81 FR 34919 - Updates to Rulemaking and Waiver Procedures and Expansion of the Equivalent Level of Safety Option

DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration

Federal Register Volume 81, Issue 105 (June 1, 2016)

This action would streamline and improve commercial space transportation regulations' general rulemaking and petition procedures by reflecting current practice; reorganizing the regulations for clarity and flow; and allowing petitioners to file their petitions to the FAA's Office of Commercial Space Transportation electronically. Further, it would expand the option to satisfy commercial space transportation requirements by demonstrating an equivalent level of safety. These changes are necessary to ensure the regulations are current, accurate, and are not unnecessarily burdensome. The intended effect of these changes is to improve the clarity of the regulations and reduce burden on the industry and on the FAA.

[Federal Register Volume 81, Number 105 (Wednesday, June 1, 2016)]
[Proposed Rules]
[Pages 34919-34926]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-12129]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 11, 404, 405, 420, 431, 435, 437, 460

[Docket No.: FAA-2016-6761; Notice No. 16-03]
RIN 2120-AK76


Updates to Rulemaking and Waiver Procedures and Expansion of the 
Equivalent Level of Safety Option

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This action would streamline and improve commercial space 
transportation regulations' general rulemaking and petition procedures 
by reflecting current practice; reorganizing the regulations for 
clarity and flow; and allowing petitioners to file their petitions to 
the FAA's Office of Commercial Space Transportation electronically. 
Further, it would expand the option to satisfy commercial space 
transportation requirements by demonstrating an equivalent level of 
safety. These changes are necessary to ensure the regulations are 
current, accurate, and are not unnecessarily burdensome. The intended 
effect of these changes is to improve the clarity of the regulations 
and reduce burden on the industry and on the FAA.

DATES: Send comments on or before August 1, 2016.

ADDRESSES: Send comments identified by docket number FAA-2016-6761 
using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room 
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at 202-493-2251.
    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments 
from the public to better inform its rulemaking process. DOT posts 
these comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.
    Docket: Background documents or comments received may be read at 
http://www.regulations.gov at any time. Follow the online instructions 
for accessing the docket or go to the Docket Operations in Room W12-140 
of the West Building Ground Floor at 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For questions concerning this proposed 
rule, contact Shirley McBride, AST-300, Office of Commercial Space 
Transportation, Federal Aviation Administration, 800 Independence 
Avenue SW., Washington, DC 20591; telephone (202) 267-7470; email 
[email protected].

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking

    The Commercial Space Launch Act of 1984, as amended and re-codified 
at 51 U.S.C. 50901-50923 (the Act), authorizes the Department of 
Transportation and thus the FAA, through delegations, to oversee, 
license, and regulate commercial launch and reentry activities, and the 
operation of launch and reentry sites as carried out by U.S. citizens 
or within the United States. 51 U.S.C. 50904, 50905. The Act directs 
the FAA to exercise this responsibility consistent with public health 
and safety, safety of property, and the national security and foreign 
policy interests of the United States. 51 U.S.C. 50905. The Act directs 
the FAA to regulate only to the extent necessary to protect the public 
health and safety, safety of property, and national security and 
foreign policy interests of the United States. 51 U.S.C. 50901(a)(7). 
The FAA is also responsible for encouraging, facilitating, and 
promoting commercial space launches by the private sector. 51 U.S.C. 
50903.

I. Background

    The Office of Commercial Space Transportation (AST) was established 
under the Act as part of the Office of the Secretary of Transportation 
within the Department of Transportation. In 1988, the general 
rulemaking and petition procedures, under the authority of the Act, 
were codified in 14 CFR, chapter III, part 404.
    In November 1995, AST was transferred to the FAA as the agency's 
only space-related line of business. The FAA's general rulemaking and 
petition procedures, for which the agency follows public rulemaking 
procedures under the Administrative Procedure Act, 5 U.S.C. 553, reside 
in 14 CFR chapter I, part 11. When AST became part of the FAA, the 
general rulemaking and petition procedures in part 404 were not 
conformed to those in part 11 to remove duplicate and outdated 
information, or to clarify those provisions that apply specifically to 
the FAA's commercial space transportation regulations. The proposed 
rule would update parts 404 and 11 to remove duplicate information from 
part 404 and add appropriate cross references between part 11 and part 
404. In addition, the proposal would update part 404 to reflect current 
practice, clarify the requirements, and add an option to submit 
petitions to AST electronically.
    Currently, the option to satisfy a commercial space transportation 
regulation by demonstrating an ``equivalent level of safety'' is 
limited to part 417 \1\ and to some specific sections of chapter III. 
This restricts the FAA's flexibility in approving launch and reentry 
related activities where the operator can convincingly demonstrate that 
an alternative approach to the requirements of chapter III provides an 
equivalent level of safety. This proposal would expand the equivalent 
level of safety option so that it applies more broadly to chapter III 
requirements for both launch and reentry activities.
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    \1\ See Sec.  417.1(g): Equivalent level of safety. The 
requirements of this part apply to a launch operator and the launch 
operator's launch unless the launch operator clearly and 
convincingly demonstrates that an alternative approach provides an 
equivalent level of safety.
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    The current title of part 405 is ``Investigations and 
Enforcement.'' However, part 405 does not relate to investigations. To 
avoid confusion, the FAA proposes to revise the title of part 405 to a 
title more descriptive of its contents, namely, ``Compliance and 
Enforcement.''

II. Discussion of the Proposal

1. General Rulemaking Procedures (Part 11)

    The general rulemaking and petition procedures for commercial space 
transportation regulations, 14 CFR

[[Page 34920]]

chapter III, part 404, are not aligned with the FAA's general 
rulemaking and petition procedures located in 14 CFR chapter I, part 
11. This has caused some confusion about how the two parts relate to 
each other and what requirements apply specifically to commercial space 
transportation regulations. Additionally, there is no option to file 
petitions electronically under chapter III.
    The FAA proposes minor changes to part 11 to clarify that this part 
applies to all FAA regulations, including commercial space 
transportation regulations, except as otherwise noted. Also, the FAA 
proposes to correct an outdated Internet link in part 11.
Sec.  11.15--What is a petition for exemption?
    The FAA proposes to amend Sec.  11.15 to cross reference part 404 
for commercial space transportation waivers. Authority for the FAA's 
aviation safety oversight falls under Title 49 U.S.C., while the 
agency's authority for commercial space transportation oversight falls 
under 51 U.S.C. 50901-50923. Title 49 allows for ``exemptions'' as 
requests for relief from a regulatory requirement, whereas Title 51 
allows the Secretary to ``waive'' regulatory requirements. To retain 
the distinction of terms under both statutes, the FAA proposes to 
revise Sec.  11.15 to cross reference part 404, which describes the 
agency's delegated authority to issue commercial space transportation 
waivers.
Sec.  11.27--Are there other ways FAA collects specific rulemaking 
recommendations before we issue an NPRM?
    The FAA proposes to add the Commercial Space Transportation 
Advisory Committee (COMSTAC) as an example of an advisory committee the 
FAA uses to review and provide advice on various issues. While the FAA 
uses the Aviation Rulemaking Advisory Committee (ARAC) for aviation-
specific issues, it uses COMSTAC for commercial space transportation 
issues. ARAC is comprised of representatives from the aviation 
industry. COMSTAC includes representatives from the commercial space 
industry.
Sec.  11.63--How and to whom do I submit my petition for rulemaking or 
petition for exemption?
    The proposal would amend this section to remove an outdated 
Internet address in Sec.  11.63(a)(1), ``http://www.faa.gov/regulations,'' where petitioners are directed to find additional 
instructions on filing their petitions, and replace it with a 
description of where it could be found. This is because an Internet 
address may be subject to change, and a description would be more 
flexible while still providing adequate instruction.

2. Petitions for Waiver and Rulemaking (Part 404)

    Currently, part 404, subpart A is organized such that requirements 
for filing and processing a petition for waiver and a petition for 
rulemaking are combined in the same sections, Sec. Sec.  404.3 and 
404.5. This causes confusion because while some requirements apply to 
both petition for waiver and petition for rulemaking, certain others 
apply only to one or to the other. Having requirements for both types 
of petitions in the same sections make it difficult to determine which 
requirement applies to which type of petition. The agency proposes to 
establish separate sections for requirements applicable to both 
petitions for waiver and petitions for rulemaking (proposed Sec. Sec.  
404.1 and 404.3), requirements applicable only to petitions for waiver 
(proposed Sec. Sec.  404.5 and 404.7), and those applicable only to 
petitions for rulemaking (proposed Sec. Sec.  404.9 and 404.11).
    Current subpart B of part 404 includes general rulemaking 
procedures that duplicate those in chapter I, part 11. The FAA proposes 
to reorganize subpart B to remove the duplicate information and add 
relevant cross references to part 11.
    The FAA also proposes to remove the subpart titles in part 404 
because the other organizational changes to part 404 would remove the 
need to use subpart titles as guides.
    Additionally, and as indicated in the ``Proposed Reorganization--
Part 404'' table below, in order to accommodate the reorganization of 
part 404, the current part title, some section titles, and some section 
numbers would change. Also, new sections would be added.

[[Page 34921]]

[GRAPHIC] [TIFF OMITTED] TP01JN16.010

    Further, the proposal would update part 404 to reflect current 
practice. For example, part 404 does not include the option for 
petitioners to file their petitions electronically.
    A discussion of the specific, proposed changes for part 404 
follows.
Proposed Sec.  404.1--Scope
    The FAA proposes to revise Sec.  404.1 to clarify the scope of part 
404. Currently Sec.  404.1 states that part 404 ``establishes 
procedures for issuing regulations to implement 51 U.S.C. Subtitle V, 
chapter 509, and for eliminating or waiving requirements for licensing 
or permitting of commercial space transportation activities under that 
statute.'' The FAA would revise Sec.  404.1 to state that part 404 
establishes procedures for issuing regulations and for filing a 
petition for waiver or a petition for rulemaking to the Associate 
Administrator for Commercial Space Transportation.
Proposed Sec.  404.3--General
    The FAA proposes to change the title of this section from ``Filing 
of petitions to the Associate Administrator'' to ``General'' to reflect 
the reorganization of the part.
    The reorganized section would include information applicable to 
both petitions for waiver and petitions for rulemaking. This 
information would include the physical address to which petitioners 
should send their petitions, as well as the option to file petitions to 
AST electronically by using the specified FAA email address.
    Current Sec.  404.3(d), which explains a petitioner's rights, 
provided by Congress in 51 U.S.C. 50916, to request the agency withhold 
certain sensitive information or data from the public, subject to 
certain conditions, would be moved to proposed Sec.  404.3(b). Also, 
proposed Sec.  404.3(a)(3) would reference the waiver exception 
described in proposed Sec.  404.7(b). Further, the provision about 
public hearings in current Sec.  404.5(a) would be moved to proposed 
Sec.  404.3(g).
    Current Sec.  404.3 requires petitioners to send two copies of 
their petition to either AST's physical address or to the docket's 
physical address. The FAA proposes to require all petitions be sent to 
AST to ensure timely consideration. The FAA also proposes to remove the 
requirement to submit duplicate copies so that petitioners need only 
send one copy of the petition to AST.
    The proposal would remove from Sec.  404.3 the requirement that a 
petition for rulemaking contain a summary that the FAA may cause to be 
published in the Federal Register because part 11 does not require such 
a summary and the FAA does not seek public comment on petitions for 
rulemaking.
    The proposal also would move the provisions in current Sec. Sec.  
404.5(d) and 404.5(e) to Sec. Sec.  404.3(e) and 404.3(f), 
respectively, because notification and reconsideration of the Associate 
Administrator's decision applies to both petitions for waiver and 
petitions for rulemaking.
Proposed Sec.  404.5--Filing a Petition for Waiver
    The proposal would change the section title from ``Action on 
petitions'' to ``Filing a Petition for Waiver.'' Also, it would move 
the waiver procedures from current Sec.  404.3 to proposed Sec.  404.5. 
Proposed Sec.  404.5 would clarify the requirements for filing a waiver 
request and, as noted in the discussion of proposed Sec.  404.3, would 
move the information in current Sec.  404.5(a) about public hearings 
related to petitions to proposed Sec.  404.3(g).
    Current Sec.  404.3 states that the petition must ``set forth the 
text or substance of the regulation . . . to be waived.'' Proposed 
Sec.  404.5 would clarify that the petition must reference the specific 
section or sections of 14 CFR chapter III from which relief is sought. 
Further, to help ensure petitions are complete and meet the 
requirements of the Act, 51 U.S.C. 50905(b)(3), proposed Sec.  404.5 
would clarify that the petition must state the reasons why granting the 
request for relief is in the public interest and will not jeopardize 
the public health and safety, safety of property, and national security 
and foreign policy interests of the United States.

[[Page 34922]]

Proposed Sec.  404.7--Action on a Petition for Waiver
    The requirements in current Sec.  404.5 that describe the FAA's 
actions on petitions for waiver would be moved to proposed Sec.  404.7. 
Proposed Sec.  404.7 would clarify that under 51 U.S.C. 50905(b)(3), 
the FAA is not authorized to grant a waiver that would permit the 
launch or reentry of a launch vehicle or a reentry vehicle without a 
license or permit if a human being would be on board.
Proposed Sec.  404.9--Filing a Petition for Rulemaking
    As noted, the current requirements for filing a petition for 
rulemaking reside in Sec.  404.3. This proposal would remove those 
requirements and, instead, new Sec.  404.9 would require a petitioner 
to follow Sec.  11.71 for filing a petition for rulemaking. This 
proposed change would align the procedures for filing a petition for 
rulemaking under part 404 with the procedures for filing all other 
petitions for rulemaking made to the agency.
    There are no substantive differences in the process for filing a 
petition for rulemaking with the FAA under part 404 or under Sec.  
11.71 of part 11. Therefore, the FAA does not foresee any issues with 
using part 11 procedures for commercial space petitions for rulemaking.
Proposed Sec.  404.11--Action on a Petition for Rulemaking
    The requirements in current Sec.  404.5 that describe the FAA's 
actions on petitions for rulemaking would be removed, and new Sec.  
404.11 would cross reference Sec.  11.73, which includes the FAA's 
actions on petitions for rulemaking. This change would align the 
actions of the FAA on petitions for rulemaking under part 404 with its 
actions regarding all other petitions for rulemaking made to the 
agency.
Proposed Sec.  404.13--Rulemaking
    Since the FAA's general rulemaking procedures, which apply to all 
FAA regulations, including commercial space transportation regulations, 
reside in 14 CFR chapter I, part 11, the agency proposes to remove the 
general rulemaking procedures in current Sec. Sec.  404.11, 404.13, and 
404.15 and, instead, add a cross reference in proposed Sec.  404.13(a) 
to part 11's general rulemaking procedures. Also, current Sec.  404.17 
(Additional rulemaking proceedings) and Sec.  404.19 (Hearings) of 
subpart B would be retained as is. As a result, proposed Sec.  
404.13(b) states that in addition to the procedures referenced in Sec.  
404.13(a), the provisions in Sec. Sec.  404.17 and 404.19 also apply.
Proposed Sec.  404.15--Removed and Reserved
    As discussed under proposed Sec.  404.13, the proposal would remove 
the current, specified contents of subpart B, including Sec.  404.15, 
and add a cross reference to part 11. In addition, it would reserve 
Sec.  404.15 to prevent gaps in the CFR numbering for part 404.

3. Investigations and Enforcement (Part 405)

    The agency proposes to change the title of part 405 to better 
reflect the part's requirements. Part 405 has not substantially changed 
since 1988. Although its current title is ``Investigations and 
Enforcement,'' the part does not apply to investigations. Instead, 
requirements for investigations reside in part 406, entitled 
``Investigations, Enforcement, and Administrative Review.''
    What part 405 actually contains is requirements for FAA monitoring 
of licensed and permitted activities; the agency's authority to modify, 
suspend or revoke a license or permit; and the FAA's authority to issue 
emergency orders to terminate, prohibit, or suspend a licensed or 
permitted launch or reentry activity. To avoid confusion, the FAA 
proposes to revise the title of part 405 to ``Compliance and 
Enforcement,'' to better reflect the content of the part.

4. Equivalent Level of Safety

    Currently, the option to satisfy the requirements of 14 CFR, 
chapter III by demonstrating an ``equivalent level of safety'' is 
limited to part 417 (safety of expendable launch vehicles) and to 
specific sections of parts 420 (operation of a launch site), 437 
(experimental permits), and 460 (human space flight). The option does 
not apply to parts 431 and 435, which govern reentry of reusable launch 
vehicles and other reentry vehicles. The FAA addresses this limitation 
through the waiver process, which places an unnecessary burden on the 
industry and on the FAA. Thus, the agency proposes to expand the 
availability of its equivalent level of safety option.
    Currently, in parts 420 and 437, the equivalent level of safety 
option only applies to Sec. Sec.  420.23(a)(3), (b)(4), and (c)(2); 
420.25(a); and, 437.65(b). The FAA proposes to expand the availability 
of the option so that it applies not just to these specific sections 
but to parts 420 and 437 in their entirety. Therefore, this proposal 
would remove the equivalent level of safety provision in these specific 
sections and replace them with proposed Sec. Sec.  420.1(b) and 
437.1(b). The proposed change to Sec.  420.23 would remove current 
Sec.  420.23(c)(2), move current Sec.  420.23(c)(3) to proposed Sec.  
420.23(c)(2) to prevent a gap in paragraph numbering, and remove 
current Sec.  420.23(c)(3) to prevent identical language from appearing 
in both Sec.  420.23(c)(2) and (c)(3). These proposed sections would 
require that each requirement of the part would apply unless an 
applicant or licensee under part 420, or a permittee under part 437, 
clearly and convincingly demonstrates that an alternative provides an 
equivalent level of safety to the requirement of the part.
    Current parts 431 and 435 have no equivalent level of safety 
option. Therefore, the FAA proposes to add this option to the 
``General'' sections of parts 431 and 435 (Sec. Sec.  431.1 and 435.1, 
respectively) so that the option would apply to these parts in their 
entirety.
    The agency further proposes to expand the equivalent level of 
safety provision now in Sec.  460.5. That provision, which includes 
qualification requirements for a pilot and a remote operator, currently 
only extends the equivalent level of safety option (see Sec.  460.5(d)) 
to a remote operator but not to a pilot. The FAA proposes amending 
Sec.  460.5(d) to allow an applicant, licensee, or permittee to satisfy 
pilot qualification requirements by demonstrating an equivalent level 
of safety.

IV. Regulatory Notices and Analyses

A. Regulatory Evaluation

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 and Executive Order 13563 direct 
that each Federal agency shall propose or adopt a regulation only upon 
a reasoned determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. 
L. 96-354) requires agencies to analyze the economic impact of 
regulatory changes on small entities. Third, the Trade Agreements Act 
(Pub. L. 96-39) prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the United States. In 
developing U.S. standards, the Trade Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4) requires agencies to prepare a written assessment of 
the costs, benefits, and other effects of proposed or final rules that 
include a Federal mandate

[[Page 34923]]

likely to result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this proposed rule.
    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected cost impact is so minimal that a proposed or final rule 
does not warrant a full evaluation, this order permits that a statement 
to that effect and the basis for it to be included in the preamble if a 
full regulatory evaluation of the cost and benefits is not prepared. 
Such a determination has been made for this proposed rule. The 
reasoning for this determination follows.
    This rule proposes to streamline and improve commercial space 
transportation regulations' general rulemaking and petition procedures. 
It proposes to do this by updating the rule language to reflect current 
practice; reorganizing it for clarity and flow; and allowing 
petitioners to file their petitions to the FAA's Office of Commercial 
Space Transportation electronically. In addition, this rule proposes to 
expand the option to satisfy commercial space transportation 
requirements by demonstrating an equivalent level of safety. These 
changes are necessary to ensure the regulations are current, accurate, 
and not unnecessarily burdensome.
    The intended effect of these proposed changes is to improve the 
clarity of the regulations and reduce burden on the industry and on the 
FAA. Increased clarity could result in fewer requests for more 
information and, therefore, in cost savings. Expanding the equivalent 
level of safety option provides more choice to operators and lowers the 
number of waiver requests the FAA must process, resulting in reduced 
FAA burden. Allowing petitioners the option to submit electronically 
could result in small cost savings, from reduced mail expense.
    Since the expected outcome of this proposal is increased regulatory 
clarity with the potential of a minimal cost impact, a regulatory 
evaluation was not prepared. The FAA requests comments with supporting 
justification about the FAA determination of minimal impact.
    FAA has, therefore, determined that this proposed rule is not a 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866, and is not ``significant'' as defined in DOT's 
Regulatory Policies and Procedures.

B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation.'' To achieve this principle, agencies are 
required to solicit and consider flexible regulatory proposals and to 
explain the rationale for their actions to assure that such proposals 
are given serious consideration.'' The RFA covers a wide-range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to 
have a significant economic impact on a substantial number of small 
entities, section 605(b) of the RFA provides that the head of the 
agency may so certify and a regulatory flexibility analysis is not 
required. The certification must include a statement providing the 
factual basis for this determination, and the reasoning should be 
clear.
    This proposal is expected to have an effect on States, local 
governments, large entities such as Boeing and a significant number of 
small entities such as Scaled Composites, LLC, Masten Space Systems, 
XCOR Aerospace, Escape Dynamics, and Space Information Laboratories.
    As this proposed rule would streamline and clarify FAA rulemaking 
procedures, codify current practice and expand options to demonstrate 
an equivalent level of safety, the expected outcome would have only 
minimal costs to minor cost savings impact on any small entity affected 
by this rulemaking action.
    If an agency determines that a rulemaking will not result in a 
significant economic impact on a substantial number of small entities, 
the head of the agency may so certify under section 605(b) of the RFA. 
Therefore, as provided in section 605(b), the head of the FAA certifies 
that this rulemaking will not result in a significant economic impact 
on a substantial number of small entities.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards. The FAA has 
assessed the potential effect of this proposed rule and determined that 
it would impose the same costs on domestic and international entities 
and thus has a neutral trade impact.

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $155 million in lieu of $100 
million.
    This proposed rule does not contain such a mandate; therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act do not 
apply.

E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. The FAA has determined that 
there would be no new requirement for information collection associated 
with this proposed rule.

F. International Compatibility and Cooperation

    (1) In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to conform to 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA

[[Page 34924]]

has determined that there are no ICAO Standards and Recommended 
Practices that correspond to these proposed regulations.
    (2) Executive Order 13609, Promoting International Regulatory 
Cooperation, promotes international regulatory cooperation to meet 
shared challenges involving health, safety, labor, security, 
environmental, and other issues and to reduce, eliminate, or prevent 
unnecessary differences in regulatory requirements. The FAA has 
analyzed this action under the policies and agency responsibilities of 
Executive Order 13609, and has determined that this action would have 
no effect on international regulatory cooperation.

G. Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this rulemaking action qualifies for the categorical 
exclusion identified in paragraph 312f and involves no extraordinary 
circumstances.

V. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. The agency has 
determined that this action would not have a substantial direct effect 
on the States, or the relationship between the Federal Government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government, and, therefore, would not have 
Federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

    The FAA analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). The agency has determined that it 
would not be a ``significant energy action'' under the executive order 
and would not be likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

VI. Additional Information

A. Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The agency 
also invites comments relating to the economic, environmental, energy, 
or federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. To ensure the docket does not contain 
duplicate comments, commenters should send only one copy of written 
comments, or if comments are filed electronically, commenters should 
submit only one time.
    The FAA will file in the docket all comments it receives, as well 
as a report summarizing each substantive public contact with FAA 
personnel concerning this proposed rulemaking. Before acting on this 
proposal, the FAA will consider all comments it receives on or before 
the closing date for comments. The FAA will consider comments filed 
after the comment period has closed if it is possible to do so without 
incurring expense or delay. The agency may change this proposal in 
light of the comments it receives.

B. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the 
Internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or
    3. Accessing the Government Printing Office's Web page at http://www.thefederalregister.org/fdsys/.
    Copies may also be obtained by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. 
Commenters must identify the docket or notice number of this 
rulemaking.
    All documents the FAA considered in developing this proposed rule, 
including economic analyses and technical reports, may be accessed from 
the Internet through the Federal eRulemaking Portal referenced in item 
(1) above.

List of Subjects

14 CFR Part 11

    Administrative practice and procedure, Reporting and recordkeeping 
requirements.

14 CFR Part 404

    Administrative practice and procedure, Space transportation and 
exploration.

14 CFR Part 405

    Investigations, Penalties, Space transportation and exploration.

14 CFR Part 420

    Environmental protection, Reporting and recordkeeping requirements, 
Space transportation and exploration.

14 CFR Part 431

    Aviation safety, Environmental protection, Investigations, 
Reporting and recordkeeping requirements, Space transportation and 
exploration.

14 CFR Part 435

    Aviation safety, Environmental protection, Investigations, 
Reporting and recordkeeping requirements, Space transportation and 
exploration.

14 CFR Part 437

    Aircraft, Aviation safety, Reporting and recordkeeping 
requirements, Space transportation and exploration.

14 CFR Part 460

    Aircraft, Aviation safety, Reporting and recordkeeping 
requirements, Space transportation and exploration.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend chapters I and III of title 14, Code 
of Federal Regulations as follows:

PART 11--GENERAL RULEMAKING PROCEDURES

0
1. The authority citation for part 11 is amended to read as follows:

    Authority: 49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40109, 
40113, 44110, 44502, 44701-44702, 44711, 46102, and 51 U.S.C. 50901-
50923.

0
2. Revise Sec.  11.15 to read as follows:


Sec.  11.15  What is a petition for exemption?

    A petition for exemption is a request to the FAA by an individual 
or entity asking for relief from the requirements of a current 
regulation. For petitions for waiver of commercial space transportation 
regulations, see part 404 of this title.
0
3. Revise Sec.  11.27 to read as follows:


Sec.  11.27  Are there other ways FAA collects specific rulemaking 
recommendations before we issue an NPRM?

    Yes, the FAA obtains advice and recommendations from advisory 
committees, including the Aviation Rulemaking Advisory Committee (ARAC) 
for aviation issues and the Commercial Space Transportation Advisory 
Committee (COMSTAC) for

[[Page 34925]]

commercial space transportation issues. These advisory committees are 
formal standing committees comprised of representatives of industry, 
consumer groups, and interested individuals. In conducting their 
activities, ARAC and COMSTAC comply with the Federal Advisory Committee 
Act (FACA) and the direction of FAA. We task these advisory committees 
with providing us with recommended rulemaking actions dealing with 
specific areas and problems. If we accept their recommendation to 
change an FAA rule, we ordinarily publish an NPRM using the procedures 
in this part. The FAA may establish other rulemaking advisory 
committees for a limited period of time as needed to focus on aviation-
specific issues.
0
4. Amend Sec.  11.63 by revising paragraph (a)(1) to read as follows:


Sec.  11.63  How and to whom do I submit my petition for rulemaking or 
petition for exemption?

    (a) * * *
    (1) By electronic submission, submit your petition for rulemaking 
or exemption to the FAA through the Internet at http://www.regulations.gov, the Federal Docket Management System Web site. For 
additional instructions, you may visit http://www.faa.gov/regulations_policies/, and navigate to the Rulemaking home page.
* * * * *

PART 404--PETITION AND RULEMAKING PROCEDURES

0
5. The authority citation for part 404 continues to read as follows:

    Authority: 51 U.S.C. 50901-50923.

0
6. The heading of part 404 is revised to read as set forth above.
0
7. Remove the headings of subparts A and B.
0
8. Revise Sec.  404.1 to read as follows:


Sec.  404.1  Scope.

    This part establishes procedures for issuing regulations and for 
filing a petition for waiver or petition for rulemaking to the 
Associate Administrator for Commercial Space Transportation.
0
9. Amend Sec.  404.3 by revising the section heading and paragraphs 
(a)(3), (b), (c), (d), and adding new paragraphs (e), (f), and (g) to 
read as follows:


Sec.  404.3  General.

    (a) * * *
    (3) Waive the requirement for a license, except as provided in 
Sec.  404.7(b) of this part.
    (b) A petition filed under this section may request, under Sec.  
413.9 of this chapter, that the Associate Administrator withhold 
certain trade secrets or proprietary commercial or financial data from 
public disclosure.
    (c) Each petitioner filing under this section must:
    (1) For electronic submission, send one copy of the petition by 
email to the Office of Commercial Space Transportation at 
[email protected]; or
    (2) For paper submission, send the petition to the Office of 
Commercial Space Transportation, Federal Aviation Administration, 800 
Independence Avenue SW., Room 331, Washington, DC 20591.
    (d) Each petition filed under this section must include the 
petitioner's name, mailing address, telephone number and any other 
contact information, such as an email address or a fax number.
    (e) Notification. When the Associate Administrator determines that 
a petition should be granted or denied, the Associate Administrator 
notifies the petitioner of the Associate Administrator's action and the 
reasons supporting the action.
    (f) Reconsideration. Any person may petition the FAA to reconsider 
a denial of a petition the person filed. The petitioner must send a 
request for reconsideration within 60 days after being notified of the 
denial to the same address to which the original petition was filed. 
For the FAA to accept the reconsideration request, the petitioner must 
show--
    (1) There is a significant additional fact and the reason it was 
not included in the original petition;
    (2) The FAA made an important factual error in its denial of the 
original petition; or
    (3) The denial is not in accordance with the applicable law and 
regulations.
    (g) Public hearing. No public hearing, argument or other proceeding 
is held on a petition before its disposition under this section.
0
10. Revise Sec.  404.5 to read as follows:


Sec.  404.5  Filing a petition for waiver.

    A petition for waiver must be submitted at least 60 days before the 
proposed effective date of the waiver unless the petitioner shows good 
cause for later submission in the petition, and the petition for waiver 
must--
    (a) Include the specific section or sections of 14 CFR chapter III 
from which the petitioner seeks relief;
    (b) Include the extent of the relief sought and the reason the 
relief is being sought;
    (c) Include any facts, views, and data available to the petitioner 
to support the waiver request; and
    (d) Show why granting the request for relief is in the public 
interest and will not jeopardize the public health and safety, safety 
of property, and national security and foreign policy interests of the 
United States.
0
11. Add new Sec.  404.7 to read as follows:


Sec.  404.7  Action on a petition for waiver.

    (a) Grant of waiver. The Associate Administrator may grant a 
waiver, except as provided in paragraph (b) of this section, if the 
Associate Administrator determines that the waiver is in the public 
interest and will not jeopardize public health and safety, the safety 
or property, or any national security or foreign policy interest of the 
United States.
    (b) The FAA may not grant a waiver that would permit the launch or 
reentry of a launch vehicle or a reentry vehicle without a license or 
permit if a human being will be on board.
    (c) Denial of waiver. If the Associate Administrator determines 
that the petition does not justify granting a waiver, the Associate 
Administrator denies the petition.
0
12. Add new Sec.  404.9 to read as follows:


Sec.  404.9  Filing a petition for rulemaking.

    A petition for rulemaking filed under this part must be made in 
accordance with 14 CFR 11.71.
0
13. Revise Sec.  404.11 to read as follows:


Sec.  404.11  Action on a petition for rulemaking.

    The FAA will process petitions for rulemaking under this part in 
accordance with 14 CFR 11.73.
0
14. Revise Sec.  404.13 to read as follows:


Sec.  404.13  Rulemaking.

    (a) The FAA's rulemaking procedures are located in subpart A 
chapter I, part 11 under the General, Written Comments, and Public 
Meetings and Other Proceedings headings.
    (b) In addition to the rulemaking procedures referenced in 
paragraph (a) of this section, the provisions of Sec. Sec.  404.17 and 
404.19 of this subpart also apply.


Sec.  404.15  [Removed and Reserved]

0
15. Remove and reserve Sec.  404.15.

PART 405--COMPLIANCE AND ENFORCEMENT

0
16. The authority citation for part 405 continues to read as follows:

    Authority: 51 U.S.C. 50901-50923.

0
17. Amend part 405 by revising the part heading to read as set forth 
above.

[[Page 34926]]

PART 420--LICENSE TO OPERATE A LAUNCH SITE

0
18. The authority citation for part 420 continues to read as follows:

    Authority:  51 U.S.C. 50901-50923.

0
19. Revise Sec.  420.1 to read as follows:


Sec.  420.1  General.

    (a) Scope. This part prescribes the information and demonstrations 
that must be provided to the FAA as part of a license application, the 
bases for license approval, license terms and conditions, and post-
licensing requirements with which a licensee shall comply to remain 
licensed. Requirements for preparing a license application are 
contained in part 413 of this subchapter.
    (b) Equivalent level of safety. Each requirement of this part 
applies unless the applicant or licensee clearly and convincingly 
demonstrates that an alternative approach provides an equivalent level 
of safety to the requirement of this part.
0
20. Amend Sec.  420.23 by revising paragraphs (a)(3), (b)(4), and 
(c)(2), and removing paragraph (c)(3) to read as follows:


Sec.  420.23  Launch site location review--flight corridor.

    (a) * * *
    (3) Uses one of the methodologies provided in appendix A or B of 
this part.
    (b) * * *
    (4) Uses one of the methodologies provided in appendices A or B to 
this part.
    (c) * * *
    (2) An applicant shall base its analysis on an unguided suborbital 
launch vehicle whose final launch vehicle stage apogee represents the 
intended use of the launch point.
* * * * *
0
21. Amend Sec.  420.25 by revising paragraph (a) to read as follows:


Sec.  420.25  Launch site location review--risk analysis.

    (a) If a flight corridor or impact dispersion area defined by Sec.  
420.23 contains a populated area, the applicant shall estimate the 
casualty expectation associated with the flight corridor or impact 
dispersion area. An applicant shall use the methodology provided in 
appendix C to this part for guided orbital or suborbital expendable 
launch vehicles and appendix D for unguided suborbital launch vehicles.
* * * * *

PART 431--LAUNCH AND REENTRY OF A REUSABLE LAUNCH VEHICLE (RLV)

0
22. The authority citation for part 431 continues to read as follows:

    Authority: 51 U.S.C. 50901-50923.

0
23. Revise Sec.  431.1 to read as follows:


Sec.  431.1  General.

    (a) Scope. This part prescribes requirements for obtaining a 
reusable launch vehicle (RLV) mission license and post-licensing 
requirements with which a licensee must comply to remain licensed. 
Requirements for preparing a license application are contained in part 
413 of this subchapter.
    (b) Equivalent level of safety. Each requirement of this part 
applies unless the applicant or licensee clearly and convincingly 
demonstrates that an alternative approach provides an equivalent level 
of safety to the requirement of this part.

PART 435--REENTRY OF A REENTRY VEHICLE OTHER THAN A REUSABLE LAUNCH 
VEHICLE (RLV)

0
24. The authority citation for part 435 continues to read as follows:

    Authority: 51 U.S.C. 50901-50923.

0
25. Revise Sec.  435.1 to read as follows:


Sec.  435.1  General.

    (a) Scope. This part prescribes requirements for obtaining a 
license to reenter a reentry vehicle other than a reusable launch 
vehicle (RLV), and post-licensing requirements with which a licensee 
must comply to remain licensed. Requirements for preparing a license 
application are contained in part 413 of this subchapter.
    (b) Equivalent level of safety. Each requirement of this part 
applies unless the applicant or licensee clearly and convincingly 
demonstrates that an alternative approach provides an equivalent level 
of safety to the requirement of this part.

PART 437--EXPERIMENTAL PERMITS

0
26. The authority citation for part 437 continues to read as follows:

    Authority: 51 U.S.C. 50901-50923.

0
27. Revise Sec.  437.1 to read as follows:


Sec.  437.1  Scope and organization of this part.

    (a) Scope. This part prescribes requirements for obtaining an 
experimental permit. It also prescribes post-permitting requirements 
with which a permittee must comply to maintain its permit. Part 413 of 
this subchapter contains procedures for applying for an experimental 
permit.
    (b) Equivalent level of safety. Each requirement of this part 
applies unless the applicant or permittee clearly and convincingly 
demonstrates that an alternative approach provides an equivalent level 
of safety to the requirement of this part.
    (c) Organization of this part. Subpart A contains general 
information about an experimental permit. Subpart B contains 
requirements to obtain an experimental permit. Subpart C contains the 
safety requirements with which a permittee must comply while conducting 
permitted activities. Subpart D contains terms and conditions of an 
experimental permit.
0
28. Amend Sec.  437.65 by revising paragraph (b) to read as follows:


Sec.  437.65  Collision avoidance analysis.

* * * * *
    (b) The collision avoidance analysis must establish each period 
during which a permittee may not initiate flight to ensure that a 
permitted vehicle and any jettisoned components do not pass closer than 
200 kilometers to a manned or mannable orbital object.

PART 460--HUMAN SPACE FLIGHT REQUIREMENTS

0
29. The authority citation for part 460 continues to read as follows:

    Authority: 51 U.S.C. 50901-50923.

0
30. Amend Sec.  460.5 by revising paragraph (d) to read as follows:


Sec.  460.5  Crew qualifications and training.

* * * * *
    (d) A pilot or a remote operator may demonstrate an equivalent 
level of safety to paragraph (c)(1) of this section through the license 
or permit process.
* * * * *

    Issued under authority provided by 49 U.S.C. 106(f) and (g), 
44701(a), 44703 and 51 U.S.C. 50901-50923 in Washington, DC, on May 
16, 2016.
George Nield,
Associate Administrator for Commercial Space Transportation.
[FR Doc. 2016-12129 Filed 5-31-16; 8:45 am]
 BILLING CODE 4910-13-P