flights 

without harming a member of the 

public, all without oversight. XCOR 

believes rocket belts are sporting 

equipment, like SCUBA gear, rather 

than vehicles, and thus not subject to 

FAA oversight. The FAA agrees with 

XCOR that rocket belts, as they 

currently exist, are not vehicles. As 

such, they are not regulated under 

Chapter 701. 

The National Association of Rocketry 

and Tripoli requested that sport rocketry 

be explicitly exempt from any 

regulation implementing the 

Commercial Space Launch 

Amendments Act of 2004. This is not 

necessary, because the requirements of 

14 CFR chapter III currently do not 

apply to amateur rocket activities, as 


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defined in 14 CFR 401.5. An operator 

need only satisfy the amateur definition 

to avoid having to comply with 14 CFR 

Ch. III. 

2. Scope of ‘‘Launch’’

This final rule modifies the definition 

of ‘‘launch’’ to ensure that the FAA 

issues a permit only for activities that 

are closely proximate in time to flight, 

entail critical steps preparatory to 

initiating flight, are unique to space 

launch, and are inherently so hazardous 

as to warrant the FAA’s regulatory 

oversight (the ‘‘four-part test’’). The 

FAA is also defining the end of launch 

for a suborbital RLV flight after vehicle 

landing or impact on Earth, and after 

each activity necessary to return the 

reusable suborbital rocket to a safe 

condition after the vehicle lands or 

impacts. Blue Origin and XCOR10

agreed with the FAA’s proposal to use 

the four-part test to interpret the 

beginning of launch on a case-by-case 

basis for each vehicle. 

The same commenters also 

recommended that the FAA apply the 

four-part test to all RLV launches, 

regardless of whether conducted under 

a license or a permit. The commenters 

noted that unlike expendable launch 

vehicles (ELVs), RLVs may stay at a 

launch site for multiple flights, in cycles 

of storage, pre-flight, launch, and return 

to storage. These cycles may last days or 

years, depending on the RLV. Applying 

the same approach used for one-time 

expendable vehicles would mean 

perpetual regulatory oversight for RLVs. 

Without addressing the merits of these 

arguments, the FAA notes that a change 

to the RLV licensing requirements is 

outside the scope of this rulemaking. 

The FAA does plan to update 14 CFR 

part 431 in the near future and will 

consider the issue at that time. 

XCOR appeared to suggest that the 

definition of launch not include preflight activities. Congress, however, 

mandated that pre-flight activities be 

included in the definition of launch 

when it amended Chapter 701 to 

include ‘‘activities involved in the 

preparation of a launch vehicle ... for 

launch, when those activities take place 

at a launch site in the United States.’’ 49 

U.S.C. 70102(4). Accordingly, the FAA 

must treat preparatory activities as part 

of a launch. For purposes of issuing a 

permit, it will do so in accordance with 

the four-part test. 

3. Permit as a Pre-Requisite to a License 

Section 413.3(f) allows a person, 

individual, or foreign entity otherwise 

requiring a license under § 413.3(a) to 

instead obtain an experimental permit 

to launch or reenter a reusable 

suborbital rocket. In the NPRM, the FAA 

noted that certain vehicle operations 

may not be capable of demonstrating 

compliance with the collective and 

individual risk criteria of a license 

without the flight test data obtained 

under a permit. The Federation pointed 

out that this language implies that, if an 

applicant is unable to show compliance 

with the criteria of a license without the 

use of a permit, then it effectively 

requires someone to obtain a permit 

before obtaining a license. 

To clarify, demonstrating compliance 

with the collective and individual risk 

criteria of a license without the flight 

test data may be challenging, time 

consuming, and expensive for certain 

operators of unproven launch vehicles. 

How much of a challenge this is 

depends on the launch vehicle 

characteristics, launch location, and 

flight profile. The experimental permit 

is designed to enable a launch operator 

to test its vehicle and obtain necessary 

flight test data for a license. Section 

413.3 clearly states that the 

experimental permit is a voluntary 

alternative option to a license. 

4. Address Change 

In this final rule, the FAA has 

modified the address in § 413.7 for 

applicants to send a license or permit 

application. It is now more generic to 

apply to both licenses and permits. 

5. Launch Site Location Review 

Under § 420.30, if an applicant plans 

to use its proposed launch site solely for 

launches conducted under an 

experimental permit, the FAA will 

approve the launch site location if the 

FAA has already approved an operating 

area under part 437. XCOR agreed with 

this approach, approving of the fact that 

it would allow multiple operators to 

build on each others’ regulatory 

successes. 

6. Verification of System Safety 

Analysis 

Section 431.35(d)(7) requires an 

applicant for a RLV license to provide 

data that verifies the risk elimination 

and mitigation measures resulting from 

the applicant’s system safety analyses. 

In the NPRM, the FAA proposed that an 

applicant provide data that verifies the 

applicant’s system safety analyses. 

XCOR stated that, according to the 

proposed definition of verification, the 

FAA would require the applicant to 

demonstrate, by measurement, that its 

safety system performed as intended. 

Therefore, XCOR believes that the FAA 

proposed that the applicant verify its 

safety system through flight test before 

an operator may be awarded a license or 

permit to perform that flight test, which 

would be impossible. 

The FAA did not intend require an 

applicant to demonstrate a safety system 

by flight test before the FAA authorizes 

the flight test. The FAA proposed the 

change to § 431.35(d)(7) to clarify that it 

requires evidence that risk elimination 

and mitigation measures resulting from 

the system safety analysis are effective 

and have been properly implemented. 

The risk mitigation measures need not 

be a single safety system. In addition, 

this verification data requirement can be 

met through analysis, test, 

demonstration or inspection, and does 

not have to be met through flight test. 

III. Rulemaking Analyses 

Paperwork Reduction Act 

This final rule contains the following 

new information collection 

requirements. As required by the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3507(d)), the FAA has submitted 

the information requirements associated 

with this proposal to the Office of 

Management and Budget (OMB) for its 

review. Persons are not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

number. 

Title: Experimental Permits for 

Reusable Suborbital Rockets 

Summary: The Associate 

Administrator for Commercial Space 

Transportation of the Federal Aviation 

Administration (FAA), Department of 

Transportation, is amending the FAA’s 

commercial space transportation 

regulations under the Commercial Space 

Launch Amendments Act of 2004. The 

FAA adopts application requirements 

for an operator of a reusable suborbital 

rocket to obtain an experimental permit. 

The FAA also adopts operating 

requirements and restrictions on 

permitted launch and reentry. 

Use of: The information collected will 

be used by the FAA to decide whether 

to issue an experimental permit to an 

applicant, and to monitor a permittee’s 

compliance with its permit and with 

applicable regulations. 

Respondents (including number of): 

The likely respondents to this 

information requirement are private 

entities planning to conduct 

developmental testing of reusable 

suborbital rockets. The FAA estimates 

that there will be eight to twelve private 

operators who would obtain permits 

over ten years. 

Frequency: The frequency of this 

collection is determined by the 

respondents. They notify the FAA on 

the occasion of launching or applying 

for a permit. 


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Annual Burden Estimate: This rule 

contains information collections that are 

subject to review by OMB under the 

Paperwork Reduction Act of 1995 (Pub. 

L. 104–13). The title, description, and 

respondent description of the annual 

burden are shown below. 

Estimated Burden: The FAA expects 

that private entities would incur 

reporting and recordkeeping costs when 

applying for and operating under a 

permit, as follows. 

• Permittees would take 156 to 245 

hours annually to submit materials to 

the FAA to renew their permits at an 

annual cost of $10,833 to $17,024. 

• Permit applicants would spend 432 

to 648 hours annually to provide 

information for the FAA to analyze 

environment impacts and to conduct a 

maximum probable loss analysis at a 

cost of $29,981 to $44,971 annually. 

• Permit applicants would need 8 to 

12 hours annually to describe methods 

used to meet tracking requirements at a 

cost of $533 to $799 annually. 

• Permit applicants would need 1,248 

to 1,872 hours annually to demonstrate 

to the FAA that their operations would 

protect public safety at an annual cost 

of $86,611 to $129,917. 

• Permit applicants would need 96 to 

144 hours annually to prepare a mishap 

response plan at a cost of $6,662 to 

$9,994 annually 

• Permittees would need 91 to 182 

hours annually to provide the FAA with 

pre-flight information at an annual cost 

of $6,315 to $12,631. 

The total estimated industry annual 

paperwork burden would range from 

2,031 to 3,103 hours at a cost ranging 

from $142,483 to $216,883. The 

estimated average annual hour burden 

would be 2,562 at an estimated average 

cost of $179,683. 

The final rule would also increase 

paperwork costs for the Federal 

government because the FAA would 

have to spend hours on the following 

activities. 

• The FAA would spend 4,992 to 

7,488 hours annually at an annual cost 

of $259,784 to $389,676 consulting with 

applicants and reviewing and approving 

permit applications. 

• The FAA would spend 58 to 86 

hours annually at an annual cost of 

$5,651 to $8,475 (including travel 

expenses) to travel to and inspect 

suborbital rockets. 

• The FAA would spend 96 to 144 

hours annually at an annual cost of 

$4,996 to $7,494 identifying the types of 

changes that may be made to each 

reusable suborbital rocket without 

invalidating its permit. 

• The FAA would spend 84 to 132 

hours annually at an annual cost of 

$4,371 to $6,869 to re-inspect a vehicle 

during the permit renewal process. 

• The FAA would require 437 to 686 

hours annually at an annual cost of 

$22,731 to $35,721 to conduct the 

reviews required to determine whether 

a permit can be renewed. 

The total estimated FAA annual 

paperwork burden would range from 

5,666 to 8,537 hours at a cost ranging 

from $297,533 to $448,235. The 

estimated average annual hour burden 

to the Federal government would be 

7,102 at an estimated average cost of 

$372,884. 

An agency may not collect or sponsor 

the collection of information, nor may it 

impose an information collection 

requirement unless it displays a 

currently valid Office of Management 

and Budget (OMB) control number. 

In the NPRM, the FAA solicited 

comments on minimizing ‘‘the burden 

of the collection of information on those 

who are to respond, including through 

the use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology.’’

XCOR stated that it has in the past had 

trouble sending large electronic files to 

the FAA. The FAA could improve this 

process by setting up a secure gateway. 

The FAA agrees that a simple process 

for exchanging electronic information 

could minimize the burden of the 

permit application process. Although 

the FAA does not have such capabilities 

at this time, a dedicated FTP server and 

the ability to accept electronic 

signatures are two possible 

enhancements to the FAA’s capabilities. 

The FAA will consider acquiring such 

capabilities if enough demand for such 

capabilities arises. 

Spaceport Associates stated that 

although there is no doubt that the 

proposed experimental permit regime 

will reduce paperwork for launch 

vehicle operators, the amount that 

remains due to what it described as the 

high initial burden is still going to cause 

a significant economic impact to small 

entities. To carry out the reporting 

would require the equivalent of a fulltime staff member, in an organization 

that may have no more than ten to 

twenty people who are carrying out all 

the other functions of a company. 

Measures necessary to conduct launches 

or reentries safely may indeed require 

the equivalent of a full-time staff 

member or more, depending on the 

safety issues inherent in the launch 

vehicle characteristics, launch location, 

and flight profile. However, an 

organization with a good safety culture 

understands that spending money to 

prevent accidents is as important to the 

success of an organization as the money 

spent on critical components. 

Conducting safe launches is as 

important as conducting successful 

launches, and the resources to ensure 

safety should enjoy equal status with 

other aspects of the program. Relative to 

the current licensing regime the rule 

will not have a significant impact on 

small entities. The cost savings that a 

private entity will attain under this rule 

from not having to follow the current 

licensing regime will exceed the costs 

imposed by this rule. 

International Compatibility 

In keeping with U.S. obligations 

under the Convention on International 

Civil Aviation, it is FAA policy to 

comply with International Civil 

Aviation Organization (ICAO) Standards 

and Recommended Practices to the 

maximum extent practicable. The FAA 

has determined that there are no ICAO 

Standards and Recommended Practices 

that correspond to these regulations. 

Regulatory Evaluation, Regulatory 

Flexibility Determination, Trade Impact 

Assessment, and Unfunded Mandates 

Assessment 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Order 12866 directs that 

each Federal agency shall propose or 

adopt a regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980 (Pub. L. 96–354) requires 

agencies to analyze the economic 

impact of regulatory changes on small 

entities. Third, the Trade Agreements 

Act (Pub. L. 96–39) prohibits agencies 

from setting standards that create 

unnecessary obstacles to the foreign 

commerce of the United States. In 

developing U.S. standards, this Trade 

Act requires agencies to consider 

international standards and, where 

appropriate, that they be the basis of 

U.S. standards. Fourth, the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4) requires agencies to prepare a 

written assessment of the costs, benefits, 

and other effects of proposed or final 

rules that include a Federal mandate 

likely to result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more annually (adjusted 

for inflation with base year of 1995). 

Currently, DOT agencies set the level at 

$128.1 million. This portion of the 

preamble summarizes the FAA’s 

analysis of the economic impacts of this 

final rule. We suggest readers seeking 

greater detail read the full regulatory 


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evaluation, a copy of which we have 

placed in the docket for this rulemaking. 

In conducting these analyses, FAA 

has determined this final rule has 

benefits that justify its costs, and is a 

‘‘significant regulatory action’’ as 

defined in section 3(f) of Executive 

Order 12866 because it raises novel 

policy issues contemplated under that 

executive order. Accordingly, OMB has 

reviewed this final rule. The rule is also 

‘‘significant’’ as defined in DOT’s 

Regulatory Policies and Procedures. The 

final rule, if adopted, will not have a 

significant economic impact on a 

substantial number of small entities, 

will not create unnecessary obstacles to 

international trade and will not impose 

an unfunded mandate on state, local, or 

tribal governments, or on the private 

sector. These analyses, available in the 

draft regulatory evaluation supporting 

this final rule, are summarized below. 

Potentially Impacted Parties 

Private Sector 

• Operators who will be conducting 

reusable suborbital rocket launches for 

research and development, showing 

compliance with license requirements, 

or crew training. 

• The public who might be exposed 

to more risk. 

Government 

• Federal Aviation Administration 

that will be reviewing and approving 

applications, inspecting the vehicles 

and permitted activities, identifying 

allowable changes to the vehicle, and 

renewing permits. 

Assumptions and Ground Rules Used 

in Analysis (Discount Rate, Period of 

Analysis, Value of Life, Cost of Injuries) 

• All monetary values are expressed 

in 2004 dollars. 

• The time horizon for the analysis is 

10 years (2006 to 2016). 

• Costs are discounted at 7%. 

• Hourly burdened industry rate is 

$69.40. 

• Hourly burdened government rate is 

$52.04. 

• 8 to 12 entities will obtain permits 

over ten years. 

• Permit issued to an entity is used 

for one year. It is renewed only once for 

the following year. 

• Each permit holder will construct 

one vehicle to carry out all flights under 

the permit. 

• As advised by industry, private 

sector entities will perform from 455 to 

910 flights under experimental permits 

over ten years. 

• Requirements fulfilled by Scaled 

Composites to license SpaceShipOne 

launches are considered current practice 

for a license. 

Some provisions will cause a private 

sector entity to incur additional costs 

over the requirements of a license. The 

estimated additional person hours 

required per permit for each rule section 

are as follows. 

Section Person-hours incurred per permit 

§ 437.21 General ........................................................................................................................................................................... 24 

§ 437.37 Tracking .......................................................................................................................................................................... 96 

§ 437.67 Tracking 

§ 413.23 License or permit renewal .............................................................................................................................................. 24 

Some provisions will allow a private 

sector entity to realize cost savings over 

the licensing regime. The estimated 

person hours saved per permit under 

each rule section are as follows. 

Rule section 

Person hours 

avoided per permit or per flight 

§ 437.25 Flight test plan ................................................................................................................................................................ 4,680 

§ 437.27 Pre-flight and post-flight operations 

§ 437.29 Hazard analysis 

§ 437.31 Verification evidence of operating area containment and key flight-safety event limitations 

§ 437.53 Pre-flight and post-flight operations 

§ 437.55 Hazard analysis 

§ 437.57 Operating area containment 

§ 437.59 Key flight-safety event limitations 

§ 437.41 Mishap response plan .................................................................................................................................................... 120 

§ 437.75 Mishap reporting, responding and investigating 

§ 437.69 Communications ............................................................................................................................................................. 160 

§ 431.33 Safety organization ......................................................................................................................................................... 2,080 

§ 431.37 Mission readinessa a ....................................................................................................................................................... 40 

§ 431.43 Reusable launch vehicle mission operational requirements and restrictions ................................................................ 2,080 

aPerson hours avoided are per flight. 

Some provisions will cause the FAA 

to incur additional costs over the 

requirements of a license. The estimated 

additional person hours required per 

permit for each section are as follows. 


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Rule section Person hours incurred per permit 

§ 437.21 General ........................................................................................................................................................................... 72 

§ 437.85 Allowable design changes; Modification of an experimental permit .............................................................................. 120 

§ 413.23 License or permit renewal .............................................................................................................................................. 120 

Some provisions will allow the FAA 

to realize cost savings over the launch 

licensing regime. The estimated person 

hours saved per permit for each rule 

section are as follows. 

Rule 

Person hours 

avoided per 

permit 

Pre-application consultation, and permit application review and issuance activities ...................................................................... 10,400 

Benefits 

The rule will provide an expeditious 

avenue for experimental commercial 

space transportation initiatives that will 

enhance and accelerate advances in this 

arena. This could lead to significant 

engineering breakthroughs that would 

benefit public consumption of 

commercial space transportation. 

Further, the cost savings realized by the 

commercial space transportation 

industry could be used to advance the 

overall safety of reusable suborbital 

rocket technology. 

Total Net Costs 

SUMMARY OF INCREMENTAL COST IMPACTS AND COST SAVINGS ATTRIBUTABLE TO THE RULE FOR THE TEN-YEAR PERIOD, 

2006 THROUGH 2015 

[In 2004 dollars] 

Category 

Upper bound Lower bound 

Undiscounted Discounted a Undiscounted Discounted a

Commercial Space Transportation Industry Compliance Costs ...................... $141,058 $97,469 $93,483 $63,475 

Federal Aviation Administration Administrative Costs ..................................... 264,862 180,919 173,387 116,757 

Total Costs ............................................................................................... 405,920 278,388 266,870 180,232 

Commercial Space Transportation Industry Cost Savings .............................. 11,709,168 8,049,830 7,336,968 4,976,830 

Federal Aviation Administration Cost Savings ................................................ 6,494,592 4,512,659 4,329,728 2,951,467 

Total Cost Savings ................................................................................... 18,203,760 12,562,489 11,666,696 7,928,297 

Total Net Cost Savings ............................................................................ 17,797,840 12,284,101 11,399,826 7,748,065 

a Calculated using a discount factor of seven percent over a ten-year period. (See Tables A–5 to A–30 in the Appendix.) 

Comparison of Benefits and Costs 

The rule will result in an estimated 

net cost savings of $11.4 million ($7.7 

million discounted) to $17.8 million 

dollars ($12.3 million discounted). The 

rule is expected to enhance and 

accelerate advances in commercial 

space transportation. It will do so by 

making it less costly for the industry to 

fly research and development missions 

to test new design concepts, new 

equipment or new operating techniques, 

to perform crew training, and to 

demonstrate compliance with license 

requirements. Without the new 

availability of a permit, an operator will 

have to obtain a license, which imposes 

more costs for these activities. 

The rule might increase risk to public 

safety, because it will require fewer 

safety analyses and will eliminate other 

requirements such as a mission 

readiness review, a communications 

plan prepared in advance of the launch 

(the rule would require the private 

sector entity to be in contact with Air 

Traffic), and a safety organization that 

are required under a launch license. At 

this stage of industry development, it is 

premature to quantify any potential risk 

increase because too little is known 

about the safety impacts these measures 

may have. Additionally, the FAA has 

attempted to counterbalance any 

negative effects on safety of the more 

lenient permitting requirements by 

requiring operations to occur within a 

specified area where risk of harming 

others is reduced. The FAA anticipates 

that it will eventually obtain the 

experience and information necessary to 

quantify any increase in risk in a 

measurable fashion. This is because the 

FAA plans to monitor the safety of 

permitted launches to ensure that the 

approach is adequate to protect public 

safety. 

Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 

(Pub. L. 96–354) (RFA) establishes ‘‘as a 

principle of regulatory issuance that 

agencies shall endeavor, consistent with 

the objectives of the rule and of 

applicable statutes, to fit regulatory and 

informational requirements to the scale 


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of the businesses, organizations, and 

governmental jurisdictions subject to 

regulation. To achieve this principle, 

agencies are required to solicit and 

consider flexible regulatory proposals 

and to explain the rationale for their 

actions to assure that such proposals are 

given serious consideration.’’ The RFA 

covers a wide-range of small entities, 

including small businesses, not-forprofit organizations, and small 

governmental jurisdictions. 

Agencies must perform a review to 

determine whether a rule will have a 

significant economic impact on a 

substantial number of small entities. If 

the agency determines that it will, the 

agency must prepare a regulatory 

flexibility analysis as described in the 

RFA. 

However, if an agency determines that 

a rule is not expected to have a 

significant economic impact on a 

substantial number of small entities, 

section 605(b) of the RFA provides that 

the head of the agency may so certify 

and a regulatory flexibility analysis is 

not required. The certification must 

include a statement providing the 

factual basis for this determination, and 

the reasoning should be clear. 

The FAA believes that this final rule 

will not have a significant impact on a 

substantial number of entities for the 

following reason: 

The FAA concludes that a substantial 

number of firms in the human space 

flight industry will be affected by the 

rule because many of the companies in 

the fledgling industry are small. The 

rule will allow these entities to realize 

cost savings that they would otherwise 

not have gained under a license-only 

regime. Because, with the exception of 

Virgin Galactic, all the entities assessed 

in the regulatory evaluation are small 

entities, the same analysis used there 

applies to the regulatory flexibility 

determination. Accordingly, pursuant to 

the Regulatory Flexibility Act, 5 U.S.C. 

605(b), the FAA Administrator certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Therefore, as the FAA Administrator, 

I certify that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

International Trade Impact Assessment 

The Trade Agreements Act of 1979 

(Pub. L. 96–39) prohibits Federal 

agencies from establishing any 

standards or engaging in related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and, where 

appropriate, that they be the basis for 

U.S. standards. For experimental 

commercial space transportation 

activities, there are no international 

standards. The FAA has assessed the 

potential effect of this rule and 

determined that it would impose the 

same costs on domestic and 

international entities launching from the 

U.S. under an experimental permit, and 

thus would have a neutral trade impact. 

Unfunded Mandates Assessment 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

requires each Federal agency to prepare 

a written statement assessing the effects 

of any Federal mandate in a proposed or 

final agency rule that may result in an 

expenditure of $100 million or more 

(adjusted annually for inflation with the 

base year 1995) in any one year by State, 

local, and tribal governments, in the 

aggregate, or by the private sector; such 

a mandate is deemed to be a ‘‘significant 

regulatory action.’’ The FAA currently 

uses an inflation-adjusted value of 

$128.1 million in lieu of $100 million. 

This final rule does not contain such 

a mandate. The requirements of Title II 

of the Act, therefore, do not apply. 

Executive Order 13132, Federalism 

The FAA has analyzed this final rule 

under the principles and criteria of 

Executive Order 13132, Federalism. We 

determined that this action will not 

have a substantial direct effect on the 

States, or the relationship between the 

national Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, and therefore does 

not have federalism implications. 

Environmental Analysis 

FAA Order 1050.1E identifies FAA 

actions that are categorically excluded 

from preparation of an environmental 

assessment or environmental impact 

statement under the National 

Environmental Policy Act in the 

absence of extraordinary circumstances. 

The FAA has determined this 

rulemaking qualifies for the categorical 

exclusion identified in paragraph 312f 

and involves no extraordinary 

circumstances. Also, the FAA conducts 

environmental reviews at the time it 

issues permits. 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use 

The FAA has analyzed this Final Rule 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use (May 18, 2001). We 

have determined that it is not a 

‘‘significant energy action’’ under the 

executive order because it is not likely 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy. 

List of Subjects 

14 CFR Part 401 

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 415 

Aviation safety, Environmental 

protection, Space transportation and 

exploration. 

14 CFR Part 420 

Airspace, Human space flight, Space 

safety, Space transportation and 

exploration. 

14 CFR Part 431 

Aviation safety, Environmental 

protection, Investigations, Human space 

flight, Reporting and recordkeeping 

requirements, Rockets, Space safety, 

Space transportation and exploration. 

14 CFR Part 437 

Aviation safety, Airspace, Human 

space flight, Rockets, Space safety, 

Space transportation and exploration. 

IV. Regulatory Text 

■ For the reasons discussed above, the 

Federal Aviation Administration 

amends Chapter III of Title 14, Code of 

Federal Regulations, as follows: 


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TITLE 14—AERONAUTICS AND SPACE 

CHAPTER III—COMMERCIAL SPACE 

TRANSPORTATION FEDERAL AVIATION 

ADMINISTRATION DEPARTMENT OF 

TRANSPORTATION 

PART 401—ORGANIZATION AND 

DEFINITIONS 

■ 1. The authority citation for part 401 

continues to read as follows: 

Authority: 49 U.S.C. 70101–70121. 

■ 2. Revise § 401.3 to read as follows: 

§ 401.3 The Associate Administrator for 

Commercial Space Transportation. 

The Office is headed by an Associate 

Administrator to exercise the Secretary’s 

authority to license or permit and 

otherwise regulate commercial space 

transportation and to discharge the 

Secretary’s responsibility to encourage, 

facilitate, and promote commercial 

space transportation by the United 

States private sector. 

■ 3. Amend § 401.5 as follows: 

■ A. Add definitions for ‘‘experimental 

permit’’, ‘‘validation’’, and 

‘‘verification’’ in alphabetical order to 

read as set forth below. 

■ B. Revise the definitions for ‘‘amateur 

rocket activities’’, ‘‘launch’’, ‘‘launch 

incident’’, and ‘‘reentry incident’’ to 

read as set forth below. 

§ 401.5 Definitions. 

* * * * * 

Amateur rocket activities means 

unmanned launch activities conducted 

at private sites involving rockets—

(1) Powered by a motor or motors 

having a total impulse of 200,000 

pound-seconds or less; 

(2) Powered by a motor or motors 

having a total burning or operating time 

of less than 15 seconds; and 

(3) Having a ballistic coefficient—that 

is, gross weight in pounds divided by 

frontal area of rocket vehicle—less than 

12 pounds per square inch. 

* * * * * 

Experimental permit or permit means 

an authorization by the FAA to a person 

to launch or reenter a reusable 

suborbital rocket. 

* * * * * 

Launch means to place or try to place 

a launch vehicle or reentry vehicle and 

any payload from Earth in a suborbital 

trajectory, in Earth orbit in outer space, 

or otherwise in outer space, and 

includes preparing a launch vehicle for 

flight at a launch site in the United 

States. Launch includes the flight of a 

launch vehicle and includes pre- and 

post-flight ground operations as follows: 

(1) Beginning of launch. 

(i) Under a license, launch begins 

with the arrival of a launch vehicle or 

payload at a U.S. launch site. 

(ii) Under a permit, launch begins 

when any pre-flight ground operation at 

a U.S. launch site meets all of the 

following criteria: 

(A) Is closely proximate in time to 

flight, 

(B) Entails critical steps preparatory to 

initiating flight, 

(C) Is unique to space launch, and 

(D) Is inherently so hazardous as to 

warrant the FAA’s regulatory oversight. 

(2) End of launch. 

(i) For launch of an orbital expendable 

launch vehicle (ELV), launch ends after 

the licensee’s last exercise of control 

over its launch vehicle. 

(ii) For launch of an orbital reusable 

launch vehicle (RLV) with a payload, 

launch ends after deployment of the 

payload. For any other orbital RLV, 

launch ends upon completion of the 

first sustained, steady-state orbit of an 

RLV at its intended location. 

(iii) For a suborbital ELV or RLV 

launch, launch ends after reaching 

apogee if the flight includes a reentry, 

or otherwise after vehicle landing or 

impact on Earth, and after activities 

necessary to return the vehicle to a safe 

condition on the ground. 

* * * * * 

Launch incident means an unplanned 

event during the flight of a launch 

vehicle, other than a launch accident, 

involving a malfunction of a flight safety 

system or safety-critical system, or a 

failure of the licensee’s or permittee’s 

safety organization, design, or 

operations. 

* * * * * 

Reentry incident means any 

unplanned event occurring during the 

reentry of a reentry vehicle, other than 

a reentry accident, involving a 

malfunction of a reentry safety-critical 

system or failure of the licensee’s or 

permittee’s safety organization, 

procedures, or operations. 

* * * * * 

Validation means an evaluation to 

determine that each safety measure 

derived from a system safety process is 

correct, complete, consistent, 

unambiguous, verifiable, and 

technically feasible. Validation ensures 

that the right safety measure is 

implemented, and that the safety 

measure is well understood. 

Verification means an evaluation to 

determine that safety measures derived 

from a system safety process are 

effective and have been properly 

implemented. Verification provides 

measurable evidence that a safety 

measure reduces risk to acceptable 

levels. 

PART 404—REGULATIONS AND 

LICENSING REQUIREMENTS 

■ 4. The authority citation for part 404 

continues to read as follows: 

Authority: 49 U.S.C. 70101–70121. 

■ 5. Revise § 404.1 to read as follows: 

§ 404.1 Scope. 

This part establishes procedures for 

issuing regulations to implement 49 

U.S.C. Subtitle IX, chapter 701, and for 

eliminating or waiving requirements for 

licensing or permitting of commercial 

space transportation activities under 

that statute. 

■ 6. Revise § 404.17 to read as follows: 

§ 404.17 Additional rulemaking 

proceedings. 

The FAA may initiate other 

rulemaking proceedings, if necessary or 

desirable. For example, it may invite 

interested people to present oral 

arguments, participate in conferences, 

appear at informal hearings, or 

participate in any other proceedings. 

PART 405—INVESTIGATIONS AND 

ENFORCEMENT 

■ 7. The authority citation for part 405 

continues to read as follows: 

Authority: 49 U.S.C. 70101–70121. 

■ 8. Revise § 405.1 to read as follows: 

§ 405.1 Monitoring of licensed, permitted, 

and other activities. 

Each licensee or permittee must allow 

access by and cooperate with Federal 

officers or employees or other 

individuals authorized by the Associate 

Administrator to observe licensed 

facilities and activities, including 

launch sites and reentry sites, as well as 

manufacturing, production, testing, and 

training facilities, or assembly sites used 

by any contractor, licensee, or permittee 

to produce, assemble, or test a launch or 

reentry vehicle and to integrate a 

payload with its launch or reentry 

vehicle. Observations are conducted to 

monitor the activities of the licensee, 

permittee, or contractor at such time 

and to such extent as the Associate 

Administrator considers reasonable and 

necessary to determine compliance with 

the license or permit or to perform the 

Associate Administrator’s 

responsibilities pertaining to payloads 

for which no Federal license, 

authorization, or permit is required. 

■ 9. Revise § 405.3(a), (b), and (d) to 

read as follows: 

§ 405.3 Authority to modify, suspend or 

revoke. 

(a) The FAA may modify a license or 

permit issued under this chapter upon 


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application by the licensee or permittee 

or upon the FAA’s own initiative, if the 

FAA finds that the modification is 

consistent with the requirements of the 

Act. 

(b) The FAA may suspend or revoke 

any license or permit issued to such 

licensee or permittee under this chapter 

if the FAA finds that a licensee or 

permittee has substantially failed to 

comply with any requirement of the 

Act, any regulation issued under the 

Act, the terms and conditions of a 

license or permit, or any other 

applicable requirement; or that public 

health and safety, the safety of property, 

or any national security or foreign 

policy interest of the United States so 

require. 

* * * * * 

(d) Whenever the FAA takes any 

action under this section, the FAA 

immediately notifies the licensee or 

permittee in writing of the FAA’s 

finding and the action, which the FAA 

has taken or proposes to take regarding 

such finding. 

■ 10. Revise § 405.5 introductory text 

and paragraph (a) to read as follows: 

§ 405.5 Emergency orders. 

The Associate Administrator may 

immediately terminate, prohibit, or 

suspend a licensed or permitted launch, 

reentry, or operation of a launch or 

reentry site if the Associate 

Administrator determines that—

(a) The licensed or permitted launch, 

reentry, or operation of a launch or 

reentry site is detrimental to public 

health and safety, the safety of property, 

or any national security or foreign 

policy interest of the United States; and 

* * * * * 

PART 406—INVESTIGATIONS, 

ENFORCEMENT, AND 

ADMINISTRATIVE REVIEW 

■ 11. The authority citation for part 406 

continues to read as follows: 

Authority: 49 U.S.C. 70101–70121. 

■ 12. Revise § 406.1 heading and 

paragraphs (a)(2) and (3), and add 

paragraphs (a)(4) and (5) to read as 

follows: 

§ 406.1 Hearings in license, permit, and 

payload actions. 

(a) * * * 

(2) An owner or operator of a payload 

regarding any decision to prevent the 

launch or reentry of the payload; 

(3) A licensee regarding any decision 

to suspend, modify, or revoke a license 

or to terminate, prohibit, or suspend any 

licensed activity; 

(4) An applicant for a permit 

regarding an FAA decision to issue a 

permit with conditions or to deny the 

issuance of the permit; and 

(5) A permittee regarding any decision 

to suspend, modify, or revoke a permit 

or to terminate, prohibit, or suspend any 

permitted activity. 

* * * * * 

■ 13. Revise § 406.3 heading and 

paragraph (a) to read as follows: 

§ 406.3 Submissions; oral presentation in 

license, permit, and payload actions. 

(a) The FAA will make decisions 

about license, permit, and payload 

actions under this subpart based on 

written submissions unless the 

administrative law judge requires an 

oral presentation. 

* * * * * 

■ 14. Revise § 406.5 heading to read as 

follows. 

§ 406.5 Administrative law judge’s 

recommended decision in license, permit, 

and payload actions. 

* * * * * 

■ 15. Revise § 406.9(a), (c) introductory 

text, and (f)(3) to read as follows: 

§ 406.9 Civil penalties. 

(a) Civil penalty liability. Under 49 

U.S.C. 70115(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 $100,000 for each violation, as 

adjusted for inflation. A separate 

violation occurs for each day the 

violation continues. 

* * * * * 

(c) Notice of proposed civil penalty. A 

civil penalty action is initiated when the 

agency attorney advises a person, 

referred to as the respondent, of the 

charges or other reasons upon which the 

FAA bases the proposed action and 

allows the respondent to answer the 

charges and to be heard as to why the 

civil penalty should not be imposed. A 

notice of proposed civil penalty states 

the facts alleged; any 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 allegedly violated by the 

respondent; and the amount of the 

proposed civil penalty. Not later than 30 

days after receipt of the notice of 

proposed civil penalty the respondent 

may elect to proceed by one or more of 

the following: 

* * * * * 

(f) * * * 

(3) The compromise order may not be 

used as evidence of a prior violation in 

any subsequent civil penalty action, 

license, or permit action. 

* * * * * 

■ 16. Revise § 406.127(a)(3)(ii) to read as 

follows: 

§ 406.127 Complaint and answer in civil 

penalty adjudications. 

(a) * * * 

(3) * * * 

(ii) Any 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 

allegedly violated by the respondent. 

* * * * * 

PART 413—LICENSE AND 

EXPERIMENTAL PERMIT 

APPLICATION PROCEDURES 

■ 17. The authority citation for part 413 

continues to read as follows: 

Authority: 49 U.S.C. 70101–70121. 

■ 18. Revise § 413.1 to read as follows: 

§ 413.1 Scope of this part. 

(a) This part explains how to apply for 

a license or experimental permit. These 

procedures apply to all applications for 

issuing a license or permit, transferring 

a license, and renewing a license or 

permit. 

(b) Use the following table to locate 

specific requirements: 

Subject Part 

(1) Obtaining a Launch License ....... 415 

(2) License to Operate a Launch 

Site ................................................ 420 

(3) Launch and Reentry of a Reusable Launch Vehicle (RLV) ........... 431 

(4) License to Operate a Reentry 

Site ................................................ 433 

(5) Reentry of a Reentry Vehicle 

other than a Reusable Launch Vehicle (RLV) .................................... 435 

(6) Experimental Permits .................. 437 

■ 19. Revise § 413.3 to read as follows: 

§ 413.3 Who must obtain a license or 

permit. 

(a) A person must obtain a license in 

accordance with this section, unless 

eligible for an experimental permit 

under paragraph (f) of this section. 

(b) A person must obtain a license 

to—

(1) Launch a launch vehicle from the 

United States; 

(2) Operate a launch site within the 

United States; 

(3) Reenter a reentry vehicle in the 

United States; or 

(4) Operate a reentry site within the 

United States. 

(c) A person who is a U.S. citizen or 

an entity organized under the laws of 


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the United States or any State must 

obtain a license to—

(1) Launch a launch vehicle outside 

the United States; 

(2) Operate a launch site outside the 

United States; 

(3) Reenter a reentry vehicle outside 

the United States; or 

(4) Operate a reentry site outside the 

United States. 

(d) A foreign entity in which a United 

States citizen has a controlling interest 

must obtain a license to launch a launch 

vehicle from or to operate a launch site 

in—

(1) Any place that is outside the 

territory or territorial waters of any 

nation, unless there is an agreement in 

force between the United States and a 

foreign nation providing that such 

foreign nation has jurisdiction over the 

launch or the operation of the launch 

site; or 

(2) The territory of any foreign nation, 

including its territorial waters, if there 

is an agreement in force between the 

United States and that foreign nation 

providing that the United States has 

jurisdiction over the launch or the 

operation of the launch site. 

(e) A foreign entity in which a U.S. 

citizen has a controlling interest must 

obtain a license to reenter a reentry 

vehicle or to operate a reentry site in—

(1) Any place that is outside the 

territory or territorial waters of any 

nation, unless there is an agreement in 

force between the United States and a 

foreign nation providing that such 

foreign nation has jurisdiction over the 

reentry or the operation of the reentry 

site; or 

(2) The territory of any foreign nation 

if there is an agreement in force between 

the United States and that foreign nation 

providing that the United States has 

jurisdiction over the reentry or the 

operation of the reentry site. 

(f) A person, individual, or foreign 

entity otherwise requiring a license 

under this section may instead obtain an 

experimental permit to launch or 

reenter a reusable suborbital rocket 

under part 437 of this chapter. 

■ 20. Revise § 413.5 to read as follows: 

§ 413.5 Pre-application consultation. 

A prospective applicant must consult 

with the FAA before submitting an 

application to discuss the application 

process and possible issues relevant to 

the FAA’s licensing or permitting 

decision. Early consultation helps an 

applicant to identify possible regulatory 

issues at the planning stage when 

changes to an application or to proposed 

licensed or permitted activities are less 

likely to result in significant delay or 

costs to the applicant. 

■ 21. Revise § 413.7(a), (b)(3), and (c)(1) 

and (3) to read as follows: 

§ 413.7 Application. 

(a) Form. An application must be in 

writing, in English and filed in 

duplicate with the Federal Aviation 

Administration, Associate 

Administrator for Commercial Space 

Transportation, Room 331, 800 

Independence Avenue, SW., 

Washington, DC 20591. Attention: 

Application Review. 

(b) * * * 

(3) The type of license or permit for 

which the applicant is applying. 

(c) * * * 

(1) For a corporation: An officer or 

other individual authorized to act for 

the corporation in licensing or 

permitting matters. 

* * * * * 

(3) For a joint venture, association, or 

other entity: An officer or other 

individual authorized to act for the joint 

venture, association, or other entity in 

licensing or permitting matters. 

* * * * * 

■ 22. Revise §1A413.11 to read as 

follows: 

§ 413.11 Acceptance of an application. 

The FAA will initially screen an 

application to determine whether it is 

complete enough for the FAA to start its 

review. After completing the initial 

screening, the FAA will notify the 

applicant in writing of one of the 

following: 

(a) The FAA accepts the application 

and will initiate the reviews required to 

make a decision about the license or 

permit; or 

(b) The application is so incomplete 

or indefinite that the FAA cannot start 

to evaluate it. The FAA will reject it and 

notify the applicant, stating each reason 

for rejecting it and what action the 

applicant must take for the FAA to 

accept the application. The FAA may 

return a rejected application to the 

applicant or may hold it until the 

applicant takes the required actions. 

■ 23. Revise § 413.13 to read as follows: 

§ 413.13 Complete application. 

The FAA’s acceptance of an 

application does not mean it has 

determined that the application is 

complete. If, in addition to the 

information required by this chapter, 

the FAA requires other information 

necessary for a determination that 

public health and safety, safety of 

property, and national security and 

foreign policy interests of the United 

States are protected during the conduct 

of a licensed or permitted activity, an 

applicant must submit the additional 

information. 

■ 24. Revise § 413.15 to read as follows: 

§ 413.15 Review period. 

(a) Review period duration. Unless 

otherwise specified in this chapter, the 

FAA reviews and makes a decision on 

an application within 180 days of 

receiving an accepted license 

application or within 120 days of 

receiving an accepted permit 

application. 

(b) Review period tolled. If an 

accepted application does not provide 

sufficient information to continue or 

complete the reviews or evaluations 

required by this chapter for a licensing 

or permitting determination, or an issue 

exists that would affect a determination, 

the FAA notifies the applicant, in 

writing, and informs the applicant of 

any information required to complete 

the application. If the FAA cannot 

review an accepted application because 

of lack of information or for any other 

reason, the FAA will toll the 180-day or 

120-day review period until the FAA 

receives the information it needs or the 

applicant resolves the issue. 

(c) Notice. If the FAA does not make 

a decision within 120 days of receiving 

an accepted license application or 

within 90 days of receiving an accepted 

permit application, the FAA informs the 

applicant, in writing, of any outstanding 

information needed to complete the 

review, or of any issues that would 

affect the decision. 

■ 25. Revise § 413.17 to read as follows: 

§ 413.17 Continuing accuracy of 

application; supplemental information; 

amendment. 

(a) An applicant must ensure the 

continuing accuracy and completeness 

of information furnished to the FAA as 

part of a pending license or permit 

application. If at any time the 

information an applicant provides is no 

longer accurate and complete in all 

material respects, the applicant must 

submit new or corrected information. As 

part of this submission, the applicant 

must recertify the accuracy and 

completeness of the application under 

§ 413.7. If an applicant does not comply 

with any of the requirements set forth in 

this paragraph, the FAA can deny the 

license or permit application. 

(b) An applicant may amend or 

supplement a license or permit 

application at any time before the FAA 

issues or transfers the license or permit. 

(c) Willful false statements made in 

any application or document relating to 

an application, license, or permit are 

punishable by fine and imprisonment 

under section 1001 of Title 18, United 


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States Code, and by administrative 

sanctions in accordance with part 405 of 

this chapter. 

■ 26. Revise § 413.19 to read as follows: 

§ 413.19 Issuing a license or permit. 

After the FAA completes its reviews 

and makes the decisions required by 

this chapter, the FAA issues a license or 

permit to the applicant. 

■ 27. Revise § 413.21 (a), (b) 

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

follows: 

§ 413.21 Denial of a license or permit 

application. 

(a) The FAA informs an applicant, in 

writing, if it denies an application and 

states the reasons for denial. 

(b) If the FAA has denied an 

application, the applicant may either: 

(1) Attempt to correct any deficiencies 

identified and ask the FAA to 

reconsider the revised application. The 

FAA has 60 days or the number of days 

remaining in the review period, 

whichever is greater, within which to 

reconsider the decision; or 

* * * * * 

■ 28. Revise § 413.23 to read as follows: 

§ 413.23 License or permit renewal. 

(a) Eligibility. A licensee or permittee 

may apply to renew its license or permit 

by submitting to the FAA a written 

application for renewal at least 90 days 

before the license expires or at least 60 

days before the permit expires. 

(b) Application. (1) A license or 

permit renewal application must satisfy 

the requirements set forth in this part 

and any other applicable part of this 

chapter. 

(2) The application may incorporate 

by reference information provided as 

part of the application for the expiring 

license or permit, including any 

modifications to the license or permit. 

(3) An applicant must describe any 

proposed changes in its conduct of 

licensed or permitted activities and 

provide any additional clarifying 

information required by the FAA. 

(c) Review of application. The FAA 

reviews the application to determine 

whether to renew the license or permit 

for an additional term. The FAA may 

incorporate by reference any findings 

that are part of the record for the 

expiring license or permit. 

(d) Renewal of license or permit. After 

the FAA finishes its reviews, the FAA 

issues an order modifying the expiration 

date of the license or permit. The FAA 

may impose additional or revised terms 

and conditions necessary to protect 

public health and safety and the safety 

of property and to protect U.S. national 

security and foreign policy interests. 

(e) Denial of license or permit 

renewal. The FAA informs a licensee or 

permittee, in writing, if the FAA denies 

the application for renewal and states 

the reasons for denial. If the FAA denies 

an application, the licensee or permittee 

may follow the procedures of § 413.21 of 

this part. 

PART 415—LAUNCH LICENSE 

■ 29. The authority citation for part 415 

continues to read as follows: 

Authority: 49 U.S.C. 70101–70121. 

■ 30. Revise § 415.1 to read as follows: 

§ 415.1 Scope. 

This part prescribes requirements for 

obtaining a license to launch a launch 

vehicle, other than a reusable launch 

vehicle (RLV), and post-licensing 

requirements with which a licensee 

must comply to remain licensed. 

Requirements for preparing a license 

application are in part 413 of this 

subchapter. 

PART 420—LICENSE TO OPERATE A 

LAUNCH SITE 

■ 31. The authority citation for part 420 

continues to read as follows: 

Authority: 49 U.S.C. 70101–70121. 

■ 32. Revise the definition of ‘‘public’’

in § 420.5 to read as follows: 

§ 420.5 Definitions. 

* * * * * 

Public means people and property 

that are not involved in supporting a 

licensed or permitted launch, and 

includes those people and property that 

may be located within the boundary of 

a launch site, such as visitors, any 

individual providing goods or services 

not related to launch processing or 

flight, and any other launch operator 

and its personnel. 

* * * * * 

■ 33. Revise § 420.25(b) to read as 

follows: 

§ 420.25 Launch site location review—risk 

analysis. 

* * * * * 

(b) For licensed launches, the FAA 

will not approve the location of the 

proposed launch point if the estimated 

expected casualty exceeds 30 × 10¥6. 

■ 34. Add § 420.30 to read as follows: 

§ 420.30 Launch site location review for 

permitted launch vehicles. 

If an applicant plans to use its 

proposed launch site solely for launches 

conducted under an experimental 

permit, the FAA will approve a launch 

site location if the FAA has approved an 

operating area under part 437 for 

launches from that site. 

PART 431—LICENSE FOR LAUNCH 

AND REENTRY OF A REUSABLE 

LAUNCH VEHICLE (RLV) 

■ 35. The authority citation for part 431 

continues to read as follows: 

Authority: 49 U.S.C. 70101–70121. 

■ 36. Revise § 431.35(d)(7) to read as 

follows: 

§ 431.35 Acceptable reusable launch 

vehicle mission risk. 

* * * * * 

(d) * * * 

(7) Provide data that verifies the risk 

elimination and mitigation measures 

resulting from the applicant’s system 

safety analyses required by paragraph 

(c) of this section; and 

* * * * * 

■ 37. Add part 437 to read as follows: 

PART 437—EXPERIMENTAL PERMITS 

Subpart A—General Information 

Sec. 

437.1 Scope and organization of this part. 

437.3 Definitions. 

437.5 Eligibility for an experimental permit. 

437.7 Scope of an experimental permit. 

437.9 Issuance of an experimental permit. 

437.11 Duration of an experimental permit. 

437.13 Additional experimental permit 

terms and conditions. 

437.15 Transfer of an experimental permit. 

437.17 Rights not conferred by an 

experimental permit. 

Subpart B—Requirements to Obtain an 

Experimental Permit 

437.21 General. 

Program Description 

437.23 Program description. 

Flight Test Plan 

437.25 Flight test plan. 

Operational Safety Documentation 

437.27 Pre-flight and post-flight operations. 

437.29 Hazard analysis. 

437.31 Verification of operating area 

containment and key flight-safety event 

limitations. 

437.33 Landing and impact locations. 

437.35 Agreements. 

437.37 Tracking. 

437.39 Flight rules. 

437.41 Mishap response plan. 

Subpart C—Safety Requirements 

437.51 Rest rules for vehicle safety 

operations personnel. 

437.53 Pre-flight and post-flight operations. 

437.55 Hazard analysis. 

437.57 Operating area containment. 

437.59 Key flight-safety event limitations. 

437.61 Landing and impact locations. 

437.63 Agreements with other entities 

involved in a launch or reentry. 


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437.65 Collision avoidance analysis. 

437.67 Tracking a reusable suborbital 

rocket. 

437.69 Communications. 

437.71 Flight rules. 

437.73 Anomaly recording, reporting and 

implementation of corrective actions. 

437.75 Mishap reporting, responding, and 

investigating. 

437.77 Additional safety requirements. 

Subpart D—Terms and Conditions of an 

Experimental Permit 

437.81 Public safety responsibility. 

437.83 Compliance with experimental 

permit. 

437.85 Allowable design changes; 

modification of an experimental permit. 

437.87 Records. 

437.89 Pre-flight reporting. 

437.91 For-hire prohibition. 

437.93 Compliance monitoring. 

437.95 Inspection of additional reusable 

suborbital rockets. 

Authority: 49 U.S.C. 70101–70102. 

Subpart A—General Information 

§ 437.1 Scope and organization of this 

part. 

(a) This part prescribes requirements 

for obtaining an experimental permit. It 

also prescribes post-permitting 

requirements with which a permittee 

must comply to maintain its permit. Part 

413 of this subchapter contains 

procedures for applying for an 

experimental permit. 

(b) Subpart A contains general 

information about an experimental 

permit. Subpart B contains requirements 

to obtain an experimental permit. 

Subpart C contains the safety 

requirements with which a permittee 

must comply while conducting 

permitted activities. Subpart D contains 

terms and conditions of an experimental 

permit. 

§ 437.3 Definitions. 

Anomaly means a problem that occurs 

during verification or operation of a 

system, subsystem, process, facility, or 

support equipment. 

Envelope expansion means any 

portion of a flight where planned 

operations will subject a reusable 

suborbital rocket to the effects of 

altitude, velocity, acceleration, or burn 

duration that exceed a level or duration 

successfully verified during an earlier 

flight. 

Exclusion area means an area, within 

an operating area, that a reusable 

suborbital rocket’s instantaneous impact 

point may not traverse. 

Key flight-safety event means a 

permitted flight activity that has an 

increased likelihood of causing a launch 

accident compared with other portions 

of flight. 

Operating area means a threedimensional region where permitted 

flights may take place. 

Permitted vehicle means a reusable 

suborbital rocket operated by a launch 

or reentry operator under an 

experimental permit. 

Reentry impact point means the 

location of a reusable suborbital rocket’s 

instantaneous impact point during its 

unpowered exoatmospheric suborbital 

flight. 

§ 437.5 Eligibility for an experimental 

permit. 

The FAA will issue an experimental 

permit to a person to launch or reenter 

a reusable suborbital rocket only for—

(a) Research and development to test 

new design concepts, new equipment, 

or new operating techniques; 

(b) A showing of compliance with 

requirements for obtaining a license 

under this subchapter; or 

(c) Crew training before obtaining a 

license for a launch or reentry using the 

design of the rocket for which the 

permit would be issued. 

§ 437.7 Scope of an experimental permit. 

An experimental permit authorizes 

launch or reentry of a reusable 

suborbital rocket. The authorization 

includes pre- and post-flight ground 

operations as defined in this section. 

(a) A pre-flight ground operation 

includes each operation that—

(1) Takes place at a U.S. launch site; 

and 

(2) Meets the following criteria: 

(i) Is closely proximate in time to 

flight, 

(ii) Entails critical steps preparatory to 

initiating flight, 

(iii) Is unique to space launch, and 

(iv) Is inherently so hazardous as to 

warrant the FAA’s regulatory oversight. 

(b) A post-flight ground operation 

includes each operation necessary to 

return the reusable suborbital rocket to 

a safe condition after it lands or 

impacts. 

§ 437.9 Issuance of an experimental 

permit. 

The FAA issues an experimental 

permit authorizing an unlimited number 

of launches or reentries for a suborbital 

rocket design for the uses described in 

§ 437.5. 

§ 437.11 Duration of an experimental 

permit. 

An experimental permit lasts for one 

year from the date it is issued. A 

permittee may apply to renew a permit 

yearly under part 413 of this subchapter. 

§ 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 

49 U.S.C. Subtitle IX, ch. 701. 

§ 437.15 Transfer of an experimental 

permit. 

An experimental permit is not 

transferable. 

§ 437.17 Rights not conferred by an 

experimental permit. 

Issuance of an experimental permit 

does not relieve a permittee of its 

obligation to comply with any 

requirement of law that applies to its 

activities. 

Subpart B—Requirements To Obtain 

an Experimental Permit 

§ 437.21 General. 

To obtain an experimental permit an 

applicant must make the 

demonstrations and provide the 

information required by this section. 

(a) This subpart. An applicant must 

provide a program description, a flight 

test plan, and operational safety 

documentation as required by this 

subpart. 

(b) Other regulations. (1) 

Environmental. An applicant must 

provide enough information for the FAA 

to analyze the environmental impacts 

associated with proposed reusable 

suborbital rocket launches or reentries. 

The information provided by an 

applicant must be sufficient to enable 

the FAA to comply with the 

requirements of the National 

Environmental Policy Act, 42 U.S.C. 

4321 et seq., and the Council on 

Environmental Quality Regulations for 

Implementing the Procedural Provisions 

of the National Environmental Policy 

Act, 40 CFR parts 1500–1508. 

(2) Financial responsibility. An 

applicant must provide the information 

required by part 3 of appendix A of part 

440 for the FAA to conduct a maximum 

probable loss analysis. 

(3) Human space flight. An applicant 

proposing launch or reentry with flight 

crew or a space flight participant on 

board a reusable suborbital rocket must 

demonstrate compliance with §§ 460.5, 

460.7, 460.11, 460.13, 460.15, 460.17, 

460.51 and 460.53 of this subchapter. 

(c) Use of a safety approval. If an 

applicant proposes to use any reusable 

suborbital rocket, safety system, process, 

service, or personnel for which the FAA 

has issued a safety approval under part 

414 of this subchapter, the FAA will not 

reevaluate that safety element to the 

extent its use is within its approved 


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envelope. As part of the application 

process, the FAA will evaluate the 

integration of that safety element into 

vehicle systems or operations. 

(d) Inspection before issuing a permit. 

Before the FAA issues an experimental 

permit, an applicant must make each 

reusable suborbital rocket planned to be 

flown available to the FAA for 

inspection. The FAA will determine 

whether each reusable suborbital rocket 

is built as represented in the 

application. 

(e) Other requirements. The FAA may 

require additional analyses, 

information, or agreements if necessary 

to protect public health and safety, 

safety of property, and national security 

and foreign policy interests of the 

United States. 

Program Description 

§ 437.23 Program description. 

(a) An applicant must provide—

(1) Dimensioned three-view drawings 

or photographs of the reusable 

suborbital rocket; and 

(2) Gross liftoff weight and thrust 

profile of the reusable suborbital rocket. 

(b) An applicant must describe—

(1) All reusable suborbital rocket 

systems, including any structural, flight 

control, thermal, pneumatic, hydraulic, 

propulsion, electrical, environmental 

control, software and computing 

systems, avionics, and guidance systems 

used in the reusable suborbital rocket; 

(2) The types and quantities of all 

propellants used in the reusable 

suborbital rocket; 

(3) The types and quantities of any 

hazardous materials used in the 

reusable suborbital rocket; 

(4) The purpose for which a reusable 

suborbital rocket is to be flown; and 

(5) Each payload or payload class 

planned to be flown. 

(c) An applicant must identify any 

foreign ownership of the applicant as 

follows: 

(1) For a sole proprietorship or 

partnership, identify all foreign 

ownership, 

(2) For a corporation, identify any 

foreign ownership interests of 10% or 

more, and 

(3) For a joint venture, association, or 

other entity, identify any participating 

foreign entities. 

Flight Test Plan 

§ 437.25 Flight test plan. 

An applicant must—

(a) Describe any flight test program, 

including estimated number of flights 

and key flight-safety events. 

(b) Identify and describe the 

geographic coordinates of the 

boundaries of one or more proposed 

operating areas where it plans to 

perform its flights and that satisfy 

§ 437.57(b) of subpart C. The FAA may 

designate one or more exclusion areas in 

accordance with § 437.57(c) of subpart 

C. 

(c) For each operating area, provide 

the planned maximum altitude of the 

reusable suborbital rocket. 

Operational Safety Documentation 

§ 437.27 Pre-flight and post-flight 

operations. 

An applicant must demonstrate how 

it will meet the requirements of 

§ 437.53(a) and (b) to establish a safety 

clear zone and verify that the public is 

outside that zone before and during any 

hazardous operation. 

§ 437.29 Hazard analysis. 

(a) An applicant must perform a 

hazard analysis that complies with 

§ 437.55(a). 

(b) An applicant must provide to the 

FAA all the results of each step of the 

hazard analysis required by paragraph 

(a) of this section. 

§ 437.31 Verification of operating area 

containment and key flight-safety event 

limitations. 

(a) An applicant must identify, 

describe, and provide verification 

evidence of the methods and systems 

used to meet the requirement of 

§ 437.57(a) to contain its reusable 

suborbital rocket’s instantaneous impact 

point within an operating area and 

outside any exclusion area. The 

description must include, at a 

minimum—

(1) Proof of physical limits on the 

ability of the reusable suborbital rocket 

to leave the operating area; or 

(2) Abort procedures and other safety 

measures derived from a system safety 

engineering process. 

(b) An applicant must identify, 

describe, and provide verification 

evidence of the methods and systems 

used to meet the requirements of 

§ 437.59 to conduct any key flight-safety 

event so that the reusable suborbital 

rocket’s instantaneous impact point, 

including its expected dispersions, is 

over unpopulated or sparsely populated 

areas, and to conduct each reusable 

suborbital rocket flight so that the 

reentry impact point does not loiter over 

a populated area. 

§ 437.33 Landing and impact locations. 

An applicant must demonstrate that 

each location for nominal landing or 

any contingency abort landing of the 

reusable suborbital rocket, and each 

location for any nominal or contingency 

impact or landing of a component of 

that rocket, satisfies § 437.61. 

§ 437.35 Agreements. 

An applicant must enter into the 

agreements required by § 437.63, and 

provide a copy to the FAA. 

§ 437.37 Tracking. 

An applicant must identify and 

describe each method or system used to 

meet the tracking requirements of 

§ 437.67. 

§ 437.39 Flight rules. 

An applicant must provide flight rules 

as required by § 437.71. 

§ 437.41 Mishap response plan. 

An applicant must provide a mishap 

response plan that meets the 

requirements of § 437.75(b). 

Subpart C—Safety Requirements 

§ 437.51 Rest rules for vehicle safety 

operations personnel. 

A permittee must ensure that all 

vehicle safety operations personnel 

adhere to the work and rest standards in 

this section during permitted activities. 

(a) No vehicle safety operations 

personnel may work more than: 

(1) 12 consecutive hours, 

(2) 60 hours in the 7 days preceding 

a permitted activity, or 

(3) 14 consecutive work days. 

(b) All vehicle safety operations 

personnel must have at least 8 hours of 

rest after 12 hours of work. 

(c) All vehicle safety operations 

personnel must receive a minimum 48- 

hour rest period after 5 consecutive days 

of 12-hour shifts. 

§ 437.53 Pre-flight and post-flight 

operations. 

A permittee must protect the public 

from adverse effects of hazardous 

operations and systems in preparing a 

reusable suborbital rocket for flight at a 

launch site in the United States and 

returning the reusable suborbital rocket 

and any support equipment to a safe 

condition after flight. At a minimum, a 

permittee must—

(a) Establish a safety clear zone that 

will contain the adverse effects of each 

operation involving a hazard; and 

(b) Verify that the public is outside of 

the safety clear zone before and during 

any hazardous operation. 

§ 437.55 Hazard analysis. 

(a) A permittee must identify and 

characterize each of the hazards and 

assess the risk to public health and 

safety and the safety of property 

resulting from each permitted flight. 

This hazard analysis must—


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(1) Identify and describe hazards, 

including but not limited to each of 

those that result from—

(i) Component, subsystem, or system 

failures or faults; 

(ii) Software errors; 

(iii) Environmental conditions; 

(iv) Human errors; 

(v) Design inadequacies; or 

(vi) Procedural deficiencies. 

(2) Determine the likelihood of 

occurrence and consequence for each 

hazard before risk elimination or 

mitigation. 

(3) Ensure that the likelihood and 

consequence of each hazard meet the 

following criteria through risk 

elimination and mitigation measures: 

(i) The likelihood of any hazardous 

condition that may cause death or 

serious injury to the public must be 

extremely remote. 

(ii) The likelihood of any hazardous 

condition that may cause major property 

damage to the public, major safetycritical system damage or reduced 

capability, a significant reduction in 

safety margins, or a significant increase 

in crew workload must be remote. 

(4) Identify and describe the risk 

elimination and mitigation measures 

required to satisfy paragraph (a)(3) of 

this section. The measures must include 

one or more of the following: 

(i) Designing for minimum risk, 

(ii) Incorporating safety devices, 

(iii) Providing warning devices, or 

(iv) Implementing procedures and 

training. 

(5) Demonstrate that the risk 

elimination and mitigation measures 

achieve the risk levels of paragraph 

(a)(3)(i) of this section through 

validation and verification. Verification 

includes: 

(i) Test data, 

(ii) Inspection results, or 

(iii) Analysis. 

(b) A permittee must carry out the risk 

elimination and mitigation measures 

derived from its hazard analysis. 

(c) A permittee must ensure the 

continued accuracy and validity of its 

hazard analysis throughout the term of 

its permit. 

§ 437.57 Operating area containment. 

(a) During each permitted flight, a 

permittee must contain its reusable 

suborbital rocket’s instantaneous impact 

point within an operating area 

determined in accordance with 

paragraph (b) and outside any exclusion 

area defined by the FAA in accordance 

with paragraph (c) of this section. 

(b) An operating area—

(1) Must be large enough to contain 

each planned trajectory and all expected 

vehicle dispersions; 

(2) Must contain enough unpopulated 

or sparsely populated area to perform 

key flight-safety events as required by 

§ 437.59; 

(3) May not contain or be adjacent to 

a densely populated area or large 

concentrations of members of the 

public; and 

(4) May not contain or be adjacent to 

significant automobile traffic, railway 

traffic, or waterborne vessel traffic. 

(c) The FAA may prohibit a reusable 

suborbital rocket’s instantaneous impact 

point from traversing certain areas 

within an operating area by designating 

one or more areas as exclusion areas, if 

necessary to protect public health and 

safety, safety of property, or foreign 

policy or national security interests of 

the United States. An exclusion area 

may be confined to a specific phase of 

flight. 

§ 437.59 Key flight-safety event limitations. 

(a) A permittee must conduct any key 

flight-safety event so that the reusable 

suborbital rocket’s instantaneous impact 

point, including its expected dispersion, 

is over an unpopulated or sparsely 

populated area. At a minimum, a key 

flight-safety event includes: 

(1) Ignition of any primary rocket 

engine, 

(2) Any staging event, or 

(3) Any envelope expansion. 

(b) A permittee must conduct each 

reusable suborbital rocket flight so that 

the reentry impact point does not loiter 

over a populated area. 

§ 437.61 Landing and impact locations. 

For a nominal or any contingency 

abort landing of a reusable suborbital 

rocket, or for any nominal or 

contingency impact or landing of a 

component of that rocket, a permittee 

must use a location that—

(a) Is big enough to contain an impact, 

including debris dispersion upon 

impact; and 

(b) At the time of landing or impact, 

does not contain any members of the 

public. 

§ 437.63 Agreements with other entities 

involved in a launch or reentry. 

A permittee must comply with the 

agreements required by this section. 

(a) A permittee must have an 

agreement in writing with a Federal 

launch range operator, a licensed launch 

site operator, or any other party that 

provides access to or use of property 

and services required to support the safe 

launch or reentry under a permit. 

(b) Unless otherwise addressed in 

agreements with a licensed launch site 

operator or a Federal launch range, a 

permittee must have an agreement in 

writing with the following: 

(1) For overflight of navigable water, 

a written agreement between the 

applicant and the local United States 

Coast Guard district to establish 

procedures for issuing a Notice to 

Mariners before a permitted flight, and 

(2) A written agreement between the 

applicant and responsible Air Traffic 

Control authority having jurisdiction 

over the airspace through which a 

permitted launch or reentry is to take 

place, for measures necessary to ensure 

the safety of aircraft. The agreement 

must, at a minimum, demonstrate 

satisfaction of §§ 437.69(a) and 

437.71(d). 

§ 437.65 Collision avoidance analysis. 

(a) For a permitted flight with a 

planned maximum altitude greater than 

150 kilometers, a permittee must obtain 

a collision avoidance analysis from 

United States Strategic Command. 

(b) The collision avoidance analysis 

must establish each period during 

which a permittee may not initiate flight 

to ensure that a permitted vehicle and 

any jettisoned components do not pass 

closer than 200 kilometers to a manned 

or mannable orbital object. A distance of 

less than 200 kilometers may be used if 

the distance provides an equivalent 

level of safety, and if the distance 

accounts for all uncertainties in the 

analysis. 

§ 437.67 Tracking a reusable suborbital 

rocket. 

A permittee must—

(a) During permitted flight, measure 

in real time the position and velocity of 

its reusable suborbital rocket; and 

(b) Provide position and velocity data 

to the FAA for post-flight use. 

§ 437.69 Communications. 

(a) A permittee must be in 

communication with Air Traffic Control 

during all phases of flight. 

(b) A permittee must record 

communications affecting the safety of 

the flight. 

§ 437.71 Flight rules. 

(a) Before initiating rocket-powered 

flight, a permittee must confirm that all 

systems and operations necessary to 

ensure that safety measures derived 

from §§ 437.55, 437.57, 437.59, 437.61, 

437.63, 437.65, 437.67, and 437.69 are 

within acceptable limits. 

(b) During all phases of flight, a 

permittee must—

(1) Follow flight rules that ensure 

compliance with §§ 437.55, 437.57, 

437.59, and 437.61; and 

(2) Abort the flight if it would 

endanger the public. 

(c) A permittee may not operate a 

reusable suborbital rocket in a careless 


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or reckless manner that would endanger 

any member of the public during any 

phase of flight. 

(d) A permittee may not operate a 

reusable suborbital rocket in areas 

designated in a Notice to Airmen under 

§ 91.137, § 91.138, § 91.141, or § 91.145 

of this title, unless authorized by: 

(1) Air Traffic Control; or 

(2) A Flight Standards Certificate of 

Waiver or Authorization. 

(e) For any phase of flight where a 

permittee operates a reusable suborbital 

rocket like an aircraft in the National 

Airspace System, a permittee must 

comply with the provisions of part 91 of 

this title specified in an experimental 

permit issued under this part. 

§ 437.73 Anomaly recording, reporting and 

implementation of corrective actions. 

(a) A permittee must record each 

anomaly that affects a safety-critical 

system, subsystem, process, facility, or 

support equipment. 

(b) A permittee must identify all root 

causes of each anomaly, and implement 

all corrective actions for each anomaly. 

(c) A permittee must report to the 

FAA any anomaly of any system that is 

necessary for complying with 

§§ 437.55(a)(3), 437.57, and 437.59, and 

must report the corrective action for 

each reported anomaly. 

(d) A permittee must implement each 

corrective action before the next flight. 

§ 437.75 Mishap reporting, responding, 

and investigating. 

A permittee must report, respond to, 

and investigate mishaps that occur 

during permitted activities, in 

accordance with this section. 

(a) Reporting requirements. A 

permittee must—

(1) Immediately notify the FAA 

Washington Operations Center if there 

is a launch or reentry accident or 

incident or a mishap that involves a 

fatality or serious injury, as defined in 

49 CFR 830.2; 

(2) Notify within 24 hours the FAA’s 

Office of Commercial Space 

Transportation if there is a mishap that 

does not involve a fatality or serious 

injury, as defined in 49 CFR 830.2; and 

(3) Submit within 5 days of the event 

a written preliminary report to the 

FAA’s Office of Commercial Space 

Transportation if there is a launch or 

reentry accident or incident during a 

permitted flight. The report must 

identify the event as a launch or reentry 

accident or incident, and must include: 

(i) The date and time of occurrence, 

(ii) A description of the event and 

sequence of events leading to the launch 

or reentry accident, or launch or reentry 

incident, to the extent known, 

(iii) The intended and actual location 

of launch or reentry, including landing 

or impact on Earth, 

(iv) A description of any payload, 

(v) The number and general 

description of any fatalities and injuries, 

(vi) Property damage, if any, and an 

estimate of its value, 

(vii) A description of any hazardous 

materials involved in the event, whether 

on the reusable suborbital rocket or on 

the ground, 

(viii) Action taken by any person to 

contain the consequences of the event, 

and 

(ix) Weather conditions at the time of 

the event. 

(b) Response requirements. A 

permittee must—

(1) Immediately—

(i) Ensure the consequences of a 

mishap are contained and minimized; 

and 

(ii) Ensure data and physical evidence 

are preserved. 

(2) Report to and cooperate with FAA 

and National Transportation Safety 

Board (NTSB) investigations and 

designate one or more points of contact 

for the FAA or NTSB; and 

(3) Identify and adopt preventive 

measures for avoiding a recurrence of 

the event. 

(c) Investigation requirements. A 

permittee must—

(1) Investigate the root cause of an 

event described in paragraph (a) of this 

section; 

(2) Report investigation results to the 

FAA upon completion; and 

(3) Identify responsibilities, including 

reporting responsibilities, for personnel 

assigned to conduct investigations and 

for any unrelated persons that the 

permittee retains to conduct or 

participate in investigations. 

§ 437.77 Additional safety requirements. 

The FAA may impose additional 

safety requirements on an applicant or 

permittee proposing an activity with a 

hazard not otherwise addressed in this 

part. This may include a toxic hazard or 

the use of solid propellants. The FAA 

may also require the permittee to 

conduct additional analyses of the cause 

of any anomaly and corrective actions. 

Subpart D—Terms and Conditions of 

an Experimental Permit 

§ 437.81 Public safety responsibility. 

A permittee must ensure that a launch 

or reentry conducted under an 

experimental permit is safe, and must 

protect public health and safety and the 

safety of property. 

§ 437.83 Compliance with experimental 

permit. 

A permittee must conduct any launch 

or reentry under an experimental permit 

in accordance with representations 

made in its permit application, with 

subparts C and D of this part, and with 

terms and conditions contained in the 

permit. 

§ 437.85 Allowable design changes; 

modification of an experimental permit. 

(a) The FAA will identify in the 

experimental permit the type of changes 

that the permittee may make to the 

reusable suborbital rocket design 

without invalidating the permit. 

(b) Except for design changes made 

under paragraph (a) of this section, a 

permittee must ask the FAA to modify 

the experimental permit if—

(1) It proposes to conduct permitted 

activities in a manner not authorized by 

the permit; or 

(2) Any representation in its permit 

application that is material to public 

health and safety or the safety of 

property is no longer accurate or 

complete. 

(c) A permittee must prepare an 

application to modify an experimental 

permit and submit it in accordance with 

part 413 of this subchapter. If requested 

during the application process, the FAA 

may approve an alternate method for 

requesting permit modifications. The 

permittee must indicate any part of its 

permit that would be changed or 

affected by a proposed modification. 

(d) When a permittee proposes a 

modification, the FAA reviews the 

determinations made on the 

experimental permit to decide whether 

they remain valid. 

(e) When the FAA approves a 

modification, it issues the permittee 

either a written approval or a permit 

order modifying the permit if a stated 

term or condition of the permit is 

changed, added, or deleted. An approval 

has the full force and effect of a permit 

order and is part of the permit record. 

§ 437.87 Records. 

(a) Except as required by paragraph 

(b) of this section, a permittee must 

maintain for 3 years all records, data, 

and other material necessary to verify 

that a permittee conducted its launch or 

reentry in accordance with its permit. 

(b) If there is a launch or reentry 

accident or incident, a permittee must 

preserve all records related to the event. 

A permittee must keep the records until 

after any Federal investigation and the 

FAA advises the permittee that it may 

dispose of them. 

(c) A permittee must make all records 

that it must maintain under this section 


cprice-sewell on PROD1PC66 with RULES
17024 Federal Register / Vol. 72, No. 66 / Friday, April 6, 2007 / Rules and Regulations 

available to Federal officials for 

inspection and copying. 

§ 437.89 Pre-flight reporting. 

(a) Not later than 30 days before each 

flight or series of flights conducted 

under an experimental permit, a 

permittee must provide the FAA with 

the following information: 

(1) Any payload to be flown, 

including any payload operations 

during the flight, 

(2) When the flight or series of flights 

are planned, 

(3) The operating area for each flight, 

and 

(4) The planned maximum altitude for 

each flight. 

(b) Not later than 15 days before each 

permitted flight planned to reach greater 

than 150 km altitude, a permittee must 

provide the FAA its planned trajectory 

for a collision avoidance analysis. 

§ 437.91 For-hire prohibition. 

No permittee may carry any property 

or human being for compensation or 

hire on a reusable suborbital rocket. 

§ 437.93 Compliance monitoring. 

A permittee must allow access by, and 

cooperate with, federal officers or 

employees or other individuals 

authorized by the FAA to observe any 

activities of the permittee, or of its 

contractors or subcontractors, associated 

with the conduct of permitted activities. 

§ 437.95 Inspection of additional reusable 

suborbital rockets. 

A permittee may launch or reenter 

additional reusable suborbital rockets of 

the same design under the permit after 

the FAA inspects each additional 

reusable suborbital rocket. 

Issued in Washington, DC, on March 23, 

2007. 

Marion C. Blakey, 

Administrator. 

[FR Doc. E7–6194 Filed 4–5–07; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[CGD09–07–009] 

RIN 1625–AA08 

Safety of Life on Navigable Waters; 

Great Lakes Annual Marine Events 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

the Tulip Time Fireworks and Water Ski 

Show special local regulation on Lake 

Macatawa in Holland, Michigan on May 

4, 2007. This action is necessary to 

protect the public from the hazards 

associated with fireworks displays. 

During the enforcement period no 

person or vessel may enter the regulated 

area without the permission of the 

Captain of the Port or his designated 

representative. 

DATES: Enforced from 7 p.m. through 11 

p.m. on May 4, 2007. In the event of 

inclement weather on May 4, 2007 this 

regulation will be enforced from 7 p.m. 

through 11 p.m. on May 5, 2007. 

FOR FURTHER INFORMATION CONTACT: 

CWO Brad Hinken, Prevention 

Department, Coast Guard Sector Lake 

Michigan, 2420 South Lincoln Memorial 

Drive, Milwaukee, WI at (414) 747–

7154. 

SUPPLEMENTARY INFORMATION: We are 

publishing this document to provide 

notice that under the provisions of 33 

CFR 100.901, Group Grand Haven, MI: 

Tulip Time Fireworks and Water Ski 

Show will be enforced on May 4, 2007 

from 7 p.m. through 11 p.m. In case of 

inclement weather on May 4, 2007 this 

regulation will be enforced on May 5, 

2007 from 7 p.m. through 11 p.m. The 

regulated area consists of all waters and 

adjacent shoreline of Lake Macatawa, 

Holland Harbor, east of a north-south 

line, from shore to shore, at position 

086°08′W (NAD 1983). 

In order to ensure the safety of 

spectators and transiting vessels, this 

regulated area will be in effect for the 

duration of the event. In the event that 

this regulated area affects shipping, 

commercial vessels may request 

permission from the Captain of the Port 

Lake Michigan to transit through the 

regulated area. 

Requests must be made in advance 

and approved by the Captain of Port 

before transits will be authorized. The 

Captain of the Port may be contacted via 

U.S. Coast Guard Sector Lake Michigan 

on channel 16, VHF–FM. The Coast 

Guard will give notice to the public via 

a Broadcast Notice to Mariners that the 

regulation is in effect. 

Dated: March 29, 2007. 

B.C. Jones, 

Captain, U.S. Coast Guard, Captain of the 

Port Sector Lake Michigan. 

[FR Doc. E7–6362 Filed 4–5–07; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[CGD09–07–010] 

RIN 1625–AA00 

Safety Zones; Annual Fireworks 

Events in the Captain of the Port 

Milwaukee Zone 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

the Rockets for Schools safety zone on 

Lake Michigan near Sheboygan, WI on 

May 5, 2007. This action is necessary to 

protect the public from the hazards 

associated with rocket launches. During 

the enforcement period no person or 

vessel may enter the safety zone without 

the permission of the Captain of the Port 

or his designated representative. 

DATES: The zone will be enforced from 

9 a.m. through 4 p.m. on May 5, 2007. 

FOR FURTHER INFORMATION CONTACT: 

CWO Brad Hinken, Prevention 

Department, Coast Guard Sector Lake 

Michigan, 2420 South Lincoln Memorial 

Drive, Milwaukee, WI at (414) 747–

7154. 

SUPPLEMENTARY INFORMATION: We are 

publishing this document to provide 

notice that under the provisions of 33 

CFR 165.909(a)(12), the Rockets for 

Schools safety zone on Lake Michigan 

near Sheboygan, WI will be enforced on 

May 5, 2007 from 9 a.m. through 4 p.m. 

The safety zone consists of all waters 

and adjacent shoreline around the south 

breakwall area, Lake Michigan 

encompassed by the arc of a circle with 

a 1260-foot radius with its center in 

position 43°44′56′′ N, 087°42′06′′ W 

(NAD 83). This zone will encompass the 

entrance to Sheboygan Harbor and will 

result in its closure while the safety 

zone is in effect. 

In order to ensure the safety of 

spectators and transiting vessels, this 

safety zone will be in effect for the 

duration of the event. In the event that 

this safety zone effects shipping, 

commercial vessels may request 

permission from the Captain of the Port 

Lake Michigan to transit through the 

safety zone. 

Requests must be made in advance 

and approved by the Captain of the Port 

before transits will be authorized. The 

Captain of the Port may be contacted via 

U.S. Coast Guard Sector Lake Michigan 

on channel 16, VHF–FM. The Coast 


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