reliability and public safety, the FAA proposed, and is including in
the final rule robust computing system requirements in Sec.  450.141.
Computing system requirements are further discussed in the preamble
section on Computing Systems and Software.
    The International Space Safety Foundation recommended that the FAA
set up a multidisciplinary team of design and operation experts to draw
a strategy for the definition of FSS design performance requirements,
and for addressing the above issues. The FAA believes that standards
for FSS should continue to evolve and that industry should be
significantly involved in their development. An industry-led
development of a voluntary consensus standard or standards addressing
design, analysis, or testing of FSS would be particularly beneficial.
These standards could become new acceptable means of compliance with
FAA regulations.
aa. Hybrid Vehicles
    In the NPRM, the FAA proposed one set of requirements for all
vehicle types without distinction between traditional and hybrid
vehicles. Hybrid vehicles are launch or reentry vehicles that have some
characteristics of aircraft and other characteristics of traditional
launch or reentry vehicles.
    The FAA acknowledges that hybrid operations differ from traditional
rocket launches. Part 450 has been revised to accommodate better all
vehicle operators, including hybrid vehicle operators. The
accommodations include more performance-based requirements,
alternatives to flight abort, FSA requirements based on demonstrated
reliability, use of equivalent level of safety, and allowing
application process alternatives as agreed to by the Administrator. The
regulations allow currently licensed hybrid vehicle operators to
continue to use a flight hazard analysis as a hazard control strategy.
However, one or more hazard control strategies may be required to meet
the safety criteria in Sec.  450.101.
    The FAA received numerous comments from industry regarding safety
requirements for hybrid vehicles, hybrid configurations, component
systems, and related operations. The FAA addresses the hybrid vehicle
comments that would be applicable to other operators in the applicable
topic area sections of this preamble. This section of the preamble
addresses the comments that are specific to hybrid operations, such as
aircraft certification, piloted vehicles, part 91 applicability, and
space support vehicles.
    Two commenters stated that the applicability of hybrid systems
should be clarified and consolidated in a separate section of the
regulation. An individual commenter recommended that the preamble
material include a discussion of how the regulations would be applied
to hybrid configurations since their characteristics and operations are
significantly different from the more traditional RLV or ELV vertical
launch systems.
    The FAA notes that the final rule provides flexible performance-
based regulations that work for all vehicle types, including hybrid
vehicles and other innovative architectures. Like all operators, an
operator of a hybrid launch or reentry vehicle must choose one or more
hazard control strategies for each phase of flight in accordance with
Sec.  450.107. The FAA anticipates that hybrid vehicle operators will
elect to use a flight hazard analysis as their hazard control strategy
for at least some phases of flight because the flight hazard analysis
is most similar to the existing system safety process in part 431.
    An individual commenter stated that for hybrid vehicles, flying
qualities should be identified as safety critical and as a safety
element eligible for a safety element approval.
    The FAA will work with operators during pre-application
consultation and throughout the application review to understand a
specific operation to determine what systems are safety critical as
defined in Sec.  401.7. All launch vehicles, reentry vehicles, safety
systems, processes, services, or personnel are eligible for safety
element approvals. The FAA will consider safety element approvals on a
case-by-case basis for hybrid vehicles. This concept is discussed in
the Safety Element Approval section of the preamble.
    An individual commenter recommended that the FAA consider other
demonstrated measures of reliability for carrier aircraft to estimate
the public risk, such as ``attributed reliability'' and ``validated
reliability.''
    In the final rule, the FAA uses the term ``demonstrated
reliability'' in Sec. Sec.  450.101(c)(3) and 450.113(b). The use of
this phrase in Sec.  450.101(c)(3) allows an operator to protect
against a high consequence event in uncontrolled areas for each phase
of flight by establishing the launch or reentry vehicle has sufficient
demonstrated reliability as agreed to by the Administrator based on
CEC criteria during that phase of flight. The use of this
phrase in Sec.  450.113(b) provides an exception for an operator from
performing and documenting an FSA for a phase of flight, if agreed to
by the Administrator, based on demonstrated reliability. These
requirements are discussed in more detail in the High Consequence Event
Protection and FSA preamble sections, respectively.
    As discussed in the Conditional Expected Casualties section of this
preamble and in the NPRM, demonstrated reliability refers to
statistically valid probability of failure estimates based on the
outcomes of all previous flights of the vehicle or stage in accordance
with Sec.  450.131, which is discussed later in the preamble. The draft
High Fidelity FSA Methods AC,\166\ published with the NPRM, described
acceptable methods, including Bayesian and binomial methods, to
calculate demonstrated reliability and demonstrate compliance with
Sec.  450.131. As discussed in the draft AC, the prior estimate for the
probability of failure during a captive carry phase of flight could be
based on a different flight history database \167\ compared to
traditional ELVs. For example, the prior estimate for the probability
of failure during a captive carry phase of flight could be based on the
flight history of aircraft that also used certain proven or

industry standard design, manufacturing, or quality methods. Similarly,
if a carrier vehicle were based on or modified from a type certificated
commercial aircraft or used certified aircraft components, then the
carrier vehicle could be considered a derived vehicle.\168\ In this
example, the certification results and operational history for the
unmodified components of the aircraft would be accounted for in the
calculation of the demonstrated reliability. Under a performance-based
regulation, an applicant is free to propose a unique means of
compliance with other methods to calculate demonstrated reliability.
The FAA will consider other methods to calculate demonstrated
reliability for hybrid vehicles such as binomial methods consistent
with Appendix A to part 417 under A417.25(b)(5), and other methods used
in the past for launch and reentry vehicles.
---------------------------------------------------------------------------

    \166\ See FAA-2019-0229-0019.
    \167\ More specifically, a different set of outcomes of all
previous flights of vehicles developed and launched or reentered in
similar circumstances.
    \168\ A derived vehicle is a term used when analyzing a new
variant of a known rocket. A derived vehicle should be alike in
substance or essentials considering the following factors that can
influence the probability of failure: (1) The development and
integration processes of the vehicle, including the extent of
testing; (2) the design and manufacture of safety-critical systems,
including but not limited to the structure (including the payload
faring), propulsion, guidance, control, and navigation; (3) all
aspects of the environment experienced by the vehicles, stages, and
components that can affect performance and reliability, including
but not limited to aerodynamic, thermal, acoustic, vibration, and
inertial environments; (4) vehicle performance in terms of payload
capability, maximum dynamic pressure, and maximum velocity.
---------------------------------------------------------------------------

    The FAA notes that other vehicle characteristics, such as flying
qualities, do not lend themselves to analysis with statistical
reliability measures. For example, acceptable flying qualities in one
portion of the envelope do not necessarily predict good flying
qualities throughout the full operational envelope, and small
aerodynamic modifications or changes to the flight control system can
lead to disproportionally large and potentially hazardous changes in
flying qualities. In these cases, the FAA would consider flight test
results using proven flight test techniques and data analysis methods
as validated reliability.
    An individual commenter urged the FAA to consider more than just
the fact that a vehicle holds an airworthiness certificate as evidence
of demonstrated reliability.
    The FAA agrees that possession of an airworthiness certificate
alone does not guarantee that a vehicle or operation will have a level
of reliability sufficient to meet the part 450 public safety
requirements. The FAA considers other factors to determine reliability.
The FAA will consider the aircraft's original certification, its
current certification, and any modifications introduced through
issuance of supplemental type certificates. For example, a transport
category aircraft that has held a standard airworthiness certificate
and then been recertified to a restricted or experimental category. Any
modifications to the aircraft design certification may affect the
aircraft's reliability for the purposes of part 450, and the FAA
therefore will take these modifications into consideration. An
understanding of an aircraft's past and current operating environments
and its maintenance history are also relevant to the current
reliability estimate.
    In addition, the FAA may consider other factors outside of
certification, such as a rigorous flight test program. Some launch
operators have or are developing new, purpose-built launch vehicles
that may serve as a component of a hybrid launch or may be designed as
rocket-powered aircraft and transitioned to licensed launch operations
following flight testing. These operators may hold experimental
airworthiness certificates for testing design concepts and aircraft
operating techniques. Experimental airworthiness certificates may also
be offered as part of a hybrid operator's application to establish the
vehicle's demonstrated reliability. The FAA's Office of Commercial
Space Transportation will continue to coordinate with the FAA's
Aviation Safety organization on issuance of an experimental
airworthiness certificate and the vehicle's developmental program to
understand its demonstrated reliability.
    The FAA will also consider each crewmember's level of pilot
certification and flight experience, as well as the recency of that
experience as evidence of demonstrated reliability of the launch or
reentry system.\169\ While part 460 requires flight crew to hold at
least a private pilot certificate with an instrument rating, operators
using flight crew with higher levels of certification, operationally
related flight experience, and recent flight experience and training
can demonstrate higher reliability. For example, a crewmember holding
commercial and airline transport pilot certificates have more flight
experience and have been tested to a higher level of proficiency than a
crewmember who holds a private pilot certificate. In addition,
crewmembers with operationally related flight experience will have an
understanding of the decision-making required for high-altitude flight
and airspeed regimes, and the recent flight experience and training of
all crewmembers is recognized as foundational to ensuring a safe
operating environment of an aircraft or launch vehicle.
---------------------------------------------------------------------------

    \169\ For FSA purposes, the vehicle failure probability accounts
for any failure of the launch or reentry system because of the way
failure is defined in Sec.  450.131(b). In the context of FSA, any
failure of the launch or reentry system, including pilot error, that
produced vehicle failure as defined in Sec.  450.131(b) must be
accounted for to establish the demonstrated reliability. Therefore,
the FAA would consider the pilot experience and training in making a
demonstrated reliability determination.
---------------------------------------------------------------------------

    An individual commenter stated that the phase of a hybrid vehicle
operation in which the carrier vehicle is alone would be required to
take into account any potential aggressive maneuvers the vehicle may
have to make to clear a just-released rocket. The commenter further
stated that a civil airworthiness certificate may not be adequate to
cover the risks posed to the public by these unusual maneuvers.
    The FAA agrees that the entirety of a launch or reentry operation
must be analyzed for hybrid operations. The FAA notes that once a
rocket is released, the carrier vehicle remains in the launch phase
until all components of the launch system have impacted or landed on
the earth and been rendered safe. Therefore, any maneuvers the carrier
vehicle makes after a rocket is released but before both components
have impacted or landed and been returned to a safe condition will
occur under the license and be assessed consistent with the
requirements of part 450.
    Virgin Galactic expressed concerns that rather than streamlining
the requirements to create performance-based standards, the FAA is
combining its requirements for ELVs and hybrid RLVs so that each type
of operator might be subject to inappropriate or ambiguous
requirements. Virgin Galactic commented that it appreciated the
flexibility that some of the new regulations would provide but noted
that others seem too vague.
    The FAA finds the final rule provides sufficient flexibility for
hybrid vehicles. The performance-based regulations in the final rule
allow operators like Virgin Galactic to propose an alternate approach
by demonstrating an equivalent level of safety or use a unique means of
compliance. To retain the maximum flexibility to adjust to dynamic
industry changes, the FAA will continue to offer operators the choice
to request ELOS determinations. In addition, 51 U.S.C. 50905(b)(3)
allows the Secretary to waive a requirement in the public interest and
will not jeopardize public health and safety, safety of property, and
national security and foreign policy interests of the United States.
Rather than explicitly

reference hybrid vehicles, the final rule provides the flexibilities to
all operators, including operators of hybrid vehicles and other
innovative concepts.
    Virgin Galactic also stated that the intent of the requirement
should be publicly articulated in the regulations and not reside in the
preamble. The FAA notes both the preamble and the regulations are
publicly available. The intent behind the regulations correctly resides
in the preamble because the regulations contain only the regulatory
requirements by which regulated entities are bound. The preamble
provides further explanation as to why the FAA has elected to adopt the
regulatory requirements in order to provide transparency and further
elaborate on the agency's intent.
    An individual commenter stated that hybrid configurations, carrier
aircraft flying alone, and reentry vehicles using aerodynamic controls
should follow controller instructions and abide by the general
operating and flight rules of aviation found in 14 CFR part 91. The
individual commented that hybrid launch vehicles with pilot-in-the-loop
control systems spend much more time than RLV and ELV systems in
restricted airspace and overflying populated areas and that this
requires hybrid configurations to have the capability to operate safely
in a controlled airspace environment like other aircraft.
    The FAA agrees and notes that applicants may elect to mitigate
hazards to the public by proposing applicable sections of part 91 to
demonstrate compliance with specific requirements in part 450. However,
all components of a hybrid vehicle operate solely under a license when
the intent of flight is to conduct a launch or reentry.
    Virgin Galactic stated that the FAA should have a narrowly tailored
CEC exemption from the flight abort requirements of proposed
Sec. Sec.  450.101(c) and 450.145 for piloted aircraft because the
pilot would already provide an FSS with abort capability. Virgin
Galactic further stated that a carrier aircraft in a hybrid system that
operated safely under its experimental airworthiness certificate should
not be subjected to the CEC requirement in proposed Sec.
450.101(c).
    The FAA does not agree with Virgin Galactic's comment to include an
exemption from demonstrating protection against a high consequence
event for a piloted carrier vehicle because the operation of such a
vehicle may result in a high consequence event. As discussed earlier in
this preamble, operators must protect against a high consequence event
because such an event could result in a large number of casualties. The
FAA notes that the final rule allows an operator to seek an ELOS
determination for Sec.  450.101(c)(2). However, an exemption for all
piloted carrier vehicles would not be appropriate for launch or reentry
vehicle systems that have not yet been evaluated. Hence, an applicant
can use another method of measuring the potential for a high
consequence event that demonstrates an equivalent level of safety in
accordance with Sec.  450.37. Reusable vehicles and other innovative
architectures may be required by Sec.  450.101(c) to have a method to
achieve flight abort reliably to mitigate flight risks and consequences
fully, either in the form of a pilot that can safely abort flight using
system controls or a more traditional FSS. A pilot may provide
protection against a high consequence event. The FAA may consider a
pilot to be an FSS performing a flight abort if the pilot can initiate
and accomplish a controlled ending to vehicle flight reliably to limit
or restrict the hazards to public health and safety, and the safety of
property. Under the provision in Sec.  450.101(c)(3), the flight of a
carrier vehicle carrying a rocket to a drop point could be an example
of sufficient protection against a high consequence event, even if the
CEC were above the 1 x 10-\3\ threshold, if the
carrier vehicle has sufficient demonstrated reliability. Demonstrated
reliability and other flexibilities are discussed more fully in the
High Consequence Protection section of this preamble.
    Virgin Galactic noted that a carrier aircraft operating under an
airworthiness certificate should be exempt from proposed Sec.
450.101(f), which, for any launch, reentry, or disposal, requires an
operator to notify the public of any region of land, sea, or air that
contains, with 97 percent probability of containment, all debris
resulting from normal flight events capable of causing a casualty.
Virgin Galactic stated that the requirement was unclear because it
discussed debris resulting from normal flight events. Virgin Galactic
requested further clarification on the purpose of public notification
if the proposed requirement was intended to address returning vehicles
that remain intact and on a nominal trajectory to the intended reentry
site. Virgin Galactic recommended that, if this regulation was intended
to apply to jettisoning of orbital rocket stages and the return/
disposal of upper stages, it should state as much.
    The FAA agrees that returning vehicles on a normal trajectory do
not constitute ``debris'' as the term is used in Sec.  450.101(f).
However, the FAA will not exempt all hybrid vehicle operators from the
requirement in Sec.  450.101(f) because future hybrid operators could
possibly generate debris capable of causing a casualty from normal
vehicle flight. If an operation has no planned impacts from debris
capable of causing a casualty, then no notification will be necessary
to comply with Sec.  450.101(f).
    Several commenters, including ALPA, Starfighters, and Virgin
Galactic, submitted comments regarding the applicability of FSA
requirements for hybrid vehicles under proposed Sec.  450.113(a)(5).
Virgin Galactic noted that, for the captive carry phase of a hybrid
vehicle mission, the FAA should exempt operators from performing an FSA
for a piloted aircraft that operated in accordance with aviation
regulations. Virgin Galactic stated the FAA should include such an
exemption because the pilot would already provide abort capability as
an FSS. Starfighters commented that an FSA should be required only for
the air-release launch phase of a hybrid vehicle mission, not the
earlier captive-carry phase, which might be many miles away from the
actual release point. However, ALPA stated that the FAA should require
an FSA for all phases of flight until sufficient quantitative data for
hybrid commercial space vehicles becomes available for analysis and to
conduct a regulatory process to standardize airworthiness requirements
for hybrid commercial space vehicles. An individual commenter noted
airworthiness certificates issued by the FAA are part of a safety
analysis but are not conclusive evidence of demonstrated reliability
for the purpose of proposed Sec.  450.113(a)(5). ALPA noted that flight
test results using proven flight test techniques and data analysis
methods should serve to validate reliability of hybrid vehicles'
carrier aircraft under proposed Sec.  450.113(a)(5), without requiring
documentation and statistical analysis of all previous flights.
    In the final rule, the FAA is not providing a blanket exemption to
the FSA requirements for hybrid operations. The final rule removes
Sec.  450.113(a)(5) but maintains the flexibility proposed in the NPRM
to enable an operator of a hybrid vehicle with a high level of
demonstrated reliability to be exempt from performing some FSAs for
some phases of flight without seeking a waiver. The FAA will work with
hybrid vehicle applicants during pre-application consultation on how to
comply with FSA, CEC, and FSS requirements utilizing the
flexibilities that may be applicable depending on the applicant's
vehicle and concept of

operations. For example, the FAA might determine the quantitative FSA
requirements for those portions of an operation for which the vehicle
operates similarly to a civil aviation aircraft governed by civil
aviation regulations are unnecessary because the vehicle has
demonstrated reliability for operations using a certificated aircraft
or a valid airworthiness certificate with an acceptable flight test
history.
    The FAA expands the flexibility for hybrid vehicles in proposed
Sec.  450.113(a)(5) to all vehicle operators in the final rule in Sec.
450.113, as discussed in more detail in the preamble section for FSA
Requirements Scope and Applicability. The FAA finds this flexibility
should be available to all operators if agreed to by the Administrator
based on demonstrated reliability. This wider availability will provide
a common regulatory construct across different operators to identify
the phases of flight for which FSA must be performed. Based on current
licensed operations, the FAA anticipates that initially only carrier
vehicles that have an airworthiness certificate and extensive flight
history would be able to meet the demonstrated reliability standard.
Aside from some carrier aircraft used as a component of a launch
vehicle, no existing launch vehicle has enough history to ensure
sufficient protection against a high consequence event based on
demonstrated reliability in accordance with Sec.  450.101(c) or enough
empirical evidence to demonstrate compliance with the public risk
criteria in Sec.  450.101(a) or (b).\170\
---------------------------------------------------------------------------

    \170\ The L-1011 carrier vehicle used for Pegasus launches is an
example of a carrier aircraft with enough empirical evidence to
demonstrate compliance with the public risk criteria in Sec.
450.101(a) or (b). Using flight history to demonstrate compliance
with the risk criteria in Sec.  450.101(a) and (b) is relatively
simple, given a statistically significant number of flights relative
to the expected casualty limit of 1 x 10-\4\. As
discussed elsewhere in the preamble, the FAA notes that the operator
must also perform a system safety analysis to demonstrate that any
modifications made to the carrier vehicle introduce only hazards to
the public that are extremely remote.
---------------------------------------------------------------------------

    Virgin Galactic asked about the applicability of the rule for
hybrid vehicles, including certain operational exemptions. Virgin
Galactic commented that the safety-critical system requirements in
Sec.  450.143 should not apply to hybrid carrier aircraft that operate
under an FAA-issued license and hold an airworthiness certificate
issued by the FAA. Virgin Galactic noted the requirements of this
section were akin to aircraft certification, which are spelled out in
the applicable parts of 14 CFR Chapter 1 that have been developed over
decades as the aviation industry matured. Virgin Galactic stated that
the commercial space industry is not at the state of maturity as
commercial aviation, and applying these similar ``certification''
requirements is contrary to the requirement in the Commercial Space
Launch Act to promote the commercial space launch industry and only
regulate to the extent necessary.
    The FAA does not agree that carrier vehicles operating under an
FAA-issued license with an airworthiness certificate issued by the FAA
should be exempt from the safety-critical system requirements in Sec.
450.143. While airworthiness certification likely indicates increased
reliability because a certificated aircraft has satisfied many separate
FAA regulations, the satisfaction of those regulations does not alone
demonstrate that the carrier vehicle will meet the applicable
requirements under chapter III. However, an applicant may make a safety
case supporting an equivalent level of safety for a component of a
launch system if it holds a valid airworthiness certificate with an
acceptable flight test history. In the final rule, Sec.  450.143
includes the requirements for all safety-critical system components and
eliminates the ambiguity that existed in the part 431 regulations
regarding required testing of safety-critical systems. Section
450.143(e)(3) also requires a summary of the analysis detailing how
applicants arrived at the predicted operating environment and duration
for all qualification and acceptance testing. Such a summary is current
practice, and Sec.  450.143(e) makes this requirement explicit for all
vehicles. In response to Virgin Galactic's comments regarding the
relative maturity of commercial aviation versus the commercial space
industry and the appropriate approach to regulating the commercial
space industry, the FAA believes that the performance-based
requirements of the final rule fulfill statutory mandates and are
appropriate for the commercial space industry's capabilities now and as
they will evolve in the future.
    An individual commenter stated that the carrier aircraft portion of
their launch system would also be capable of conducting operations as a
space support vehicle (SSV). The commenter sought clarification as to
whether part 450 would require adjustment to be consistent with new SSV
operations. SSVs and SSV flight are defined in section 50902 of title
51. Requirements to conduct the flight of a space support vehicle would
be promulgated pursuant to Section 44737, and are beyond the scope of
this rulemaking.
bb. Agreements and Airspace (Sec.  450.147)
    In the NPRM, the FAA proposed to streamline the existing
requirements for agreements by removing specific requirements for a
variety of agreements and procedures and allowing an operator to
determine what agreements would be needed for its particular operation.
As proposed in Sec.  450.147, a vehicle operator would be required to
have written agreements with any entity that provides a service or use
of property to meet a requirement in part 450. The regulation
identified various entities for which agreements may be required
including a Federal launch range operator, a licensed launch or reentry
site operator, any party that provides access to or use of property and
services required to support a safe launch or reentry under part 450,
the U.S. Coast Guard, and the FAA.
    In the final rule, the FAA adopts the proposal with one minor
change. The FAA has replaced the words ``Federal launch range'' in
Sec.  450.147(a)(1) with ``Federal launch or reentry site'' to
encompass all Federal sites used for licensed activities.
    AAAE asked whether proposed Sec.  450.147(a)(1) would require
agreements with alternative or contingent landing sites and requested
that the FAA expressly require such agreements to ensure that they are
included in the licensing and launch preparation process. In Sec.
450.147(a)(1), the FAA requires agreements with any entity that
provides access to property required to support a safe launch or
reentry. Contingency abort locations are taken into consideration by
the applicant as part of its public safety analyses and by the FAA in
its environmental review. Because contingency abort locations
necessarily involve planned access to property, the FAA will not revise
the regulation to expressly require agreements with alternative or
contingent landing sites. The language in Sec.  450.147(a)(1) is
sufficient to ensure agreements are in place for all planned locations.
The FAA will not require such agreements for emergency landing sites or
other locations that are being considered, but have not been finalized
by the operator.\171\
---------------------------------------------------------------------------

    \171\ The FAA notes that it has distinguished emergency abort
landing sites from planned contingency abort sites in other
rulemakings. For example, in the Commercial Space Transportation
Reusable Launch Vehicle and Reentry Licensing Regulations final
rule, Sec.  431.23 required an operator to identify contingency
abort sites in its application. The FAA stated that contingency
abort sites are pre-planned, and their potential use may be
identified as part of an application in order to meet mission risk
criteria and, therefore, are separate and distinct from emergency
abort landing situations that may potentially be anywhere. 65 FR
56617, 56635 (November 20, 2000).

---------------------------------------------------------------------------

    Section 450.147(a)(3) requires operators to have written agreements
with FAA's Air Traffic Organization (ATO) or foreign air navigation
service providers (ANSP) to establish procedures for the issuance of a
Notices to Airmen (NOTAM) prior to a launch or reentry.
    AOPA recommended that the FAA establish procedures for the issuance
of a Notices to Airmen (NOTAM) at least 72 hours prior to a launch or
reentry to forewarn the public about activation of different airspace.
    It would not be appropriate within this commercial space rulemaking
to impose a requirement on the FAA ATO or a foreign ANSP to issue
NOTAMs within a particular time frame. Each ANSP is responsible for the
safe and efficient use of its airspace and can be expected to provide
notification consistent with its obligations. As such, notification
requirements necessary to protect the public, including any minimum
times for notification, should be determined as part of the agreement
development process with the FAA ATO or foreign ANSP.
    Section 450.147(a)(4) requires an operator to enter into such
agreements with emergency response providers, including local
government authorities, as necessary to satisfy the requirements of
Sec.  450.173 (Mishap plan--reporting, response, and investigation
requirements).
    SpaceX recommended that proposed Sec.  450.147(a)(4) exclude
government installations where responsibilities and mutual aid protocol
rendered separate agreements with local authorities unnecessary. SpaceX
believes this addition would manage expectations where multiple Federal
entities may have overlapping jurisdiction for addressing mishap
response.
    Because Sec.  450.173(d)(5) requires an operator to implement
agreements with government authorities and emergency responders ``as
necessary'' to satisfy the requirements of Sec.  450.173, no change to
the proposed language in Sec.  450.147(a)(4) is required. An operator
that is launching from a Federal launch site is not required to execute
agreements with local authorities if the Federal site already has the
necessary coordination in place to satisfy the requirements in Sec.
450.173.
    Section 450.147(b) requires that agreements clearly delineate the
roles and responsibilities of each party to support the safe launch or
reentry under part 450. SpaceX suggested adding language to require
parties to delineate roles and responsibilities ``within their
jurisdiction.'' Indeed, an entity may only enter into an agreement to
the extent they are authorized, but the FAA disagrees that this
language is needed in the regulation.
    Section 450.147(d) requires operators to describe each agreement
submitted in accordance with the section.
    SpaceX asked the FAA to clarify in a guidance document the intent
of proposed Sec.  450.147(d) and allow operators to provide other
acceptable documentation (e.g., business processes like the Universal
Documentation System) to avoid literal interpretations of requirements.
To comply with this requirement, the operator will enumerate those
services that the site operator is providing through various
agreements. The FAA may request a specific agreement that the site
operator has established to provide such a service. As long as each
agreement required by this section meets the criteria set forth in
Sec.  450.147, the operator may choose the format of the agreement.
Therefore, the FAA adopts the proposed rule without change.
    Virgin Galactic asked whether an agreement would be required with
local authorities to ensure that the area is cleared of the public and
critical assets if an operator cannot meet conditional risk factor
criteria for an uncontrollable area of land. The FAA notes that
conditional risk does not trigger the need for an agreement with a
local authority. Instead, it is related to the need for an FSS.
However, such an agreement might be a means of mitigating conditional
risk, potentially to a degree at which the operator does not need to
employ an FSS.
    A number of commenters expressed concern that the NPRM did not
require that airspace efficiency be taken into consideration as part of
a launch or reentry operation. AAAE, A4A, ACI, ALPA, AOPA, CAA, NATCA,
RAA, and Southwest Airlines recommended the FAA incorporate airspace
efficiency consideration into the licensing process to minimize
negative operational and financial impacts for airlines, passengers,
cargo shippers, and the public that will result from this rulemaking.
A4A, AAAE, and Southwest Airlines advocated increased transparency and
collaboration with airspace stakeholders in developing agreements
pursuant to proposed Sec.  450.147. A4A, AAAE, ACI, ALPA, AOPA, CAA,
NATCA, and RAA recommended the FAA ensure the safety requirements for
commercial space operations, particularly those addressing risks to
other aviation users, are commensurate with the expectations of the
flying public. AOPA recommended the FAA prioritize funding and
implementation of the Aeronautical Information Management Modernization
program, which would provide real-time airspace information. A4A, AAAE,
ACI, and AOPA recommended the FAA incorporate and implement various
recommendations from the Airspace Access Priorities ARC and Spaceport
Categorization ARC.
    The FAA acknowledges the commenters' concerns regarding airspace
efficiency, but these issues are not within the scope of this
rulemaking. Operational oversight and management of airspace impacts
are managed at the FAA Air Traffic Control System Command Center. As
noted in the Flight Hazard Area Analysis section of this preamble, FAA
is working to address this issue through the Airspace Access ARC and
other initiatives.
cc. Safety-Critical Personnel Qualifications (Sec.  450.149)
    In the NPRM, the FAA proposed to remove the certification
requirements found in Sec. Sec.  417.105, 417.311, and 415.113 and
replace them with performance-based requirements in proposed Sec.
450.149 (Safety-Critical Personnel Qualifications). Section 450.149(a)
would require an operator to ensure safety-critical personnel are
trained, qualified, and capable of performing their safety-critical
tasks, and that their training is current. Under proposed Sec.
450.149, an applicant would be required to identify in the application
all safety-critical tasks and internal requirements or standards for
personnel to meet prior to performing the identified tasks. The
application would be required to identify internal training and
currency requirements, completion standards, or any other means of
demonstrating compliance with the requirements of proposed Sec.
450.149. The applicant would also be required to describe the process
for tracking training currency.
    Boeing, Lockheed Martin, Northrop Grumman, and ULA recommended that
the FAA require that safety-critical personnel comply with the Federal
Drug-Free Workplace requirements set forth in 14 CFR 120. These
commenters noted that the Federal Drug-Free Workplace requirements
apply to government contractors, but commercial operators are only
subject to company policy, which may not address the use of drugs and
alcohol. The FAA did not propose to require drug and alcohol testing
and finds that such a requirement would exceed the scope of

this rulemaking. The FAA may consider proposing such action in a future
rulemaking.
    The FAA received a comment from Blue Origin supporting the changes
to the safety-critical personnel qualifications requirements. In the
final rule, the FAA adopts Sec.  450.149 as proposed.
dd. Work Shift and Rest Requirements (Sec.  450.151)
    In the NPRM, the FAA proposed to combine the rest requirements of
Sec. Sec.  417.113(f) and 431.43(c)(4) into Sec.  450.151 (Work Shift
and Rest Requirements), which would require an applicant to document
and implement rest requirements that ensure safety-critical personnel
are physically and mentally capable of performing assigned tasks. These
requirements would apply to operations of all launch and reentry
vehicles and would allow operators flexibility to employ rest rules
that fit their particular operations. Section 450.151(b)(1) would
require an operator's rest rules to include the duration of each work
shift and the process for extending this shift, including the maximum
allowable length of any extension. An operator's rest rules would be
required to include the number of consecutive work shift days allowed
before rest is required. Section 450.151(b)(3) would also require an
operator's rest rules to include the minimum rest period required
between each work shift, including the period of rest required
immediately before the flight countdown work shift. Applicants would be
required to submit their rest rules during the license application. In
the final rule, the FAA adopts Sec.  450.151 as proposed.
    The FAA received seven comments on its proposed work shift and rest
requirements. Blue Origin, Rocket Lab, Virgin Galactic, and an
individual commenter agreed with FAA's proposed requirements permitting
greater flexibility in ensuring sufficient rest for safety-critical
personnel. Rocket Lab commented that the proposed approach would enable
operators to develop work shift and rest requirements that are
appropriate for the individual operating conditions, environment, and
mitigations that exist.
    Virgin Galactic requested the FAA provide further guidance of what
would satisfy proposed Sec.  450.151 beyond the example of Sec.
431.43(c)(4). Section 431.43(c)(4) or the crew rest requirements of
AFSPCMAN 91-710 are two possible, but not the only, means of compliance
with Sec.  450.151.
    ALPA opposed the performance-based approach to work shift and rest
requirements, stating that prescriptive duty limits were necessary to
reduce the likelihood of human error related to fatigue. ALPA indicated
the proposed rule made it possible for a commercial space operator ``to
set unrealistic crew rest requirements for cost management (doing more
with less) instead of safety.'' ALPA recommended the FAA adopt the rest
rules contained in Sec.  437.51.
    The FAA elected a performance-based requirement over a prescriptive
one akin to Sec.  437.51 in order to allow operators to develop
requirements that are suited to their particular operations. In
addition, prescriptive requirements fail to account for the various
factors that can affect crew rest, such as the time of day of an
operation, length of pre-flight operations, and travel to and from the
launch or reentry site. The performance-based requirement set forth in
Sec.  450.151 allows operators to take into account such factors
affecting crew rest and adopt mitigations and procedures unique to each
launch operation. The FAA also disagrees that Sec.  450.151 will enable
operators to set unrealistic crew rest requirements in the interest of
cutting costs. Although operators can develop rest rules that fit their
operations, operators must demonstrate in their application that their
rest rules ensure safety-critical personnel are physically and mentally
capable of performing assigned tasks. The FAA will evaluate the rest
rules during review of the license application, and, if accepted, they
will become part of the license. The FAA finds that no change to the
proposed regulation is warranted.
    ALPA and Blue Origin stated the commercial space operator should be
responsible for monitoring compliance with work shift and rest
requirements. Blue Origin noted the companies should be responsible for
monitoring compliance after the FAA accepts an operator's rules through
the application and approval process. Rocket Lab commented that a
specific requirement for operators to monitor compliance with work
shift and rest requirements was unnecessary as the regulation
explicitly required that the rest rules implemented ensure safety-
critical personnel are physically and mentally capable of performing
all assigned tasks.
    Operators are expected to monitor compliance with their approved
crew rest rules so that personnel are fit to perform safety-critical
tasks and to provide records of compliance with those rules, as
required by Sec.  450.219(a), where requested by the FAA. The FAA finds
that a specific requirement for operators to monitor compliance with
work shift and rest requirements is unnecessary. The rest requirements
in Sec.  450.151(b) ensure safety-critical personnel are physically and
mentally capable of performing all tasks. It is up to the company to
monitor compliance with its work shift and rest rules to ensure
personnel are mentally and physically capable of performing safety-
critical tasks. An operator must comply with the rest rules accepted by
the FAA as part of the license because it must comply with the
representations in its application. Therefore, even absent an express
requirement, an operator must monitor compliance with its rest rules in
order to ensure that the objectives of Sec.  450.151 are met and that
the operator does not act contrary to its application.
    Blue Origin asked the FAA to clarify the time period to which the
rest rules apply in finalizing the rest requirements and the scope of
license rule (Sec.  450.3). Blue Origin suggested the rest requirements
should only apply during the period an action could present a distinct
impact to safety, akin to how NASA closely monitors astronauts' rest/
work periods but does not mandate crew rest requirements for aerospace
employees in manufacturing plants or NASA mission control staff.
    Although the FAA declines to limit the scope of Sec.  450.151 as
Blue Origin recommends, the FAA clarifies that Sec.  450.151 is
intended to ensure safety-critical personnel are prepared to perform
tasks that have an inherent impact on public safety. Operators must
document and implement rest rules to ensure that safety-critical
personnel have received adequate rest before they perform any safety-
critical task. Operators would not be able to ensure that personnel are
physically and mentally prepared to perform safety-critical tasks if
the rest rules set forth in Sec.  450.151 applied only during
activities that could distinctly affect safety (i.e., during safety-
critical tasks). For example, the rest rules apply to safety-critical
tasks such as end to end testing and safety-critical hardware
installation that may occur before hazardous pre-flight operations
trigger the start of launch. Operators must therefore comply with Sec.
450.151 for the duration of their license. The regulation is flexible
enough that an operator can develop rules that treat different parts of
launch activity differently. The FAA finds that no change to the
regulation is warranted.
    Blue Origin suggested removing the definition of ``vehicle safety
operations personnel,'' as it has caused confusion in the industry. The
FAA agrees and does not adopt the definition.
    Boeing, Lockheed Martin, Northrop Grumman, and ULA asserted the

requirements proposed in Sec.  450.151(b) reflect a relaxation of work
rule standards compared to the current FAA and range policies. They
further noted other DOT-regulated industries have explicit rest
criteria and recommended that the FAA publish the acceptable criteria
rather than having operators negotiate the hours deemed safe.
    The requirements proposed in Sec.  450.151(b) are not a relaxation
of work rule standards compared to current FAA and range policies
because, as previously stated, two of the ways an operator can show
compliance with Sec.  450.151 are to meet current FAA rules (Sec.
431.43(c)(4)) or AFSPCMAN 91-710, and the FAA retains oversight to
determine that an operator's rules achieve the standard.
    As previously stated, the FAA will issue an AC on a means of
compliance for Sec.  450.151. The crew rest requirements previously set
forth in part 431 and the current crew rest requirements in AFSPCMAN
91-710 will satisfy Sec.  450.151.
ee. Radio Frequency (Sec.  450.153)
    In the NPRM, the FAA proposed that, for any radio frequency used,
an operator would be required to: (1) Identify each frequency, all
allowable frequency tolerances, and each frequency's intended use,
operating power, and source; (2) provide for the monitoring of
frequency usage and enforcement of frequency allocations; and (3)
coordinate use of radio frequencies with any site operator and local
and Federal authorities. Proposed Sec.  450.153(b) contained
application requirements and required an applicant to submit procedures
or other means to demonstrate compliance with the radio frequency
requirements.
    Blue Origin, SpaceX, and Sierra Nevada commented the proposed
requirements were duplicative of Federal Communications Commission
(FCC) licensing requirements and, according to Blue Origin, were an
unnecessary burden on operators. Blue Origin explained that operators
coordinate frequency management through the FCC licensing process,
which is robust in its technical review of transmitter capabilities.
Blue Origin also noted FCC licenses are public information that the FAA
can verify. Sierra Nevada suggested the regulation should either
require only that the applicant demonstrate it has coordinated with the
FCC or be omitted altogether.
    The FAA agrees that the proposed requirements in Sec.
450.153(a)(1) and (a)(2) are duplicative of FCC requirements for
radiating systems and overly burdensome. The FCC requires in Section
308(b) of the Communications Act of 1934, as amended, all the items in
proposed Sec.  450.153(a)(1) and (a)(2) as part of an FCC license for
radiating systems that an operator must obtain to operate radiating
equipment as part of a launch. The purpose of radio frequency
management, as stated in the NPRM,\172\ is to mitigate hazards
associated with radio frequency usage including interference that could
adversely affect the FSS or any safety-critical system of a vehicle,
including RLVs and reentry vehicles. The intent of proposed Sec.
450.153 (a)(1) and (a)(2) was to ensure radio transmissions would not
interfere with commanded flight termination systems and would be
compatible with the receiving system on the vehicle. The FAA finds that
operators can identify and mitigate hazards affecting FSS or safety-
critical systems effectively without duplicating information required
by the FCC. In the final rule, the FAA amends Sec.  450.153(a) by
replacing (a)(1) and (a)(2) with the performance-based objective
central to Sec.  450.153 that requires operators to ensure radio
frequency interference does not adversely affect performance of any FSS
or safety-critical system. Proposed Sec.  450.153(a)(3) is re-
designated as (a)(2) and continues to require operators to coordinate
use of radio frequencies with any site operator and any local and
Federal authorities, including any State, tribal, or territorial
authorities.
---------------------------------------------------------------------------

    \172\ 84 FR 15334, footnote 98.
---------------------------------------------------------------------------

    Blue Origin commented that proposed Sec.  450.153 added to the
burden previously placed on operators under part 431, which ought to be
included in the FAA's cost analysis. Blue Origin explained an applicant
would be required to submit to FAA the substantive content of a
frequency management plan and submit procedures to demonstrate
compliance with that plan. Blue Origin pointed out that under part 431,
the FAA did not require operators to prove they acquired FCC licenses
for a mission or that they coordinated the use of radio frequencies.
    As previously explained, the FAA has removed the duplicative
provisions from Sec.  450.153, which would have amounted to a greater
burden on operators than has previously been required under part 431.
As such, in the final rule, Sec.  450.153 requires no more of operators
than what part 431 required for analysis of hazards associated with
licensed activities, creating no additional cost to operators.
    Blue Origin recommended proposed Sec.  450.153 be removed since
applicants were already required to address and mitigate hazards
associated with frequency coordination or radiation exposure or power
limits as part of their hazard analysis. Blue Origin added that, for
launches at Federal launch or reentry sites, proposed Sec.  450.153
would duplicate much of the information submitted to the Federal site,
whose frequency management office typically works with range scheduling
to regulate radiation and power limits to prevent exceeding radiation
exposure and power limits while on the pad and harming the vehicle or
payload. For operations that do not occur on Federal sites, Blue Origin
indicated an operator would proceed as under the current part 431 by
identifying hazards and mitigation measures required to meet the public
safety limits. According to Blue Origin, operators should incorporate
hazards associated with this issue in their hazard analysis, including
identifying mitigation issues.
    The FAA disagrees that Sec.  450.153 is unnecessary or duplicative
of hazard analysis requirements. As stated in the NPRM, the FAA has
determined that the public safety risks posed by radio frequency
interference warrant specific attention apart from the general
requirement that operators identify and mitigate hazards associated
with licensed activity. To the extent Federal launch or reentry site
procedures provide for coordination of radio frequencies used, an
operator may rely on those procedures to demonstrate compliance with
Sec.  450.153. The FAA does not prescribe the manner in which an
operator ensures that radio frequency interference does not adversely
affect a vehicle's FSS or any safety-critical system. The FAA merely
requires that operators set forth in their applications a means of
complying with Sec.  450.153 so that the FAA can ensure that radio
interference issues are appropriately addressed.
    In an effort to streamline radio frequency requirements, SpaceX
recommended the FAA revise proposed Sec.  450.153(a)(2) to require that
operators ensure frequency utilization according to frequency
authorization parameters. SpaceX also recommended the FAA revise
proposed Sec.  450.153(b) to require coordination with site operators
and local and Federal authorities only for launches that do not occur
on a Federal launch or reentry site with existing radio frequency
policies and procedures.
    The FAA disagrees that any frequency authorization parameters
issued by the FCC, which are geared toward managing

frequency use and operation, would be sufficient to assess hazards to
public safety posed by radio frequency interference, which are properly
within the FAA's purview. As previously discussed, the FAA has removed
the prescriptive requirements that it deemed duplicative of FCC
requirements in proposed Sec.  450.153(a) and replaces them with a
central performance-based objective. The FAA declines to accept
SpaceX's suggestion to amend Sec.  450.153(b). The coordination
required by Sec.  450.153(b) allows an operator to operate a command
transmitter at a frequency and power that ensures a flight termination
system signal can be successfully transmitted, and thereby prevent
harmful radio interference, in the interest of public safety. The FAA
declines to remove the requirement that all operators coordinate use of
radio frequencies with any site operator and local and Federal
authorities in order to protect the public and public property, because
such coordination is necessary to prevent radio interference that could
affect public safety. Users of Federal launch or reentry sites may use
Federal site procedures for radio frequency to demonstrate compliance
with Sec.  450.153.
    Virgin Galactic asked if an operator could contract a third party
to meet the frequency management requirements.
    The FAA does not prescribe the means by which an operator complies
with Sec.  450.153. An operator could therefore enter into an agreement
in accordance with Sec.  450.147 to have a third party, such as a
spaceport or Federal launch or reentry site, satisfy the radio
frequency management requirements contained in Sec.  450.153.
    As noted, the FAA adopts Sec.  450.153 (Radio Frequency Management)
with revisions. The FAA replaces paragraphs (a)(1) and (a)(2) with
performance-based objectives central to radio frequency management.
Operators will be required to ensure that radio frequency does not
adversely affect the performance of FSS or safety-critical systems and
to coordinate use of radio frequencies with any site operator and local
and Federal authorities.
ff. Readiness and Rehearsals (Sec.  450.155)
    In the NPRM, the FAA proposed an operator would be required to
document and implement procedures to assess readiness to proceed with
the flight of a launch or reentry vehicle. As part of the application
requirements, proposed Sec.  450.155(b)(2) would require an applicant
to describe the criteria for establishing readiness to proceed with the
flight of a launch or reentry vehicle.
    Rocket Lab expressed support for the proposed requirements as
reducing the risk of unintended consequences that resulted from
stringent time requirements. SpaceX recommended that the FAA clarify
its intent for flight commit criteria in proposed Sec.  450.155(b)(2)
to ensure that mission success is not a factor by having applicants
describe the criteria ``to ensure public safety'' for establishing
readiness to proceed with the flight of a launch or reentry vehicle.
    The FAA agrees that a change to the proposed regulatory language
would clarify the scope of the requirement. Therefore, the FAA revises
Sec.  450.155(b)(2) by adding the phrase ``so that public safety is
maintained'' to the end of the paragraph. The FAA did not adopt the
language recommended by SpaceX because the requirement calls for
criteria that establish readiness to proceed with flight or reentry
while ensuring public safety. The FAA's revision maintains the emphasis
on developing criteria to determine readiness to proceed with launch or
reentry, and clarifies that the operator need only identify those
criteria that affect public safety.
gg. Communications (Sec.  450.157)
    In the NPRM, the FAA proposed to preserve the substantive
communications requirements from parts 417 and 431 but eliminate the
requirement to implement a communications plan. Proposed Sec.
450.157(a) would require an operator to define the authority of
personnel to issue ``hold/resume,'' ``go/no go,'' and abort commands,
assign communication networks so those personnel have direct access to
real-time safety-critical information, ensure those personnel monitor
each common intercom channel during countdown and flight, and implement
a protocol for using defined radio telephone communications
terminology. Proposed Sec.  450.157(c) would also require an operator
during each countdown to record all safety-critical communications
network channels that are used for voice, video, or data transmissions
to support safety-critical systems. This requirement is substantially
the same requirement in Sec. Sec.  417.111(l)(5)(vii) and 431.41. In
the final rule, with the exception of proposed Sec.  450.157(a)(3) as
discussed later in this preamble section, the FAA adopts Sec.  450.157
as proposed.
    As explained in the NPRM, operators would not need to submit their
communication procedures during the application process as those
procedures generally are not mature at that time. The FAA will verify
compliance with Sec.  450.157 during inspections.\173\ The inspections
will be consistent with current practice, in which FAA inspectors often
review the operator's final communications procedures. Given that
operators do not need to demonstrate compliance with Sec.  450.157 at
the application stage, operators may be required to revise their
communication procedures to resolve issues identified during compliance
monitoring.
---------------------------------------------------------------------------

    \173\ 84 FR 15337.
---------------------------------------------------------------------------

    The FAA received three comments addressing the communications
requirements proposed in Sec.  450.157. AAAE recommended the FAA
require procedures and protocols on how the operator would communicate
with contingency or alternative landing sites, and emergency
responders. AAAE also suggested the FAA consider providing these same
stakeholders with the ability to monitor countdown and communications
channels, just as operators would be required to provide the FAA with
such access under proposed Sec.  450.209.
    The FAA finds no additional requirements are necessary, as the
accident investigation and agreement requirements address AAAE's
concerns. Operators must include emergency response procedures in their
mishap plans pursuant to Sec.  450.173, which could, in many instances
include communication procedures with emergency response service
providers. In addition, operators must enter into and implement any
necessary agreements with local authorities and emergency response
services, such as first responders. Any other stakeholder, such as a
contingency abort site, may request to monitor channels as part of its
agreement with the operator, but the FAA does not find it necessary for
safety to mandate this type of monitoring in all situations.
    Sierra Nevada commented that the requirement to monitor each common
intercom channel is excessive and would decrease the safety of an
operation. It noted that, for operators with multiple channels (e.g.,
more than 10), monitoring each channel would serve to decrease the
overall situational awareness of the controller. Sierra Nevada
recommended the FAA revise proposed Sec.  450.157(a)(3) to require that
personnel monitor only the applicable intercom channels during
countdown and flight.
    The FAA agrees with Sierra Nevada's recommendation and removes
Sec.  450.157(a)(3). The persons responsible for the launch need to
maintain situational awareness and have all

safety-critical information in order to make decisions that affect
public safety. In cases in which there are multiple channels, all
channels do not have to be monitored at the same time. It is common
practice to turn down or turn off channels in order to listen to a
channel that has critical information. Each person identified in
paragraph (a)(1) of this section is not required to listen actively at
all times. Operator personnel other than those listed in (a)(1) may
listen to channels as necessary to relay critical information to the
personnel listed in (a)(1).
    Boeing, Lockheed Martin, Northrop Grumman, and ULA recommended the
FAA qualify the requirement to record safety-critical communications
channels in Sec.  450.157(c) as ``subject to records retention
requirements of Sec.  450.219.'' The FAA agrees that an operator must
record all safety-critical channels and retain them for the time
periods specified in Sec.  450.219, but does not agree that a change to
the regulatory text is necessary.
hh. Pre-Flight Procedures (Sec.  450.159)
    In the NPRM, the FAA proposed to streamline countdown procedures
and requirements. Specifically, the FAA proposed not to include in part
450 the requirements for safety directives or safety notebooks in Sec.
431.37(a)(2) and for a countdown plan in Sec.  417.111(l), as well as
the requirement to file such plans, because there are many methods of
documenting pre-flight procedures that do not involve a plan or
notebook. In addition, the FAA proposed a performance-based requirement
in which an operator who needs to implement pre-flight procedures would
verify that all flight commit criteria are satisfied before flight and
ensure the operator is capable of returning the vehicle to a safe state
after a countdown abort or delay. In the final rule, the FAA adopts
Sec.  450.159 (Pre-flight Procedures) as proposed.
    Virgin Galactic commented that, if the FAA knows which events must
take place as a part of a countdown, it should require them in proposed
Sec.  450.159(a)(1). Virgin Galactic recommended the FAA require
operators to identify the sequence of events that must take place to
initiate flight in order to verify that flight commit criteria are
satisfied.
    Flight commit criteria involve much more than the launch sequence
of events, including interdependent conditions such as meteorological
conditions, lightning protection equipment measurements, and status of
safety system components. Therefore, the requirements of Sec.  450.159
cannot be satisfied by merely having operators identify the launch
sequence of events. Furthermore, the FAA does not think a prescriptive
requirement listing which events must take place as part of a countdown
is necessary to ensure safety. Rather, this section takes a performance
based approach that focuses more comprehensively on verification of
flight commit criteria and the operator's ability to ensure that it can
return the vehicle to a safe state after a countdown abort or delay.
The FAA notes that the requirements for the flight commit criteria
itself are clearly provided in Sec.  450.165(b).
ii. Control of Hazard Areas (Sec.  450.161)
    In the NPRM, the FAA proposed that an operator would be required to
publicize, survey, and evacuate each flight hazard area before
initiating flight or reentry to the extent necessary to ensure
compliance with proposed Sec.  450.101. Proposed Sec.  450.161(a) did
not change the need for surveillance relative to the current
requirements in parts 417 and 431 \174\ for people on land or aircraft
because an operator must continue to ensure all regions where any
individual member of the public would be exposed to more than 1 x
10-\6\ PC (probability of casualty) are
evacuated. However, the FAA proposed to revise the requirement to
evacuate and monitor areas where a waterborne vessel would be exposed
to greater than 1 x 10-\5\ PI (probability of
impact) currently required by Appendix B to part 417 under B417.5(a).
The NPRM allowed an operator to include people in waterborne vessels in
collective risk computations, rather than clearing a waterborne vessel
from a hazard area because the vessel is exposed to 1 x
10-\5\ PI. The NPRM proposal to include people on
ships in the collective risk computation in Sec.  450.101(a)(1) and
(b)(1) would allow the application of risk management principles to
protect people on waterborne vessels. In the final rule, the FAA adopts
Sec.  450.161 with revisions. It updates Sec.  450.161 to be consistent
with the language in flight hazard area analysis section, Sec.
450.133, and adds an application requirement for a description of how
the applicant will provide for any publication of flight hazard areas.
---------------------------------------------------------------------------

    \174\ Part 417 requirements for establishing and surveying
hazard areas for ELVs are found in Sec. Sec.  417.205, 417.223, and
part 417 appendix B. Part 431 does not set explicit requirements for
surveillance but both Sec. Sec.  417.107(b)(2) and 431.35(b)(1)(ii)
require that an operator ensure all members of the public are
cleared of all regions, whether land, sea, or air, where an
individual would be exposed to more than 1 x 10-\6\ PC.
---------------------------------------------------------------------------

    The FAA changes the title of this section from ``Surveillance and
Publication of Hazard Areas'' to ``Control of Hazard Areas'' to
describe the contents of this section fully, as the requirements cover
more than surveillance and publication. The FAA also changed the
proposed wording in Sec.  450.161(a) from ``publicize, survey, and
evacuate'' to ``survey, publicize, control or evacuate'' to match the
language in Sec.  450.133(a), which describes flight hazard area
analysis. The term ``control'' is used to describe the overall
management of hazard areas, including control of entry and exit points
such as roadblocks and security checkpoints. The FAA also adds language
in Sec.  450.161(a) that references the flight hazard area requirements
in Sec.  450.133, which requires an applicant to identify the flight
hazard areas it needs to control.
    The FAA notes that the requirements in Sec.  450.161 are consistent
with the recommendations made by the National Academy of Sciences
National Research Council.\175\ An applicant could apply conservative
estimates of the ship traffic and vulnerability to demonstrate
acceptable public risks. However, as explained in the NPRM, the
operators still have the option to use the current approach in part
417, where surveillance is required to ensure no ship is exposed to
more than 1 x 10-\5\ PI, because that would be
sufficient to ensure compliance with Sec.  450.101.
---------------------------------------------------------------------------

    \175\ In 2001, the National Research Council published a report
on ``Streamlining Space Launch Range Safety,'' which included a
recommendation that ``safety procedures based on risk avoidance
should be replaced with procedures consistent with the risk
management philosophy specified by EWR 127-1.'' See p. 44 of IBSN 0-
309-51648-X available at http://www.nap.edu/catalog/9790.html.
---------------------------------------------------------------------------

    Boeing, Lockheed Martin, Northrop Grumman, and ULA proposed that
the phrase ``unless otherwise assigned through agreement with a launch
or reentry facility'' be added to proposed Sec.  450.161(a) for
clarification. Virgin Galactic also recommended that this requirement
be handled through Letters of Agreement. Although the operator may
contract with another party for the provision of services to meet this
requirement, the licensee remains responsible for complying with the
requirement. As such, the FAA does not agree that this recommended
addition is necessary.
    SpinLaunch commented that the goals of the NOTAM required under
proposed Sec.  450.161 can be addressed through area designations on
Sectional Aeronautical Charts, controlled airspace designation, and
coordination with Air Traffic Control. The FAA is responsible for the

management of the NAS and establishes the regulations, processes, and
procedures for restricting airspace including airspace restrictions for
commercial space activity. Under Sec.  450.147, when an operator enters
into a letter of agreement with the FAA, the airspace needed to
accomplish the proposed operation safely is notionally identified and
air traffic control coordination procedures are established
accordingly. The FAA did not propose changes to airspace management
regulations or processes, so SpinLaunch's comment is beyond the scope
of this rulemaking.
    AOPA commented that airspace hazard volumes are not communicated in
a standardized manner today, nor are pilots educated on what to do with
this information. AOPA further commented that a publicly accessible,
authoritative source for launch information would greatly increase
awareness and mitigate adverse impacts caused by short notice
announcements of launches. The commenter also suggested that
prospective users of the system should be part of this capability's
development process.
    As discussed more fully in the preamble section associated with
Flight Hazard Area Analysis, the FAA finds that the issue raised by
AOPA is best addressed by the NOTAM/AIM Modernization effort rather
than this rulemaking.
    Boeing commented that, currently, not all areas that are publicized
are also surveyed, controlled, and evacuated. Boeing stated that the
need to survey and evacuate should be scalable and dependent upon the
risk magnitude and area, remoteness of the hazard areas, capabilities
for monitoring, and overall risk/benefit tradeoff. The FAA does not
believe a change to the proposed rule is necessary to address these
concerns. The requirement to survey, publicize, control, and evacuate
each flight hazard area is scalable, as these measures are required
``to the extent necessary to ensure compliance with Sec.  450.101.''
This reference to Sec.  450.101 means that the need to control the
hazard areas is dependent on the public risk criteria, as well as the
inputs and assumptions used in the FSA.
    Sierra Nevada commented that Sec.  450.161 would be an increase in
regulatory burden due to surveillance over a large area being cost-
prohibitive and nearly impossible to implement for smaller companies.
Sierra Nevada recommended that operators only be required to ensure
NOTAMs and Notices to Mariners are in place prior to operation, and
should not bear consequences if the public breaches those areas. Sierra
Nevada also asked how an operator could reasonably survey an aircraft
hazard area over a large area of ocean.
    The FAA disagrees with this comment and notes that this requirement
codifies current practice. The FAA further notes that the only change
to current practice--the inclusion of people on ships in collective
risk--actually decreases regulatory burden for waterborne vessel hazard
areas. An operator is no longer required to evacuate and monitor areas
where a waterborne vessel would be exposed to greater than 1 x
10-\5\ PI. In issuing its first waiver of the
existing requirement in Sec.  417.107(b)(3),\176\ the FAA explained
that successful application of the public risk management for the
protection of people in waterborne vessels has the potential for
reducing launch costs by reducing delays due to ship traffic in warning
areas while maintaining a high level of public safety. For example,
prior to the waiver of Sec.  417.107(b)(3), a launch from Cape
Canaveral Air Force Station was delayed, in order to meet the
requirements of Sec.  417.107(b)(3), by the presence of a tug boat
towing a large barge inside the ship hazard area. The final rule
addresses Sierra Nevada's concerns regarding surveillance of a large
portion of ocean by including people on ships in the collective risk
criterion. Furthermore, the FAA notes that this requirement could be
met a number of ways, including through an operator agreement with a
Federal launch or reentry site or the FAA.
---------------------------------------------------------------------------

    \176\ See Waivers of Ship Protection Probability of Impact
Requirement, 81 FR 28930 (May 10, 2016).
---------------------------------------------------------------------------

    Virgin Galactic asked whether it is necessary to require an
operator to meet the EC criteria if the operator is using a
flight hazard area, thus ensuring no member of the public is in the
area. The FAA addressed this issue during the public comment period in
``Responses to the Public's Clarifying Questions Received by July 12,
2019.'' An EC analysis is still required even if launch
hazards are contained over regions of land, sea, or air that are
completely void of members of the public because the systems necessary
to achieve such containment, such as an FSS, may fail. If an FSS fails,
debris may fall outside of hazard areas where members of the public are
present. The EC analysis ensures that the potential failure
of those systems is accounted for when calculating risk to the public.
    In the NPRM, proposed Sec.  450.161(b) would have required an
operator to perform surveillance sufficient to verify or update the
assumptions, input data, and results of the FSA. The NPRM preamble
stated that, given that there are numerous assumptions and input data
that are critical to the validity of the FSA, this requirement could
have a variety of surveillance implications beyond the surveillance
necessary to ensure the public exposure at the time of the operation is
consistent with the assumptions and input data for the FSA. As
described in the NPRM preamble, an example would be that an FSA could
assume that a jettisoned stage remains intact to impact or breaks up
into pieces that are not all capable of causing casualties to people on
the ground but could still be capable of causing casualties to people
in a particularly vulnerable class of aircraft, such as helicopters.
    In the final rule, the FAA maintains the requirement that an
operator employ some type of surveillance (e.g., telemetry data, or
remote sensors such as a camera or radar) to verify that the jettisoned
stage behaves in a manner consistent with the FSA if that behavior is
germane to the size of the aircraft hazard area. The FAA clarifies that
if an FSA includes conservative assumptions and inputs, or a
sensitivity analysis to demonstrate that the assumptions regarding
break-up of a jettisoned stage are not germane to the size of the
aircraft hazard area, the operator will only be required under Sec.
450.161(b) to demonstrate surveillance sufficient to verify the
accuracy of the FSA. If the assumptions and inputs are sufficiently
conservative, this contingency could mean an operator does not need to
employ surveillance at all.
    Blue Origin provided suggested text for Sec.  450.161(b) related to
vehicle tracking rather than surveillance. The FAA declines to adopt
this change because vehicle tracking requirements in Sec.  450.167
(Tracking) are distinct from the requirement to surveil the flight
hazard areas in Sec.  450.161. The requirements and comments regarding
vehicle tracking are discussed in the preamble section associated with
Sec.  450.167.
    CSF, Sierra Nevada, and SpaceX also commented that if a member of
the public or another Federal agency chooses to breach a hazard area
and put itself at risk, the operator should not bear the consequences.
Many commenters identified this possibility as a problem in the case of
a hazard area violation that occurs after the decision to commit to a
reentry.
    The FAA understands the unique challenges of reentry operations
with respect to the control of hazard areas because of the long time
lag between the commitment to reenter and the planned or potential
unplanned vehicle presence

in a hazard area. The FAA will work with operators during the license
application process in applying this requirement to ensure verification
procedures protect the public adequately for each unique operation.
    In the NPRM, proposed Sec.  450.161(c) would require an applicant
to publicize warnings for each flight hazard area, except for regions
of land, sea, or air under the control of the vehicle or site operator
or other entity by agreement. If the operator relies on another entity
to publicize these warnings, the proposed rule required the operator to
verify that the warnings have been issued. CSF and SpaceX commented
that operators would have very little ability to ensure and enforce
closures when launching from a Federal launch or reentry site or if the
hazard area falls within a foreign country's airspace.
    The FAA agrees with these comments. To address this issue, the FAA
changes the language in proposed Sec.  450.161(c) from ``verify that
the warnings have been issued'' to ``determine whether the warnings
have been issued'' in Sec.  450.161(c)(1) in the final rule. The FAA
recognizes that an operator would be unable to meet the proposed
regulation to verify the warnings have been issued if the foreign Air
Navigation Service Provider (ANSP) fails to publicize the warnings. The
FAA also adds in Sec.  450.161(c)(2) of the final rule that the
operator must notify the FAA if the warnings have not been issued so
that the FAA can determine if the launch or reentry can be conducted in
a manner that protects the public sufficiently, and that this
notification must provide sufficient information to enable the FAA to
issue warnings to U.S. aircraft. An involved party could determine
whether the warnings have been issued pursuant to the agreements the
operator has with, for example, a Federal launch or reentry site or a
foreign government. In cases in which a foreign ANSP does not issue the
warnings in a timely manner, the operator must notify the FAA in
accordance with a means of compliance accepted by the FAA. The means of
compliance will describe information that the operators should
communicate to the FAA to (1) show due diligence in the fulfillment of
their requirements in accordance with agreements in place, and (2)
enable FAA to issue warnings to U.S. aircraft. The FAA finds that the
final rule requirement in Sec.  450.161(c)(2) is responsive to the
comment that operators have very little ability to enforce closures
when launching from a Federal launch or reentry site or if the hazard
area falls within a foreign country's airspace.
    The FAA proposed in Sec.  450.161(d)(1) that an applicant must
submit a description of how the applicant will provide for day-of-
flight surveillance of flight hazard areas, if necessary, to ensure
that the presence of any member of the public in or near a flight
hazard area is consistent with flight commit criteria developed for
each launch or reentry as required by Sec.  450.165(b). In the final
rule, the FAA adds in Sec.  450.161(d)(1) that the applicant must also
provide for day-of-flight control of flight hazard areas. The FAA notes
that the nature of any surveillance (in terms of extent and frequency)
necessary to ensure conditions consistent with flight commit criteria
is naturally linked to the level of control an operator can exercise to
limit access to a flight hazard area.
    In Sec.  450.161(d)(2), the FAA adds as an application requirement
that the applicant must submit a description of how they will provide
for any publication of flight hazard areas necessary to meet the
requirements of Sec.  450.161(c). This application requirement is
necessary for the FAA to evaluate compliance with the requirements of
Sec.  450.161(c), including verifying whether the warnings have been
issued.
jj. Lightning Hazard Mitigation (Sec.  450.163)
    In the NPRM, the FAA proposed to require operators to mitigate
natural and triggered lightning by (1) implementing flight commit
criteria that avoid and mitigate the potential for intercepting or
initiating lightning strike or encountering discharge; (2) using a
vehicle designed to continue safe flight if struck by lightning or
encountering a nearby discharge; or (3) ensuring satisfaction of the
safety criteria set forth in proposed Sec.  450.101 in the event of a
lightning strike on the vehicle.
    In the final rule, the FAA adopts Sec.  450.163 (Lightning Hazard
Mitigation) with modification. It revises Sec.  450.163 to remove
paragraphs (a)(3) and (b)(3). It adds the modifier ``direct'' to
``lightning strike'' in paragraph (a)(1), to match the application
requirement in paragraph (b)(1). The FAA also modifies Sec.
450.163(a)(2) in response to a comment as described below.
    Blue Origin commented that proposed Sec.  450.163(a)(3) diverged
from the preamble to Sec.  450.163 and the rest of the proposed rule,
which clearly convey that satisfaction of the safety criteria in
proposed Sec.  450.101 was not optional. An operator would be required
to satisfy proposed Sec.  450.101 regardless of whether it chooses to
implement flight commit criteria or utilize a lightning-resistant
vehicle.
    The FAA agrees with Blue Origin's comment and revises Sec.
450.163(a) by removing proposed Sec.  450.163(a)(3). Proposed Sec.
450.163(a)(3) was intended to cover an operator's use of physical
containment as a hazard control strategy when damage to a vehicle
caused by a lightning strike would not impact the safety of the launch.
The FAA has found this section to be unnecessary because lightning
would not be a concern for an operator using physical containment as a
hazard control strategy since, by definition, the launch vehicle does
not have sufficient energy for any hazards associated with its flight
to reach outside the flight hazard area.
    Blue Origin requested that the FAA define ``continue safe flight''
in proposed Sec.  450.163(a)(2). In response, the FAA modifies Sec.
450.163(a)(2) to require the operator to use a vehicle designed to
protect safety-critical systems in the event of a direct lightning
strike or nearby discharge. Thus, the final rule requirement in Sec.
450.163(a)(2) mirrors the proposed application requirement in Sec.
450.163(b)(2) to submit documentation providing evidence that the
vehicle is designed to protect safety-critical systems against the
effects of a direct lightning strike or nearby discharge.
    Virgin Galactic expressed concern for the amount of time it would
take operators to redesign their vehicles to satisfy proposed Sec.
450.163(a)(2) and asked that the FAA ``grandfather'' currently licensed
operators out of this requirement. The FAA notes that Sec.  450.163(a)
provides two ways for an operator to mitigate natural and triggered
lightning and does not mandate a lightning-related design change. The
decision to pursue flight commit criteria versus a lightning-resistant
vehicle rests with the operator.
    The performance-based standards set forth in Sec.  450.163 will be
accompanied by AC 450.163-1 ``Lighting Hazard Mitigation'' in the
future, which will contain one, but not the only, acceptable means of
compliance for Sec.  450.163(a)(1). The AC will include references to
NASA-STD-4010, as well as relevant standards for the design of a
vehicle to withstand the direct and indirect effects of a lightning
discharge. Commenters largely supported this approach. Blue Origin
noted that, while the Lightning Flight Commit Criteria adopted by the
FAA have successfully prevented lightning attachment to vehicles in the
past, operators may demonstrate that the avoidance criteria can be
satisfied with their specific mission profile and vehicle design.
Aerospace Corporation echoed support for enabling operators to

develop new methods and evaluations for lighting avoidance and
mitigation.
    Regarding proposed Sec.  450.163(a)(1), two commenters expressed
concern that the FAA, in adopting only NASA-STD-4010 as an accepted
means of compliance for now, may not accept unique means of compliance
in the future. The Aerospace Corporation and Weather Modification
International argued the FAA should adopt prelaunch in situ measurement
of electric fields as a means of demonstrating compliance with Sec.
450.163, noting that NASA-STD-4010 is imperfect because it relies
exclusively on observable ground data.
    The FAA considered using direct measurement of the electric field
within a cloud as an option for compliance with Sec.  450.163. However,
the ambient electrostatic field within and near electrified clouds can
vary rapidly in both space and time because of the charge separation
and redistribution processes inside and around the clouds, and because
lightning can rearrange this charge abruptly over distances of many
kilometers. Because no measuring technique today can be applied
everywhere simultaneously and it is difficult to prove that electric
field measurements taken near the flight path at an earlier time will
remain valid at the time of launch or landing, this option is not
viable on its own.
    The FAA agrees that the optimal standards for avoiding and
mitigating natural and triggered lightning may be achieved through
technological advancement in the future. Currently, NASA-STD-4010 is
the only standard of which the FAA is aware that will satisfy the
requirements of Sec.  450.163(a)(1). However, ongoing research efforts
could soon allow for modifications of the NASA's Lightning Launch
Commit Criteria, providing additional means of compliance. As stated in
the NPRM, the FAA anticipates that industry will develop and submit new
standards to the FAA to serve as unique means of compliance under Sec.
450.35(b).
    The FAA also acknowledges the suggestion of Weather Modification
International that the FAA take the lead in developing a definitive set
of lightning standards. The FAA has traditionally relied upon the
Lightning Advisory Panel, with its technical expertise in mitigating
lightning hazards, to develop lightning standards. The FAA relied upon
the lightning standards recommended by the Lightning Advisory Panel in
developing the lightning requirements in part 417. Given the
performance-based nature of this rule, the FAA is not prescribing a
particular standard for mitigating lightning hazards, but instead will
allow applicants to develop their own means of complying with Sec.
450.163. The FAA notes, however, that the means of compliance
identified, NASA-STD-4010, was developed by the Lightning Advisory
Panel, and thus, would achieve the same result that the commenter
requests.
    Blue Origin commented that, to the extent the FAA looks to aircraft
lightning protection standards (e.g., AC 20-136B, AC 20-107B) to
determine the appropriate industry standards applicable to Sec.
450.163(a)(2), the agency should adopt only those standards clearly
applicable to space vehicles. The commenter added that the use of SAE
recommended practices would create an undue burden on applicants since
the SAE protection rules apply to transport aircraft, which require a
much higher level of safety than that prescribed by part 450.
    The FAA agrees that only those aircraft standards which are
appropriate to apply to space vehicles should be used to assess
compliance with Sec.  450.163(a)(2).
kk. Flight Commit Criteria (Sec.  450.165)
    In the NPRM, the FAA proposed in Sec.  450.165 that an operator
establish and observe flight safety rules in order to initiate flight.
The proposed rule also required an operator to establish and observe
flight abort rules in order to end flight. Proposed Sec.  450.165 would
require that an operator's flight safety rules include flight commit
criteria identifying each condition necessary to satisfy proposed Sec.
450.101 prior to initiating flight. These flight commit criteria would
include: (1) Surveillance; (2) monitoring of meteorological conditions;
(3) implementing window closures for the purpose of collision
avoidance; (4) monitoring the status of any FSS; and (5) any other
hazard controls derived from system safety, computing system safety, or
FSA.
    In the final rule, the FAA adopts proposed Sec.  450.165 with
revisions. The FAA moves the flight abort rules proposed in Sec.
450.165(c) to Sec.  450.108. The discussion of the revisions related to
abort rules in proposed Sec.  450.165 is in the Flight Abort Rules
section of the preamble. The FAA combines proposed Sec.  450.165(a) and
(b) into a single paragraph (a) to reflect that this section now only
relates to flight commit criteria.
    In addition, the FAA adds a requirement that the flight commit
criteria must include confirmation from the FAA that the risk to
critical assets satisfies the requirements of Sec.  450.101(a)(4) or
(b)(4). This requirement is consistent with the changes to the critical
asset requirements discussed earlier in the preamble and ensures that a
flight is not initiated if it does not meet the risk criteria. The FAA
will work with the applicant to create a streamlined process to achieve
this confirmation. The FAA anticipates that it will generally be able
to provide this confirmation well before the actual flight countdown.
    Sierra Nevada commented that the use of the term ``surveillance''
may be broader than the FAA intended. The FAA discusses surveillance in
the preamble section for Control of Hazard Areas (Sec.  450.161).
ll. Tracking (Sec.  450.167)
    In the NPRM, the FAA proposed vehicle tracking requirements,
including that an operator would be required to measure and record in
real time the position and velocity of the vehicle. The system used to
track the vehicle would be required to provide data to determine the
actual impact locations of all stages and components, and to obtain
vehicle performance data for comparison with the pre-flight performance
predictions. The FAA intended the proposed requirements to capture
current practice. As explained in the NPRM, tracking data sufficient to
identify the location of any vehicle impacts following an unplanned
event are necessary to ensure a proper response to an emergency.\177\
---------------------------------------------------------------------------

    \177\ See 84 FR 15344.
---------------------------------------------------------------------------

    CSF, SpaceX, SpinLaunch, and Virgin Orbit commented that the
proposed language in Sec.  450.167(a) could be interpreted as tracking
stages and components all the way down to the earth or body of water.
CSF also sought clarity regarding the intent of the requirement to
``provide data to determine the actual impact locations of all stages
and components,'' and whether this requirement would mean that
operators must predict the expected impact locations or actual impact
locations. To clarify this point, CSF, SpaceX, and Virgin Orbit
suggested using the phrase ``predict the expected impact locations''
rather than ``determine the actual impact locations.'' The FAA concurs
and adopts the recommended change in the final rule. The change more
accurately reflects the intent of the requirement.
    Blue Origin commented that RCC 321 requirements to coordinate with
the FAA to ensure timely notification of any expected air traffic
hazard do not actually mention vehicle tracking, and that it may be
possible to provide

notification of traffic hazards without the need for tracking (such as
a straight up suborbital trajectory \178\).
---------------------------------------------------------------------------

    \178\ A straight up suborbital trajectory is a nearly vertical
suborbital trajectory. ``Suborbital trajectory'' is defined in Sec.
401.5 as the intentional flight path of a launch vehicle, reentry
vehicle, or any portion thereof, whose vacuum instantaneous impact
point does not leave the surface of the Earth.
---------------------------------------------------------------------------

    Tracking data is an important element of current practice used to
ensure the safety of people in aircraft. In the past, tracking vehicles
was inherently a part of flight abort and an important means to ensure
safety in the event of a mishap in which hazardous debris falls outside
of designated hazard areas. During launch or reentry operations that
lack the ability to inform the FAA rapidly of the volume and duration
of airspace for which an aircraft hazard is predicted following a
mishap, the FAA must close inordinately large regions of airspace to
provide a sufficient level of safety to aircraft flying in regions
where hazardous debris could fall in the event of a break-up. Although
RCC 321 does not call for tracking per se, the FAA finds tracking
essential to the safe and efficient integration of launch and reentry
operations into the NAS. For example, the Columbia accident in 2003
\179\ demonstrated that there is often a significant period of time
between a vehicle break-up and when hazardous debris reaches aircraft
altitudes. The time between vehicle break-up and when hazardous debris
reaches aircraft altitudes enables the FAA to close a minimum amount of
airspace while ensuring a high level of safety for aircraft flying in
regions where hazardous debris could fall in the event of a break-up.
As explained in the NPRM preamble, tracking data are generally
necessary to ensure a proper response to an emergency, facilitate
flight abort, obtain vehicle performance data for comparison with the
preflight performance predictions in accordance with Sec.  450.103(d),
and facilitate safe and efficient integration of launch and reentry
operations into the NAS. Therefore, the final rule is consistent with
the NPRM and current practice.
---------------------------------------------------------------------------

    \179\ See Report of Columbia Accident Investigation Board at
https://www.nasa.gov/columbia/home/CAIB_Vol1.html.
---------------------------------------------------------------------------

    CSF, Leo Aerospace, Microcosm, Sierra Nevada, and SpaceX commented
that the proposed language regarding tracking was too broad and would
seem to require an operator to track pieces of debris to impact during
an off-nominal event. As clarified by the FAA during the public comment
period in ``Answers to Clarifying Questions Received by June 28, 2019''
and ``Answers to Clarifying Questions Received by July 29, 2019,'' the
term ``all stages and components'' does not mean that all debris must
be tracked to the ground after a vehicle breakup.
    CSF and SpaceX suggested adding the word ``nominal'' to this
requirement when referring to flight tracking. The FAA declines to
adopt this change because it is important to track during off-nominal
trajectories as well, including during normal flight and for off-
trajectory malfunctions at least until flight abort is initiated or
vehicle break-up occurs. Tracking data can enable an appropriate
response to an off-nominal situation, such as where to evacuate the
public to protect against predicted toxic fumes or where to apply fire
suppression resources.
    Blue Origin, CSF, and SpaceX commented that real time telemetry is
often not possible for the entire mission, such as when a vehicle
passes over the horizon or during a reentry blackout period. The FAA
concurs with the commenters that real time telemetry is not always
possible. In the past, there were times during reentry that the
presence of plasma typically blocked vehicle-to-ground communications.
More recently, space-based tracking and communications have made it
feasible to overcome reentry plasma and over the horizon limitations.
However, the final rule does not require operators to use space-based
tracking and communications to meet Sec.  450.167 unless it is
necessary to protect public safety, safety of property, and national
security and foreign interests of the United States. The FAA does not
currently foresee any licensed launch or reentry activity that will
require the use of space-based tracking to protect public safety,
safety of property, and national security and foreign interests of the
United States. Furthermore, ``real time'' does not mean ``zero lag
time.'' The tracking must be sufficient to meet the requirements in
Sec.  450.167(a) to predict the expected impact locations and obtain
vehicle performance data for comparison with pre-flight predictions.
The FAA would not hold an operator accountable if there was some lag
for reasons outside of the operator's control. The FAA believes that
this leeway answers Blue Origin's recommendation that tracking
requirements be limited to phases of launch or reentry vehicle flight
identified in Sec.  450.113(a), since on-orbit tracking is not
practical.
mm. Launch and Reentry Collision Avoidance Analysis Requirements (Sec.
450.169)
    In the NPRM, the FAA proposed to update the information required
for launch collision avoidance (LCOLA) and expand the analysis
requirements to determine launch and reentry window closures, including
updated protections for human spaceflight and additional closures to
protect active payloads and prevent orbital debris generation. The FAA
proposed that all operators would be required to come into compliance
with the LCOLA requirements by the effective date of the rulemaking.
    In the final rule, the FAA adopts Sec.  450.169 with revisions. The
finalized LCOLA rules better align with the existing processes used at
Federal sites, provide adequate orbital safety measures for launch and
reentry operations, and incorporate updated options for collision
avoidance analysis. The FAA maintains that all operators must come into
compliance with the LCOLA requirements by the effective date of this
rule. The FAA adds the words ``are met'' to Sec.  450.169(b) to fix a
typographical error in the NPRM.
    For an orbital or suborbital launch or reentry, Sec.  450.169(a)
requires an operator to establish window closures needed to ensure that
the launch or reentry vehicle, any jettisoned components, or payloads,
meet the identified requirements with respect to orbiting objects, not
including objects being launched or reentered as part of the same
launch or reentry activity (e.g., dual manifested payloads). In
performing a launch or reentry collision avoidance analysis against
inhabitable objects, an operator may choose to stipulate an ellipsoidal
separation distance, a spherical separation distance, or satisfy the
probability of collision threshold (1 x 10-\6\). Collision
avoidance analyses must also account for other orbital objects, such as
spacecraft, and tracked debris. For these uninhabitable active objects,
operators must satisfy either a less restrictive probability of
collision threshold (1 x 10-\5\) or a spherical separation
distance of 25 km. As discussed more fully later, in response to
comments, the FAA revises Sec.  450.169(a)(3), which covers all other
known orbital debris, so that operators must maintain either a
spherical separation distance of 2.5 km or a less restrictive
probability of collision threshold (1 x 10-\5\) from orbital
debris that is medium or large in size (radar cross section greater
than 0.1m\2\), as identified by the FAA or another Federal Government
entity.
    The FAA also received a number of comments to proposed Sec.
450.169(d), which identified when LCOLA analysis would not be required.
This section was not a new requirement, but a consolidation of the
existing regulations, Sec.  417.231(d) and Appendix C to part 417 under
C417.11. As

proposed, an LCOLA analysis would not be required if the maximum
altitude attainable by a launch operator's suborbital launch vehicle
and any released debris is less than 150 km. The proposed requirement
stated that the maximum altitude attainable is an optimized trajectory,
assuming maximum performance within 99.7 percent confidence bounds,
extended through fuel exhaustion of each stage, to achieve a maximum
altitude.
    SpaceX opposed the requirement that LCOLA exclusions (launch and
reentry window closures) be based on fuel depletion trajectories or the
maximum attainable altitude of a launch vehicle. SpaceX commented that
both bases exceeded the scope of past requirements and requested that
LCOLA exclusions be based exclusively on the maximum performance case.
SpaceX also recommended the FAA delete proposed Sec.  450.169(d) due to
unclear technical or public safety benefits. Blue Origin recommended
that fuel exhaustion from each stage be excluded from proposed Sec.
450.169(d) because remaining fuel will always be required to land RLVs.
    The FAA disagrees with the recommendation to remove Sec.
450.169(d). The FAA notes that, without this subsection, operators
would need to conduct LCOLA analyses for all launches, regardless of
altitude. The FAA has determined that no LCOLA analysis is needed for
missions that do not exceed 150 km in altitude because orbital objects
below this level are exceedingly sparse and usually are not present for
long durations. Furthermore, launch operators currently do not provide
trajectories for stages or objects that do not exceed 150 km. As such,
it is appropriate to specify in the regulation when the LCOLA analysis
is not required.
    The FAA agrees, however, that the language proposed in Sec.
450.169(d) did not reflect current practice and could prove
impracticable. The requirement for accomplishing LCOLA for all objects
launched over 150 km was complicated by existing regulatory language on
maximum altitude calculations. LCOLA is accomplished using only the
nominal trajectory provided by the launch or reentry operator. No
screening is accomplished using maximum possible altitudes because
there is no planned trajectory to screen, and the FAA did not intend
for operators to develop alternate trajectories. Therefore, the FAA
revises Sec.  450.169(d) so that no LCOLA is required if the object's
maximum planned altitude is less than 150 km.
    Similarly, the FAA revises Sec.  450.169(b)(1) to require LCOLA
analysis only for the entire segment of flight of a suborbital launch
vehicle above 150 km. The FAA agrees with SpaceX's comment that
requiring operators to conduct LCOLA analyses below 150 km is
unnecessary and would prove burdensome. This revision is consistent
with the requirements for orbital vehicles and acknowledges that only
the portions of flight above 150 km are screened in either case.
    Virgin Galactic recommended that proposed Sec.  450.169(d) be
retitled, ``Applicability.'' SpaceX recommended the regulation refer to
a ``body'' or ``object,'' rather than ``suborbital'' or ``debris.'' The
FAA agrees with Virgin Galactic and SpaceX that these terms and the
title could be clearer and more consistent with current usage. The FAA
retitles Sec.  450.169(d) ``Exception,'' which more accurately
describes this subsection, and substitutes ``object'' in place of
suborbital vehicle in Sec.  450.169(d).
    Regarding requirements proposed in Sec.  450.169(a) and (b), the
FAA received numerous comments questioning the need for a 200 km keep-
away distance for human spaceflight and the absence of probability of
collision screening for debris. Numerous commenters also recommended a
narrower trajectory data requirement for suborbital launches.
    An individual commenter stated that a spherical separation distance
of 200 km from inhabitable objects, as set forth in proposed Sec.
450.169(a)(1)(ii) and (a)(1)(iii), may not be appropriate due to
advances in spaceflight systems such as autonomous flight termination
systems (AFTS) and autonomous flight systems (AFS). The commenter
recommended the FAA allow the 200-km limit to be tailored depending on
the reaction time of the flight termination system. The commenter also
suggested the 200-km limit could be tailored if the launch vehicle
contains a traffic collision avoidance system (TCAS) (akin to what
aircraft use to avoid planes) that can reasonably avoid nearby crewed
vehicles.
    The FAA disagrees that a spherical separation distance of less than
200 km is appropriate for inhabitable objects. No termination systems
are currently used in orbit, and termination systems are not likely to
be viable safety measures in orbit. The 200 km safety standoff distance
is only for orbital spaceflight protection; it is not a separation
standard for airspace integration. An orbital termination system would
increase the danger to human spaceflight and increase the orbital
debris population. Safety and efficiency must be accomplished with a
screening prior to launch. Launch vehicles do not have TCAS-like
operations and are not expected to acquire such capabilities.
    SpaceX asked the FAA to explain why Sec.  450.169(a)(3) requires
operators to screen orbital debris greater than 10 cm\2\ against a
spherical miss distance of 2.5 km, rather than meet a probability of
collision threshold, as the FAA allows for inhabitable objects and
active payloads. SpaceX stated that the requirement to maintain a
spherical miss distance, without the option to evaluate probability of
collision, is more restrictive than current requirements and
inconsistent with USAF practices. SpaceX argued there should be an
option to waive miss distance less than 2.5 km if probability of
collision is sufficiently low, as is done for active payloads.
    The FAA agrees with SpaceX that probability of collision could be
used for medium and large orbital debris because those objects are
routinely well-tracked and have valid orbital covariances available.
This option would provide for higher fidelity screening of collisions
that could produce significant amounts of orbital debris. As such, the
FAA revises Sec.  450.169(a)(3) to allow operators to screen for
orbital debris identified by the FAA or other Federal Government entity
using either a spherical separation distance of 2.5 km or a less
restrictive probability of collision threshold (1 x 10-\5\).
The use of probability of collision will require realistic covariance
data on both the launching object and the screened orbital object to
produce meaningful results. Operators who do not provide realistic
covariance will be required to have the launch or reentry screened with
stand-off distance. The probability of collision threshold required for
debris is the same as that required for active payloads in Sec.
450.169(a)(2), which mirrors current USAF requirements. The USAF
requirements for debris screening use the same probability of collision
as a high-fidelity analysis in place of both 25 km and 2.5 km standoff
screening. The FAA slightly relaxed the debris screening size
requirement to include only medium (0.1 m\2\ to 1 m\2\) and large
objects (greater than 1 m\2\) in order to provide for accurate use of
probability of collision analysis. Medium and large debris objects are
well-tracked, and the U.S. Government maintains accurate covariance on
these objects. This requirement achieves the objectives stated in the
NPRM of avoiding conjunction analysis with micro-debris, while
preventing the generation of space debris since these objects are well-
tracked and capable of

creating significant amounts of persistent space debris in the event of
a collision.
    In proposed Sec.  450.169(f), the FAA would require an operator to
prepare a collision avoidance analysis worksheet for each launch or
reentry using a standardized format that contains the input data
required by Appendix A to part 450. Proposed Sec.  450.169(f)(1) would
require an operator to file the input data with a Federal entity
identified by the FAA and with the FAA at least 15 days before the
first attempt at the flight of a launch vehicle or the reentry of a
reentry vehicle or in a different time frame in accordance with
proposed Sec.  404.15. Proposed Sec.  450.169(f)(2) would require an
operator to obtain a collision avoidance analysis performed by a
Federal entity identified by the FAA 6 hours before the beginning of a
launch or reentry window.
    CSF and SpaceX requested the FAA alter proposed Sec.  450.169(f)(1)
to require operators to file input data 7 days before launch or reentry
rather than 15 days. The commenters stated the 15-day requirement
conflicts with current processes at Federal launch or reentry sites,
which allow submissions 7 to 10 days before launch or reentry. CSF and
SpaceX stated that 7 days prior to launch has proven sufficient to
produce screening results by 6 hours before launch. CSF and SpaceX also
indicated that the requirement to obtain final results 6 hours before
launch was inconsistent with current practice. The Federal entity
performing LCOLA screenings delivers the final data hours before
launch. CSF and SpaceX recommended adding a clause to proposed Sec.
450.169(f)(2) allowing trajectory data to be delivered within timelines
agreed to by the launch operator and the entity performing the
screening. Alternatively, SpaceX recommended the FAA either require the
data be submitted 3 hours before launch in Sec.  450.169(f)(2), as
currently practiced by the USAF, or allow operators flexibility to
obtain LCOLA data ``within'' 6 hours of the launch or reentry window
beginning, but no later than 3 hours before launch.
    The FAA partially agrees with CSF's and SpaceX's recommended
changes to the timelines established in Sec.  450.169(f)(1) and (f)(2).
For launch or reentry operations that have successfully developed an
internal process that results in repeatable LCOLA data submission, the
FAA recognizes that 7 days prior to launch is an adequate time for
Federal entities to process the LCOLA data based on recent LCOLA
submissions reviewed for the last year. The FAA revises Sec.
450.169(f)(1) to require that most operators submit LCOLA data at least
7 days in advance of launch or reentry. However, the FAA disagrees that
a shorter time frame would be appropriate for operators that have not
yet conducted launch or reentry activities. The FAA has repeatedly
noted that LCOLA data submitted from first-time launch or reentry
operators often require significant reiterative work to achieve an
acceptable submission. As such, the FAA will require operators that
have not yet received conjunctive assessments to submit LCOLA data at
least 15 days in advance of launch or reentry. This approach is similar
to that of the USAF, which requires entities that have not yet received
conjunctive assessments to submit LCOLA data 30 days in advance of
launch. The FAA revises Sec.  450.169(f)(1)(i) to require that entities
that have not yet received conjunctive assessments to submit LCOLA data
at least 15 days in advance of launch. All other operators must submit
LCOLA data at least 7 days in advance of launch.
    The FAA agrees that the requirement to receive results within 6
hours before beginning of the launch or reentry window could be reduced
to 3 hours. Later delivery will produce LCOLA results that are timelier
and therefore more accurate for orbital safety purposes. Therefore, the
FAA revises Sec.  450.169(f)(2) to alter delivery to 3 hours before
beginning of the launch or reentry window.
    Boeing, Lockheed Martin, Northrop Grumman, and ULA commented that
much of proposed Sec.  450.169(a) focused on analysis that was not
applicable to operators since applicants do not have the data and tools
to perform LCOLA analysis, but merely provide inputs and implement
operational windows based on closures provided. The commenters
advocated for a streamlined commercial process for licensed launches or
reentries that do not occur at a Federal launch or reentry site, in
which the FAA would take the applicant's trajectory inputs to the
Federal agency responsible for LCOLA analysis and establish stay-out
windows. The commenters argued a standardized process would eliminate
the need for multiple applicants to establish interfaces and procedures
with an agency that rarely deals with commercial (space transportation)
entities.
    The FAA declines to streamline the LCOLA process further by
removing the analysis requirements of Sec.  450.169(a), such that
applicants only need to provide data and abide by results. Transparency
in LCOLA analysis provides confidence and understanding of the LCOLA
process for launch, reentry, and payload, for operators as well as the
public.
    The same commenters noted that the FAA could act as a go-between
entity for all operators in a similar manner to Federal sites'
processes. The FAA agrees that operators could use the FAA or the
Federal sites as conduits to the LCOLA processing entity and recognizes
that this flexibility remains in the final rule language. This type of
activity is appropriately coordinated during the launch operator or
reentry operator pre-application discussions. The FAA disagrees with
requiring the FAA to act as a pass-through because the FAA believes
that removing launch operators from direct contact with the USAF 18th
Space Control Squadron could have unintended negative consequences. For
instance, an early orbit breakup emergency may require prompt exchange
of data between launch operators and on-orbit support services
providers using processes already tested during LCOLA development and
adding a pass-through element could hamper or slow analysis,
notifications, and potential mitigation actions. Moreover, the FAA does
not place orbital safety analysts on duty during launch or reentry
operations. To adequately support the passthrough, the FAA would need
to establish launch support teams and exercise the team in advance of
emergency operations.
    Blue Origin and SpaceX recommended the FAA allow LCOLA analyses to
be conducted by non-Federal entities. Blue Origin recommended that
proposed Sec.  450.169(e) require LCOLA analyses be obtained from
Federal entities, unless otherwise agreed to by the Administrator.
SpaceX recommended proposed Sec.  450.169(f) allow operators to file
input data and obtain LCOLA analyses from approved third parties, as
opposed to Federal entities. SpaceX argued the FAA should foster a
competitive market and allow flexibility in using commercial services
as commercial entities enter the space situational awareness (SSA)
market and aim to provide the same services as Federal entities. Virgin
Galactic asked if the FAA anticipated a cost associated with obtaining
the analysis from the Federal entity.
    The FAA declines to remove the reference to Federal entities in
Sec.  450.169. Although commercial entities are developing space
traffic support services that could eventually provide adequate safety
for launch collision avoidance, to date, only Federal entities have
full access to the authoritative catalog maintained by the DOD. Rather

than remove this clause, the FAA adds the phrase, ``or another entity
agreed to by the Administrator,'' to Sec.  450.169(e) in order to
provide flexibility should the space traffic authority and framework
change over time. The Administrator may allow another entity to provide
this service based on a demonstration that the data includes a complete
and accurate catalogue of all identifiable objects in the relevant
space environment. Currently, the DOD is the only entity that meets
this criterion. In response to Virgin Galactic's question regarding
cost, the current LCOLA analysis from the U.S. Government is provided
free of charge.
    SpaceX recommended the FAA defer to or allow operators to use the
LCOLA processes and standards of Federal launch or reentry sites for
launches from Federal sites as means of compliance. SpaceX argues that
doing so would minimize confusion regarding the applicable standards
and procedures at different operating sites. SpaceX also suggested that
Sec.  450.169(e) be revised to state that operators may use Federal
launch or reentry site services with existing policies and processes to
ensure acceptable compliance.
    The FAA declines to defer to the Federal launch or reentry sites.
The FAA and Federal sites have different waiver requirements and
processes. The FAA finds the language as proposed in the NPRM is
adequate when coupled with the existing waiver process and equivalent
level of safety process. In addition, the FAA notes that launches from
non-Federal sites are not required to follow Federal site practices,
and using a single FAA standard minimizes confusion both on and off
Federal launch or reentry sites.
    Citing the discrepancy between the proposed collision avoidance
analysis and current USAF practice, CSF stated the proposed rule
attempted to ``fix'' parts of the licensing process that were not
broken.
    The FAA disagrees that the collision avoidance analysis process is
incompatible with the current USAF practice. The procedures for launch
collision avoidance under Sec. Sec.  417.107, 417.231, 417.31, and
417.43 did not reflect current practice as they excluded any
probability of collision, referenced outdated processes and agencies,
and required outdated adjustments to closures. The updated LCOLA
process is compatible with USAF practices where appropriate (e.g.,
LCOLA timelines, screening options for human spaceflight protection,
and active payload protection), noting that the FAA regulation must
also guide operations of launch and reentry operations at non-Federal
sites.
nn. Safety at End of Launch (Sec.  450.171)
    In the NPRM, the FAA proposed in Sec.  450.171 (Safety at End of
Launch) requirements for the prevention of creating orbital debris,
with which an applicant would be required to demonstrate compliance in
its application.
    In the final rule, the FAA adopts Sec.  450.171 as proposed. The
FAA did not receive comments on these proposed requirements.
oo. Mishap (Definition, Sec. Sec.  450.173 and 450.175)
i. Mishap Definition
    In the NPRM, the FAA proposed to consolidate the definitions of
``Mishap,'' ``Launch Accident,'' ``Launch Incident,'' ``Reentry
Accident,'' ``Reentry Incident,'' ``Human Spaceflight Incident,'' and
``Launch Site Accident'' under the definition of ``Mishap'' in Sec.
401.5. The FAA proposed four mishap categories, from most severe (Class
1) to least severe (Class 4).
    In the final rule, the FAA does not adopt the proposed
classification system. Instead, the FAA combines the substantive
criteria of Mishap Classes 1 through 4 under the definition of
``mishap'' in Sec.  401.7. The revised definition describes events that
constitute a mishap in a straightforward manner that better corresponds
to regulatory requirements. The FAA incorporates additional changes to
the final rule as discussed in the following paragraphs.
    Numerous commenters from industry expressed confusion about the
types of activities that would fall under each class. The commenters
questioned the necessity of classifying mishaps based on severity since
the regulatory requirements were largely the same for all mishaps.
    The FAA reviewed the regulatory requirements associated with each
of the proposed mishap classes and agrees there were no significant
differences among the regulatory requirements for each class. The
requirements to report, respond to, and investigate mishaps are
incumbent upon an operator regardless of a mishap's severity. Mishap
classes are not needed to achieve the objective of consolidating
mishap-related terms and streamlining the requirements to report,
respond to, and investigate mishaps. Accordingly, the FAA removes the
proposed classification system. Except as discussed later in this
preamble, the criteria proposed under each mishap class have been
consolidated under ``mishap'' in Sec.  401.7.
    In the NPRM, the FAA proposed that a Class 1 mishap would include
any event resulting in (1) a fatality or serious injury (as defined in
49 CFR 830.2) resulting from licensed or permitted activity to any
person who is not associated with the licensed or permitted activity,
or (2) a fatality or serious injury to any space flight participant,
crew, or government astronaut. This proposal was consistent with
longstanding definitions of ``launch accident'' and ``reentry
accident'' in Sec.  401.5.
    A fatality or serious injury to a person associated with licensed
or permitted activity constitutes a mishap under Sec.  401.5, rather
than a launch or reentry accident. The FAA proposed to incorporate each
of the mishap-related terms found in Sec.  401.5 under the definition
of ``mishap.'' \180\ As such, save for the removal of the $25,000
monetary threshold, all events that meet the current accident,
incident, and mishap definitions would continue to be mishaps under the
consolidated definition.\181\ In combining the mishap-related terms,
the FAA inadvertently excluded from the proposed definition a fatality
or serious injury to persons associated with licensed or permitted
activity, which has been covered by the term ``mishap'' in Sec.  401.5.
The FAA did not intend to depart from current practice by excluding
these serious events from the definition, as evidenced by the NPRM
preamble. In revising the definition of ``mishap,'' the FAA stated its
intent to streamline and clarify existing definitions, eliminate the
monetary threshold, and consolidate the accident and incident
investigation sections of parts 417, 420, 431, 435, 437 into one
section applicable to all licenses, permits, and vehicles.\182\ In
proposing to consolidate existing definitions, the FAA did not propose
to narrow the scope of activities deemed a mishap. In the final rule,
the FAA revises the definition of ``mishap'' to include any fatality or
serious injury resulting from licensed or permitted activity,
irrespective of the person's involvement in the launch activity.
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    \180\ 84 FR 15351 (``The proposed mishap classification system
would streamline and clarify the current accident, incident, and
mishap definitions to create four mishap categories organized by
severity, from most severe (Class 1) to least severe (Class 4).'').
    \181\ 84 FR 15352.
    \182\ 84 FR 15351.
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    The FAA consolidates under paragraph (1) of the definition those
criteria proposed for Mishap Class 1 and the previous definition of
``mishap'' in Sec.  401.5. This revision is consistent with the mishap
reporting requirements

under Sec.  450.173(c)(1) for the occurrence of a fatality or serious
injury during FAA-authorized activities. The FAA removes the phrase
``including ground activities at a launch or reentry site'' from the
criterion addressing fatality or serious injury because the phrase
``events associated with a licensed or permitted activity'' adequately
covers such activities.
    In the final rule, the FAA re-designates criterion (1) of proposed
Mishap Class 2 as paragraph (2) of the definition, which applied to the
malfunction of an FSS or safety-critical system. The FAA notes that it
removed the term ``flight safety system'' from paragraph (2) because an
FSS is a safety-critical system.
    Paragraph (7) of the definition consolidates two criteria proposed
under Class 3 and 4 for permanent loss of a vehicle during licensed and
permitted activity, respectively. Since the FAA is discarding the
mishap classification system, there is no longer a need to
differentiate loss of a launch or reentry vehicle during licensed
versus permitted activity. Nor does the FAA intend to differentiate
loss of a ``vehicle'' from loss of a ``launch or reentry vehicle.''
    The FAA proposed to replace the clause, ``failure to complete a
launch or reentry as planned,'' in the previous definition of
``mishap'' in Sec.  401.5, with the clause, ``failure to achieve
mission objectives.'' AIA, Sierra Nevada, and SpaceX objected to this
criterion, arguing that failure to achieve mission objectives related
to mission assurance and exceeded the FAA's authority to ensure public
safety.
    Based on industry comments, the FAA reverts to the original phrase,
``failure to complete a launch or reentry as planned,'' but adds a
citation to a regulatory requirement that narrows the scope of this
criterion. Failure to complete a launch or reentry according to the
parameters provided by the operator under the pre-flight reporting
requirements of Sec.  450.213(b) \183\ will constitute a mishap. This
criterion more accurately reflects the scope of activities that the FAA
deems to be a mishap and alleviates the commenters' concerns about
mission assurance.
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    \183\ As discussed later in the preamble, Sec.  450.213(b)(2)
requires a licensee to submit planned mission information, including
the vehicle, launch site, planned flight path, staging and impact
locations, each payload delivery point, intended reentry or landing
sites including any contingency abort location, and the location of
any disposed launch or reentry vehicle stage or component that is
deorbited.
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    The FAA removes from the final rule all references to the proposed
mishap classes. The FAA revises Sec.  450.131(a)(2) to clarify that a
probability of failure analysis must account for data on any mishap and
anomaly. While the NPRM stated that the probability analysis must
account for all partial failures and anomalies, ``including Class 3 and
Class 4 mishaps,'' the language implied that it would also apply to