Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63221 

www.faa.gov/regulations_policies/ 

rulemaking/sbre_act/. 

List of Subjects in 14 CFR Part 121 

Air carriers, Aircraft, Airmen, 

Reporting and recordkeeping 

requirements. 

The Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends SFAR No. 106 to Chapter I of 

title 14, Code of Federal Regulations as 

follows: 

PART 121—OPERATING 

REQUIREMENTS: DOMESTIC, FLAG, 

AND SUPPLEMENTAL OPERATIONS 

■ 1. The authority citation for part 121 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 1153, 40101, 

40102, 40103, 40113, 41721, 44105, 44106, 

44111, 44701–44717, 44722, 44901, 44903, 

44904, 44906, 44912, 44914, 44936, 44938, 

46103, 46105. 

■ 2. Amend SFAR 106 by revising 

sections 2 and 3(a) introductory text to 

read as follows: 

Special Federal Aviation Regulation 

106—Rules for Use of Portable Oxygen 

Concentrator Systems on Board 

Aircraft 

* * * * * 

Section 2. Definitions—For the 

purposes of this SFAR the following 

definitions apply: Portable Oxygen 

Concentrator: means the AirSep 

FreeStyle, AirSep LifeStyle, AirSep 

Focus, AirSep FreeStyle 5, Delphi RS– 

00400, DeVilbiss Healthcare iGo, Inogen 

One, Inogen One G2, Inogen One G3, 

Inova Labs LifeChoice, Inova Labs 

LifeChoice Activox, International 

Biophysics LifeChoice, Invacare XPO2, 

Invacare Solo2, Oxlife Independence 

Oxygen Concentrator, Oxus RS–00400, 

Precision Medical EasyPulse, 

Respironics EverGo, Respironics 

SimplyGo, SeQual Eclipse and SeQual 

SAROS Portable Oxygen Concentrator 

medical device units as long as those 

medical device units: (1) Do not contain 

hazardous materials as determined by 

the Pipeline and Hazardous Materials 

Safety Administration; (2) are also 

regulated by the Food and Drug 

Administration; and (3) assist a user of 

medical oxygen under a doctor’s care. 

These units perform by separating 

oxygen from nitrogen and other gases 

contained in ambient air and dispensing 

it in concentrated form to the user. 

Section 3. Operating Requirements— 

(a) No person may use and no aircraft 

operator may allow the use of any 

portable oxygen concentrator device, 

except the AirSep FreeStyle, AirSep 

LifeStyle, AirSep Focus, AirSep 

FreeStyle 5, Delphi RS–00400, DeVilbiss 

Healthcare iGo, Inogen One, Inogen One 

G2, Inogen One G3, Inova Labs 

LifeChoice, Inova Labs LifeChoice 

Activox, International Biophysics 

LifeChoice, Invacare XPO2, Invacare 

Solo2, Oxlife Independence Oxygen 

Concentrator, Oxus RS–00400, Precision 

Medical EasyPulse, Respironics EverGo, 

Respironics SimplyGo, SeQual Eclipse 

and SeQual SAROS Portable Oxygen 

Concentrator units. These units may be 

carried on and used by a passenger on 

board an aircraft provided the aircraft 

operator ensures that the following 

conditions are satisfied: 

* * * * * 

Issued in Washington, DC, on October 2, 

2012. 

Michael P. Huerta, 

Acting Administrator. 

[FR Doc. 2012–25412 Filed 10–15–12; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 440 

Waiver of Requirement To Enter Into a 

Reciprocal Waiver of Claims 

Agreement With All Customers 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of waiver. 

SUMMARY: This notice concerns a 

petition for waiver submitted to the 

FAA by Space Exploration Technologies 

Corp. (SpaceX) to waive in part the 

requirement that a launch operator enter 

into a reciprocal waiver of claims with 

each customer. The FAA grants the 

petition. 

DATES: October 16, 2012. 

FOR FURTHER INFORMATION CONTACT: For 

technical questions concerning this 

waiver, contact Charles P. Brinkman, 

Licensing Program Lead, Commercial 

Space Transportation—Licensing and 

Evaluation Division, 800 Independence 

Avenue SW., Washington, DC 20591; 

telephone: (202) 267–7715; email: 

Phil.Brinkman@faa.gov. For legal 

questions concerning this waiver, 

contact Laura Montgomery, Senior 

Attorney for Commercial Space 

Transportation, AGC–200, Office of the 

Chief Counsel, International, Legislation 

and Regulations Division, Federal 

Aviation Administration, 800 

Independence Avenue SW., 

Washington, DC 20591; telephone (202) 

267–3150; email: 

Laura.Montgomery@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On September 20, 2012, SpaceX 

submitted a petition to the Federal 

Aviation Administration’s (FAA’s) 

Office of Commercial Space 

Transportation (AST) requesting a 

waiver under its launch license, for 

flight of a Falcon 9 launch vehicle 

carrying a Dragon reentry vehicle, and 

the related reentry license, for reentry of 

the Dragon. SpaceX requested a partial 

waiver of 14 CFR 440.17, which requires 

a licensee to enter into a reciprocal 

waiver of claims (a ‘‘cross-waiver’’) with 

each of its customers. 

The FAA licenses the launch of a 

launch vehicle and reentry of a reentry 

vehicle under authority granted to the 

Secretary of Transportation by the 

Commercial Space Launch Act of 1984, 

as amended and re-codified by 51 U.S.C. 

Subtitle V, chapter 509 (Chapter 509), 

and delegated to the FAA Administrator 

and the Associate Administrator for 

Commercial Space Transportation, who 

exercises licensing authority under 

Chapter 509. 

The petition for waiver applies to 

SpaceX’s October launch of a Falcon 9 

launch vehicle and Dragon reentry 

vehicle to the International Space 

Station (ISS) and return of the Dragon 

from the ISS to Earth. The Dragon 

spacecraft will carry cargo for NASA to 

resupply the ISS and return with cargo 

from the ISS. The Falcon 9 will also 

carry a commercial satellite for 

ORBCOMM, Inc. as a secondary 

payload, and has signed cross-waivers 

covering that payload. The cross-waiver 

among SpaceX, ORBCOMM and the 

FAA is amended to provide that 

ORBCOMM waives claims against any 

other customer as defined by 14 CFR 

440.3. The petition for partial waiver of 

the requirement that the licensee 

implement a cross-waiver with each 

customer applies to all launches and 

reentries under SpaceX’s current 

licenses with respect only to the 

customers that are the subject of this 

waiver. 

In addition to the ISS supplies and 

ORBCOMM satellite, SpaceX will carry 

other payloads whose transport NASA 

has arranged. These consist of a 

NanoRacks, LLC, (NanoRacks) locker 

insert and student experiments created 

under NASA’s Student Spaceflight 

Experiments Program (SSEP). NASA 

describes SSEP as a national science, 

technology, engineering and 


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63222 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 

1Space Station—Here we Come! NASA Press 

Release: http://www.nasa.gov/audience/

foreducators/station-here-we-come.html (last 

visited September 25, 2012). 2Nonreimbursable Space Act Agreement Between 

NANORACKS, LLC and NASA for Operation of the 

NANORACKS System Aboard the International 

Space Station National Laboratory, (Sept. 4 and 9 

2009) (NanoRacks Agreement), 387938main_SAA_

SOMD_6355_Nanoracks_ISS_National_Lab.pdf. 

3 Indemnification by the U.S. Government is 

conditioned upon the passage of legislation. 51 

U.S.C. 50915; 14 CFR 440.17(d). 

4The definition of a transfer vehicle encompasses 

SpaceX’s Dragon reentry vehicle. NanoRacks 

Agreement, Art. 8, par. 2(g) (a vehicle that operates 

in space and transfers payloads or persons between 

a space object and the surface of a celestial body). 

mathematics education initiative.1

According to its Space Act Agreement 

with NASA,2 NanoRacks arranges to 

carry the student experiments on a 

locker insert to put into an experimental 

locker on board the ISS. The Space Act 

Agreement provides that NASA will 

provide on-orbit resources and limited 

launch opportunities to NanoRacks for 

the launch of its insert and the 

experiments the insert carries. SpaceX 

advises by amendment dated October 3, 

2012, to its petition for waiver that, to 

the best of its knowledge, no NanoRacks 

employees will be present at the launch 

site during flight. 

NanoRacks and each student who 

places a payload on board the 

NanoRacks insert qualify as customers 

under the FAA’s definitions. Section 

440.3 defines a customer, in relevant 

part, as any person with rights in the 

payload or any part of the payload, or 

any person who has placed property on 

board the payload for launch, reentry, or 

payload services. A person is an 

individual or an entity organized or 

existing under the laws of a State or 

country. 51 U.S.C. 50901(12), 14 CFR 

401.5. The subjects of this waiver are 

persons because the students are 

individuals and NanoRacks is an entity, 

a limited liability corporation. 

Accordingly, because NanoRacks and 

the students are persons who have 

rights in their respective payloads, the 

locker insert and the experiments, due 

to their ownership of those objects, and 

because they have placed property on 

board, they are customers. Section 

440.17 requires their signatures as 

customers. 

In this instance, however, NanoRacks 

and the students are also subject to a 

NASA reciprocal waivers of claims, a 

cross-waiver, which is governed by 

NASA’s regulations at 14 CFR part 1266. 

Article 8 of the Space Act Agreement 

between NASA and NanoRacks governs 

liability and risk of loss and establishes 

a cross-waiver of liability. 

Waiver Criteria 

Chapter 509 allows the FAA to waive 

a license requirement if the waiver (1) 

will not jeopardize public health and 

safety, safety of property; (2) will not 

jeopardize national security and foreign 

policy interests of the United States; and 

(3) will be in the public interest. 51 

U.S.C. 50905(b)(3) (2011); 14 CFR 

404.5(b)(2012). 

Waiver of FAA Requirement for Each 

Customer To Sign a Reciprocal Waivers 

of Claims 

The FAA waives the 14 CFR 440.17, 

which requires a licensee to enter into 

a reciprocal waiver of claims with each 

of its customers, with respect to 

NanoRacks and the SSEP participants. 

In 1988, as part of a comprehensive 

financial responsibility and risk sharing 

regime that protects launch participants 

and the U.S. Government from the risks 

of catastrophic loss and litigation, 

Congress required that all launch 

participants agree to waive claims 

against each other for their own 

property damage or loss, and to cover 

losses experienced by their own 

employees. 51 U.S.C. 50915(b). This 

part of the regime was intended to 

relieve launch participants of the 

burden of obtaining property insurance 

by having each party be responsible for 

the loss of its own property and to limit 

the universe of claims that might arise 

as a result of a launch. Commercial 

Space Launch Act Amendments of 

1988, H.R. 4399, H. Rep. 639, 11–12, 

100th Cong., 2d Sess. (May 19, 1988); 

Commercial Space Launch Act 

Amendments of 1988, H.R. 4399, S. Rep. 

593, 14, 100th Cong., 2d Sess. (Oct. 6, 

1988); Financial Responsibility 

Requirements for Licensed Launch 

Activities, Notice of Proposed 

Rulemaking, 61 FR 38992, 39011 (Jul. 

25, 1996). The FAA’s implementing 

regulations may be found at 14 CFR part 

440. 

In its request for a waiver, SpaceX 

maintains that the NASA requirements 

imposed on NanoRacks and the SSEP 

participants are equivalent to the 

requirements imposed on each customer 

under the FAA’s requirements of 14 

CFR part 440. A comparison of the two 

regimes shows that in this particular 

situation the two sets of cross-waivers 

are sufficiently similar that the statutory 

goals of 51 U.S.C. 50914(b) will be met 

by the FAA agreeing to accept the 

NASA cross-waivers in this instance. 

The FAA cross-waivers require the 

launch participants, including the U.S. 

Government and each customer, and 

their respective contractors and 

subcontractors, to waive and release 

claims against all the other parties to the 

waiver and agree to assume financial 

responsibility for property damage 

sustained by that party and for bodily 

injury or property damage sustained by 

the party’s own employees, and to hold 

harmless and indemnify each other from 

bodily injury or property damage 

sustained by their respective employees 

resulting from the licensed activity, 

regardless of fault. 14 CFR 440.17(b) and 

(c). Each party 3 to the cross-waiver 

must indemnify the other parties from 

claims by the indemnifying party’s 

contractors and subcontractors if the 

indemnifying party fails to properly 

extend the requirements of the crosswaivers to its contractors and 

subcontractors. 14 CFR 440.17(d). A 

comparison of each element shows that, 

although there are some differences, 

because the NASA cross-waiver signed 

by NanoRacks is consistent with 

Congressional intent and the FAA’s 

regulations, and because relevant 

employees will not be present at the 

launch site, NanoRacks and the SSEP 

participants need not sign a crosswaiver under 14 CFR part 440. 

Both the FAA’s cross-waivers and 

NASA’s agreement with NanoRacks 

apply to damages resulting from an FAA 

licensed activity, regardless of fault. 14 

CFR 440.17(b); NanoRacks Agreement, 

Art. 8, par. 3(a) and 2(e). An FAA 

license applies, in relevant part, to 

launch and reentry. 51 USC 50904(a)(1); 

14 CFR 440.3. The FAA’s definition of 

launch also includes pre- and post-flight 

ground operations at a launch site in the 

United States. 51 U.S.C. 50902; 14 CFR 

401.5. The NanoRacks Agreement 

applies under Article 8, paragraph 3(a) 

to damages arising out of ‘‘protected 

space operations,’’ which paragraph 2(e) 

defines to include all launch or transfer 

vehicle 4 activities on Earth, in outer 

space or in transit between Earth and 

outer space. Because protected space 

operations encompass development, 

test, manufacture, assembly, integration, 

operation and use of launch and transfer 

vehicles the meaning of protected space 

operations is broad enough to 

encompass launch, reentry, and preand post-flight ground operations. 

Under the FAA cross-waivers and the 

NanoRacks Agreement, covered claims 

include those for property damage or 

bodily injury sustained by any party. 

The NanoRacks Agreement defines 

damage to mean both damage to, loss, or 

loss of the use of any property; and 

bodily injury to, including the 

impairment of health of, or death of, any 

person. NanoRacks Agreement Art. 8, 

par. 2a. The FAA defines ‘‘property 

damage’’ to mean partial or total 

destruction, impairment, or loss of 

tangible property, real or personal. 14 


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5The NanoRacks Agreement applies to more 

persons than the FAA requires. That difference 

poses no issues. 

6Although the NanoRacks Agreement does not 

address assumption of responsibility for harm to 

employees like the FAA cross-waiver does, that 

issue is discussed below. 

7To be precise, section 5 of the FAA cross-waiver 

requires parties to hold harmless and indemnify 

each other. The phrase is a unitary phrase that 

means nothing more than ‘‘indemnify’’ alone. 

Indemnify generally means ‘‘[t]o reimburse 

(another) for a loss suffered because of a third 

party’s or one’s own act or default.’’ Black’s Law 

Dictionary (9th ed. 2009). ‘‘The terms ’holdharmless clause’ and ’indemnity clause’ often refer 

to the same thing-an agreement under which ’one 

party agrees to answer for any * * * liability or 

harm that the other party might incur.’ Black’s Law 

Dictionary 784 (8th ed. 2004) (defining ‘‘indemnity 

clause,’’ noting that the clause is ‘‘[a]lso termed 

hold-harmless clause; save-harmless clause ’’ 

(emphasis in original)).’’ Long Beach Area Peace 

Network v. City of Long Beach, 574 F.3d 1011, 1039 

(Cal. 2009). Hold harmless is defined as ‘‘[t]o 

absolve (another party) from any responsibility for 

damage or other liability arising from the 

transaction; indemnify.’’ Black’s Law Dictionary 

(9th ed. 2009); see also Kevin Gros Marine, Inc. v. 

Quality Diesel Service, Inc., No. 11–2340, slip op. 

at 5 (E.D.La. May 30, 2012). 

CFR 440.3. The FAA defines ‘‘bodily 

injury’’ to mean physical injury, 

sickness, disease, disability, shock, 

mental anguish, or mental injury 

sustained by any person, including 

death. 14 CFR 440.3. To the extent that 

the NanoRacks Agreement does not, at 

first look, appear to address mental 

injuries, the FAA notes that, generally, 

the courts have tied mental anguish to 

physical injuries. An injury to the mind, 

acquired as a form of bodily injury 

should be barred by the cross-waivers. 

The persons to whom both crosswaivers apply are the same for the 

FAA’s purposes.5 The FAA requires its 

licensee, each customer of the licensee, 

and each of their respective contractors 

and subcontractors to waive claims, and 

to agree to be responsible for their own 

property damage and for the bodily 

injury or property damage sustained by 

their own employees. 14 CFR 

440.17(a).6 The parties agree to waive 

claims against, among others, the other 

party, each ‘‘related entity’’ of the other 

party, and the respective employees of 

each of them. NanoRacks Agreement 

Art. 8, par. 3(a)(i)–(iv). Under paragraph 

2(f) of the NanoRacks Agreement, a 

‘‘related entity’’ means a contractor or 

subcontractor of another party to the 

waiver at any tier or a user or customer 

of a party at any tier. The terms 

‘‘contractor’’ and ‘‘subcontractor’’ 

include suppliers of any kind. Because 

a related entity includes a customer or 

user at any tier, NanoRacks, as a 

customer of NASA and each SSEP 

participant with an experiment on 

NanoRack’s manifest is a related entity. 

Both the FAA cross-waivers and the 

NanoRacks Agreement require the 

parties to extend the requirements of the 

cross-waivers to certain related entities, 

which extension is frequently referred 

to as a ‘‘flow-down’’ of the cross-waiver 

requirements. Under the FAA’s 

requirements, each customer must 

extend the cross-waiver requirements to 

its contractors and subcontractors by 

requiring them to waive and release all 

claims they may have against the 

licensee, each other customer, and the 

United States, and against the respective 

contractors and subcontractors of each. 

Waiver of Claims and Assumption of 

Responsibility for Licensed Launch, 

including Suborbital Launch, With 

More than One Customer, 14 CFR part 

440, appendix B, part 1, subpart B (FAA 

Cross-Waiver), par. 4(b). Likewise, 

NanoRacks must extend the 

requirements of the cross-waiver it has 

signed with NASA to its related entities, 

including its users or customers, the 

SSEP students. This means that, just as 

with the FAA cross-waivers, NanoRacks 

and the owners of the experiments on 

its locker insert, have waived the 

requisite claims. 

Although the two schemes appear to 

diverge with regards to indemnification 

for any failure by a party to extend the 

cross-waiver requirements to its 

contractors and subcontractors, the legal 

effect of the different cross-waivers 

remains the same. The FAA crosswaiver expressly requires 

indemnification 7 for the consequences 

of a party’s failure to ‘‘flow-down’’ the 

requirements. FAA Cross-Waiver at par. 

5(b) (customer indemnification for 

claims brought by its contractors and 

subcontractors). SpaceX notes that, 

because of the obligations each party 

accepts under the different crosswaivers, a failure to extend the 

requirements to related entities still 

results in a duty to indemnify the other 

parties for the failure, even where the 

duty is not express. State courts have 

long recognized that where a special 

relationship between parties exists, even 

where there is no express promise to 

indemnify, a duty to indemnify may 

arise. This has been true for 

indemnification of claims brought by 

employees. See, e.g., Howard Univ. v. 

Good Food Svcs., Inc., 608 A.2d 116, 

1124 (DC 1992) (special relationship 

may be found where there is an ongoing contractual relationship); Rucker 

Co. v. M&P Drilling Co., 653 P2.2d 1239, 

1242 (Okl. 1982) (where intention of 

parties to a contract is clear that one 

party shall not be liable for damages, 

labeling the relationship as exculpatory 

or indemnitory is irrelevant and the 

results are the same). See also 100 ALR 

3d 350. 

Analogous cases may apply to 

indemnification for claims brought by a 

contractor or subcontractor of someone 

who failed to extend the cross-waiver 

requirements. See, e.g., Jinwoong, Inc. v. 

Jinwoong, Inc., 310 F.3d 962, 965 (7th 

Cir. 2002) (even where parties fail to 

include an indemnity provision by 

contract, one may be implied unless 

disclaimed). Jinwoong’s discussion of 

the issue is illuminating. The Seventh 

Circuit noted that contract completion is 

a standard function of common law 

courts, and gives the parties what, if 

they were omniscient, they would have 

provided regarding all contingencies 

that might arise under a contract. 310 

F.3d at 965. Thus, when the NanoRacks 

Agreement requires all parties to extend 

the waivers of claims to each of their 

related entities, the FAA may 

reasonably rely on the implicit presence 

of an agreement to indemnify. The 

FAA’s reliance is further bolstered by 

Article 8, paragraph (3)(d)(v), of the 

NanoRack Agreement, which states that 

the cross-waiver does not apply to 

claims for damage arising out of a 

party’s failure to extend the crosswaiver to its related entities. The crosswaiver itself contemplates recourse. 

Additionally, for those situations where 

courts find necessary the existence of a 

special relationship before finding a 

duty to indemnify, a special relation 

exists here by virtue of the agreement 

between NanoRacks and NASA. 

The FAA notes that its cross-waivers, 

in addition to requiring waivers of 

claims and indemnification, also require 

the parties to assume responsibility for 

their own losses. The intent of the 

NASA cross-waivers suggests this is 

unnecessary. NASA itself has noted its 

own long and consistent responsibility 

of requiring the parties to its crosswaiver to waive claims for loss or 

damage and, thus, in NASA’s own 

words, ‘‘assume responsibility for the 

risks inherent in space exploration.’’ 

Cross-Waiver of Liability, Notice of 

Proposed Rulemaking, 71 FR 62061 

(Oct. 23, 2006). In the context of a 

customer assuming responsibility for its 

own property loss, the NASA 

explanation may suffice. However, in its 

implementing regulations, the FAA 

made it clear that it considers a party’s 

assumption of responsibility a separate 

element of the cross-waiver. Financial 

Responsibility Requirements for 

Licensed Launch Activities, Final Rule, 

63 FR 45592, 45601–06 (Aug. 26, 1998). 

For this waiver, the FAA analyzed the 

significance of the assumption of 

responsibility in two parts. The FAA 

determined that it may rely on the 


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63224 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 

8The provision was not incorporated into the 

NanoRacks Agreement. 

indemnification implicit in the 

NanoRacks cross-waiver, as discussed 

above, for claims for property damage, 

because the parties expressly waive 

claims for property damage. It is a 

different matter with respect to 

employees. The parties may not waive 

claims on behalf of their employees. 

Additionally, here, the NanoRacks 

cross-waiver does not address employee 

claims in the first instance. This does 

not interfere with the FAA’s ability to 

grant SpaceX’s request for a waiver with 

respect to the student customers 

because they presumably do not have 

employees. However, NanoRacks itself 

does have employees. If any of them 

were to be at risk at the launch site, the 

FAA might not have been able to grant 

SpaceX’s request for a waiver with 

respect to NanoRacks itself. SpaceX 

recently advised the FAA, however, that 

it was its understanding that no 

NanoRacks employees would be present 

at the launch site during the flight. 

The final issue the FAA must 

consider is that NASA’s regulations 

provide that the NASA cross-waiver is 

not applicable when 51 U.S.C. Subtitle 

V, Chapter 509 is applicable.8 14 CFR 

1266.102(c)(6). At first glance, this 

might create the impression that the 

NanoRacks cross-waiver does not apply 

when a launch or reentry is conducted 

under FAA license. However, by 

waiving the requirement that all 

customers sign, the FAA is not applying 

the specific requirements of Chapter 509 

to NanoRacks and each SSEP 

participant. Accordingly, the NanoRacks 

agreement should retain legal effect. 

This waiver implicates no safety, 

national security or foreign policy 

issues. The waiver is consistent with the 

public interest goals of Chapter 509. 

Under 51 U.S.C. 50914, Congress 

determined that it was necessary to 

reduce the costs associated with 

insurance and litigation by requiring 

launch participants, including 

customers, to waive claims against each 

other. Because the NanoRacks 

Agreement under 14 CFR part 1266 

accomplishes these goals by the same or 

similar means, the FAA finds this 

request in the public interest, and grants 

the waiver with respect to NanoRacks 

and the SSEP participants in reliance on 

the representations SpaceX made in its 

petition and subsequent 

communications. 

Issued in Washington, DC, on October 5, 

2012. 

Kenneth Wong, 

Manager, Licensing and Evaluation Division, 

Office of Commercial Space Transportation, 

Federal Aviation Administration. 

[FR Doc. 2012–25419 Filed 10–15–12; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF DEFENSE 

Department of the Navy 

32 CFR Part 706 

Certifications and Exemptions Under 

the International Regulations for 

Preventing Collisions at Sea, 1972 

AGENCY: Department of the Navy, DoD. 

ACTION: Final rule. 

SUMMARY: The Department of the Navy 

(DoN) is amending its certifications and 

exemptions under the International 

Regulations for Preventing Collisions at 

Sea, 1972 (72 COLREGS), to reflect that 

the Deputy Assistant Judge Advocate 

General (DAJAG) (Admiralty and 

Maritime Law) has determined that USS 

PELELIU (LHA 5) is a vessel of the Navy 

which, due to its special construction 

and purpose, cannot fully comply with 

certain provisions of the 72 COLREGS 

without interfering with its special 

function as a naval ship. The intended 

effect of this rule is to warn mariners in 

waters where 72 COLREGS apply. 

DATES: This rule is effective October 16, 

2012 and is applicable beginning 

October 3, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Lieutenant Jocelyn Loftus-Williams, 

JAGC, U.S. Navy, Admiralty Attorney, 

(Admiralty and Maritime Law), Office of 

the Judge Advocate General, Department 

of the Navy, 1322 Patterson Ave. SE., 

Suite 3000, Washington Navy Yard, DC 

20374–5066, telephone 202–685–5040. 

SUPPLEMENTARY INFORMATION: Pursuant 

to the authority granted in 33 U.S.C. 

1605, the DoN amends 32 CFR Part 706. 

This amendment provides notice that 

the DAJAG (Admiralty and Maritime 

Law), under authority delegated by the 

Secretary of the Navy, has certified that 

USS PELELIU (LHA 5) is a vessel of the 

Navy which, due to its special 

construction and purpose, cannot fully 

comply with the following specific 

provisions of 72 COLREGS without 

interfering with its special function as a 

naval ship: Annex I, paragraph 3(a) 

pertaining to the horizontal distance 

between the forward and aft masthead 

lights; Rule 21(a) pertaining to 

placement of masthead lights over the 

fore and aft centerline of the vessel; 

Annex I, paragraph 2(g) pertaining to 

the placement of sidelights above the 

hull of the vessel; Annex I, paragraph 

2(i)(iii) pertaining to the vertical 

position and spacing of task lights. The 

DAJAG (Admiralty and Maritime Law) 

has also certified that the lights 

involved are located in closest possible 

compliance with the applicable 72 

COLREGS requirements. 

Moreover, it has been determined, in 

accordance with 32 CFR Parts 296 and 

701, that publication of this amendment 

for public comment prior to adoption is 

impracticable, unnecessary, and 

contrary to public interest since it is 

based on technical findings that the 

placement of lights on this vessel in a 

manner differently from that prescribed 

herein will adversely affect the vessel’s 

ability to perform its military functions. 

List of Subjects in 32 CFR Part 706 

Marine safety, Navigation (water), and 

Vessels. 

For the reasons set forth in the 

preamble, amend part 706 of title 32 of 

the CFR as follows: 

PART 706—CERTIFICATIONS AND 

EXEMPTIONS UNDER THE 

INTERNATIONAL REGULATIONS FOR 

PREVENTING COLLISIONS AT SEA, 

1972 

■ 1. The authority citation for part 706 

continues to read as follows: 

Authority: 33 U.S.C. 1605. 

■ 2. Section 706.2 is amended as 

follows: 

■ A. In Table Two by revising the entry 

for USS PELELIU (LHA 5); 

■ B. In Table Three by adding, in alpha 

numerical order, by vessel number, an 

entry for USS PELELIU (LHA 5); and 

■ C. In Table Four, paragraph 22, by 

adding, in alpha numerical order, by 

vessel number, an entry for USS 

PELELIU (LHA 5). 

§ 706.2 Certifications of the Secretary of 

the Navy under Executive Order 11964 and 

33 U.S.C. 1605. 

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