Title 14—Aeronautics and Space--Volume 5

§ 372.1 Applicability.

This part establishes the terms and conditions governing the furnishing of overseas military personnel charters in air transportation by direct air carriers or foreign air carriers and by overseas military charter operators. This part also relieves charter operators from the provisions of section 41102 of Title 49 of the United States Code (“the Statute”), for the purpose of enabling them to provide overseas military personnel charters utilizing aircraft chartered from such direct air carriers or foreign air carriers. Nothing contained in this part shall be construed as repealing or amending any provisions of any of the Department's regulations, unless the context so requires.

[SPR-60, 37 FR 19122, Sept. 19, 1972, as amended at 60 FR 43529, Aug. 22, 1995]

§ 372.2 Definitions.

As used in this part, unless the context otherwise requires:

Charter means overseas military personnel charter.

Charter operator means overseas military personnel charter operator.

Charter participant means a member of the overseas military personnel charter group.

Charter price means the total amount of money paid by the charter participant to the charter operator for air transportation.

Immediate family means only the following persons: the spouse, children, parents, parents of the spouse, children of the parents, and children of the parents of the spouse of (1) military personnel on active duty with the United States Armed Forces (including Coast Guard) stationed outside the contiguous states of the United States and the District of Columbia, and (2) civilian employees of the Department of Defense who are citizens of the United States and are stationed in a foreign country, or in a U.S. territory or possession, where U.S. military personnel are stationed.

Overseas military personnel charter means a charter, either one-way or round-trip, limited to military personnel on active duty with the U.S. Armed Forces (including the Coast Guard), stationed outside the 48 contiguous States of the United States and the District of Columbia, and/or civilian employees of the Department of Defense who are citizens of the United States and are stationed in a foreign country, or in a U.S. territory or possession, where such U.S. military personnel are stationed, and/or the immediate families of the foregoing persons, where the following conditions are met: (a) All military personnel and civilian employees of the Department of Defense participating in the charter are on official furlough, leave, pass, or other authorized absence from duty, and (b) the transportation is between a place in the 48 contiguous States of the United States or the District of Columbia and a place in Alaska, Hawaii, or a territory or possession of the United States, or a foreign country in which military personnel of the United States are stationed: Provided, however, That nothing contained herein shall preclude an overseas military personnel charter operator from utilizing any unused space on an aircraft chartered by it pursuant to this part for the transportation, on a free or reduced-rate basis, of such charter operator's employees, directors, and officers, and the parents and immediate families of such persons, subject to the provisions of part 223 of this chapter.

Overseas military personnel charter operator means any citizen of the United States, as defined in section 40102(a)(15) of 49 U.S.C. Subtitle VII authorized hereunder to engage in the formation of overseas military personnel charter groups and who complies with the provisions of this part.

Person means any individual, firm, association, partnership, or corporation.

[SPR-54, 37 FR 11163, June 3, 1972, as amended by SPR-69, 38 FR 14164, May 30, 1973; SPR-109, 41 FR 35158, Aug. 20, 1976; 60 FR 43529, Aug. 22, 1995; Doc. No. DOT-OST-2014-0140, 84 FR 15938, Apr. 16, 2019]

§ 372.3 Waiver.

A waiver of any of the provisions of this part may be granted by the Department upon its own initiative, or upon the submission by a charter operator of a written request therefor: Provided, That such a waiver is in the public interest and it appears to the Department that special or unusual circumstances warrant a departure from the provisions set forth herein.

[SPR-54, 37 FR 11163, June 3, 1972, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15938, Apr. 16, 2019]

§ 372.4 Enforcement.

In case of any violation of the provisions of 49 U.S.C. Subtitle VII, or this part, or any other rule, regulation, or order issued under the Statute, the violator may be subject to a proceeding pursuant to section 46101 of 49 U.S.C. Subtitle VII before the Department, or sections 46106 through 46108 of 49 U.S.C. Subtitle VII before a U.S. district court, as the case may be, to compel compliance therewith, to civil penalties pursuant to the provisions of section 46301 of 49 U.S.C. Subtitle VII, or in the case of willful violation, to criminal penalties pursuant to the provisions of section 46316 of 49 U.S.C. Subtitle VII; or other lawful sanctions.

[SPR-54, 37 FR 11163, June 3, 1972, as amended at 60 FR 43529, Aug. 22, 1995; Doc. No. DOT-OST-2014-0140, 84 FR 15938, Apr. 16, 2019]

§ 372.5 Suspension or revocation of authority.

The Department reserves the power to suspend the authority of any charter operator, without hearing, if it finds that such action is necessary in order to protect the rights of the traveling public, or to revoke such authority for cause.

§ 372.10 Exemption.

Charter operators are hereby relieved from the provisions of section 41102 of 49 U.S.C. Subtitle VII only if and so long as they comply with the provisions of this part and the conditions imposed herein, and to the extent necessary to permit them to organize and arrange overseas military personnel charters.

[SPR-176, 46 FR 43960, Sept. 2, 1981, as amended at 60 FR 43529, Aug. 22, 1995; Doc. No. DOT-OST-2014-0140, 84 FR 15938, Apr. 16, 2019]

§ 372.20 Requirement of operating authorization.

No person shall engage in air transportation as an overseas military personnel charter operator by organizing, providing, selling, or offering to sell, soliciting, or advertising an overseas military personnel charter or charters unless there is in force an operating authorization issued pursuant to § 372.31 authorizing such person to engage in such transportation.

[Doc. No. 47939, 57 FR 40105, Sept. 2, 1992]

§ 372.21 Solicitation.

Solicitation of charter participants through advertising by charter operators shall be restricted to the following:

(a) Radio and television stations operated by the U.S. Armed Forces;

(b) Newspapers, periodicals, or other printed media disseminated and distributed primarily among military personnel or civilian employees of the Department of Defense: Provided, however, That any printed advertisement of a charter operator shall include a statement explaining that eligibility for participation in such charters is limited to military servicemen who are stationed outside of the 48 contiguous States and the District of Columbia, and/or U.S. citizen civilian DOD employees who are stationed in a foreign country, or a U.S. territory or possession, where U.S. military personnel are stationed, and their respective immediate families.

§ 372.22 Discrimination.

No charter operator shall make, give, or cause any undue or unreasonable preference or advantage to any particular person, port, locality, or description of traffic in air transportation in any respect whatsoever or subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

§ 372.23 Methods of competition.

No charter operator shall engage in unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof.

§ 372.24 Surety bond, depository agreement, escrow agreement.

(a) Before selling or offering to sell, soliciting or advertising any charter flight, a charter operator shall comply with one of the three following requirements:

(1) The charter operator shall furnish a surety bond in an amount not less than the maximum fare held out for charter flights proposed to be operated during each calendar month multiplied by 90 percent of the number of available seats on such flights: Provided, however, That the liability of the surety to any charter participant shall not exceed the charter operator's applicable tariff fare. Such bond shall be filed with the Department not less than 45 days prior to the commencement of the calendar month covered by the bond together with a list of flights proposed to be operated during the month showing charter price, departure dates, equipment to be used for each flight and the seating capacity: Provided, however, That the amount of the bond shall be increased if additional charter flights are proposed or may be reduced if proposed charter flights are canceled, in which event a substitute bond and amended list of proposed flights shall be filed with the Department within 10 days of the date that the charter operator adds flights or cancels flights previously proposed, but in no event later than 2 days prior to the operation of any such additional charter flights; or

(2) The charter operator shall:

(i) Furnish and file with the Department a surety bond in the amount of $100,000 for the protection of the charter participants: Provided, however, That the liability of the surety to any charter participant shall not exceed the charter operator's applicable tariff fare; and

(ii) Enter into an agreement with a bank, the terms of which shall include the following:

(a) Each participant shall pay for his deposit and subsequent payments comprising the charter participant's tariff fare only by check or money order payable to such bank which shall maintain a separate accounting for each flight: Provided, however, That if the participant makes a cash deposit, the charter operator who receives such cash deposit shall forthwith remit to the designated bank a check for the full amount of the deposit;

(b) The bank shall not pay the air carrier or foreign air carrier the charter price for the transportation earlier than 60 days (including day of departure) prior to the scheduled day of departure of the originating or returning flight, upon certification of the departure date and price by the charter operator;

(c) The bank shall reimburse the charter operator for refunds made by the latter to the participants upon written notification from the charter operator;

(d) If the charter operator notifies the bank that a flight has been canceled, the bank shall make the applicable refunds directly to the participants;

(e) Except as provided in paragraph (a)(2)(ii)(c) of this section, the bank shall not pay any funds from the account to the charter operator prior to 2 banking days after completion of each flight when the balance in the account shall be paid to the charter operator upon certification of the completion date by the charter operator and direct air carrier;

(f) Notwithstanding any provisions above, the amount of total cash deposits required to be maintained in the depository account of the bank may be reduced by one or both of the following: The amount of surety bond in the form prescribed herein in excess of the minimum bond required by paragraph (a)(2)(i) of this section; an escrow with the designated bank of Federal, State, or municipal bonds or other securities, consisting of certificates of deposit issued by banks having a stated policy of redeeming such certificates before maturity at the request of the holder (subject only to such interest penalties or other conditions as may be required by law), or negotiable securities which are publicly traded on a securities exchange, all such securities to be made payable to the escrow account: Provided, That such other securities shall be substituted in an amount no greater than 80 percent of the total market value of the escrow account at the time of such substitution: And provided, further, That should the market value of such other securities subsequently decrease, from time to time, then additional cash or securities qualified for investment hereunder shall promptly be added to the escrow account, in an amount equal to the amount of such decreased value; or

(3) The charter operator shall:

(i) Furnish and file with the Department a surety bond in the amount of $100,000 for the protection of the charter participants: Provided, however, That the liability of the surety to any charter participant shall not exceed the charter operator's applicable tariff fare; and

(ii) Enter into an agreement with a bank, the terms of which shall include the following:

(a) Whenever the gross amount of customers' deposits exceeds 25 percent of the charter operator's net worth, as computed under generally accepted accounting principles, the charter operator shall, on or before the 30th day of the succeeding month, place in escrow or in trust with the bank cash in an amount at least equal to the amount by which such deposits exceed 25 percent of its net worth: Provided, That negotiable securities may be substituted for cash, but the market value thereof shall at all times be not less than the amount of cash for which they are substituted;

(b) The escrow agreement or the trust agreement between the bank and the operator shall not be effective until approved by the Department. Claims against the escrow or trust may be made only with respect to the nonperformance of air transportation.

(b) As used in this section, the term bank means a bank insured by the Federal Deposit Insurance Corporation.

(c) Any bond furnished under this section shall insure the financial responsibility of the charter operator and the supplying of the air transportation in accordance with the contract between the charter operator and the charter participants, and shall be in the form set forth as appendix A to this part. Such bond shall be issued by a bonding or surety company (1) whose surety bonds are accepted by the Interstate Commerce Commission under 49 CFR 1084.6; or (2) which is listed in Best's Insurance Reports (fire and casualty) with a general policyholders' rating of “A” or better. The bonding or surety company shall be one legally authorized to issue bonds of that type in the State in which the charter originates or in which the charter operator is incorporated. For purposes of this section, the term “State” includes any territory or possession of the United States, or the District of Columbia. The bond shall be specifically identified by the issuing surety with a company bond numbering system so that the Department may identify the bond with the specific charter or charters to which it relates: Provided, however, That these data may be set forth in an addendum attached to the bond which addendum must be signed by the charter operator and the surety company. It shall be effective on or before the date the operating authorization becomes effective. If the bond does not comply with the requirements of this section, or for any reason fails to provide satisfactory or adequate protection for the public, the Department will notify the direct air carrier and the charter operator, by registered or certified mail, stating the deficiencies of the bond. Unless such deficiencies are corrected within the time set forth in such notification, the subject charters shall in no event be operated.

(d) Any bond furnished under this section shall provide that unless the charter participant files a claim with the charter operator, or, if he is unavailable, with the surety, within sixty (60) days after termination of the charter, the surety shall be released from all liability under the bond to such charter participant. The contract between the charter operator and the charter participants shall contain notice of this provision.

(Secs. 101(3), 204(a), 401, and 402 of the Federal Aviation Act of 1958, as amended, 72 Stat. 737, 743, 754, and 757, as amended, 49 U.S.C. 1301, 1324, 1371 and 1372)

[SPR-54, 37 FR 11163, June 3, 1972, as amended by SPR-60, 37 FR 19122, Sept. 19, 1972; SPR-63, 37 FR 22849, Oct. 26, 1972; SPR-95, 40 FR 52355, Nov. 10, 1975; Doc. No. 47939, 57 FR 40105, Sept. 2, 1992]

§ 372.25 Tariffs to be filed for charter trips.

Effective October 1, 1972, a charter operator shall not operate or sell or offer to sell, solicit or advertise, any charter trips unless such operator shall have on file with the Department a currently effective tariff showing all rates, fares, and charges for such charter trips and showing the rules, regulations, practices, and services in connection with such transportation.

§ 372.26 [Reserved]

§ 372.27 Name of operator.

It shall be an express condition upon the exercise of the exemption herein granted and the operating authorizations issued hereunder, that the charter operator concerned, in holding out to the public and performing air transportation services, shall do so only in a name the use of which is authorized under the provisions of part 215 of this chapter.

§ 372.28 Record retention. 1

1 Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device, a material fact, or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing of document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both. Title 18, U.S.C. sec. 1001.

(a) Every charter operator conducting a charter pursuant to this part shall retain for 2 years after completion of the charter or series of charters true copies of the following documents at its principal or general office in the United States:

(1) All documents which evidence or reflect deposits made by, and refunds made to, each charter participant;

(2) All statements, invoices, bills, and receipts from suppliers or furnishers of goods and services in connection with the charter or series of charters.

(b) Every charter operator shall make the documents listed in this section available upon request by an authorized representative of the Department and shall permit such representative to make such notes and copies thereof as he deems appropriate.

[SPR-54, 37 FR 11163, June 3, 1972, as amended by Doc. No. 47939, 57 FR 40105, Sept. 2, 1992]

§ 372.30 Application.

(a) Application. Any person desiring to operate as an overseas military personnel charter operator may apply to the Department for an appropriate operating authorization. Contact the Office of International Aviation, Special Authorities Division, for filing instructions. The application shall be certified by a responsible official of such person and shall contain the following information:

(1) Date;

(2) Name of applicant, trade names, and name in which authorization is to be issued;

(3) Address of principal office and mailing address;

(4) Form of organization (i.e., corporation, partnership, etc.), State under whose laws company is authorized to operate and date company was formed;

(5) A list containing the names of each officer, director, partner, owner, or member of applicant, and holder of more than 5 percent of outstanding stock if a corporation, or owner of more than a 5-percent interest if other than a corporation; an indication as to whether or not 75 percent or more of the voting interest is owned or controlled by citizens of the United States or one of its possessions; if more than 5 percent of applicant's stock is held by a corporation, an indication must be made as to whether or not 75 percent or more of the voting interest in such corporation is owned or controlled by citizens of the United States or one of its possessions;

(6) A description of current business activities and of former business experience in, or related to, the transportation field;

(7) Description of operating authority granted applicant by agencies of the U.S. Government (such as customs broker, surface or air freight forwarder, motor carrier, ocean freight forwarder, etc.), and, if applicable, reasons for revocation or other termination;

(8) List of names of the officers, owners, etc., of applicants who have at any time applied for any type of authority or registration from the Civil Aeronautics Board or the Department of Transportation and, if applicable, reasons for revocation or other termination;

(9) List of officers, owners, etc., of applicants who have at any time been employed by or associated with any air carrier authorized to operate by the Civil Aeronautics Board or the Department of Transportation indicating dates of employment and capacity in which employed;

(10) Any additional information in support of application;

(11) Balance sheet as of a date not more than 3 months prior to application and profit and loss statement for the full year ending as of date of balance sheet;

(12) Brief account of any arrangement by which applicant will have available financial sources and facilities of other companies or individuals;

(13) The charter operator's surety bond and, where applicable, a copy of the depository, escrow or trust agreement with a bank as provided in § 372.24. 2

2 The surety bond and, where applicable, a copy of the depository escrow, or trust agreement with the bank should not be filed with the Department until the applicant is notified by the Department to do so.

(b) Additional information. The applicant shall also submit such other additional information pertinent to its proposed activities as may be requested by the Department with respect to any individual application.

[SPR-54, 37 FR 11163, June 3, 1972, as amended by Doc. No. 47939, 57 FR 40105, Sept. 2, 1992; 60 FR 43529, Aug. 22, 1995; Doc. No. DOT-OST-2014-0140, 84 FR 15938, Apr. 16, 2019]

§ 372.31 Issuance.

(a) If, after the filing of an application for an operating authorization, it appears that the applicant is capable of performing the air transportation authorized by this part as an overseas military personnel charter operator and of conforming to the provisions of the Act and all rules and requirements thereunder, and that the conduct of such operations by the applicant will not be inconsistent with the public interest, the applicant will be notified by letter. Such notification will advise the applicant that, upon the filing of a valid tariff pursuant to § 372.25, an operating authorization will be issued to the applicant.

(b) If, after the filing of an application for an operating authorization, it appears that the applicant has not made a due showing of capability or that the conduct of operations by the applicant might otherwise be inconsistent with the public interest, the Department shall by letter notify the applicant of its findings to that effect. The Department may dismiss any such application unless within 30 days of the date of the mailing of such letter, the applicant has in writing requested reconsideration and submitted such additional information as it believes will make the necessary showing, or requested that the application be assigned for hearing, in which case the applicant shall outline the evidence to be presented at such hearing and shall show the need for hearing in order properly to present its case.

(c) In the event that reconsideration or hearing is requested, the Department may, without notice or hearing, enter an order of approval or of disapproval in accordance without notice or hearing, enter an order of approval or of disapproval in accordance with its determination of the public interest upon the showing made, or on its own initiative may assign the application for hearing.

§ 372.32 Effective period.

Each operating authorization shall be effective upon the date specified therein, and shall continue in effect, unless sooner suspended or revoked, during such period as the authority provided by this part shall remain in effect, or if issued for a limited period of time, shall continue in effect until the expiration thereof unless sooner suspended or revoked.

§ 372.33 Nontransferability.

(a) An operating authorization shall be nontransferable and shall be effective only with respect to the person named therein or his successor by operation of law, subject to the provisions of this section. The following persons may temporarily continue operations under an operating authorization issued in the name of another person, for a maximum period of 6 months from the effective date of succession, by giving written notice of such succession to the Department within 60 days after the succession:

(1) Administrators or executors of deceased persons;

(2) Guardians of incapacitated persons;

(3) Surviving partner or partners collectively of dissolved partnerships; and

(4) Trustees, receivers, conservators, assignees, or other such persons who are authorized by law to collect and preserve the property of financially disabled persons.

(b) All operations by successors, as above authorized, shall be performed in the name or names of the prior holder of the operating authorization and the name of the successor, whose capacity shall also be designated. Any successor desiring to continue operations after the expiration of the 6-month period above authorized must file an application for a new operating authorization within 120 days after such succession. If a timely application is filed, such successor may continue operations until final disposition of the application by the Department.

§ 374.1 Purpose.

The purpose of this part is to state the Department of Transportation's responsibility to enforce air carrier and foreign air carrier compliance with Subchapters I, III, IV, V and VI of the Consumer Credit Protection Act and Regulations B and Z of the Board of Governors of the Federal Reserve System.

[62 FR 25841, May 12, 1997]

§ 374.2 Applicability.

This part is applicable to all air carriers and foreign air carriers engaging in consumer credit transactions.

§ 374.3 Compliance with the Consumer Credit Protection Act and regulations.

(a) Each air carrier and foreign air carrier shall comply with the requirements of the Consumer Credit Protection Act, 15 U.S.C. 1601-1693r. Any violation of the following requirements of that Act will be a violation of 49 U.S.C. Subtitle VII, enforceable by the Department of Transportation:

(1) The Truth in Lending Act, as supplemented by the Fair Credit Billing Act, 15 U.S.C. 1601-1667, requiring disclosure of credit terms to the consumer and prohibiting inaccurate or unfair credit billing and credit card practices.

(2) The Fair Credit Reporting Act, 15 U.S.C. 1681-1681 setting forth requirements to be met by consumer credit reporting agencies and persons who use consumer credit reports.

(b) Each air carrier and foreign air carrier shall comply with the requirements of Regulation B, 12 CFR part 1002, and Regulation Z, 12 CFR part 1026, of the Board of Governors of the Federal Reserve Board. Any violation of the requirements of those regulations will be a violation of 49 U.S.C. Subtitle VII, enforceable by the Department of Transportation.

[62 FR 25841, May 12, 1997, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15939, Apr. 16, 2019]

§ 374.4 Enforcement procedure.

The statutes and regulations referred to in § 374.3 may be enforced by an enforcement procedure as set forth in part 302 of this chapter or by the assessment of civil penalties under 49 U.S.C. 46301.

[62 FR 25842, May 12, 1997]

§ 374a.1 Purpose.

The purpose of this part is to issue rules pursuant to the Federal Election Campaign Act of 1971, as amended, in accordance with the Department's responsibility thereunder.

[Doc. No. DOT-OST-2014-0140, 84 FR 15939, Apr. 16, 2019]

§ 374a.2 Applicability.

This part shall be applicable to all air carriers as defined herein.

[SPR-53, 37 FR 9388, May 10, 1972, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15939, Apr. 16, 2019]

§ 374a.3 Definitions.

Adequate security means (a) a bond, issued by a surety meeting the standards prescribed for sureties in part 380 of this chapter, in an amount not less than one hundred and fifty percent (150%) of the credit limit established by the air carrier for the candidate, or the person acting on behalf of the candidate, as the case may be, by the terms of which bond the surety undertakes to pay to the air carrier any and all amounts (not exceeding the face amount of the bond) for which the assured candidate or the assured person acting on behalf of a candidate, as the case may be, is or may become legally liable to the air carrier for transportation, as defined in this part; or (b) collateral with a market value equal to one hundred and fifty percent (150%) of the established credit limit for such account, which collateral must be deposited in escrow and must consist of Federal, State, or municipal bonds or other negotiable securities which are publicly traded on a securities exchange.

Air carrier means any air carrier holding a certificate of public convenience and necessity issued under 49 U.S.C. 41102.

Candidate means an individual who seeks nomination for election, or election, to Federal office, whether or not such individual is elected. For purposes of this part, an individual shall be deemed to seek nomination for election, or election, if he has (a) taken the action necessary under the law of a State to qualify himself for nomination for election, or election, to Federal office; or (b) received contributions or made expenditures, or given his consent for any other person to receive contributions or make expenditures, with a view to bringing about his nomination for election, or election, to such office.

Election shall have reference to (a) a general, special, primary, or runoff election; (b) a convention or caucus of a political party held to nominate a candidate; (c) a primary election held for the selection of delegates to a national nominating convention of a political party; or (d) a primary election held for the expression of a preference for the nomination of persons for election to Federal office.

Established credit limit means the dollar limit of credit established by the carrier extending credit.

Federal office means the office of President or Vice President of the United States, or of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States.

Person acting on behalf of a candidate means (a) a political committee acting on behalf of, or a person employed by such candidate or by such political committee to act on behalf of, such candidate in connection with such candidate's campaign for nomination for election, or election, to Federal office; (b) a person acting under a contract with, or as an agent of, such candidate or political committee to engage in activities in connection with such candidate's campaign for nomination for election, or election, to Federal office; or (c) a person for whom such candidate or political committee pays, directly or indirectly, for services purchased by such person. The term includes persons acting on behalf of more than one candidate.

Payment in advance means payment by cash, check, money order, or by credit card (if the issuer of such card is not an air carrier or a subsidiary, parent, or affiliate thereof) prior to performance of such transportation by an air carrier.

Political committee means any committee, association, corporation, or organization which accepts contributions, or makes expenditures, for the purpose of supporting a candidate or candidates for nomination for election, or election, to Federal office.

Transportation means (a) the carriage of persons or property (including services connected therewith) for compensation or hire to or from any place in the United States, or (b) the lease or rental of aircraft, with or without crew.

[SPR-53, 37 FR 9388, May 10, 1972, as amended by SPR-173, 45 FR 80099, Dec. 3, 1980; Doc. No. DOT-OST-2014-0140, 84 FR 15939, Apr. 16, 2019]

§ 374a.4 Conditions governing extension of unsecured credit.

(a) Unless adequate security is posted, or full payment in advance is made, no air carrier shall provide transportation to any person it knows, or has reasons to know, is a candidate or a person acting on behalf of such candidate, in connection with the campaign of such candidate, except in accordance with, and subject to, the following conditions:

(1) At least once a month the air carrier shall submit to each such candidate or person a statement covering all unsecured credit extended to such candidate or person, as the case may be (whether in connection with the campaign of such candidate or otherwise.)

(2) Such statements shall be mailed no later than the second business day following the last day of the billing period, covered by the statement.

(3) The amount of indebtedness shown on each such statement shall be payable in full no later than 25 days after the last day of the billing period, after which time the indebtedness shall be overdue.

(4)(i) Unsecured credit shall not be extended by an air carrier to a candidate, or to any person acting on his behalf in connection with the campaign of such candidate, so long as any overdue indebtedness of such candidate to such air carrier shall remain unpaid, in whole or in part, or so long as such air carrier shall know that any overdue indebtedness of such candidate to any other air carrier remains unpaid, in whole or in part.

(ii) Unsecured credit shall not be extended by an air carrier to a person acting on behalf of a candidate, for transportation in connection with the campaign of such candidate, so long as any overdue indebtedness of such person to such carrier shall remain unpaid, in whole or in part, or so long as such air carrier shall know that any overdue indebtedness of such person to any other air carrier remains unpaid, in whole or in part.

(5)(i) With respect to transportation in connection with the campaign of any candidate to be performed after June 1, 1972, unsecured credit shall not be extended by an air carrier to any person acting on behalf of such candidate unless the carrier is authorized in writing by such candidate to extend such credit. The foregoing sentence shall not be construed as requiring the candidate to assume liability to the carrier for credit so extended.

(ii) Within 7 days after indebtedness becomes overdue for any unsecured credit extended by an air carrier to a person acting on behalf of a candidate in accordance with paragraph (a)(5)(i) of this section, the carrier shall notify the candidate in writing of the amount of the overdue indebtedness, and, unless paid in full within 25 days after the date of such notice, the overdue indebtedness shall be deemed to be the overdue indebtedness of the candidate, for the purposes of paragraph (b)(4)(i) of this section.

(b) It shall be presumed that a candidate or person acting on behalf of a candidate intends to use transportation in connection with the campaign of such candidate for nomination for election, or election, to Federal office.

(Secs. 204, 407 of the Federal Aviation Act of 1958, as amended, 72 Stat. 743, 766; 49 U.S.C. 1324, 1377. Sec. 401 of the Federal Election Campaign Act of 1971, 86 Stat. 19, 2 U.S.C. 451)

[SPR-53, 37 FR 9388, May 10, 1972, as amended by SPR-169, 45 FR 25796, Apr. 16, 1980; SPR-172, 45 FR 53454, Aug. 12, 1980]

§ 374a.5 Exemption authority.

Air carriers are exempt from the following provisions of 49 U.S.C. Subtitle VII:

(a) Section 41510.

(b) Section 41310, and any and all other provisions of 49 U.S.C. Subtitle VII, to the extent necessary to enable air carriers to comply with the provisions of this part.

[Doc. No. DOT-OST-2014-0140, 84 FR 15939, Apr. 16, 2019]

§ 374a.6 Reporting requirements.

(a) Air carriers shall make monthly reports to the Bureau of Transportation Statistics with respect to the credit for transportation furnished to candidates, or persons acting on behalf of candidates, during the period from 6 months before nomination, if any, or from 6 months before election, until the date of election. After that 6-month period, air carriers shall file such a report with the Bureau of Transportation Statistics not later than the 20th day following the end of the calendar month in which the election or nomination takes place, and thereafter when any change occurs in that report, until a negative report is filed showing that no debt for such extension of credit is owed to the carrier.

(b)(1) A separate report shall be filed for each candidate with an aggregate indebtedness balance of over $5,000 on the last day of the month to which the report pertains. The report shall cover all debts incurred by the candidate, whether or not incurred in connection with his campaign, and all debts incurred by persons acting on his behalf in connection with such campaign. The indebtedness accounts reported shall be those which the air carrier knows, or has reason to know, have been incurred by or on behalf of a candidate; and it shall be presumed that the transportation for which the indebtedness has been incurred is intended to be used in connection with the campaign of such candidate for nomination for election, or election, to Federal office.

(2) The reports required by this paragraph (b) shall be filed with the Office of Airline Information not later than the 20th day following the end of the calendar month to which the report pertains. They shall include the following data: (i) Name of account; (ii) the credit limit established for such account; (iii) the balance, if any, of the amount payable for transportation not paid for in advance; (iv) any unpaid balance of the charges for such transportation as of the last day of the month covered by the report, and the length of time that such balance has remained unpaid; and (v) a description of the type and value of any bond, collateral, or other security securing such unpaid balance.

(3) The report required by this paragraph (b) shall be in the form attached hereto as appendix A. 1

1 Filed as part of the original document.

(c) A separate report shall be filed for each person acting on behalf of any candidate, if the aggregate indebtedness balance of such person to the reporting air carrier (including all debts incurred by such person, whether or not incurred in connection with the campaign of a candidate, as defined in this part) is over $5,000 on the last day of the month to which the report pertains. The report shall be filed with the Office of Airline Information not later than the 20th day following the end of the calendar month to which the report pertains and shall include (1) the credit limitation established for such person; (2) the balance, if any, of the amount payable for transportation not paid for in advance; (3) any unpaid balance of the charges for such transportation as of the last day of the month covered by the report, and the length of time that such balance has remained unpaid; and (4) a description of the type and value of any bond, collateral, or other security securing such unpaid balance.

[SPR-53, 37 FR 9388, May 10, 1972, as amended by SPR-190, 47 FR 32414, July 27, 1982; 60 FR 66726, Dec. 26, 1995]

§ 374a.7 Record retention requirements.

(a) Every air carrier subject to the part shall retain for 2 years after a Federal election true copies of the following documents at its principal or general office in the United States:

(1) All documents which evidence or reflect the furnishing of transportation to a candidate for political office or a person acting on his behalf;

(2) All statements, invoices, bills, and receipts with respect to the furnishing of such transportation referred to in paragraph (a)(1) of this section.

(b) Every air carrier shall make the documents listed in this section available in the United States upon request by an authorized representative of the DOT and shall permit such representative to make such notes and copies thereof as he deems appropriate.

[SPR-53, 37 FR 9388, May 10, 1972, as amended at 60 FR 66726, Dec. 26, 1995]

§ 374a.8 Prospective application of part.

The provisions of this part shall apply only to the extension of credit by an air carrier to a candidate, or to a person acting on his behalf, which is made subsequent to the effective date of this part, and shall not be applicable to debts incurred prior to such date but which are unpaid as of the effective date of this part. The provisions of this part will be applicable, however, to all credit transactions which occur subsequent to the effective date of the part even though the credit account in which the transaction takes place was opened prior to the effective date of the part.

§ 375.1 Definitions.

As used in this part:

Air transportation means the carriage by aircraft of persons or property as a common carrier for compensation or hire or the carriage of mail by aircraft in interstate, overseas, or foreign commerce (see 49 U.S.C. 40102 (a)(5) and (a)(24));

Category shall indicate a classification of aircraft such as airplane, helicopter, glider, etc.;

Commercial air operations shall mean operations by foreign civil aircraft engaged in flights for the purpose of crop dusting, pest control, pipeline patrol, mapping, surveying, banner towing, skywriting, or similar agricultural and industrial operations performed in the United States, and any operations for remuneration or hire to, from or within the United States including air carriage involving the discharging or taking on of passengers or cargo at one or more points in the United States, including carriage of cargo for the operator's own account if the cargo is to be resold or otherwise used in the furtherance of a business other than the business of providing carriage by aircraft, but excluding operations pursuant to foreign air carrier permits issued under 49 U.S.C. 41301, exemptions, and all other operations in air transportation.

Exemption means an exemption granted, under 49 U.S.C. 40109, authorizing air transportation by a foreign air carrier;

Foreign air carrier permit means a permit authorizing foreign air transportation by a foreign air carrier pursuant to 49 U.S.C. 41301;

Foreign aircraft permit means a permit authorizing navigation of foreign civil aircraft in the United States pursuant to 49 U.S.C. 41703 and this part;

Foreign civil aircraft means (a) an aircraft of foreign registry that is not part of the armed forces of a foreign nation, or (b) a U.S.-registered aircraft owned, controlled or operated by persons who are not citizens or permanent residents of the United States;

Stop for non-traffic purposes means a landing for any purpose other than taking on or discharging passengers, cargo or mail, and does not include landings for embarking or disembarking stopover passengers or transshipped cargo or mail, or for other than strictly operational purposes.

Type means all aircraft of the same basic design including all modifications thereto except those modifications that result in a change in handling or flight characteristics.

[OST Doc. No. 42547, 51 FR 7254, Mar. 3, 1986, as amended at 71 FR 15328, Mar. 28, 2006; Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 375.2 Applicability.

The provisions of this part regulate the admission to, and navigation in, the United States of foreign civil aircraft other than aircraft operated under authority contained in a foreign air carrier permit or exemption. This part also contains provisions that specify the extent to which certain classes of flight operations by foreign civil aircraft may be conducted, and the terms and conditions applicable to such operations. Nothing in this part shall authorize any foreign civil aircraft to engage in air transportation nor be deemed to provide for such authorization by the Department.

§ 375.3 [Reserved]

§ 375.10 Certain foreign civil aircraft registered in ICAO member states.

Subject to the observance of the applicable rules, conditions, and limitations set forth in this part:

(a) Foreign civil aircraft manufactured in a State that at the time of manufacture was a member of the International Civil Aviation Organization (ICAO), and registered in a State that at the time of flight is a member of ICAO, may be navigated in the United States;

(b) Foreign civil aircraft manufactured in a State that at the time of manufacture was not a member of ICAO, and registered in a State that at the time of flight is a member of ICAO, may be navigated in the United States,

(1) If the State of registry has notified ICAO that the requirements under which it issues or renders valid certificates of airworthiness are equal to or above the minimum standards established pursuant to the Chicago Convention, or

(2) If such notification has not been made to ICAO at the time of flight, there is on file with the Department a statement by the State of registry that, with regard to aircraft of the type that is proposed to be operated hereunder, the requirements under which certificates of airworthiness are issued or rendered valid are equal to or above the minimum standards established pursuant to the Chicago Convention.

§ 375.11 Other foreign civil aircraft.

A foreign civil aircraft, including unmanned aircraft as defined in § 1.1 of this title, other than those referred to in § 375.10 may be navigated in the United States only when:

(a) The operation is authorized by the Department under the provisions of this part, and

(b) The aircraft complies with any applicable airworthiness standards of the Federal Aviation Administration for its operation.

[80 FR 78648, Dec. 16, 2015]

§ 375.19 Nature of privilege conferred.

The provisions of this part, and of any permit issued hereunder, together with 49 U.S.C. 41703, are designed, among other purposes, to carry out the international undertakings of the United States in the Chicago Convention, in particular Article 5. That article gives foreign aircraft the privilege of “taking on or discharging passengers, cargo or mail” subject to the right of the State where such embarkation or discharge takes place to impose such regulations, conditions or limitations as it may consider desirable. The U.S. Congress by the 1953 amendment to section 6 of the Air Commerce Act of 1926, now designated as 49 U.S.C. 41703, authorizes the Department to permit such operations only where conditions of reciprocity and the interest of the public in the United States are met. Thus, the operator of any foreign registered aircraft is not entitled as a matter of right to the issuance, renewal or freedom from modification or change in a permit issuable pursuant to this authority. Accordingly, any authority conferred by this part may be withheld, revoked, amended, modified, restricted, suspended, withdrawn, or canceled by the Department in the interest of the public of the United States, without notice or hearing.

[OST Doc. No. 42547, 51 FR 7254, Mar. 3, 1986, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 375.20 Airworthiness and registration certificates.

Foreign civil aircraft shall carry currently effective certificates of registration and airworthiness issued or rendered valid by the country of registry and shall display the nationality and registration markings of that country. However, a foreign civil aircraft may carry, in lieu of such certificate of airworthiness, an effective special flight authorization issued by the Federal Aviation Administration for the operations being performed.

§ 375.21 Airmen.

Members of the flight crew of a foreign civil aircraft shall have in their personal possession valid airman certificates or licenses authorizing them to perform their assigned functions in the aircraft and for the operation involved issued or rendered valid by the country of registry of the aircraft or by the United States. No such flight crew members shall perform any flight duty within the United States that they are not currently authorized to perform in the country issuing or validating the certificate.

§ 375.22 Flight operations.

Flights of foreign civil aircraft in the United States shall be conducted in accordance with the currently applicable rules of the Federal Aviation Administration in 14 CFR chapter I.

[OST Doc. No. 42547, 51 FR 7254, Mar. 3, 1986, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 375.23 Maximum allowable weights.

Foreign civil aircraft that are permitted to navigate in the United States on the basis of foreign airworthiness certificates must conform to the limitations on maximum certificated weights prescribed or authorized for the particular variation of the aircraft type, and for the particular category of use, by the country of manufacture of the aircraft type involved.

§ 375.24 Entry and clearance.

All U.S. entry and clearance requirements for aircraft, passengers, crews, baggage and cargo shall be followed.

§ 375.25 Unauthorized operations.

No foreign civil aircraft shall be navigated in the United States unless authorized by this part. Commercial air operations (other than those authorized by § 375.36) shall not be undertaken without a permit issued by the Department.

§ 375.26 Waiver of sovereign immunity.

Owners and operators of aircraft operated under this part that are engaged in proprietary of commercial activities waive any defense of sovereign immunity from suit in any action or proceeding instituted against any of them in any court or other tribunal in the United States for any claim relating to that operation.

§ 375.30 Operations other than commercial air operations.

Foreign civil aircraft that are not engaged in commercial air operations into, out of, or within the United States may be operated in the United States and may carry non-revenue traffic to, from or between points in the United States.

§ 375.31 Demonstration flights of foreign aircraft.

Flights of foreign civil aircraft within the United States may be made for the purpose of demonstration of the aircraft or any component thereof (including demonstrations at airshows), provided no persons, cargo or mail are carried for remuneration or hire.

§ 375.32 Flights incidental to agricultural and industrial operations outside the United States.

Foreign civil aircraft that are engaged in agricultural or industrial operations to be performed wholly outside the United States may be navigated into, out of, and within the United States in connection with those operations provided that the aircraft is not at the time engaged in the carriage of passengers, cargo, or mail for remuneration or hire.

§ 375.33 Transit flights, irregular operations.

Foreign civil aircraft carrying passengers, property or mail for remuneration or hire, but not engaged in scheduled international air services, are authorized to navigate nonstop across the territory of the United States and to make stops for non-traffic purposes. The navigation of foreign civil aircraft in the United States is not authorized under this section when the elapsed time between landing and takeoff at a stop in the United States exceeds 24 hours and passengers are permitted to leave the airport or when passengers, property or mail are transferred to another aircraft. Flights involving stops under such circumstances may, however, be performed in the case of emergency relating to the safety of the aircraft, passengers, cargo or crew.

[OST Doc. No. 42547, 51 FR 7254, Mar. 3, 1986, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 375.34 Indoctrination training.

Foreign civil aircraft may be operated in the United States for the purpose of giving indoctrination training in the operation of the aircraft concerned to a buyer or a buyer's employees or designees. This section does not, however, authorize foreign civil aircraft to be used within the United States for the purpose of flight instruction for remuneration or hire.

§ 375.35 Free transportation.

(a) Foreign civil aircraft may be navigated in the United States by a foreign air carrier for the transportation of persons and property specified in paragraph (b) of this section over the following non-traffic segments provided such transportation is not for compensation or hire:

(1) Between two or more points in the United States;

(2) Between a point in the United States named in the carrier's section 41301 permit or exemption, and a point outside the United States not so named, when authorized in accordance with the provisions of part 216 of this chapter to carry blind sector traffic to or from such unnamed foreign point; and

(3) Between a point in the United States and a point outside thereof when the carrier lands at the United States point for non-traffic purposes in exercise of the privilege granted under the International Air Services Transit Agreement.

(b) Free transportation may be provided under this section for the following categories of persons and property:

(1) Directors, officers and employees, and their parents and immediate families, of the foreign air carrier operating the aircraft;

(2) Directors, officers and employees, and their parents and immediate families, of an air carrier or another foreign air carrier traveling pursuant to a pass interchange arrangement;

(3) Travel agents being transported for the purpose of familiarizing themselves with the carrier's services, if the agents are under no obligation to sell the transporting carrier's services;

(4) Witnesses and attorneys attending any legal investigation in which any such foreign air carrier is involved;

(5) Persons injured in aircraft accidents and physicians and nurses attending such persons;

(6) Any persons or property with the object of providing relief in cases of general epidemic, natural disaster or other catastrophe;

(7) Any person who has the duty of guarding foreign government officials travelling on official business; and

(8) Guests of a foreign air carrier (including members of the press) on delivery flights of newly-acquired or newly-renovated aircraft.

(c) A charge reasonably related to the value of meals and beverages furnished enroute shall not be deemed to constitute compensation or hire for purposes of this section.

[OST Doc. No. 42547, 51 FR 7254, Mar. 3, 1986, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 375.36 Lease of foreign civil aircraft without crew.

Foreign civil aircraft that are leased without crew to an air carrier or citizen or permanent resident of the United States, and used by the lessee in otherwise authorized air transportation or commercial air operations, may be operated into, out of, and within the United States in accordance with any applicable regulations prescribed by the Federal Aviation Administration.

§ 375.37 Certain business aviation activities using U.S.-registered foreign civil aircraft.

For purposes of this section, “company” is defined as a person that operates civil aircraft in furtherance of a business other than air transportation. U.S.-registered foreign civil aircraft that are not otherwise engaged in commercial air operations, or foreign air transportation, and which are operated by a company in the furtherance of a business other than transportation by air, when the carriage is within the scope of, and incidental to, the business of the company (other than transportation by air), may be operated to, from, and within the United States as follows:

(a) Intra-company operations. A company operating a U.S.-registered foreign civil aircraft may conduct operations for a subsidiary or parent or a subsidiary of its parent on a fully-allocated cost reimbursable basis; provided, that the operator of the U.S.-registered foreign civil aircraft must hold majority ownership in, be majority owned by, or have a common parent with, the company for which it provides operations;

(b) Interchange operations. A company may lease a U.S.-registered foreign civil aircraft to another company in exchange for equal time when needed on the other company's U.S. registered aircraft, where no charge, assessment, or fee is made, except that a charge may be made not to exceed the difference between the cost of owning, operating, and maintaining the two aircraft;

(c) Joint ownership operations. A company that jointly owns a U.S.-registered foreign civil aircraft and furnishes the flight crew for that aircraft may collect from the other joint owners of that aircraft a share of the actual costs involved in the operation of the aircraft; and

(d) Time-sharing operations. A company may lease a U.S.-registered foreign civil aircraft, with crew, to another company; provided, that the operator may collect no charge for the operation of the aircraft except reimbursement for:

(1) Fuel, oil, lubricants, and other additives.

(2) Travel expenses of the crew, including food, lodging, and ground transportation.

(3) Hanger and tie-down costs away from the aircraft's base of operations.

(4) Insurance obtained for the specific flight.

(5) Landing fees, airport taxes, and similar assessments.

(6) Customs, foreign permit, and similar fees directly related to the flight.

(7) In flight food and beverages.

(8) Passenger ground transportation.

(9) Flight planning and weather contract services.

(10) An additional charge equal to 100 percent of the expenses for fuel, oil, lubricants, and other additives.

[Doc. No. DOT-OST-2003-15511, 71 FR 15328, Mar. 28, 2006]

§ 375.38 Other foreign civil aircraft: Small unmanned aircraft operated exclusively as model aircraft.

Foreign civil aircraft that are small unmanned aircraft used exclusively as model aircraft may be operated in the United States only when the individual:

(a) Completes the registration process in accordance with §§ 48.30, 48.100(b) and (c), 48.105, and 48.115 of this title;

(b) Identifies the aircraft in accordance with the aircraft marking requirements in §§ 48.200 and 48.205 of this title; and

(c) Complies with the requirements of Sec. 336 of Pub. L. 112-95 (Feb. 14, 2012).

[80 FR 78648, Dec. 16, 2015]

§ 375.40 Permits for commercial air operations.

(a) Permit required. Except for aircraft being operated under a foreign air carrier permit, an exemption, or as otherwise provided in subpart D or H of this part, foreign civil aircraft may engage in commercial air operations only if there is carried on board the aircraft a permit issued by the Department in accordance with this subpart authorizing the operations involved.

(b) Aircraft are not authorized to engage in air transportation under this section. Where an operation involves the carriage of persons, property or mail for compensation or hire, the Department will determine whether particular flights for which a permit is sought will be in common carriage, and therefore in air transportation, based on all the facts and circumstances surrounding the applicant's entire operations. The burden rests upon the applicant in each instance to demonstrate by an appropriate factual showing that the contemplated operation will not constitute common carriage from, to or within the United States. In general, an applicant that holds itself out to the public, or to a particular class or segment, as willing to furnish transportation for hire is a common carrier.

§ 375.41 Agricultural and industrial operations within the United States.

Foreign civil aircraft shall not be used for such commercial air operations as crop dusting, pest control, pipeline patrol, mapping, surveying, banner towing, skywriting or similar agricultural or industrial operations within the United States, including its territorial waters and overlying airspace, unless a permit has been issued by the Department and the operation is conducted in accordance with all applicable State and local laws and regulations as well as the applicable provisions of this part.

§ 375.42 Transport operations—occasional planeload charters.

Occasional planeload charters may be authorized where, because of their limited nature and extent, special equipment or facilities utilized, or other circumstances pertaining to them, it appears that they are not within the scope of the applicant's normal holding out of transportation services to the general public. Such charters are normally limited to those in which the entire capacity of the aircraft is engaged by a single charterer, and since they are occasional in nature, should not exceed for any one applicant more than six flights during a calendar year. This part does not authorize operations that involve solicitation of the general public such as is usually involved in the transportation of individually-ticketed passengers or individually-waybilled cargo, or in which the charterer is a travel agent, a charter operator, a broker, an air freight forwarder or any other organization that holds itself out to the general public to provide transportation services. Carriage of cargo for the operator's own account is governed by the provisions of this section if the cargo is to be resold or otherwise used in the furtherance of a business other than the business of providing carriage by aircraft.

§ 375.43 Application for foreign aircraft permit.

(a) Applications for foreign aircraft permits shall be submitted on OST Form 4509 (see appendix A to this part), in duplicate, addressed to the Chief, Foreign Air Carrier Licensing Division, X-45, Office of International Aviation. Applications should be submitted by email; see “Application Procedures under Part 375” at www.transportation.gov/policy/aviation-policy/licensing/foreign-carriers.

(b) Applications shall contain a proper identification (including citizenship) of the applicant (the operator of the aircraft concerned) and of the owner thereof (if different from the applicant), a description of the aircraft by make, model, and registration marks; and a full description of the operations for which authority is desired, indicating type and dates of operations and number of flights, and routing. In the case of cargo flights, the names of all contractors, agents, if any, and the beneficial owner of the cargo, and a description of the cargo and of the proposed operations shall be provided. In the case of passenger flights, a full identification and description of the group chartering the aircraft, and identification of the travel agent, if any, shall be provided. Applications shall also contain a statement as to whether the applicant's homeland allows operators of U.S.-registered aircraft to conduct similar operations.

(c) Applications shall be filed at least 15 days in advance of the proposed commencement date of the operations. The Department may direct the applicant to serve copies of its application on additional persons. Late applications may be considered by the Department upon a showing of good cause.

(d)(1) Any party in interest may file a memorandum supporting or opposing an application. Two copies of each memorandum shall be filed within 7 business days after the application is filed but no later than the proposed commencement date of the operations. Memoranda will be considered to the extent practicable; the Department may act on an application without waiting for supporting or opposing memoranda to be filed.

(2) Each memorandum shall set forth the reasons why the applications should be granted or denied, accompanied by whatever data, including affidavits, the Department is asked to consider.

(3) A copy of each memorandum shall be served on the applicant.

(e)(1) Unless otherwise ordered by the Department, each application and memorandum filed in response shall be available for public inspection at the Licensing Division of the Office of International Aviation immediately upon filing. Notice of the filing of all applications shall be published in the Department's Weekly List of Applications Filed.

(2) Any person objecting to public disclosure of any information in an application or memorandum must state the grounds for the objection in writing. If the Department finds that disclosure of all or part of the information should be withheld under applicable provisions of law, and the public interest does not require disclosure, it will order that the injurious information be withheld.

(Approved by the Office of Management and Budget under control number 2106-0002)

[OST Doc. No. 42547, 51 FR 7254, Mar. 3, 1986, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 375.44 Issuance of permit.

(a) The Department will issue a foreign aircraft permit if it finds that the proposed operations meet the requirements of this part and are in the public interest. Foreign aircraft permits may be conditioned or limited by the Department. Permits must be carried aboard the applicant's aircraft during flight over U.S. territory, and are not transferable.

(b) In determining whether to grant a particular application, the Department will consider, among other factors, the extent to which the country of the applicant's nationality deals with U.S. civil aircraft operators on the basis of substantial reciprocity, and whether the operation is otherwise in the public interest.

§ 375.45 Records and reports of occasional planeload charters.

(a) Cargo documents. The holder of a permit for cargo operations shall issue a manifest or shipping document to its shipper with respect to each shipment.

(b) [Reserved]

(c) Contents of documents for passenger flights. The holder of a permit for passenger charters originating or terminating in the United States shall require each charterer to file with it prior to flight a list of names and addresses of all passengers to be transported on each flight.

(d) Reports of unused authority. All foreign operators of occasional planeload charters for which authority is granted must notify the Department, in writing, not later than 15 days after the expiration of their permits, or their failure to use this authority. The unused authority shall otherwise be deemed to have been exercised.

§ 375.50 Transit flights; scheduled international air service operations.

(a) Requirement of notice. Scheduled international air services proposed to be operated pursuant to the International Air Services Transit Agreement in transit across the United States may not be undertaken by foreign civil aircraft unless the operator of such aircraft, and (if other than the operator) the carrier offering such service to the public, has, not less than 30 days prior to the date of commencement of such service, filed a Notice of Proposed Transit Flights Pursuant to the International Air Services Transit Agreement in accordance with the provisions of paragraphs (b) and (c) of this section.

(b) Filing of the notice. An original and two copies of the Notice shall be filed with the Chief, Foreign Air Carrier Licensing Division, X-45, Office of International Aviation. Copies of the Notice shall be served upon the Department of State and the Administrator of the Federal Aviation Administration. The filing date shall be the date of actual receipt by the Department.

(c) Content of notice. A “Notice of Proposed Transit Flights Pursuant to the International Air Services Transit Agreement” shall be clearly labeled as such, and as a minimum shall set forth, with whatever detail may be necessary, the following information:

(1) The name, country or organization, and citizenship of the operator, and, if other than the operator, of the carrier offering the services to the public. If any interest (direct or indirect) in the operator or offeror of services is held by nationals of a country other than the country of organization or citizenship, the nature and extent of such interest must be fully disclosed. If any officer or director of the operator or carrier offering the services is a national of a country other than the country of organization or citizenship, the position of duties of such officer or director, and the officer and director's relevant position in relation to other officers and directors must similarly be fully disclosed. If the information required in this subsection has been previously supplied to the Department, the applicant may incorporate it by reference.

(2) The State of registration of the aircraft proposed to be operated.

(3) A full description of the proposed operations including the type of operations (passenger, property, mail, or combination), date of commencement, duration and frequency of flights, and routing (including each terminal and intermediate point to be served).

(4) A statement as to whether or not any advertisement or publication of the proposed operations has been made in the United States. If there has been any advertisement or publication of the operations in the United States, copies of all such advertisements or publications shall be included.

(5) Any change with respect to these matters (minor changes in schedules or routing excepted) shall also be filed with the Department.

(d) Authorized operations. If the operator and the carrier offering services to the public (if different from the operator) have filed a “Notice of Proposed Transit Flights Pursuant to the International Air Services Transit Agreement,” at least 30 days before the date of commencement of the proposed operations in accordance with paragraphs (a), (b), and (c) of this section, the described operations may be commenced and performed without further authorization from the Department, unless and until the Department issues an order notifying the operator and/or the carrier offering the services to the public that, considering the matters submitted in the Notice, the Department is of the view that a question may exist as to whether:

(1) The proposed services are authorized pursuant to the terms of the International Air Services Transit Agreement;

(2) Substantial ownership and effective control are vested in nationals of a State party to the International Air Services Transit Agreement;

(3) The proposed operations will be in compliance with the laws of the United States, the Department's rules, or the provisions of this section; or

(4) The operator or its government have performed their obligations under the International Air Services Transit Agreement.

(e) Prohibited operations. If the Department issues an order of notification as described in paragraph (d) of this section, neither the operator, nor the carrier offering the services to the public, shall commence the proposed operations, or, except as may be otherwise specified in the order, operate any flights subsequent to receipt of the order, unless and until the Department issues a foreign aircraft permit pursuant to the provisions of 49 U.S.C. 41703 and this part specifically authorizing such operations.

(f) Foreign aircraft permit—application and procedures. If the Department issues an Order of Notification as described in paragraph (d) of this section, the carrier's Notice of Proposed Transit Flights Pursuant to the International Air Services Transit Agreement shall be treated as an application for the required foreign aircraft permit, and further procedures on such application shall be as directed by the Department.

(g) Short notice filing. Nothing in this section shall be construed as precluding the filing of an application for a foreign aircraft permit to perform transit operations pursuant to the International Air Services Transit Agreement less than 30 days in advance of the proposed operation. No such flights shall be operated, however, unless or until a specific foreign aircraft permit has been issued by the Department.

(h) Nature of privilege conferred. Air transportation is not authorized under this section, and the burden rests upon each operator and carrier to show that the proposed operations will not constitute air transportation within the meaning of 49 U.S.C. Subtitle VII. In addition, each operator and carrier has the burden of demonstrating that the proposed operations are authorized by the International Air Services Transit Agreement, and that the appropriate authorization should not be withheld pursuant to section 5 of Article I thereof. Stopovers for the convenience or pleasure of the passengers are not authorized under this section and stops other than for strictly operational reasons shall not be made. The consolidation on the same aircraft of an operation under this section with a service authorized under 49 U.S.C. 41301 or 41709 is not authorized by this section. Any authorization or permit granted under this section is nontransferable, and may be withheld, revoked, suspended, withdrawn, or cancelled by the Department, without notice or hearing, if required by the public interest. Operators of aircraft registered in countries not parties to the International Air Services Transit Agreement shall make special application to the Department under § 375.70.

[OST Doc. No. 42547, 51 FR 7254, Mar. 3, 1986, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 375.60 Penalties.

The operation of a foreign aircraft within the United States or over adjacent territorial waters in violation of the provisions of this part constitutes a violation of 49 U.S.C. Subtitle VII and of this chapter, and may, in addition, constitute a violation of the rules of the Federal Aviation Administration. Such operation makes the person or persons responsible for the violation or violations subject to a civil penalty as provided in 49 U.S.C. 46301, and to the alteration, amendment, modification, suspension or revocation of any permit issued under this part and of any U.S. certificate involved as provided in 49 U.S.C. 44709. Engaging in air transportation as defined in 49 U.S.C. Subtitle VII by a foreign aircraft without a foreign air carrier permit issued pursuant to 49 U.S.C. 41301 or an exemption, or in violation of the terms of such authority constitutes not only a violation of this part but of Title 49, subtitle VII, as well, which entails a criminal penalty as set forth in 49 U.S.C. 46316.

[Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 375.70 Special authorization.

Any person desiring to navigate a foreign civil aircraft within the United States other than as specifically provided in this part may petition the Department for a special authorization to conduct the particular flight or series of flights. Such authorization may be issued only if the Department finds that the proposed operation is fully consistent with the applicable law, that the applicant's homeland grants a similar privilege with respect to operators of U.S.-registered aircraft, and that the proposed operation is in the interest of the public of the United States.

§ 377.1 Definitions.

As used in this part:

Authorization means any agency certificate, approval, statutory exemption or other form of permission granted pursuant to 49 U.S.C. 40102, 41102, 41302, 41309, and 41708. Where any operating authorization creates more than one separate route, each of these shall be deemed a separate authorization for the purposes of this part.

Renewal application means any application filed in conformity with the requirements of this part which requests either a renewal or a new license and is intended to invoke the provisions of the last sentence of 5 U.S.C. 558(c).

Route means an authorization which permits an air carrier to render unlimited regularly scheduled service between a specifically designated pair of terminal points and intermediate points, if any.

[SPR-84, 40 FR 24998, June 12, 1975, as amended by SPR-184, 47 FR 7212, Feb. 18, 1982; Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 377.2 Applicability of part.

(a) This part implements the last sentence of 5 U.S.C. 558(c) with regard to temporary authorizations granted by the Department.

Note:

The last sentence of 5 U.S.C. 558(c) provides: “When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.”

(b) Nothing in this part prevents the Department from terminating at any time, in accordance with law, any authorization or any extension of an authorization.

(c) Nothing in this part constitutes a determination that any given authorization is a “license with reference to an activity of a continuing nature” within the meaning of 5 U.S.C. 558(c).

[SPR-184, 47 FR 7212, Feb. 18, 1982, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 377.3 Authorizations not covered by 5 U.S.C. 558(c).

The Department hereby determines that the following authorizations are not licenses “with reference to an activity of a continuing nature” within the meaning of 5 U.S.C. 558(c):

(a) Authorizations granted for a specified period of 180 days or less; and

(b) Authorizations, other than those granted under 49 U.S.C. 41102, that by their terms are subject to termination at an uncertain date upon the happening of an event, including fulfillment of a condition subsequent or occurrence of a contingency.

[SPR-184, 47 FR 7212, Feb. 18, 1982, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 377.4 Certain authorizations with alternative termination dates.

Unless granted under 49 U.S.C. 41102, an authorization that by its terms is subject to termination alternatively, either at an uncertain date upon the happening of an event or upon the arrival of a specified date:

(a) Will not be considered a “license with reference to an activity of a continuing nature” within the meaning of 5 U.S.C. 558(c), if the event occurs before the specified date; and

(b) Ordinarily (subject to interpretation under § 377.5) will be considered such a license, if the event does not occur before the specified date and that date is more than 180 days after the effective date of the authorization.

[SPR-184, 47 FR 7212, Feb. 18, 1982, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 377.5 Procedure to obtain Department interpretation.

(a) The Department will determine upon written request by the holder of a temporary authorization or by any competitively affected air carrier or foreign air carrier, or upon its own initiative, whether the temporary authorization is a “license with reference to an activity of a continuing nature” within the meaning of 5 U.S.C. 558(c).

(b) A written request for such a Department determination shall be filed at least 60 days before the deadline set forth in § 377.10 for a timely renewal application.

(c) The filing of such a written request shall not affect the timeliness requirements for renewal applications that are set forth in § 377.10 or any other applicable Department rule or order.

[SPR-184, 47 FR 7212, Feb. 18, 1982, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 377.10 Requirements for, and effect of, renewal applications.

(a) Identification of authorization covered by renewal application. Each renewal application shall identify the authorization or authorizations to which it is intended to relate. The application shall indicate the applicant's intention to rely upon 5 U.S.C. 558(c) as implemented by this part. In case of applications for renewal of an authorization for route service, the renewal application shall specifically identify the separate routes which the applicant proposes to continue serving pursuant to the expiring authorization, pending final determination of the renewal application.

(b) Contents of renewal application. The application must contain all the information required by law and the Department's regulations, and meet the requirements thereof as to form. The new authorization sought need not be of the same duration as the expiring authorization. If the application relates to renewal of route authority, it must contain, as a minimum, a request for renewed authority to render route service between the terminals named in each separate route for which renewal is requested.

(c) Timeliness. The application must be filed and served in compliance with applicable law and the Department's regulations at least 60 days before the expiration date of the outstanding temporary authorization, except that:

(1) For certificates issued under 49 U.S.C. 41102 with a specified expiration date, the deadline is 180 days before the expiration date;

(2) For certificates issued under 49 U.S.C. 41102 that terminate by their terms upon the happening of an event that could not be foreseen, the deadline is 30 days after the time that the carrier has notice that the event will occur or has occurred;

(3) For foreign air carrier permits issued under 49 U.S.C. 41301 and exemptions issued under 49 U.S.C. 41708 to non-U.S. citizens, the deadline is the expiration date itself;

(4) For renewal by substantially equivalent certificate authority of fixed term route authorizations granted by exemption and for interim extension of the exemption, pursuant to § 399.18 of this chapter, the deadline is 90 days before the expiration date; and

(5) Nothing in this part supersedes a requirement for earlier filing contained in any law, Department rule or order, or temporary authorization.

(d) Effect. In the case of authorizations which constitute licenses with reference to activities of a continuing nature within the meaning of 5 U.S.C. 558(c), the filing of an application complying in all respects with the requirements of paragraphs (a) through (c) of this section shall extend the authorization to which it relates as then outstanding in its entirety, together with all applicable terms, conditions and limitations, until the application has been finally determined by the Department. In the case of routes granted under 49 U.S.C. 41102, the duty to render adequate service continues to attach to every point as provided in the expired authorization which is extended pursuant to this provision. The date of final determination of the application shall be the date when the final order determining the application takes effect, or when the applicable period for filing of petitions for rehearing, reargument or reconsideration expires, or when a timely filed petition therefor is denied, whichever occurs latest.

[SPR-84, 40 FR 24998, June 12, 1975, as amended by SPR-184, 47 FR 7212, Feb. 18, 1982; 65 FR 6457, Feb. 9, 2000; Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 377.11 Processing of defective renewal applications.

When the Department determines that a renewal application does not comply with the requirements of this part, or that it does not relate to a license with reference to an activity of a continuing nature, it will so notify the applicant. The applicant may amend his application to cure the deficiency as a matter of right at any time prior to the date when the application was due pursuant to § 377.10(c).

[SPR-84, 40 FR 24998, June 12, 1975, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 380.1 Applicability.

This part applies to Public Charter air transportation of passengers in interstate or foreign air transportation, whether furnished by direct air carriers or Public Charter operators. This part also relieves such charter operators from various provisions of subtitle VII of Title 49 of the United States Code (statute), for the purpose of enabling them to provide Public Charters utilizing aircraft chartered from such direct air carriers. It also declines jurisdiction over foreign Public Charter operators operating foreign-originating Public Charters.

[Docket No. OST-97-2356, 63 FR 28241, May 22, 1998, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 380.2 Definitions.

For the purposes of this part:

Certificated air carrier means a U.S. direct air carrier holding a certificate issued under the statute.

Charter flight means a flight operated under the terms of a charter contract between a direct air carrier and its customer. It does not include scheduled air transportation, scheduled foreign air transportation, or nonscheduled cargo air transportation, sold on an individually ticketed or individually waybilled basis.

Direct air carrier means a certificated commuter or foreign air carrier, or an air taxi operator registered under part 298 of this chapter, or a Canadian charter air taxi operator registered under part 294 of this chapter, that directly engages in the operation of aircraft under a certificate, authorization, permit or exemption issued by the Department.

Educational institution means a school that is operated as such on a year-round basis and is empowered to grant academic degrees or secondary school diplomas by any government in the United States or by a foreign government.

Foreign air carrier means a direct air carrier that holds a foreign air carrier permit issued under the statute or an exemption issued under the statute authorizing direct foreign air transportation.

Foreign Public Charter operator means an indirect air carrier which is not a citizen of the United States as defined in the statute, that is authorized to engage in the formation of groups for transportation on Public Charters in accordance with this part.

Indirect air carrier means any person who undertakes to engage indirectly in air transportation operations and who uses for such transportation the services of a direct air carrier.

Public Charter means a one-way or round-trip charter flight to be performed by one or more direct air carriers that is arranged and sponsored by a charter operator.

Public Charter operator means a U.S. or foreign Public Charter operator.

Security agreement means:

(1) A surety bond issued by a company—

(i) That is listed in the Best's Insurance Reports (Fire and Casualty) with a general policyholders' rating of “A” or better, or

(ii) That is listed in the U.S. Department of Treasury's notice listing companies holding Certificates of Authority as acceptable sureties on Federal bonds and as acceptable reinsuring companies, published in the Federal Register in the first week in July; or

(2) A Surety trust agreement or a letter-of-credit, issued by a Federal Deposit Insurance Corporation-insured financial institution, which provides substantially equivalent protection.

Sub-operator means a Public Charter operator that has contracted for its charter seats from a Public Charter operator that has contracted from one or more direct air carriers. A sub-operator is itself an indirect air carrier, not an agent of the Public Charter operator from which it has obtained its seat.

U.S. Public Charter operator means an indirect air carrier that is a citizen of the United States as defined in 49 U.S.C. 40102(a) and that is authorized to engage in the formation of groups for transportation on Public Charters in accordance with this part.

[Doc. No. OST-97-2356, 63 FR 28241, May 22, 1998, as amended at 70 FR 25773, May 16, 2005; Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 380.3 General provisions.

(a) Public Charters may be operated on a one-way or round-trip basis, with no minimum group or contract size. Public Charters may be sold on an air-only basis, or with mandatory or optional land arrangements.

(b) A U.S. Public Charter operator operating a Public Charter which originates in a foreign country shall not be subject to the requirements of §§ 380.25, 380.28, 380.30 through 380.35.

(c) The Department declines to exercise jurisdiction over a foreign Public Charter operator which operates a Public Charter originating in a foreign country, but reserves the right to exercise its jurisdiction over any foreign Public Charter operator at any time its finds that such action is in the public interest.

(d)(1) An educational institution operating a Public Charter need not comply with the financial security requirements of § 380.34 if each student participant in the charter is enrolled in a formal academic course of study outside the United States, sponsored by or in conjunction with that institution, that is of at least four weeks' duration.

(2) The spouse, children, and parents of a student participant may accompany the participant on a charter operated under this section.

(e) The Department, upon application or on its own initiative, may waive any of the provision of this part if it finds such action to be in the public interest.

[Docket No. OST-97-2356, 63 FR 28241, May 22, 1998, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 380.4 Enforcement.

In the case of any violation of the provision of 49 U.S.C. Subtitle VII or of this part, or any other rule, regulations, or order issued under the Statute, the violator may be subject to a proceeding pursuant to the Statute before the Department or a U.S district court, as the case may be, to compel compliance therewith; to civil penalties pursuant to the provisions of 49 U.S.C. Subtitle VII, or to criminal penalties pursuant to the provisions of 49 U.S.C. Subtitle VII, or other lawful sanctions.

§ 380.10 Public Charter requirements.

Public Charters under this part shall meet the following requirements:

(a)-(b) [Reserved]

(c) If the charter is on a round-trip basis, the departing flight and returning need not be performed by the same direct air carrier.

(d) The air transportation portion of the charter must be performed by direct air carriers that hold authority under Chapter 411 and 413 of 49 U.S.C. Subtitle VII, or are operating under 14 CFR part 298, except that only U.S. citizen direct air carriers may provide air transportation for operations in interstate air transportation.

§ 380.11 Payment to direct air carrier(s).

Except for air taxi operators and commuter air carriers (which are governed by 14 CFR 298.38) and Canadian charter air taxi operators (which are governed by 14 CFR 294.32), the direct air carrier(s) shall be paid in full for the cost of the charter transportation (for both legs, if a round-trip charter) prior to the scheduled date of flight departure, as provided for in the basic charter regulations applicable to the direct air carrier(s) under part 212 of this chapter.

§ 380.12 Cancellation by charter operator and notice to participants.

(a) The charter operator may not cancel a charter for any reason (including insufficient participation), except for circumstances that make it physically impossible to perform the charter trip, less than 10 days before the scheduled date of departure of the outbound trip.

(b) If the charter operator cancels 10 or more days before the scheduled date of departure, the operator must so notify each participant in writing within 7 days after the cancellation but in any event not less than 10 days before the scheduled departure date of the outbound trip. If a charter is canceled less than 10 days before scheduled departure (i.e., for circumstances that make it physically impossible to perform the charter trip), the operator must get the message to each participant as soon as possible.

§ 380.13 Prohibition on sale of round trips with open returns.

The charter operator shall not accept any participant's payment for return transportation unless the participant has specified a particular return flight.

§ 380.14 Unused space.

Nothing contained in this part shall preclude a charter operator from utilizing any unused space on an aircraft by it for a Public Charter for the transportation, on a free or reduced basis, of such charter operator's employees, directors, and officers, and parents and immediate families of such persons.

[Docket No. OST-97-2356, 63 FR 28241, May 22, 1998, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 380.15 Substitution for charter participants.

Substitutes may be arranged for charter participants at any time preceding departure. Participants who provide the charter operator or its sales agent with a substitute participant, or who are substituted for by a participant found by the operator, shall receive a refund of all moneys paid to the operator, except that the operator may reserve the right to retain an administrative fee not to exceed $25 for effecting the substitution.

[Docket No. OST-97-2356, 63 FR 28241, May 22, 1998, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 380.17 Charters conducted by educational institutions.

(a) This section shall apply only to charters conducted by educational institutions for charter groups comprised of bona fide participants in a formal academic course of study abroad which is of at least 4 weeks duration. The charter group may also include a student participant's immediate family (spouse, children, and parents). Except as modified in this section, all terms and conditions of this part applicable to the operation of Public Charters shall apply to charters conducted by educational institutions.

(b) An educational institution conducting such a charter shall submit to theOffice of International Aviation, U.S. Air Carrier Licensing/Special Authorities Division, a statement, signed by its president, certifying that it meets the definition of “educational institution” set forth in § 380.2.

(c) An educational institution conducting such a charter need not comply with the requirements of §§ 380.25, 380.28, 380.34, and 380.35.

§ 380.20 Relief from the Statute.

(a) To the extent necessary to permit them to organize and arrange public charters, charter operators and foreign charter operators are hereby relieved from the following provisions of Subtitle VII of Title 49 of the U.S. Code, only if and so long as they comply with the provisions and the conditions imposed by this part:

(1) Chapter 411.

(2) Chapter 413.

(3) Chapter 415.

(4) Chapter 419.

(5) If foreign charter operators receive interstate air transportation rights, any other provision of 49 U.S.C. Subtitle VII that would otherwise prohibit them from organizing and arranging Public Charters in interstate air transportation.

(b) A charter operator who is a citizen of the United States shall not be subject to the following requirements with respect to Public Charters that originate in a foreign country: §§ 380.25, 380.28, and 380.30 through 380.35.

§§ 380.21-380.23 [Reserved]

§ 380.24 Suspension of exemption authority.

The Department reserves the power to deny the exemption authority of any charter operator, without hearing, if it finds that such action is necessary in the public interest or is otherwise necessary in order to protect the rights of the traveling public.

§ 380.25 Prospectus filing and related requirements.

A charter operator may organize and operate a Public Charter only in accordance with this part, and subject to the following conditions:

(a) No charter operator shall operate, sell, receive money from any prospective participant for, or offer to sell or otherwise advertise a charter or series of charters until the Office of International Aviation, U.S. Air Carrier Licensing/Special Authorities Division , has accepted a Public Charter prospectus as described in § 380.28.

(b) If within 10 days after the filing the Department notifies the charter operator that it has rejected the prospectus for noncompliance with this part, the prohibitions set forth in paragraph (a) of this section shall continue until the Department advises that it has accepted the prospectus.

(c) The following amendments to a filed prospectus may be made:

(1) The addition or cancellation of any flight;

(2) A change in any flight, date, origin city or destination city; and

(3) A change in or addition of any direct air carrier, securer, or depository bank.

(d) The charter operator shall amend the prospectus to reflect any change described in paragraph (c) of this section. The amendment shall be filed in the manner and form used for the original prospectus. It shall become effective upon filing unless the operator is otherwise notified.

(e) The charter operator shall notify the depository bank (if any) and the securer of any change described in paragraph (c) of this section not later than when filing a prospectus amendment to reflect the change. If the securer is unable to adjust the security agreement as required by the change, the Office of International Aviation, U.S. Air Carrier Licensing/Special Authorities Division shall be advised of this fact within 2 business days.

(Approved by the Office of Management and Budget under Control Number 2106-0005)

§ 380.26 Discrimination.

No charter operator shall make, give, or cause any undue or unreasonable preference or advantage to any particular person, port, locality, or description of traffic in air transportation in any respect whatsoever, or subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

§ 380.27 Methods of competition.

No charter operator shall engage in unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof.

§ 380.28 Charter prospectus.

(a) The charter prospectus shall include an original and two copies of the following:

(1) From the charter operator and the direct air carrier:

(i) The proposed flight schedule, listing the origin and destination cities, dates, type of aircraft, number of seats, and charter price for each flight;

(ii) The tour itinerary (if any) including hotels (name and length of stay at each), and other ground accommodations and services; and

(iii) A statement that they have entered into a charter contract that covers the proposed flight schedule, that the contract complies with all applicable Department regulations, and that a copy of the schedule has been sent to the depository bank (if any) and the operator's securer. The schedule shall be identified with a number assigned by the charter operator that does not duplicate any schedule numbers assigned by the operator to other proposed flight schedules. The proposed flight schedule, tour itinerary (if any), and statement shall be filed on OST Form 4532.

(2)(i) From the charter operator and the securer, a statement:

(A) That they have entered into a security agreement covering the proposed flight schedule that complies with § 380.34, including the amount of the coverage, the number assigned to it by the securer, and the amount of any outstanding claims against it, and

(B) That the securer has received a copy of the proposed flight schedule. The statement shall identify the proposed flight schedule by the schedule number assigned by the charter operator in accordance with paragraph (a) of this section. If there are any outstanding claims against the agreement, the charter operator and securer shall also state that they have executed a rider or amendment increasing the coverage by the amount of the claims, or that the securer will separately pay any claims for which it may be liable without impairing the agreement or reducing the amount of its coverage.

(ii) These statements shall be filed an OST Form 4533.

(3) If a depository agreement is used, a statement from the charter operator, the direct air carrier, and the depository bank:

(i) That they have entered into a depository agreement covering the proposed flight schedule that complies with § 380.34, and

(ii) That the bank has received a copy of the proposed flight schedule by the schedule number assigned by the charter operator in accordance with paragraph (a)(1) of this section. This statement shall be filed on OST Form 4534.

(b) Each of the statements described in paragraph (a) of this section shall also include the names and addresses of the parties to it, and the originals shall be signed by those parties.

(c) The prospectus may cover a series of charters performed by one charter operator if the departure of the last charter is not more than one year after the departure of the first.

(d) If the prospectus covers a series of charters and the air transportation will be performed by more than one direct air carrier, the prospectus shall include separate statements in accordance with paragraphs (a)(1) and (a)(3) of this section to cover the flights that will be performed by each direct carrier.

(Approved by the Office of Management and Budget under Control Number 2106-0005)

§ 380.29 Charter contract.

The charter contract between the charter operator or foreign charter operator and the direct air carrier shall evidence a binding commitment on the part of the carrier to furnish the air transportation required for the trip or trips covered by the contract.

§ 380.30 Solicitation materials.

(a) All solicitation materials for a Public Charter shall include the name of the charter operator and the name of the direct air carrier.

(b) Any solicitation material that states a price per passenger shall also include one of the following:

(1) A statement referring to the operator-participant contract for further information about conditions applicable to the charter; or

(2) The full text of the operator-participant contract.

(c) Except as set forth in § 380.33a for operator's option plan contracts, if the charter prospectus names alternative dates or cities, any solicitation material that states a price per passenger shall also state that the actual dates or cities have not yet been selected, if that is the case.

(d) Any solicitation material that names a hotel but does not name every hotel named in the operator-participant contract shall also state that substitutions may be made.

(e) In any solicitation material from a direct air carrier, indirect air carrier, or an agent of either, for a charter, charter tour (i.e., a combination of air transportation and ground accommodations), or a charter tour component (e.g., a hotel stay), any price stated for such charter, tour, or component shall be the entire price to be paid by the participants to the air carrier, or agent, for such charter, tour, or component.

§ 380.31 General requirements for operator-participant contracts.

(a) Except for telephone sales for which payment is made by credit card as described in paragraph (b) of this section, the charter operator shall not accept payment from or on behalf of a prospective participant unless the participant has agreed to the conditions of the charter by signing an operator-participant contract as described in § 380.32. If a member of a group that will travel together pays for the group, that member may sign the contract on behalf of the group.

(b) For telephone sales only, the charter operator may accept payment by credit card without the participant having first signed an operator-participant contract provided that the charter operator first advises the customer:

(1) That he or she has the right to receive the operator-participant contract before making a booking;

(2) That the operator-participant contract will be mailed to the participant within 24 hours of accepting payment by credit card; and

(3) That the operator-participant contract must be signed, and the signed portion returned to the operator, before travel.

(4) A full refund must be made of any amounts charged to a credit card for any participant who cancels before the operator-participant contract is signed.

(c) The contract form may include a space that participants may check to authorize the charter operator to retain their money while attempting to make other arrangements for them if there is no space available on the flight or on specific alternative flights they have requested.

(d) If there is no space available on the flight or specific alternative flights requested by the participant the operator shall return all the participant's money within 7 days after receiving it unless the participant, in accordance with paragraph (c) of this section, has authorized the operator to retain the payments while the operator attempts to make other arrangements for the participant. If the operator retains the payments while attempting to make other arrangements for the participant, it shall notify the participant of the fact within 7 days after receiving the payments, but in no event later than the departure. For the purpose of the time periods in this paragraph, receipt of money by a travel agent on behalf of a charter operator will not be considered as receipt by the operator.

(e) Except as set forth in § 380.33a for operator's option plan contracts, the operator-participant contract shall not specify alternative dates for the outbound or return flights, or alternative origin or destination cities for any flight leg.

(f) The contract form shall be printed in 7-point or larger type. The statements required by paragraph (a), (f), (h), (l), (r), (s), and (x) of § 380.32 shall be printed so as to contrast with the rest of the contract by the use of bold-faced type, capital letters, or a type size that is at least 50 percent larger than that used for the rest of the contract.

(g) The contract form shall include a space that participants may check to indicate that they wish to be furnished details of trip cancellation, health, and accident insurance.

(h) The contract form shall be designed so as to enable participants to retain a copy of the general terms and conditions after signing it. The specific information supplied by participants (such as choices of dates, cities, or other options) need not be retainable.

§ 380.32 Specific requirements for operator-participant contracts.

Contracts between charter operators and charter participants shall state:

(a) The name and complete mailing address of the charter operator;

(b) The name of the direct air carrier, the dollar amounts of that carrier's liability limitations for participant's baggage, the type and capacity of the aircraft to be used for the flight, and the conditions governing aircraft-equipment substitutions;

(c) The dates of the outbound and return flights;

(d) The origin and destination cities of each flight leg;

(e) The amount and schedule of payments;

(f) If a depository agreement as provided in § 380.34(b) is used: That all checks, money orders, and credit card drafts must be made payable to the escrow account at the depository bank (identifying bank) 1 or, when the charter is sold to the participant by a retail travel agent, checks and money orders may be made payable to the agent, who must in turn make his check payable to the escrow account at the depository bank;

1 If the credit card merchant account is separate from the depository account, it must be used solely as a conduit, i.e., all credit card payments toward Public Charter trips must be immediately remitted to the depository account in full, without holdback, or retention of any portion of the participant's payment. If the depository bank is not the credit card merchant bank, the Department must be satisfied that there are adequate procedural safeguards for the protection of participants' payments.

(g) The tour itinerary, if any, including the name and location of the hotels, length of stay at each, and other ground accommodations and services that are part of the tour;

(h) That the charter operator may not cancel the charter less than 10 days before the scheduled departure date, except for circumstances that make it physically impossible to perform the charter tip;

(i) That if a charter is canceled 10 or more days before the scheduled departure date, the operator will notify the participant in writing within 7 days after the cancellation, but in any event at least 10 days before the scheduled departure;

(j) That if a charter is canceled less than 10 days before departure (i.e., for circumstances that make it physically impossible to perform the charter trip), the operator will get the message to the participant as soon as possible;

(k) That if the charter is canceled, a refund will be made to the participant within 14 days after the cancellation;

(l) The right to refunds if the participant changes plans is limited;

(m) The right to refunds if the participant changes plans, including

(1) The right to a full refund, for sales made by credit card, until an operator-participant contract is signed; and

(2) That any participant who wishes to cancel will receive a full refund (less any applicable administrative fee, not to exceed $25) upon providing a substitute participant to the charter operator or its sales agent, or upon being substituted for by a participant found by the charter operator;

(n) The procedure for obtaining the refunds described in paragraph (m) of this section, including that they will be made within 14 days after the cancellation or substitution;

(o) The meaning of “major change”, as set forth in § 380.33(a);

(p) That if the charter operator knows of a major change 10 or more days before scheduled departure, the operator will notify the participant of the change within 7 days after first knowing of it, but in any event at least 10 days before scheduled departure;

(q) That if the operator first knows of a major change less than 10 days before scheduled departure, the operator will get the message to the participant as soon as possible;

(r) That within 7 days after receiving a pre-departure notification of a major change but in no event later than departure, the participant may cancel, and that a full refund will be made to the participant within 14 days after canceling;

(s) That upon a post-departure notification of a major change, the participant may reject the substituted hotel or the changed date, origin, or destination of a flight leg and be sent, within 14 days after the return date named in the contract, a refund of the portion of his payment allocable to the hotel accommodations or air transportation not provided;

(t) That the participant's rights and remedies set forth in the contract, including the procedures for major changes, shall be in addition to any other rights or remedies available under applicable law, although the operator may condition a refund on the participant's waiver of additional remedies;

(u) That trip cancellation, health, and accident insurance is available and that the operator will furnish details of the insurance to participants who check the space provided for this purpose on the contract form;

(v) The name and address of the surety company or bank issuing the security agreement; and that unless the charter participant files a claim with the charter operator or, if he is unavailable, with the securer, within 60 days after termination of the charter, the securer shall be released from all liability under the security agreement to that participant. Termination means the date of arrival (or in the case of a canceled charter, the intended date of arrival) of the return flight. If there is no return flight in a participant's itinerary, termination means the date or intended date of departure of the last flight in the participant's itinerary;

(w) For international flights only: That additional restrictions may be imposed on the flight by the foreign government involved, and that if landing rights are denied by a foreign government the flight will be canceled with a full refund to the participant. This statement need not be included in the contract if—

(1) The prospectus includes a certification by the charter operator and the direct air carrier that landing rights have been obtained from all the foreign governments involved, and

(2) All the foreign governments involved have adopted country-of-origin rules for charterworthiness;

(x) That the charter operator is the principal and is responsible to the participants for all services and accommodations offered in connection with the charter. However, the contract may expressly provide that the charter operator, unless negligent, is not responsible for personal injury or property damage caused by any direct air carrier, hotel or other supplier of services in connection with the charter.

[Docket No. OST-97-2356, 63 FR 28241, May 22, 1998, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15940, Apr. 16, 2019]

§ 380.33 Major changes in itinerary or price; refunds.

(a) For the purposes of this section, “major change” means any of the following:

(1) A change in the departure or return date shown in the operator-participant contract, (or, if the contract states alternative dates, the date designated to the participant by the charter operator in accordance with § 380.33a(b)), unless the change results from a flight delay. In any event, however, a date change that the operator knows of more than 2 days before the scheduled flight date, and any delay of more than 48 hours, will be considered a major change.

(2) A change in the origin or destination city shown in the operator-participant contract for any flight leg (or, if the contract states alternative cities, the city designated to the participant by the operator in accordance with § 380.33a(b)), unless the change affects only the order in which cities named in a tour package are visited.

(3) A substitution of any hotel that is not named in the operator-participant contract; and

(4) A price increase to the participant that occurs 10 or more days before departure and results in an aggregate price increase of more than 10 percent.

(b) The charter operator shall not increase the price to any participant less than 10 days before departure.

(c) The charter operator shall notify all participants of major changes, as required by the operator-participant contracts. This notification shall include the participants' rights to refunds required to be described in the operator-participant contract. The operator shall, if applicable, also notify the participants that the acceptance of a refund constitutes a waiver of their legal rights.

(d) Except as otherwise specified, notifications and refunds required by this part are considered made at the time they are mailed or sent by an equivalent method.

(e) The charter operator shall make all refunds required to be described in the operator-participant contract within the time limits set forth in paragraphs (k), (n), (r), and (s) of § 380.32, as applicable.

§ 380.33a Operator's option plan.

(a) For the purposes of this part, an operator's option plan contract that states alternative dates for the outbound or return flights, or alternative origin or destination cities for any flight leg.

(b) Operator's option plan contracts shall state, in addition to the information required by § 380.32, that the selection of the actual dates or cities, as applicable, is at the charter operator's option and will not entitle the participant to a refund, and that the operator will notify the participant of the actual dates or cities at least 10 days before the earliest of any alternative dates for the outbound flight.

(c) Contract forms for all operator's option plan contracts shall be labeled “OPERATOR'S OPTION PLAN” in bold-faced capital letters at least 1/4 inch high. The statement required by paragraph (b) of this section and the statement of alternative dates (§ 380.32(c)) or alternative cities (§ 380.32(d)), as applicable, shall be printed so as to contrast with the rest of the contract, as set forth in § 380.31(f).

(d) Any solicitation material that states a price per passenger for an operator's option plan contract shall clearly and conspicuously—

(1) Identify that price as being for the operator's option plan,

(2) Name all the possible dates or cities, as applicable, and

(3) State that the selection of the actual dates or cities is at the charter operator's option.

(e) Charter operators and their agents shall not misrepresent to prospective participants, orally, in solicitation materials, or otherwise, the probability that any particular city or date will be selected from among the alternatives named in an operator's option plan contract.

(f) The charter operator shall notify all participants with operator's option plan contracts of the actual dates or cities, as applicable, as required by contracts.

§ 380.34 Security and depository agreements.

(a) Except as provided in paragraph (b) of this section, the charter operator or foreign charter operator shall furnish a security agreement in an amount for not less than the charter price for the air transportation, if only air transportation is involved, or, if the charter involves land accommodations in addition to air transportation, a security agreement in one of the following amounts dependent upon the length of the charter or series of charters:

(1) For a charter or series of charters of 14 days or less, security in an amount of not less than the charter price for the air transportation to be furnished in connection with such charter or series of charters;

(2) For a charter or series of charters of more than 14 days but less than 28 days security in an amount of not less than twice the charter price; and

(3) For a charter or series of charters of 28 days or more, security in an amount of not less than three times the charter price: Provided, however, That the liability of the securer to any charter participant shall not exceed amounts paid by that participant to the charter operator with respect to the charter.

(b) The direct air carrier and the charter operator or foreign charter operator may elect, in lieu of furnishing a security agreement as provided under paragraph (a) of this section, to comply with the requirements of paragraphs (b)(1) and (b)(2) of this section, as follows:

(1) The charter operator shall furnish a security agreement in an amount of at least $10,000 times the number of flights, except that the amount need not be more than $200,000. The liability of the securer to any charter participant shall not exceed the amount paid by the participant to the charter operator for that charter.

(2) The direct air carrier and charter operator or foreign charter operator shall enter into an agreement with a designated bank, the terms of which shall provide that all payments by charter participants paid to charter operators or foreign charter operators and their retail travel agents shall be deposited with and maintained by the bank subject to the following conditions:

(i) On sales made to charter participants by charter operators or foreign charter operators the participant shall pay by check, money order, or credit card draft payable to the bank; 2 on sales made to charter participants by retail travel agents, the retail travel agent may deduct his commission and remit the balance to the designated bank by check, money order, or electronic transfer: Provided, That the travel agent agrees in writing with the charter operator or foreign charter operator that if the charter is canceled the travel agent shall remit to the bank the full amount of the commission previously deducted or received within 10 days after receipt of notification of cancellation of the charter; except for the credit card company's usual commission (not to exceed 3 percent), the charter operator shall not permit any portion of a charter participant's payments by credit card to be “held back” by the credit card merchant bank; 3

2 See also n.1, supra.

3 “Holdback” is an amount in excess of usual commissions that a credit card merchant bank sometimes retains to cover potential charge-backs or other charges.

(ii) The bank shall pay the direct air carrier the charter price for the transportation not earlier than 60 days (including day of departure) prior to the scheduled day of departure of the originating or returning flight, upon certification of the departure date by the air carrier: Provided, That, in the case of a round trip charter contract to be performed by one carrier, the total round trip charter price shall be paid to the carrier not earlier than 60 days prior to the scheduled day of departure of the originating flight;

(iii) The bank shall reimburse the charter operator or foreign charter operator for refunds made by the latter to the charter participant upon written notification from the charter operator or foreign charter operator;

(iv) If the charter operator, foreign charter operator or the direct air carrier notifies the bank that a charter has been canceled, the bank shall make applicable refunds directly to the charter participants;

(v) After the charter price has been paid in full to the direct air carrier, the bank shall pay funds from the account directly to the hotels, sightseeing enterprises, or other persons or companies furnishing ground accommodations and services, if any, in connection with the charter or series of charters upon presentation to the bank of vendors' bills and upon certification by the charter operator or foreign charter operator of the amounts payable for such ground accommodations and services and the person or companies to whom payment is to be made: Provided, however, That the total amounts paid by the bank pursuant to paragraphs (b)(2) (ii) and (v) of this section shall not exceed either the total cost of the air transportation, or 80 percent of the total deposits received by the bank less any refunds made to charter participants pursuant to paragraphs (b)(2) (ii) and (iv) of this section, whichever is greater;

(vi) As used in this section, the term “bank” means a bank insured by the Federal Deposit Insurance Corporation;

(vii) The bank shall maintain a separate accounting for each charter group;

(viii) Notwithstanding any other provisions of this section, the amount of total cash deposits required to be maintained in the depository account of the bank may be reduced by one or both of the following: The amount of the security agreement in the form prescribed in this section in excess of the minimum coverage required by paragraph (b)(1) of this section; an escrow with the designated bank of Federal, State, or municipal bonds or other securities, consisting of certificates of deposit issued by banks having a stated policy of redeeming such certificates before maturity at the request of the holder (subject only to such interest penalties or other conditions as may be required by law), or negotiable securities which are publicly traded on a securities exchange, all such securities to be made payable to the escrow account: Provided, That such other securities shall be substituted in an amount no greater than 80 percent of the total market value of the escrow account at the time of such substitution: And provided, further, That should the market value of such other securities subsequently decrease, from time to time, then additional cash or securities qualified for investment hereunder shall promptly be added to the escrow account, in an amount equal to the amount of such decreased value; and

(ix) Except as provided in paragraph (b)(2)(i), (iii), (iv), (v), and (viii) of this section, the bank shall not pay out any funds from the account prior to 2 banking days after completion of each charter, when the balance in the account shall be paid the charter operator or foreign charter operator, upon certification of the completion date by the direct air carrier: Provided, however, That if the Charter involves air transportation only and the bank has paid the direct air carrier(s) the charter price for the originating flight, and the returning flight if any, and has paid all refunds due to participants, as provided in paragraph (b)(2)(ii) and (iii), respectively, of this section, then the bank may pay the balance in the account to the charter operator upon certification by the direct air carrier performing the originating flight that such flight has in fact departed.

(c)(1) The security agreement required under paragraphs (a) and (b) of this section shall insure the financial responsibility of the charter operator or foreign charter operator and the supplying of the transportation and all other accommodations, services, and facilities in accordance with the contract between the charter operator or foreign charter operator and the charter participants.

(2) The security agreement may be either:

(i) A surety bond in the form set forth as appendix A to this part;

(ii) A surety trust agreement in the form set forth as appendix B to this part; or

(iii) An arrangement with a bank (for instance, a standby letter of credit) that provides protection of charter participants' funds equivalent to or greater than that provided by the Bond in appendix A. An arrangement that furnishes a lesser degree of protection than would be provided under the bond shall be invalid to that extent, and instead the bank, the charter operator or foreign charter operator, and the charter participants shall have the same rights and liabilities as provided under a bond in the form of appendix A. If the arrangement does not give as much protection as a bond against the risk of the charter operator's bankruptcy, the bank shall be liable in the event of bankruptcy to the same extent as if it had entered into a bond.

(3) Any agreement under paragraph (c)(2)(iii) of this section shall include a statement that, in the event that the other provisions of the agreement do not provide protection to charter participants comparable to that provided under a bond in the form of appendix A, the bank shall assume, for the benefit of the charter participants, all the liabilities it would have if it entered into the bond.

(4) The security agreement shall be effective on or before the date the charter prospectus is filed with the Department.

(5) The security agreement shall be specifically identified by the issuing securer with a numbering system so that the Department can identify the security agreement with the specific charter or charters to which it relates. These data may be set forth in an addendum attached to the security agreement, which addendum must be signed by the charter operator or foreign charter operator and the securer.

(6) When security is provided by a surety bond, such bond shall be issued by a bonding or surety company that is listed in Best's Insurance Reports (Fire and Casualty) with a general policyholders' rating of “A” or better. The bonding or surety company shall be one legally authorized to issue bonds of that type in the State in which the charter originates. For purposes of this section the term “State” includes any territory or possession of the United States, or the District of Columbia.

(7) When security is provided by a security agreement other than a bond, the agreement shall be issued by a national bank complying with the provisions of 12 CFR 7.7010(a), or by a State bank complying with applicable State laws that give authority to issue such agreements, and all such banks must be insured by the Federal Deposit Insurance Corporation.

(d) The security agreement required by this section shall provide that unless the charter participant files a claim with the charter operator or foreign charter operator, or, if it is unavailable, with the securer, within 60 days after termination of the charter, the securer shall be released from all liability under the security agreement to such charter participant. Terminations means the date of arrival (or in the case of a canceled charter, the intended date of arrival) of the return flight. If there is no return flight in a participant's itinerary, termination means the date or intended date of departure of the last flight in the participant's itinerary.

[Docket No. OST-97-2356, 63 FR 28241, May 22, 1998, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15941, Apr. 16, 2019]

§ 380.34a Substitution of direct air carrier's security or depository agreement.

(a) A direct air carrier may substitute its own security agreement and/or depository arrangements, as specified in this section, for those required of the charter operator under § 380.34, but only for charter trips in which all the air transportation is provided by one direct air carrier. Charter operators are relieved from § 380.34 to the extent that the direct carrier substitutes its own arrangements.

(b) The direct air carrier may substitute its security agreement for all of the arrangements required of the charter operator under § 380.34 (a) or (b). Alternatively, it may substitute its depository agreement for the depository agreement required of the charter operator under § 380.34(b)(2). If the direct carrier substitutes its depository agreement, it may also obtain and substitute a security agreement for the one otherwise required of the charter operator under § 380.34(b)(1). If the direct carrier substitutes its depository agreement only, the charter operator must supply the security agreement required under § 380.34(b)(1).

(c) If the direct carrier substitutes a security agreement for all the charter operator's requirements under § 380.34, the charter operator shall include in the charter prospectus, in place of the information in § 380.28(a)(2) regarding the charter operator's security agreement:

(1) A statement by the direct air carrier on OST Form 4535 that it will take responsibility for all charter participant payments (including those for ground accommodations and services) and for the fulfillment of all the charter operator's contractual and regulatory obligations to the charter participants.

(2) A statement from the direct air carrier and its securer (under § 212.12 of this chapter), OST Form 4533, that they have entered into a security agreement assuring the direct air carrier's responsibilities to charter participants under this section in an unlimited amount (except that the liability of the securer with respect to any charter participant may be limited to the charter price paid by or on behalf of such participant), and that the securer has received a copy of the proposed flight schedule identified by the schedule number assigned by the charter operator under this part.

(d) A substitute depository agreement under this section shall be signed by the direct air carrier, the charter operator, and the depository bank, and shall provide, in addition to existing requirements under § 212.8 of this chapter, that:

(1) Payments by or on behalf of charter participants shall be allocated to the flight accounts matching the participant's itinerary in the following way: Each account shall have allocated to it the charter cost of the participant's air transportation on that flight. The portion of each payment not intended for air transportation services shall be allocated to the account for the return flight in the participant's itinerary. If there is only one flight in the itinerary, the entire payment shall be allocated to that account.

(2) The bank shall pay funds from a flight account directly to the hotels, sightseeing enterprises, or other persons or companies furnishing ground accommodations and services, if any, in connection with the charter flight, upon presentation to the bank of vendor's bills and upon certification by the person who contracted for the ground accommodations or services of the amounts payable and the persons or companies to whom payment is to be made, except that no disbursement shall be made that would reduce the balance in the account below the charter cost of the flight.

(3) On sales made to participants by a person other than a retail travel agent, the participant shall pay by check, money order, or credit card draft payable to the bank. On sales made to participants by a retail travel agent, payments shall be made in the same manner unless the agent deducts its commission and remits the balance to the bank by check, money order, or electronic transfer. The agent may deduct its commission only if it agrees in writing with its principal (the charter operator or direct air carrier, as applicable) that, if the charter is canceled, the agent shall remit to the bank the full amount of the commission previously deducted or received within 10 days after receipt of notification of the cancellation. The depository bank shall pay refunds directly to participants according to the terms of the operator-participant contract and the terms of this part.

(e) If the direct carrier substitutes a security agreement in addition to substituting a depository agreement, the charter prospectus information must include all the information required by paragraphs (c) and (d) of this section, except for the amount of the security agreement. That agreement shall be in an amount of at least $10,000 times the number of flights, except that the amount need not be more than $200,000.

(f) A copy of the depository agreement under paragraph (d) of this section shall be filed with the Department, and it shall not be effective until approved by the Department.

(g) A copy of the security agreement under paragraph (c) or paragraph (e) of this section shall be filed with the Department. It shall insure the financial responsibility of the direct air carrier for supplying the transportation and all other accommodations, services, and facilities in accordance with the contracts between the charter operator and the charter participants. Such security agreement shall meet all the other requirements of § 380.34 (c) and (d).

§ 380.35 Disbursements from depository account.

No charter operator or direct air carrier shall cause its agents or the depository bank to make disbursements or payments from deposits except in accordance with the provisions of this part.

§ 380.36 Record retention.

Every charter operator conducting a charter pursuant to this part shall comply with the applicable record-retention provisions of part 249 of this chapter.

§ 380.40 Charter not to be performed unless in compliance with this part 380.

(a) For all Public Charters other than foreign-originating charters organized by foreign charter operators: A direct air carrier shall not perform air transportation in connection with such a charter unless it has made a reasonable effort to verify that all provisions of this part have been complied with and that the charter operator's authority under this part has not been suspended by the Department.

(b) For foreign-originating Public Charters organized by foreign charter operators: A direct air carrier shall not perform air transportation in connection with such a charter unless—

(1) The charter is conducted in accordance with subpart B of this part and

(2) The charter operator conforms to all requirements of this part that are applicable to charter operators within the Department's jurisdiction, other than §§ 380.25, 380.28, 380.30 through 380.36, and 380.50.

§§ 380.41-380.42 [Reserved]

§ 380.43 Cancellations by direct air carriers.

The direct air carrier shall not cancel any charter under this part less than 10 days before the scheduled departure date, except for circumstances that make it physically impossible to perform the charter trip.

§ 380.45 Suspension of exemption authority.

The Department reserves the power to suspend the exemption authority of any air carrier, without hearing, if it finds that such action is necessary in order to protect the rights of the traveling public.

§ 380.46 Charter trip reporting.

The direct air carrier shall promptly notify the Office of International Aviation, U.S. Air Carrier Licensing/Special Authorities Division, regarding any charters covered by a prospectus filed under § 380.28 that are later canceled.

§ 380.60 Purpose.

This subpart establishes registration procedures for foreign charter operators intending to engage in the formation of groups for transportation on Public Charters that originate in the United States.

§ 380.61 Operation by foreign charter operators.

(a) Each foreign charter operator shall be registered under this subpart and file a prospectus under § 380.25 before organizing groups for transportation on Public Charters that originate in the United States.

(b) Each foreign charter registered under this subpart shall comply with the other provisions of this part directed to charter operators.

§ 380.62 Registration applications.

(a) To be registered under this subpart, a foreign charter operator shall file two copies of an application for registration with the Office of International Aviation, U.S. Air Carrier Licensing/Special Authorities Division. The Department will list the names and nationalities of all persons applying for registration in its Weekly Summary of Filings.

(b) The application shall be made on OST Form 4530, which can be obtained from the Office of International Aviation, U.S. Air Carrier Licensing/Special Authorities Division.

(c) The applicant shall clearly indicate in its application for registration whether it requests authority to engage in foreign and/or interstate air transportation.

§ 380.63 Objections to registration applications.

Any person objecting to the registration application of a foreign charter operator or to a proposed change in the name or ownership of that operator shall file an objection with the Office of International Aviation, U.S. Air Carrier Licensing/Special Authorities Division, within 28 days after the Department receives the properly completed registration application.

§ 380.64 Department action on a registration application.

(a) After a registration is received, one of the following actions will be taken.

(1) The application will be approved by the stamping of the effective date of registration on OST Form 4530 and returning the duplicate copy of the form to the operator;

(2) Additional information will be requested for the applicant;

(3) The applicant will be notified that its application will require further analysis or procedures, or is being referred to the Department for formal action;

(4)The registration application will be rejected if it does not comply with the filing requirements of this subpart;

(5) The application will be approved subject to such terms, conditions, or limitations as may be required by the public interest; or

(6) The registration application will be rejected for reasons relating to the failure of effective reciprocity or if the Department finds that it would be in the public interest to do so.

(b) One of the actions described in paragraph (a) of this section will normally be taken within 60 days after the registration application is received. The Department will also consider requests for faster action that include a full explanation of the need for expedited action.

§ 380.65 Notification of change of operations or ownership.

(a) Not later than 30 days before any change in its name or address or before a temporary or permanent cessation of operations, each foreign charter operator registered under this subpart shall notify the Office of International Aviation , U.S. Air Carrier Licensing/Special Authorities Division, of the change by resubmitting OST Form 4530.

(b) A foreign charter operator registered under this subpart shall apply for an amendment to that registration not later than 30 days after either of the following events:

(1) A person listed on its existing registration as owning or holding beneficial interest in at least 10 percent of the operator or of the operator's stock reduces its holding to below 10 percent;

(2) A person not listed on the existing registration as owning or holding beneficial interest in at least 10 percent of the operator or of the operator's stock becomes an owner or holder of 10 percent or more of the company or of its stock.

(c) An application for an amendment shall be made by resubmitting OST Form 4530. The existing registration shall remain valid pending Department action on the amendment.

§ 380.66 Cancellation or conditioning of the registration.

The registration of a foreign charter operator may be canceled or subjected to additional terms, conditions, or limitations if any of the following occur:

(a) The operator files a written notice with the Department that it is discontinuing its charter operations;

(b) A substantial ownership interest is acquired by persons who are not citizens of the same country as the registrant; or

(c) The Department finds, after notice and an opportunity for responses, that it is in the public interest to do so. In making this finding, the Department will consider whether effective reciprocity exists between the United States and the government of the foreign charter operator.

§ 380.67 Waiver of sovereign immunity.

By accepting an approved registration form under this subpart, an operator waives any right it may have to assert any defense of sovereign immunity from suit in any proceeding against it, in any court or other tribunal of the United States, that is based upon a claim arising out of operations by the operator under this part.

§ 381.1 Purpose.

The purpose of this part is ensure that air travelers who have purchased tours to special events will receive the promised admission to the event. This part expands the “Super Bowl rule” to other events.

§ 381.3 Applicability.

This part applies to Special Event Tours that are in interstate air transportation, or in foreign air transportation originating at a point in the United States. This part applies to U.S. and foreign operators of Special Event Tours, whether they be air carriers or ticket agents. This part applies to scheduled, charter, and other air transportation.

§ 381.5 Definition.

Special Event Tour means a tour that is organized for the purpose of attending a sporting, social, religious, educational, cultural, political or other event of a special nature and limited duration, which exists for reasons apart from the tour itself, and which is represented by the operator of the tour as including admission to that event. Examples of such events include, but are not limited to, college and professional sporting events, the Olympics, concerts, the Passion Play in Oberammergau, etc.

§ 381.7 Advertising.

No operator of a Special Event Tour or agent of such an operator shall conduct, or cause or allow to be conducted, any advertising, solicitation or other promotion for a Special Event Tour unless:

(a) The operator is in physical possession of enough tickets for admission to the event to provide such tickets for a substantial number of seats on the tour; or

(b) The operator has entered into a written contract with an organization that is the distributor of such tickets or an organization that receives such tickets directly from the distributor (e.g., a bowl committee; football conference, league or team; concert promoter or arena; etc.), the terms of which provide for that organization to furnish the operator enough admission tickets to provide such tickets for a substantial number of seats on the tour; or

(c) The operator has entered into a written contract with another person or organization that has a written contract or series of written contracts with the distributor of such tickets or with an organization that receives such tickets directly from the distributor, the terms of which provide for that organization (the organization with which the operator has contracted) to furnish the operator enough admission tickets to provide such tickets for a substantial number of seats on the tour.

§ 381.9 Sales.

(a) Except as provided in paragraph (b) of this section:

(1) No operator of a Special Event Tour shall accept money for a seat on a Special Event Tour, or authorize an agent to accept such money, unless the operator has physical possession of, or written contracts (in the manner described in § 381.7) for, a ticket for admission to the event for that individual. To the extent that the operator receives an unsolicited booking for which the operator does not have physical possession of or written contracts for a ticket for admission to the event, any payment accompanying that booking must be returned within 3 business days.

(2) Upon acceptance of the money for a sale, the operator must reserve one event ticket for that individual. An operator may not sell more seats on the tour than it has event tickets in hand or under contract. (An operator need not continue to reserve an event ticket for an individual who withdraws from the tour by providing notice to the operator or by being notified by the operator that the individual's participation has been canceled due to failure to remit a required installment payment.)

(b) An operator of a Special Event Tour may accept a booking and payment from an individual for whom the operator does not have an event ticket in hand or under contract if that individual agrees in writing that he or she understands that no event ticket has been reserved for him or her. This agreement shall specify whether the person has agreed to participate in the tour without an event ticket and/or the operator has agreed to attempt to acquire an event ticket for this person. If the two parties agree that the operator will attempt to acquire an event ticket, the agreement shall specify any penalties that will apply if the individual later cancels because an event ticket did not become available. If the operator notifies this person that an event ticket has become available, that person shall enjoy all the other protections of this part from that time.

§ 381.11 Refunds.

If promised admission to the primary event for which a Special Event Tour was organized is not furnished by the tour operator, at the tour price agreed to before departure (including any increases that the participant has accepted pursuant to § 381.13(a)), the operator must provide each tour participant affected in this way a refund of the total tour price. This refund is to be provided within 14 calendar days after the scheduled return date of the tour.

§ 381.13 Price increases.

(a) Should the tour operator increase a participant's tour price by more than 10 percent (aggregate of all increases to that participant), that participant shall have the option of canceling his or her participation in the tour and receiving a full refund within 14 days after the cancellation.

(b) The tour operator shall not increase the tour price to any participant less than ten days before departure.

§ 382.1 What is the purpose of this part?

The purpose of this part is to carry out the Air Carrier Access Act of 1986, as amended. This rule prohibits both U.S. and foreign carriers from discriminating against passengers on the basis of disability; requires carriers to make aircraft, other facilities, and services accessible; and requires carriers to take steps to accommodate passengers with a disability.

§ 382.3 What do the terms in this rule mean?

In this regulation, the terms listed in this section have the following meanings:

Air Carrier Access Act or ACAA means the Air Carrier Access Act of 1986, as amended, the statute that provides the principal authority for this part.

Air transportation means interstate or foreign air transportation or the transportation of mail by aircraft, as defined in 49 U.S.C. 40102. Generally this refers to transportation by aircraft within, to or from the United States.

Assistive device means any piece of equipment that assists a passenger with a disability to cope with the effects of his or her disability. Such devices are intended to assist a passenger with a disability to hear, see, communicate, maneuver, or perform other functions of daily life, and may include medical devices and medications.

Automated airport kiosk means a self-service transaction machine that a carrier owns, leases, or controls and makes available at a U.S. airport to enable customers to independently obtain flight-related services.

Battery-powered mobility aid means an assistive device that is used by individuals with mobility impairments such a wheelchair, a scooter, or a Segway when it is used as a mobility device by a person with a mobility-related disability.

Carrier means a U.S. citizen (“U.S. carrier”) or foreign citizen (“foreign carrier”) that undertakes, directly or indirectly, or by a lease or any other arrangement, to engage in air transportation.

Commuter carrier means an air taxi operator as defined in 14 CFR part 298 that carries passengers on at least 5 round trips per week on at least one route between two or more points according to its published flight schedules that specify the times, days of the week and places between which those flights are performed.

Conforming alternate version means a Web page that allows a corresponding non-conforming Web page on the primary Web site to be included within the scope of conformance as long as it meets the WCAG 2.0 Level AA success criteria, is up-to-date and contains the same information and functionality in the same language as the non-conforming page. At least one of the following applies to a conforming alternative version:

(1) The conforming version can be reached from the non-conforming page via an accessibility-supported mechanism; or

(2) The non-conforming version can only be reached from the conforming version; or

(3) The non-conforming version can only be reached from a conforming page that also provides a mechanism to reach the conforming version.

CPAP machine means a continuous positive airway pressure machine.

Custody means the time period when a passenger has checked a wheelchair, scooter, or other assistive device with a carrier and the carrier has control of a passenger's wheelchair, scooter, or other assistive device.

(1) An airline's custody begins when the passenger hands the device to an airline's representative or agent or leaves the wheelchair, scooter, or other assistive device at a location as instructed by the airline.

(2) An airline's custody ends when the passenger, or someone acting on behalf of the passenger, or another airline takes physical possession of the wheelchair, scooter, or other assistive device.

Department or DOT means the United States Department of Transportation.

Dignified means assistance provided in a manner that respects a passenger's independence, autonomy, and privacy, which includes but is not limited to: airline personnel providing transfer assistance in a manner that ensures the passenger's clothing is not removed; airline personnel not unduly delaying requests for access to a restroom such that the individual soils himself or herself; and, to the maximum extent possible, airline personnel communicating directly with the individual with disability (e.g., rather than his or her companion or another individual) when the individual with disability is interacting with them.

Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.

Equivalent alternative means a policy, practice, or other accommodation that provides substantially equivalent accessibility to passengers with disabilities, compared to compliance with a provision of this Part.

Expected maximum flight duration means the carrier's best estimate of the total duration of the flight from departure gate to arrival gate, including taxi time to and from the terminals, based on the scheduled flight time and factors such as (a) wind and other weather conditions forecast; (b) anticipated traffic delays; (c) one instrument approach and possible missed approach at destination; and (d) any other conditions that may delay arrival of the aircraft at the destination gate.

FAA means the Federal Aviation Administration, an operating administration of the Department of Transportation.

Facility means a carrier's aircraft and any portion of an airport that a carrier owns, leases, or controls (e.g., structures, roads, walks, parking lots, ticketing areas, baggage drop-off and retrieval sites, gates, other boarding locations, loading bridges) normally used by passengers or other members of the public.

Flight-related services mean functions related to air travel including, but not limited to, ticket purchase, rebooking cancelled flights, seat selection, and obtaining boarding passes or bag tags.

Hands-on training means in-person training that is received by an employee or contractor where the employee or contractor can learn and practice real-life scenarios in a safe and controlled environment without the possibility of real-life consequences to passengers with disabilities and with the use of a suitable life-sized model or equipment, as appropriate.

High-contrast captioning means captioning that is at least as easy to read as white letters on a consistent black background.

Indirect carrier means a person not directly involved in the operation of an aircraft who sells air transportation services to the general public other than as an authorized agent of a carrier.

Individual with a disability means any individual who has a physical or mental impairment that, on a permanent or temporary basis, substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. As used in this definition, the phrase:

(a) Physical or mental impairment means:

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory including speech organs, cardio-vascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or

(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments; cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, drug addiction, and alcoholism.

(b) Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

(c) Has a record of such impairment means has a history of, or has been classified, or misclassified, as having a mental or physical impairment that substantially limits one or more major life activities.

(d) Is regarded as having an impairment means:

(1) Has a physical or mental impairment that does not substantially limit major life activities but that is treated by an air carrier as constituting such a limitation;

(2) Has a physical or mental impairment that substantially limits a major life activity only as a result of the attitudes of others toward such an impairment; or

(3) Has none of the impairments set forth in this definition but is treated by an air carrier as having such an impairment.

Mishandled means lost, delayed, damaged, or pilfered.

On-demand air taxi means an air taxi operator that carries passengers or property and is not a commuter carrier as defined in this section.

PHMSA means the Pipeline and Hazardous Materials Safety Administration, an operating administration of the Department of Transportation.

POC means portable oxygen concentrator.

Primary (or Main) Web site means the Web site that is accessed upon entering the uniform resource locator (e.g., www.carrier name.com, www.airline designator code.com) in an Internet browser from a standard desktop or laptop computer where the carrier advertises or sells air transportation to the public.

Qualified individual with a disability means an individual with a disability—

(a) Who, as a passenger (referred to as a “passenger with a disability”),

(1) With respect to obtaining a ticket for air transportation on a carrier, offers, or makes a good faith attempt to offer, to purchase or otherwise validly to obtain such a ticket;

(2) With respect to obtaining air transportation, or other services or accommodations required by this Part,

(i) Buys or otherwise validly obtains, or makes a good faith effort to obtain, a ticket for air transportation on a carrier and presents himself or herself at the airport for the purpose of traveling on the flight to which the ticket pertains; and

(ii) Meets reasonable, nondiscriminatory contract of carriage requirements applicable to all passengers; or

(b) Who, with respect to accompanying or meeting a traveler, using ground transportation, using terminal facilities, or obtaining information about schedules, fares, reservations, or policies, takes those actions necessary to use facilities or services offered by an air carrier to the general public, with reasonable accommodations, as needed, provided by the carrier.

Safe means assistance provided to individuals with disabilities that does not put them at heightened risk of bodily injury, which may include loss or damage to wheelchairs and other assistive devices that result in bodily injury.

Scheduled service means any flight scheduled in the current edition of the Official Airline Guide, the carrier's published schedule, or the computer reservation system used by the carrier.

Service animal means a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Animal species other than dogs, emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals for the purposes of this part.

A Service animal handler is a passenger in air transportation who is a qualified individual with a disability who receives assistance from a service animal(s) that does work or performs tasks that are directly related to the individual's disability, or a third party who accompanies the individual with a disability traveling with a service animal such as a parent of a minor child or a caretaker. The service animal handler is responsible for keeping the animal under control at all times, and caring for and supervising the service animal, which includes toileting and feeding.

Shared-use automated airport kiosk means a self-service transaction machine that is jointly owned, controlled or leased by an airport operator and carriers and/or an independent service provider and that provides carrier software applications which enable customers to independently access flight-related services.

TSA means the Transportation Security Administration, an agency of the Department of Homeland Security.

United States or U.S. means the United States of America, including its territories and possessions.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 78 FR 67914, Nov. 12, 2013; Doc. No. DOT-OST-2018-0068, 85 FR 79774, Dec. 10, 2020; DOT-OST-2022-0144, 89 FR 102441, Dec. 17, 2024]

§ 382.5 When are U.S. and foreign carriers required to begin complying with the provisions of this part?

As a U.S. or foreign carrier, you are required to comply with the requirements of this part on May 13, 2009, except as otherwise provided in individual sections of this part.

§ 382.7 To whom do the provisions of this part apply?

(a) If you are a U.S. carrier, this Part applies to you with respect to all your operations and aircraft, regardless of where your operations take place, except as otherwise provided in this part.

(b) If you are a foreign carrier, this part applies to you only with respect to flights you operate that begin or end at a U.S. airport and to aircraft used for these flights. For purposes of this part, a “flight” means a continuous journey in the same aircraft or with one flight number that begins or ends at a U.S. airport. The following are some examples of the application of this term:

Example 1 to paragraph (b):A passenger books a nonstop flight on a foreign carrier from New York to Frankfurt, or Frankfurt to New York. Each of these is a “flight” for purposes of this Part.

Example 2 to paragraph (b):A passenger books a journey on a foreign carrier from New York to Prague. The foreign carrier flies nonstop to Frankfurt. The passenger gets off the plane in Frankfurt and boards a connecting flight (with a different flight number), on the same foreign carrier or a different carrier, which goes to Prague. The New York-Frankfurt leg of the journey is a “flight” for purposes of this Part; the Frankfurt-Prague leg is not. On the reverse routing, the Prague-Frankfurt leg is not a covered flight for purposes of this Part, while the Frankfurt-New York leg is.

Example 3 to paragraph (b):A passenger books a journey on a foreign carrier from New York to Prague. The plane stops for refueling and a crew change in Frankfurt. If, after deplaning in Frankfurt, the passengers originating in New York reboard the aircraft (or a different aircraft, assuming the flight number remains the same) and continue to Prague, they remain on a covered flight for purposes of this Part. This is because their transportation takes place on a direct flight between New York and Prague, even though it had an interim stop in Frankfurt. This example would also apply in the opposite direction (Prague to New York via Frankfurt).

Example 4 to paragraph (b):In Example 3, the foreign carrier is not subject to coverage under this Part with respect to a Frankfurt-originating passenger who boards the aircraft and goes to Prague, or a Prague-originating passenger who gets off the plane in Frankfurt and does not continue to New York.

(c) As a foreign carrier, you are not subject to the requirements of this part with respect to flights between two foreign points, even with respect to flights involving code-sharing arrangements with U.S. carriers. As a U.S. carrier that participates in a code-sharing arrangement with a foreign carrier with respect to flights between two foreign points, you (as distinct from the foreign carrier) are responsible for ensuring compliance with the service provisions of subparts A through C, E through H, and K of this part, with respect to passengers traveling under your code on such a flight.

Example 1 to paragraph (c):A passenger buys a ticket from a U.S. carrier for a journey from New York to Prague. The ticket carries the U.S. carrier's code and flight number throughout the entire journey. There is a change of carrier and aircraft in Frankfurt, and a foreign carrier operates the Frankfurt-Prague segment. The foreign carrier is not subject to the provisions of Part 382 for the Frankfurt-Prague segment. However, the U.S. carrier must ensure compliance with the applicable provisions of Part 382 on the Frankfurt-Prague segment with respect to passengers flying under its code, and the Department could take enforcement action against the U.S. carrier for acts or omissions by the foreign carrier.

(d) As a foreign carrier, if you operate a charter flight from a foreign airport to a U.S. airport, and return to a foreign airport, and you do not pick up any passengers in the U.S., the charter flight is not a flight subject to the requirements of this part.

(e) Unless a provision of this Part specifies application to a U.S. carrier or a foreign carrier, the provision applies to both U.S. and foreign carriers.

(f) If you are an indirect carrier, §§ 382.1 through 382.15 of this part apply to you. §§ 382.17 through 382.157 of this part do not apply to you except insofar as provided by § 382.11(b).

(g) Notwithstanding any provisions of this part, you must comply with all FAA safety regulations, TSA security regulations, and foreign safety and security regulations having legally mandatory effect that apply to you.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 74 FR 11471, Mar. 18, 2009; 75 FR 44887, July 30, 2010; Doc. No. DOT-OST-2018-0068, 85 FR 79774, Dec. 10, 2020; 86 FR 41382, Aug. 2, 2021]

§ 382.9 What may foreign carriers do if they believe a provision of a foreign nation's law conflicts with compliance with a provision of this part?

(a) If you are a foreign carrier, and you believe that an applicable provision of the law of a foreign nation precludes you from complying with a provision of this part, you may request a waiver of the provision of this Part.

(b) You must send such a waiver request to the following address: Assistant General Counsel for Aviation Enforcement and Proceedings, C-70 U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W96-322, Washington, DC 20590.

(c) Your waiver request must be in English and include the following elements:

(1) A copy, in the English language, of the foreign law involved;

(2) A description of how the foreign law applies and how it precludes compliance with a provision of this part;

(3) A description of the alternative means the carrier will use, if the waiver is granted, to effectively achieve the objective of the provision of this part subject to the waiver or, if applicable, a justification of why it would be impossible to achieve this objective in any way.

(d) The Department may grant the waiver request, or grant the waiver request subject to conditions, if it determines that the foreign law applies, that it does preclude compliance with a provision of this part, and that the carrier has provided an effective alternative means of achieving the objective of the provisions of this part subject to the waiver or have demonstrated by clear and convincing evidence that it would be impossible to achieve this objective in any way.

(e)(1) If you submit a waiver request on or before September 10, 2008, the Department will, to the maximum extent feasible, respond to the request before May 13, 2009. If the Department does not respond to the waiver request by May 13, 2009, you may continue to implement the policy or practice that is the subject of your request until the Department does respond. The Department will not take enforcement action with respect to your implementation of the policy or practice during the time prior to the Department's response.

(2) If you submit a waiver request after September 10, 2008, the Department will, to the maximum extent feasible, respond to the request by May 13, 2009 or within 180 days of receiving it, whichever is later. If the Department does not respond to the waiver request by this date, you may continue to implement the policy or practice that is the subject of your request until the Department does respond. However, the Department may take enforcement action with respect to your implementation of the policy or practice during the time between May 13, 2009 and the date of the Department's response.

(3) If you submit a waiver request after September 10, 2008, and the request pertains to an applicable provision of the law of a foreign nation that did not exist on September 10, 2008, you may continue to implement the policy or practice that is the subject of your request until the Department responds to the request. The Department will, to the maximum extent feasible, respond to such requests within 180 days of receiving them. The Department will not take enforcement action with respect to your implementation of the policy or practice during the time prior to the Department's response.

(f) Notwithstanding any other provision of this section, the Department may commence enforcement action at any time after May 13, 2009 with respect to the policy or practice that is the subject of the request if it finds the request to be frivolous or dilatory.

(g) If you have not submitted a request for a waiver under this section with respect to a provision of this part, or such a request has been denied, you cannot raise the alleged existence of such a conflict as a defense to an enforcement action.

§ 382.10 How does a U.S. or foreign carrier obtain a determination that it is providing an equivalent alternative to passengers with disabilities?

(a) As a U.S. or foreign carrier, you may apply to the Department for a determination that you are providing an equivalent alternative to passengers with disabilities.

(b) You must send your application for an equivalent alternative determination to the following address: Assistant General Counsel for Aviation Enforcement and Proceedings (C-70), U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W96-322, Washington, DC 20590.

(c) Your application must be in English and include the following elements:

(1) A citation to the specific provision of this part concerning which you are proposing an equivalent alternative.

(2) A detailed description of the alternative policy, practice, or other accommodation you are proposing to use in place of compliance with the provision of this part that you cite, and an explanation of how it provides substantially equivalent accessibility to passengers with disabilities.

(d) The Department may grant the application, or grant the application subject to conditions, if it determines that the proposed facilitation does provide substantially equivalent accessibility to passengers with disabilities, compared to compliance with the provision of this part in question.

(e) If your application is granted, you will be deemed to be in compliance with this Part through implementing the equivalent alternative. If your application is denied, you must implement this part as written.

(f)(1) If you submit your application on or before September 10, 2008, the Department will respond to the request before May 13, 2009 to the maximum extent feasible. If the Department does not respond to the application by May 13, 2009, you may implement your policy or practice that is the subject of your application until the Department does respond.

(2) With respect to an application you make after September 10, 2008, you must comply with the provisions of this part without change from May 13, 2009 until the Department responds to your application.

§ 382.11 What is the general nondiscrimination requirement of this part?

(a) As a carrier, you must not do any of the following things, either directly or through a contractual, licensing, or other arrangement:

(1) You must not discriminate against any qualified individual with a disability, by reason of such disability, in the provision of air transportation;

(2) You must not require a qualified individual with a disability to accept special services (including, but not limited to, preboarding) that the individual does not request. However, you may require preboarding as a condition of receiving certain seating or in-cabin stowage accommodations, as specified in §§ 382.83(c), 382.85(b), and 382.123(a) of this part.

(3) You must not exclude a qualified individual with a disability from or deny the person the benefit of any air transportation or related services that are available to other persons, except where specifically permitted by this Part. This is true even if there are separate or different services available for individuals with a disability, except when specifically permitted by another section of this Part; and

(4) You must not take any adverse action against an individual (e.g., refusing to provide transportation) because the individual asserts, on his or her own behalf or through or on behalf of others, rights protected by this part or the Air Carrier Access Act.

(b) As a carrier or an indirect carrier, the assistance you provide with respect to this part must be performed in a safe and dignified manner.

(c) As an indirect carrier, you must comply with §§ 382.17 through 382.157 of this part when providing facilities or services to passengers that would have otherwise been provided by a direct air carrier.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 75 FR 44887, July 30, 2010; DOT-OST-2022-0144, 89 FR 102441, Dec. 17, 2024]

§ 382.13 Do carriers have to modify policies, practices, and facilities to ensure nondiscrimination?

(a) As a carrier, you must modify your policies, practices, and facilities when needed to provide nondiscriminatory service to a particular individual with a disability, consistent with the standards of section 504 of the Rehabilitation Act, as amended.

(b) This requirement is part of your general nondiscrimination obligation, and is in addition to your duty to make the specific accommodations required by this part.

(c) However, you are not required to make modifications that would constitute an undue burden or would fundamentally alter your program.

§ 382.15 Do carriers have to make sure that contractors comply with the requirements of this Part?

(a) As a carrier, you must make sure that your contractors that provide services to the public (including airports where applicable) meet the requirements of this part that would apply to you if you provided the services yourself.

(b) As a carrier, you must include an assurance of compliance with this part in your contracts with any contractors that provide services to the public that are subject to the requirements of this part. Noncompliance with this assurance is a material breach of the contract on the contractor's part.

(1) This assurance must commit the contractor to compliance with all applicable provisions of this Part in activities performed on behalf of the carrier.

(2) The assurance must also commit the contractor to implementing directives issued by your CROs under §§ 382.151 through 382.153.

(c) As a U.S. carrier, you must also include such an assurance of compliance in your contracts or agreements of appointment with U.S. travel agents. You are not required to include such an assurance in contracts with foreign travel agents.

(d) You remain responsible for your contractors' compliance with this part and for enforcing the assurances in your contracts with them.

(e) It is not a defense against an enforcement action by the Department under this part that your noncompliance resulted from action or inaction by a contractor.

§ 382.17 May carriers limit the number of passengers with a disability on a flight?

As a carrier, you must not limit the number of passengers with a disability who travel on a flight. (See also § 382.27(c)(6) of this part.)

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 74 FR 11471, Mar. 18, 2009]

§ 382.19 May carriers refuse to provide transportation on the basis of disability?

(a) As a carrier, you must not refuse to provide transportation to a passenger with a disability on the basis of his or her disability, except as specifically permitted by this part.

(b) You must not refuse to provide transportation to a passenger with a disability because the person's disability results in appearance or involuntary behavior that may offend, annoy, or inconvenience crewmembers or other passengers.

(c) You may refuse to provide transportation to any passenger on the basis of safety, as provided in 49 U.S.C. 44902 or 14 CFR 121.533, or to any passenger whose carriage would violate FAA or TSA requirements or applicable requirements of a foreign government.

(1) You can determine that there is a disability-related safety basis for refusing to provide transportation to a passenger with a disability if you are able to demonstrate that the passenger poses a direct threat (see definition in § 382.3). In determining whether an individual poses a direct threat, you must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain:

(i) The nature, duration, and severity of the risk;

(ii) The probability that the potential harm to the health and safety of others will actually occur; and

(iii) Whether reasonable modifications of policies, practices, or procedures will mitigate the risk.

(2) If you determine that the passenger does pose a direct threat, you must select the least restrictive response from the point of view of the passenger, consistent with protecting the health and safety of others. For example, you must not refuse transportation to the passenger if you can protect the health and safety of others by means short of a refusal.

(3) In exercising this authority, you must not act inconsistently with the provisions of this part.

(4) If your actions are inconsistent with any of the provisions of this part, you are subject to enforcement action under Subpart K of this part.

(d) If you refuse to provide transportation to a passenger on his or her originally-scheduled flight on a basis relating to the individual's disability, you must provide to the person a written statement of the reason for the refusal. This statement must include the specific basis for the carrier's opinion that the refusal meets the standards of paragraph (c) of this section or is otherwise specifically permitted by this part. You must provide this written statement to the person within 10 calendar days of the refusal of transportation.

§ 382.21 May carriers limit access to transportation on the basis that a passenger has a communicable disease or other medical condition?

(a) You must not do any of the following things on the basis that a passenger has a communicable disease or infection, unless you determine that the passenger's condition poses a direct threat:

(1) Refuse to provide transportation to the passenger;

(2) Delay the passenger's transportation (e.g., require the passenger to take a later flight);

(3) Impose on the passenger any condition, restriction, or requirement not imposed on other passengers; or

(4) Require the passenger to provide a medical certificate.

(b) In assessing whether the passenger's condition poses a direct threat, you must apply the provisions of § 382.19(c)(1)-(2) of this subpart.

(1) In making this assessment, you may rely on directives issued by public health authorities (e.g., the U.S. Centers for Disease Control or Public Health Service; comparable agencies in other countries; the World Health Organization).

(2) In making this assessment, you must consider the significance of the consequences of a communicable disease and the degree to which it can be readily transmitted by casual contact in an aircraft cabin environment.

Example 1 to paragraph (b)(2):The common cold is readily transmissible in an aircraft cabin environment but does not have severe health consequences. Someone with a cold would not pose a direct threat.

Example 2 to paragraph (b)(2):AIDS has very severe health consequences but is not readily transmissible in an aircraft cabin environment. Someone would not pose a direct threat because he or she is HIV-positive or has AIDS.

Example 3 to paragraph (b)(2):SARS may be readily transmissible in an aircraft cabin environment and has severe health consequences. Someone with SARS probably poses a direct threat.

(c) If a passenger with a communicable disease meeting the direct threat criteria of this section gives you a medical certificate of the kind outlined in § 382.23(c)(2) describing measures for preventing transmission of the disease during the normal course of the flight, you must provide transportation to the passenger, unless you are unable to carry out the measures.

(d) If your action under this section results in the postponement of a passenger's travel, you must permit the passenger to travel at a later time (up to 90 days from the date of the postponed travel) at the fare that would have applied to the passenger's originally scheduled trip without penalty or, at the passenger's discretion, provide a refund for any unused flights, including return flights.

(e) If you take any action under this section that restricts a passenger's travel, you must, on the passenger's request, provide a written explanation within 10 days of the request.

§ 382.23 May carriers require a passenger with a disability to provide a medical certificate?

(a) Except as provided in this section, you must not require a passenger with a disability to have a medical certificate as a condition for being provided transportation.

(b)(1) You may require a medical certificate for a passenger with a disability—

(i) Who is traveling in a stretcher or incubator;

(ii) Who needs medical oxygen during a flight; or

(iii) Whose medical condition is such that there is reasonable doubt that the individual can complete the flight safely, without requiring extraordinary medical assistance during the flight.

(2) For purposes of this paragraph, a medical certificate is a written statement from the passenger's physician saying that the passenger is capable of completing the flight safely, without requiring extraordinary medical assistance during the flight.

(3) To be valid, a medical certificate under this paragraph must be dated within 10 days of the scheduled date of the passenger's initial departing flight.

Example to paragraph (b)(3):A passenger who schedules a flight from New York to London on January 15 with a return on April 15 would have to show a medical certificate dated January 5 or later. The passenger would not have to show a second medical certificate dated April 5 or later.

(c)(1) You may also require a medical certificate for a passenger if he or she has a communicable disease or condition that could pose a direct threat to the health or safety of others on the flight.

(2) For purposes of this paragraph, a medical certificate is a written statement from the passenger's physician saying that the disease or infection would not, under the present conditions in the particular passenger's case, be communicable to other persons during the normal course of a flight. The medical certificate must state any conditions or precautions that would have to be observed to prevent the transmission of the disease or infection to other persons in the normal course of a flight. A medical certificate under this paragraph must be dated within 10 days of the date of the flight for which it is presented.

(d) As a carrier, you may require that a passenger with a medical certificate undergo additional medical review by you if there is a legitimate medical reason for believing that there has been a significant adverse change in the passenger's condition since the issuance of the medical certificate or that the certificate significantly understates the passenger's risk to the health of other persons on the flight. If the results of this medical review demonstrate that the passenger, notwithstanding the medical certificate, is likely to be unable to complete the flight without requiring extraordinary medical assistance (e.g., the passenger has apparent significant difficulty in breathing, appears to be in substantial pain, etc.) or would pose a direct threat to the health or safety of other persons on the flight, you may take an action otherwise prohibited under § 382.21(a) of this part.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 75 FR 44887, July 30, 2010]

§ 382.25 May a carrier require a passenger with a disability to provide advance notice that he or she is traveling on a flight?

As a carrier, you must not require a passenger with a disability to provide advance notice of the fact that he or she is traveling on a flight.

§ 382.27 May a carrier require a passenger with a disability to provide advance notice in order to obtain certain specific services in connection with a flight?

(a) Except as provided in paragraphs (b) and (c) of this section and §§ 382.75 and 382.133(e)(4), (5), (f)(5) and (6), as a carrier you must not require a passenger with a disability to provide advance notice in order to obtain services or accommodations required by this part.

(b)(1) You may require a passenger with a disability to provide up to 72 hours' advance notice and check in one hour before the check-in time for the general public to receive carrier-supplied in-flight medical oxygen on international flights, and 48 hours' advance notice and check-in one hour before the check-in time for the general public to receive carrier-supplied in-flight medical oxygen on domestic flights. This service is optional; you are not required to provide carrier-supplied in-flight medical oxygen, but you may choose to do so.

(2) You may require a passenger with a disability to provide 48 hours' advance notice and check-in one hour before the check-in time for the general public to use his/her ventilator, respirator, CPAP machine or POC.

(3) You may require a passenger with a disability seeking to travel with a service animal in the cabin of the aircraft to provide up to 48 hours' advance notice through submission of the forms identified in § 382.75 (a) and (b) as a condition of permitting the service animal to travel in the cabin if the reservation is made more than 48 hours prior to a flight's departure. In the alternative, you may require a passenger with a disability seeking to travel with a service animal in the cabin of the aircraft to provide the forms identified in § 382.75 (a) and (b) at the passenger's departure gate on the date of travel as a condition of permitting the service animal to travel in the cabin.

(c) You may require a passenger with a disability to provide up to 48 hours' advance notice and check in one hour before the check-in time for the general public to receive the following services and accommodations. The services listed in paragraphs (c)(1) through (c)(3) of this section are optional; you are not required to provide them, but you may choose to do so.

(1) Carriage of an incubator;

(2) Hook-up for a respirator, ventilator, CPAP machine or POC to the aircraft electrical power supply;

(3) Accommodation for a passenger who must travel in a stretcher;

(4) Transportation for an electric wheelchair on an aircraft with fewer than 60 seats;

(5) Provision of hazardous materials packaging for batteries or other assistive devices that are required to have such packaging;

(6) Accommodation for a group of ten or more qualified individuals with a disability, who make reservations and travel as a group; and

(7) Provision of an on-board wheelchair on an aircraft with more than 60 seats that does not have an accessible lavatory.

(8) Accommodation of a passenger who has both severe vision and hearing impairments (see § 382.29(b)(4)).

(d) If the passenger with a disability provides the advance notice you require, consistent with this section, for a service that you must provide (see paragraphs (b)(2) through (3) and (c)(4) through (8) of this section) or choose to provide (see paragraphs (b)(1) and (c)(1) through (c)(3) of this section), you must provide the requested service or accommodation except to comply with any applicable safety regulations.

(e) Your reservation and other administrative systems must ensure that when passengers provide the advance notice that you require, consistent with this section, for services and accommodations, the notice is communicated, clearly and on time, to the people responsible for providing the requested service or accommodation.

(f) If a passenger with a disability provides the advance notice you require, consistent with this section, and the passenger is forced to change to another flight (e.g., because of a flight cancellation), you must, to the maximum extent feasible, provide the accommodation on the new flight. If the new flight is another carrier's flight, you must provide the maximum feasible assistance to the other carrier in providing the accommodation the passenger requested from you.

(g) If a passenger does not meet advance notice or check-in requirements you establish consistent with this section, you must still provide the service or accommodation if you can do so by making reasonable efforts, without delaying the flight.

[Doc. No. DOT-OST-2018-0068, 85 FR 79774, Dec. 10, 2020]

§ 382.29 May a carrier require a passenger with a disability to travel with a safety assistant?

(a) Except as provided in paragraph (b) of this section, you must not require that a passenger with a disability travel with another person as a condition of being provided air transportation.

(b) You may require a passenger with a disability in one of the following categories to travel with a safety assistant as a condition of being provided air transportation, if you determine that a safety assistant is essential for safety:

(1) A passenger traveling in a stretcher or incubator. The safety assistant for such a person must be capable of attending to the passenger's in-flight medical needs;

(2) A passenger who, because of a mental disability, is unable to comprehend or respond appropriately to safety instructions from carrier personnel, including the safety briefing required by 14 CFR 121.571(a)(3) and (a)(4) or 14 CFR 135.117(b) or the safety regulations of a foreign carrier's government, as applicable;

(3) A passenger with a mobility impairment so severe that the person is unable to physically assist in his or her own evacuation of the aircraft;

(4) A passenger who has both severe hearing and severe vision impairments, if the passenger cannot establish some means of communication with carrier personnel that is adequate both to permit transmission of the safety briefing required by 14 CFR 121.57(a)(3) and (a)(4), 14 CFR 135,117(b) or the safety regulations of a foreign carrier's government, as applicable, and to enable the passenger to assist in his or her own evacuation of the aircraft in the event of an emergency. You may require a passenger with severe hearing and vision impairment who wishes to travel without a safety assistant to notify you at least 48 hours in advance to provide this explanation. If the passenger fails to meet this notice requirement, however, you must still accommodate him or her to the extent practicable.

(c)(1) If you determine that a person meeting the criteria of paragraph (b)(2), (b)(3) or (b)(4) of this section must travel with a safety assistant, contrary to the individual's self-assessment that he or she is capable of traveling independently, you must not charge for the transportation of the safety assistant. You are not required to find or provide the safety assistant, however.

(2) For purposes of paragraph (b)(4) of this section, you may require, contrary to the individual's self-assessment, that an individual with both severe hearing and vision impairments must travel with a safety assistant if you determine that—

(i) The means of communication that the individual has explained to you does not adequately satisfy the objectives identified in paragraph (b)(4) of this section; or

(ii) The individual proposes to establish communication by means of finger spelling and you cannot, within the time following the individual's notification, arrange for a flight crew member who can communicate using this method to serve the passenger's flight.

(3) If a passenger voluntarily chooses to travel with a personal care attendant or safety assistant that you do not require, you may charge for the transportation of that person.

(d) If, because there is not a seat available on a flight for a safety assistant whom the carrier has determined to be necessary, a passenger with a disability holding a confirmed reservation is unable to travel on the flight, you must compensate the passenger with a disability in an amount to be calculated as provided for instances of involuntary denied boarding under 14 CFR part 250, where part 250 applies.

(e) For purposes of determining whether a seat is available for a safety assistant, you must deem the safety assistant to have checked in at the same time as the passenger with a disability.

(f) Concern that a passenger with a disability may need personal care services (e.g., assistance in using lavatory facilities or with eating) is not a basis for requiring the passenger to travel with a safety assistant. You must explain this clearly in training or information you provide to your employees. You may advise passengers that your personnel are not required to provide such services.

§ 382.31 May carriers impose special charges on passengers with a disability for providing services and accommodations required by this rule?

(a) Except as otherwise provided in this part you must not, as a carrier, impose charges for providing facilities, equipment, or services that this rule requires to be provided to passengers with a disability. You may charge for services that this part does not require.

(b) You may charge a passenger for the use of more than one seat if the passenger's size or condition (e.g., use of a stretcher) causes him or her to occupy the space of more than one seat. This is not considered a special charge under this section.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 78 FR 67914, Nov. 12, 2013]

§ 382.33 May carriers impose other restrictions on passengers with a disability that they do not impose on other passengers?

(a) As a carrier, you must not subject passengers with a disability to restrictions that do not apply to other passengers, except as otherwise permitted in this part (e.g., advance notice requirements for certain services permitted by § 382.27).

(b) Restrictions you must not impose on passengers with a disability include, but are not limited to, the following:

(1) Restricting passengers” movement within the terminal;

(2) Requiring passengers to remain in a holding area or other location in order to receive transportation, services, or accommodations;

(3) Making passengers sit on blankets on the aircraft;

(4) Making passengers wear badges or other special identification (e.g., similar to badges worn by unaccompanied minors); or

(5) Otherwise mandating separate treatment for passengers with a disability, unless permitted or required by this part or other applicable Federal requirements.

§ 382.35 May carriers require passengers with a disability to sign waivers or releases?

(a) As a carrier, you must not require passengers with a disability to sign a release or waiver of liability in order to receive transportation or to receive services or accommodations for a disability.

(b) You must not require passengers with a disability to sign waivers of liability for damage to or loss of wheelchairs or other assistive devices, or for the loss of, death of, or injury to service animals. Carriers may note pre-existing damage to an assistive device to the same extent that carriers do this with respect to other checked baggage.

§ 382.41 What flight-related information must carriers provide to qualified individuals with a disability?

(a) As a carrier, you must provide the following information, on request, to qualified individuals with a disability or persons making inquiries on their behalf concerning the accessibility of the aircraft expected to make a particular flight. The information you provide must be specific to the aircraft you expect to use for the flight unless it is unfeasible for you to do so (e.g., because unpredictable circumstances such as weather or a mechanical problem require substitution of another aircraft that could affect the location or availability of an accommodation). The required information is:

(1) The specific location of seats, if any, with movable armrests (i.e., by row and seat number);

(2) The specific location of seats (i.e., by row and seat number) that the carrier, consistent with this part, does not make available to passengers with a disability (e.g., exit row seats);

(3) Any aircraft-related, service-related or other limitations on the ability to accommodate passengers with a disability, including limitations on the availability of level-entry boarding to the aircraft at any airport involved with the flight. You must provide this information to any passenger who states that he or she uses a wheelchair for boarding, even if the passenger does not explicitly request the information.

(4) Any limitations on the availability of storage facilities, in the cabin or in the cargo bay, for mobility aids or other assistive devices commonly used by passengers with a disability, including storage in the cabin of a passenger's wheelchair as provided in §§ 382.67 and 382.123;

(5) Information regarding accessibility of lavatories (see § 382.63(h)); and

(6) The types of services to passengers with a disability that are or are not available on the flight.

(b) As a carrier, you must publish information in a prominent and easily accessible place on your public-facing website(s) describing the relevant dimensions and other characteristics of the cargo holds of all aircraft types you operate, including the dimensions of the cargo hold entry, that would limit the size, weight, and allowable type of cargo.

[DOT-OST-2022-0144, 89 FR 102441, Dec. 17, 2024]

§ 382.43 Must information and reservation services of carriers be accessible to individuals with visual, hearing, and other disabilities?

(a) If, as a carrier, you provide telephone reservation and information service to the public, you must make this service available to individuals who use a text telephone (TTY), whether via your own TTY, voice relay, or other available technology, as follows:

(1) You must provide access to TTY users during the same hours as the telephone service is available to the general public.

(2) You must ensure that the response time for answering calls and the level of service provided to TTY users is substantially equivalent to the response time and level of service provided to the general public (i.e., non-TTY users).

(3) You must not subject TTY users to charges exceeding those that apply to non-TTY users of telephone information and reservation service.

(4) In any medium in which you list the telephone number of your information and reservation service for the general public, you must also list your TTY number if you have one. If you do not have a TTY number, you must state how TTY users can reach your information and reservation service (e.g., via a voice relay service).

(5) If you are a foreign carrier, you must meet this requirement by May 13, 2010.

(b) The requirements of paragraph (a) do not apply to you in any country in which the telecommunications infrastructure does not readily permit compliance.

(c) If you are a U.S. or foreign air carrier that operates at least one aircraft having a designed seating capacity of more than 60 passengers and owns or controls a primary Web site that markets passenger air transportation, or a tour (i.e., a combination of air transportation and ground or cruise accommodations), or tour component (e.g., a hotel stay) that must be purchased with air transportation, you must ensure the public-facing Web pages on your primary Web site are accessible to individuals with disabilities as provided in paragraphs (c)(1) through (4) of this section. Only Web sites that market air transportation to the general public in the United States must be accessible to individuals with disabilities. The following are among the characteristics of a primary Web site that markets to the general public in the U.S.: the content can be viewed in English, the site advertises or sells flights operating to, from, or within the United States, and the site displays fares in U.S. dollars.

(1) Your primary Web site must conform to all Success Criteria and all Conformance Requirements from the World Wide Web Consortium (W3C) Recommendation 11 December 2008, Web site Content Accessibility Guidelines (WCAG) 2.0 for Level AA as follows:

(i) Web pages associated with obtaining the following core air travel services and information that are offered on your primary Web site are conformant by December 12, 2015:

(A) Booking or changing a reservation, including all flight amenities;

(B) Checking in for a flight;

(C) Accessing a personal travel itinerary;

(D) Accessing the status of a flight;

(E) Accessing a personal frequent flyer account;

(F) Accessing flight schedules; and

(G) Accessing carrier contact information.

(ii) All remaining Web pages on your primary Web site are conformant by December 12, 2016.

(2) Your primary Web site must be tested in consultation with individuals with disabilities or members of disability organization(s) who use or want to use carrier Web sites to research or book air transportation in order to obtain their feedback on the Web site's accessibility and usability before the dates specified in paragraph (c)(1) of this section. Collectively, such individuals must be able to provide feedback on the usability of the Web site by individuals with visual, auditory, tactile, and cognitive disabilities. Consultation is required to ensure that your Web site is usable by individuals with disabilities by the date specified in paragraph (c)(1).

(3) You are permitted to use a Level AA conforming alternate version only when conforming a public-facing Web page to all WCAG 2.0 Level AA success criteria would constitute an undue burden or fundamentally alter the information or functionality provided by that page.

(4) You must assist prospective passengers who indicate that they are unable to use your Web site due to a disability and contact you through other channels (e.g., by telephone or at the ticket counter) as follows:

(i) Disclose Web-based discount fares to the passenger if his or her itinerary qualifies for the discounted fare.

(ii) Provide Web-based amenities to the passenger, such as waiving any fee applicable to making a reservation or purchasing a ticket using a method other than your Web site (e.g., by telephone), unless the fee applies to other customers purchasing the same fare online.

(d) As a carrier covered under paragraph (c) of this section, you must provide a mechanism on your primary Web site for persons with disabilities to request disability accommodation services for future flights, including but not limited to wheelchair assistance, seating accommodation, escort assistance for a visually impaired passenger, and stowage of an assistive device no later than December 12, 2015. You may require individuals who request accommodations using this mechanism to provide contact information (e.g., name, daytime phone, evening phone, and email address) for follow-up by your customer service department or medical desk.

(e) As a carrier covered under paragraph (c) of this section, you must provide a disclaimer activated when a user clicks a link on your primary Web site to an external Web site or to third-party software informing the user that the Web site or software may not follow the same accessibility policies no later than December 12, 2016.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 74 FR 11471, Mar. 18, 2009; 78 FR 67914, Nov. 12, 2013]

§ 382.45 Must carriers make copies of this Part available to passengers?

(a) As a carrier, you must keep a current copy of this part at each airport you serve. As a foreign carrier, you must keep a copy of this part at each airport serving a flight you operate that begins or ends at a U.S. airport. You must make this copy available for review by any member of the public on request.

(b) If you have a Web site, it must provide notice to consumers that they can obtain a copy of this part in an accessible format from the Department of Transportation by any of the following means:

(1) For calls made from within the United States, by telephone via the Toll-Free Hotline for Air Travelers with Disabilities at 1-800-778-4838 (voice) or 1-800-455-9880 (TTY),

(2) By telephone to the Aviation Consumer Protection Division at 202-366-2220 (voice) or 202-366-0511 (TTY),

(3) By mail to the Air Consumer Protection Division, C-75, U.S. Department of Transportation, 1200 New Jersey Ave., SE., West Building, Room W96-432, Washington, DC 20590, and

(4) On the Aviation Consumer Protection Division's Web site (http://airconsumer.ost.dot.gov).

§ 382.51 What requirements must carriers meet concerning the accessibility of airport facilities?

(a) As a carrier, you must comply with the following requirements with respect to all terminal facilities you own, lease, or control at a U.S. airport:

(1) You must ensure that terminal facilities providing access to air transportation are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. You are deemed to comply with this obligation if the facilities meet requirements applying to places of public accommodation under Department of Justice (DOJ) regulations implementing Title III of the Americans with Disabilities Act (ADA).

(2) With respect to any situation in which boarding and deplaning by level-entry loading bridges or accessible passenger lounges to and from an aircraft is not available, you must ensure that there is an accessible route between the gate and the area from which aircraft are boarded (e.g., the tarmac in a situation in which level-entry boarding is not available). An accessible route is one meeting the requirements of the Americans with Disabilities Act Accessibility Guidelines (ADAAG), sections 4.3.3 through 4.3.10.

(3) You must ensure that systems of intra- and inter-terminal transportation, including, but not limited to, moving sidewalks, shuttle vehicles and people movers, comply with applicable requirements of the Department of Transportation's ADA rules (49 CFR parts 37 and 38).

(4) Your contracts or leases with airport operators concerning the use of airport facilities must set forth your airport accessibility responsibility under this part and that of the airport operator under applicable section 504 and ADA rules of the Department of Transportation and Department of Justice.

(5) In cooperation with the airport operator and in consultation with local service animal training organization(s), you must provide animal relief areas for service animals that accompany passengers departing, connecting, or arriving at an airport on your flights.

(6) You must enable captioning at all times on all televisions and other audio-visual displays that are capable of displaying captions and that are located in any portion of the terminal to which any passengers have access on May 13, 2009. The captioning must be high-contrast insofar as is feasible.

(7) You must replace any televisions and other audio-visual displays providing passengers with safety briefings, information, or entertainment that do not have high-contrast captioning capability with equipment that does have such capability whenever such equipment is replaced in the normal course of operations and/or whenever areas of the terminal in which such equipment is located are undergoing substantial renovation or expansion.

(8) If you newly acquire televisions and other audio-visual displays for passenger safety briefings, information, or entertainment on or after May 13, 2009, such equipment must have high-contrast captioning capability.

(b) As a carrier, you must ensure that passengers with a disability can readily use all terminal facilities you own, lease, or control at a foreign airport. In the case of foreign carriers, this requirement applies only to terminal facilities that serve flights covered by § 382.7 of this part.

(1) This means that passengers with a disability must be able to move readily through such terminal facilities to get to or from the gate and any other area from which passengers board the aircraft you use for such flights (e.g., the tarmac in the case of flights that do not use level-entry boarding). This obligation is in addition to your obligation to provide enplaning, deplaning, and connecting assistance to passengers.

(2) You may meet this obligation through any combination of facility accessibility, auxiliary aids, equipment, the assistance of personnel, or other appropriate means consistent with the safety and dignity of passengers with a disability.

(c) As a foreign carrier, you must meet the requirements of this section by May 13, 2010, except as otherwise indicated in paragraph (a). As a U.S. carrier, you must meet the requirements of paragraph (b) of this section by May 13, 2010.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 74 FR 11471, Mar. 18, 2009; 75 FR 44887, July 30, 2010]

§ 382.53 What information must carriers give individuals with a vision or hearing impairment at airports?

(a)(1) As a U.S. carrier, you must ensure that passengers with a disability who identify themselves as persons needing visual or hearing assistance have prompt access to the same information provided to other passengers at each gate, ticketing area, and customer service desk that you own, lease, or control at any U.S. or foreign airport, to the extent that this does not interfere with employees' safety and security duties as set forth in FAA, TSA, and applicable foreign regulations.

(2) As a foreign carrier, you must make this information available at each gate, ticketing area, and customer service desk that you own, lease, or control at any U.S. airport. At foreign airports, you must make this information available only at gates, ticketing areas, or customer service desks that you own, lease, or control and only for flights that begin or end in the U.S.

(3) As a U.S. or foreign carrier, at any U.S. airport covered by this paragraph where the airport has effective control over the covered gates, ticketing areas, and customer service desks, you and the airport are jointly responsible for compliance.

(b) The information you must provide under paragraph (a) of this section includes, but is not limited to, the following: Information concerning flight safety, ticketing, flight check-in, flight delays or cancellations, schedule changes, boarding information, connections, gate assignments, checking baggage, volunteer solicitation on oversold flights (e.g., offers of compensation for surrendering a reservation), individuals being paged by airlines, aircraft changes that affect the travel of persons with disabilities, and emergencies (e.g., fire, bomb threat).

(c) With respect to information on claiming baggage, you must provide the information to passengers who identify themselves as persons needing visual or hearing assistance no later than you provide this information to other passengers.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 74 FR 11471, Mar. 18, 2009]

§ 382.55 May carriers impose security screening procedures for passengers with disabilities that go beyond TSA requirements or those of foreign governments?

(a) All passengers, including those with disabilities, are subject to TSA security screening requirements at U.S. airports. In addition, passengers at foreign airports, including those with disabilities, may be subject to security screening measures required by law of the country in which the airport is located.

(b) If, as a carrier, you impose security screening procedures for passengers with disabilities that go beyond those mandated by TSA (or, at a foreign airport, beyond the law of the country in which the airport is located), you must ensure that they meet the following requirements:

(1) You must use the same criteria for applying security screening procedures to passengers with disabilities as to other passengers.

(2) You must not subject a passenger with a disability to special screening procedures because the person is traveling with a mobility aid or other assistive device if the person using the aid or device clears the security system without activating it.

(i) However, your security personnel may examine a mobility aid or assistive device which, in their judgment, may conceal a weapon or other prohibited item.

(ii) You may conduct security searches of qualified individuals with a disability whose aids activate the security system in the same manner as for other passengers.

(3) You must not require private security screenings of passengers with a disability to a greater extent, or for any different reason, than for other passengers.

(c) Except as provided in paragraph (d) of this section, if a passenger with a disability requests a private screening in a timely manner, you must provide it in time for the passenger to enplane.

(d) If you use technology that can conduct an appropriate screening of a passenger with a disability without necessitating a physical search of the person, you are not required to provide a private screening.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 74 FR 11471, Mar. 18, 2009]

§ 382.57 What accessibility requirements apply to automated airport kiosks?

(a) As a carrier, you must comply with the following requirements with respect to any automated airport kiosk you own, lease, or control at a U.S. airport with 10,000 or more enplanements per year.

(1) You must ensure that all automated airport kiosks installed on or after December 12, 2016, are models that meet the design specifications set forth in paragraph (c) of this section until at least 25 percent of automated kiosks provided in each location at the airport (i.e., each cluster of kiosks and all stand-alone kiosks at the airport) meets this specification.

(2) You must ensure that at least 25 percent of automated kiosks you own, lease, or control in each location at a U.S. airport meet the design specifications in paragraph (c) of this section by December 12, 2022.

(3) When the kiosks provided in a location at the airport perform more than one function (e.g., print boarding passes/bag tags, accept payment for flight amenities such as seating upgrades/meals/WiFi access, rebook tickets, etc.), you must ensure that the accessible kiosks provide all the same functions as the inaccessible kiosks in that location.

(4) You must ensure that a passenger with a disability who requests an accessible automated kiosk is given priority access to any available accessible kiosk you own, lease, or control in that location at the airport.

(5) You must ensure that each automated airport kiosk that meets the design specifications in paragraph (c) of this section is:

(i) Visually and tactilely identifiable to users as accessible (e.g., an international symbol of accessibility affixed to the front of the device).

(ii) Maintained in proper working condition.

(b) As a carrier, you must comply with the following requirements for any shared-use automated airport kiosks you jointly own, lease, or control at a U.S. airport with 10,000 or more enplanements per year.

(1) You must ensure that all shared-use automated airport kiosks you jointly own, lease, or control installed on or after December 12, 2016, meet the design specifications in paragraph (c) of this section until at least 25 percent of automated kiosks provided in each location at the airport (i.e., each cluster of kiosks and all stand-alone kiosks at an airport) meet this specification.

(2) You must ensure that at least 25 percent of shared-use automated kiosks you own, lease, or control in each location at the airport meet the design specifications in paragraph (c) of this section by December 12, 2022.

(3) When shared-use automated kiosks provided in a location at the airport perform more than one function (e.g., print boarding passes/bag tags, accept payment for flight amenities such as seating upgrades/meals/WiFi access, rebook tickets, etc.), you must ensure that the accessible kiosks provide all the same functions as the inaccessible kiosks in that location.

(4) You must ensure that each automated airport kiosk that meets the design specifications set forth in paragraph (c) of this section is:

(i) Visually and tactilely identifiable to users as accessible (e.g., an international symbol of accessibility affixed to the front of the device; and

(ii) Maintained in proper working condition.

(5) As a carrier, you are jointly and severally liable with airport operators and/or other participating carriers for ensuring that shared-use automated airport kiosks are compliant with the requirements of paragraphs (b) and (c) of this section.

(c) You must ensure that the automated airport kiosks provided in accordance with this section conform to the following technical accessibility standards with respect to their physical design and the functions they perform:

(1) Self contained. Except for personal headsets and audio loops, automated kiosks must be operable without requiring the user to attach assistive technology.

(2) Clear floor or ground space. A clear floor or ground space complying with section 305 of the U.S. Department of Justice's 2010 ADA Standards for Accessible Design, 28 CFR 35.104 (defining the “2010 Standards” for title II as the requirements set forth in appendices B and D to 36 CFR part 1191 and the requirements contained in 28 CFR 35.151) (hereinafter 2010 ADA Standards) must be provided.

(3) Operable parts. Operable parts must comply with section 309 of the 2010 ADA Standards, and the following requirements:

(i) Identification. Operable parts must be tactilely discernible without activation;

(ii) Timing. Where a timed response is required, the user must be alerted visually and by touch or sound and must be given the opportunity to indicate that more time is required;

(iii) Status indicators. Status indicators, including all locking or toggle controls or keys (e.g., Caps Lock and Num Lock keys), must be discernible visually and by touch or sound; and

(iv) Color. Color coding must not be used as the only means of conveying information, indicating an action, prompting a response, or distinguishing a visual element.

(4) Privacy. Automated airport kiosks must provide the opportunity for the same degree of privacy of input and output available to all individuals. However, if an option is provided to blank the screen in the speech output mode, the screen must blank when activated by the user, not automatically.

(5) Output. Automated airport kiosks must comply with paragraphs (c)(5)(i) through (iv) of this section.

(i) Speech output enabled. Automated airport kiosks must provide an option for speech output. Operating instructions and orientation, visible transaction prompts, user input verification, error messages, and all other visual information for full use must be accessible to and independently usable by individuals with vision impairments. Speech output must be delivered through a mechanism that is readily available to all users, including but not limited to, an industry standard connector or a telephone handset. Speech output must be recorded or digitized human, or synthesized. Speech output must be coordinated with information displayed on the screen. Speech output must comply with paragraphs (c)(5)(i)(A) through (F) of this section.

(A) When asterisks or other masking characters are used to represent personal identification numbers or other visual output that is not displayed for security purposes, the masking characters must be spoken (“*” spoken as “asterisk”) rather than presented as beep tones or speech representing the concealed information.

(B) Advertisements and other similar information are not required to be audible unless they convey information that can be used in the transaction being conducted.

(C) Speech for any single function must be automatically interrupted when a transaction is selected or navigation controls are used. Speech must be capable of being repeated and paused by the user.

(D) Where receipts, tickets, or other outputs are provided as a result of a transaction, speech output must include all information necessary to complete or verify the transaction, except that—

(1) Automated airport kiosk location, date and time of transaction, customer account numbers, and the kiosk identifier are not required to be audible;

(2) Information that duplicates information available on-screen and already presented audibly is not required to be repeated; and

(3) Printed copies of a carrier's contract of carriage, applicable fare rules, itineraries and other similar supplemental information that may be included with a boarding pass are not required to be audible.

(ii) Volume control. Automated kiosks must provide volume control complying with paragraphs (c)(5)(ii)(A) and (B) of this section.

(A) Private listening. Where speech required by paragraph (c)(5)(i) of this section is delivered through a mechanism for private listening, the automated kiosk must provide a means for the user to control the volume. A function must be provided to automatically reset the volume to the default level after every use.

(B) Speaker volume. Where sound is delivered through speakers on the automated kiosk, incremental volume control must be provided with output amplification up to a level of at least 65 dB SPL. Where the ambient noise level of the environment is above 45 dB SPL, a volume gain of at least 20 dB above the ambient level must be user selectable. A function must be provided to automatically reset the volume to the default level after every use.

(iii) Captioning. Multimedia content that contains speech or other audio information necessary for the comprehension of the content must be open or closed captioned. Advertisements and other similar information are not required to be captioned unless they convey information that can be used in the transaction being conducted.

(iv) Tickets and boarding passes. Where tickets or boarding passes are provided, tickets and boarding passes must have an orientation that is tactilely discernible if orientation is important to further use of the ticket or boarding pass.

(6) Input. Input devices must comply with paragraphs (c)(6)(i) through (iv) of this section.

(i) Input controls. At least one input control that is tactilely discernible without activation must be provided for each function. Where provided, key surfaces not on active areas of display screens, must be raised above surrounding surfaces. Where touch or membrane keys are the only method of input, each must be tactilely discernible from surrounding surfaces and adjacent keys.

(ii) Alphabetic keys. Alphabetic keys must be arranged in a QWERTY keyboard layout. The “F” and “J” keys must be tactilely distinct from the other keys.

(iii) Numeric keys. Numeric keys must be arranged in a 12-key ascending or descending keypad layout or must be arranged in a row above the alphabetic keys on a QWERTY keyboard. The “5” key must be tactilely distinct from the other keys.

(iv) Function keys. Function keys must comply with paragraphs (c)(6)(iv)(A) and (B) of this section.

(A) Contrast. Function keys must contrast visually from background surfaces. Characters and symbols on key surfaces must contrast visually from key surfaces. Visual contrast must be either light-on-dark or dark-on-light. However, tactile symbols required by (c)(6)(iv)(B) are not required to comply with (c)(6)(iv)(A) of this section.

(B) Tactile symbols. Function key surfaces must have tactile symbols as follows: Enter or Proceed key: raised circle; Clear or Correct key: raised left arrow; Cancel key: raised letter ex; Add Value key: raised plus sign; Decrease Value key: raised minus sign.

(7) Display screen. The display screen must comply with paragraphs (c)(7)(i) and (ii) of this section.

(i) Visibility. The display screen must be visible from a point located 40 inches (1015 mm) above the center of the clear floor space in front of the automated kiosk.

(ii) Characters. Characters displayed on the screen must be in a sans serif font. Characters must be 3/16 inch (4.8 mm) high minimum based on the uppercase letter “I.” Characters must contrast with their background with a minimum luminosity contrast ratio of 3:1.

(8) Braille instructions. Braille instructions for initiating the speech mode must be provided. Braille must comply with section 703.3 of the 2010 ADA Standards.

(9) Biometrics. Biometrics must not be the only means for user identification or control, unless at least two biometric options that use different biological characteristics are provided.

(d) You must provide equivalent service upon request to passengers with a disability who cannot readily use your automated airport kiosks (e.g., by directing a passenger who is blind to an accessible automated kiosk, assisting a passenger in using an inaccessible automated kiosk, assisting a passenger who due to his or her disability cannot use an accessible automated kiosk by allowing the passenger to come to the front of the line at the check-in counter).

[78 FR 67915, Nov. 12, 2013]

§ 382.61 What are the requirements for movable aisle armrests?

(a) As a carrier, you must ensure that aircraft with 30 or more passenger seats on which passenger aisle seats have armrests are equipped with movable aisle armrests on at least one-half of the aisle seats in rows in which passengers with mobility impairments are permitted to sit under FAA or applicable foreign government safety rules.

(b) You are not required to provide movable armrests on aisle seats of rows which a passenger with a mobility impairment is precluded from using by an FAA safety rule.

(c) You must ensure that these movable aisle armrests are provided proportionately in all classes of service in the cabin. For example, if 80 percent of the aisle seats in which passengers with mobility impairments may sit are in coach, and 20 percent are in first class, then 80 percent of the movable aisle armrests must be in coach, with 20 percent in first class.

(d) For aircraft equipped with movable aisle armrests, you must configure cabins, or establish administrative systems, to ensure that passengers with mobility impairments or other passengers with a disability can readily identify and obtain seating in rows with movable aisle armrests. You must provide this information by specific seat and row number.

(e) You are not required to retrofit cabin interiors of existing aircraft to comply with the requirements of this section. However, if you replace any of an aircraft's aisle seats with newly manufactured seats, the new seats must include movable aisle armrests as required by this section. However, an aircraft is never required to have movable aisle armrests on more than one half of the aisle seats.

(f) As a foreign carrier, you must comply with the requirements of paragraphs (a) through (d) of this section with respect to new aircraft you operate that were initially ordered after May 13, 2009 or which are delivered after May 13, 2010. As a U.S. carrier, the requirements of paragraphs (a), (b), (d), and (e) of this section applies to you with respect to new aircraft you operate that were initially ordered after April 5, 1990, or which are delivered after April 5, 1992. As a U.S. carrier, paragraph (c) of this section applies to you with respect to new aircraft you operate that were initially ordered after May 13, 2009 or which were delivered after May 13, 2010.

(g) As a foreign carrier, you must comply with the requirements of paragraph (e) of this section with respect to seats ordered after May 13, 2009.

§ 382.63 What are the requirements for accessible lavatories?

(a) As a carrier, you must ensure that aircraft with more than one aisle in which lavatories are provided shall include at least one accessible lavatory.

(1) The accessible lavatory must permit a qualified individual with a disability to enter, maneuver within as necessary to use all lavatory facilities, and leave, by means of the aircraft's on-board wheelchair.

(2) The accessible lavatory must afford privacy to persons using the on-board wheelchair equivalent to that afforded ambulatory users.

(3) The lavatory shall provide door locks, accessible call buttons, grab bars, faucets and other controls, and dispensers usable by qualified individuals with a disability, including wheelchair users and persons with manual impairments.

(b) With respect to aircraft not covered in paragraph (f) of this section with only one aisle in which lavatories are provided, you may, but are not required to, provide an accessible lavatory.

(c) You are not required to retrofit cabin interiors of existing aircraft to comply with the requirements of this section. However, if you replace a lavatory on an aircraft with more than one aisle, you must replace it with an accessible lavatory.

(d) As a foreign carrier, you must comply with the requirements of paragraph (a) of this section with respect to new aircraft you operate that were initially ordered after May 13, 2009 or which are delivered after May 13, 2010. As a U.S. carrier, this requirement applies to you with respect to new aircraft you operate that were initially ordered after April 5, 1990, or which were delivered after April 5, 1992.

(e) As a foreign carrier, you must comply with the requirements of paragraph (c) of this section beginning May 13, 2009. As a U.S. carrier, these requirements apply to you with respect to new aircraft you operate that were initially ordered after April 5, 1990, or which were delivered after April 5, 1992.

(f) As a carrier, you must ensure that all new single-aisle aircraft that you operate with an FAA-certificated maximum seating capacity of 125 or more that are delivered on or after October 2, 2026, and on which lavatories are provided shall include at least one lavatory that meets the following specifications:

(1) Grab bars must be provided and positioned as required to meet the needs of individuals with disabilities.

(2) Lavatory faucets must have controls with tactile information concerning temperature. Alternatively, carriers may comply with this requirement by ensuring that lavatory water temperature is adjusted to eliminate the risk of scalding for all passengers. Automatic or hand-operated faucets shall dispense water for a minimum of five seconds for each application or while the hand is below the faucet.

(3) Attendant call buttons and door locks must be accessible to an individual seated within the lavatory.

(4) Lavatory controls and dispensers must be discernible through the sense of touch. Operable parts within the lavatory must be operable with one hand and must not require tight grasping, pinching, or twisting of the wrist. You must comply with these requirements to the extent that such accessible components are reasonably available and certificated for the applicable aircraft type. You are not responsible for acquiring lavatory controls and dispensers with an accessible feature described above so long as you inform the Department of their unavailability despite your reasonable efforts.

(5) The lavatory door sill must provide minimum obstruction to the passage of the on-board wheelchair across the sill while preventing the leakage of fluids from the lavatory floor and trip hazards during an emergency evacuation.

(6) Toe clearance must not be reduced from current measurements.

(7) The aircraft must include a visual barrier that must be provided upon request of a passenger with a disability. The barrier must provide passengers with disabilities using the lavatory (with the lavatory door open) a level of privacy substantially equivalent to that provided to ambulatory users. Visual barriers are not an acceptable method of providing privacy with respect to lavatories covered in § 382.64.

(g) You are not required to retrofit cabin interiors of existing single-aisle aircraft to comply with the requirements of paragraph (f) of this section. However, if you replace a lavatory on a single-aisle aircraft after October 2, 2026, you must replace it with a lavatory complying with the requirements of paragraph (f) of this section. Under this paragraph (g), a lavatory is not considered replaced if it is removed for specified maintenance, safety checks, or any other action that results in returning the same lavatory into service. For retrofit lavatories, there shall be no requirement to install a visual barrier if doing so will obstruct the visibility of exit signs.

(h) As a carrier operating at least one aircraft with an FAA-certificated maximum seating capacity of 60 or more, you must comply with the following requirements:

(1) You must train flight attendants to proficiency on an annual basis to provide assistance in transporting qualified individuals with disabilities to and from the lavatory from the aircraft seat. Such training shall include hands-on training on the retrieval, assembly, stowage, transfer features, and use of the aircraft's on-board wheelchair, and regarding the accessibility features of the lavatory, including any assembly or modifications to accessibility features.

(2) You must provide information, on request, to qualified individuals with a disability or persons making inquiries on their behalf concerning, at a minimum, the accessibility features of aircraft lavatories set forth in paragraph (f) of this section. This information must also be available on the carrier's website (if the carrier markets tickets to the public), and in printed or electronic form on the aircraft, including picture diagrams of accessibility features in the lavatory and the location and usage of all controls and dispensers.

(3) You must remove or conceal the International Symbol of Accessibility from new and in-service aircraft equipped with lavatories that are not capable of facilitating a seated independent transfer (i.e., a transfer from an on-board wheelchair to the toilet seat without requiring the use of an assistant). You must include the International Symbol of Accessibility if the lavatory is capable of providing a seated independent transfer.

(4) You must develop and, upon request, inform passengers of trash disposal procedures and processes for sharps and bio-waste.

(5) You must comply with the provisions of this paragraph (h) by October 2, 2026.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended by Docket No. DOT-OST-2021-0137, 88 FR 50034, Aug. 1, 2023]

§ 382.64 What are the requirements for large accessible lavatories on single-aisle aircraft?

(a) As a carrier, you must ensure that all new single-aisle aircraft that you operate with an FAA-certificated maximum seating capacity of 125 seats or more in which lavatories are provided, shall include at least one lavatory of sufficient size to:

(1) Permit a qualified individual with a disability equivalent in size to a 95th percentile male to approach, enter, maneuver within as necessary to use all lavatory facilities, and leave, by means of the aircraft's on-board wheelchair, in a closed space that affords privacy equivalent to that afforded to ambulatory users; and

(2) Permit an assistant equivalent in size to a 95th percentile male to assist a qualified individual with a disability, including assisting in transfers between the toilet and the aircraft's on-board wheelchair, within a closed space that affords privacy equivalent to that afforded to ambulatory users.

(b) You are not required to retrofit cabin interiors of existing single-aisle aircraft to comply with the requirements of paragraph (a) of this section.

(c) As a carrier, you must comply with the requirements of this section with respect to new aircraft that you operate that were originally ordered after October 3, 2033, or delivered after October 2, 2035, or are part of a new type-certificated design filed with the FAA or a foreign carrier's safety authority after October 2, 2024.

[Docket No. DOT-OST-2021-0137, 88 FR 50035, Aug. 1, 2023]

§ 382.65 What are the requirements concerning on-board wheelchairs?

(a) As a carrier, you must equip aircraft that have more than 60 passenger seats, and that have an accessible lavatory (whether or not having such a lavatory is required by § 382.63 of this Part) with an on-board wheelchair. The Aerospatiale/Aeritalia ATR-72 and the British Aerospace Advanced Turboprop (ATP), in configurations having between 60 and 70 passenger seats, are exempt from this requirement.

(b) If a passenger asks you to provide an on-board wheelchair on a particular flight, you must provide it if the aircraft being used for the flight has more than 60 passenger seats, even if the aircraft does not have an accessible lavatory.

(1) The basis of the passenger's request must be that he or she can use an inaccessible lavatory but cannot reach it from a seat without using an on-board wheelchair.

(2) You may require the passenger to provide the advance notice specified in § 382.27 to receive this service.

(c) You must ensure that on-board wheelchairs meet the following standards:

(1) On-board wheelchairs must include footrests, armrests which are movable or removable, adequate occupant restraint systems, a backrest height that permits assistance to passengers in transferring, structurally sound handles for maneuvering the occupied chair, and wheel locks or another adequate means to prevent chair movement during transfer or turbulence.

(2) The chair must be designed to be compatible with the maneuvering space, aisle width, and seat height of the aircraft on which it is to be used, and to be easily pushed, pulled, and turned in the cabin environment by carrier personnel.

(d) As a foreign carrier, you must meet this requirement as of May 13, 2010. As a U.S. carrier, you must meet this requirement by May 13, 2009.

(e) As a carrier, you must ensure that all new single-aisle aircraft that you operate with an FAA-certificated maximum seating capacity of 125 or more that are delivered on or after October 2, 2026, and on which lavatories are provided include an on-board wheelchair meeting the requirements of this section. The Access Board's published nonbinding technical assistance on aircraft on-board wheelchairs may be relied upon for compliance with these requirements.

(1) The on-board wheelchair must be maneuverable both forward and backward through the aircraft aisle by an attendant.

(2) The height of the on-board wheelchair seat must align with the height of the aircraft seat so as to facilitate a safe transfer between the on-board wheelchair seat and the aircraft seat.

(3) The on-board wheelchair must have wheels that lock in the direction of travel, and that lock in place so as to permit safe transfers. Any other moving parts of the on-board wheelchair must be capable of being secured such that they do not move while the occupied on-board wheelchair is being maneuvered.

(4) The on-board wheelchair shall be designed not to tip or fall in any direction under normal operating conditions when occupied for use.

(5) The on-board wheelchair must have a padded seat and backrest and must be free of sharp or abrasive components.

(6) The on-board wheelchair must have arm supports that are sufficiently structurally sound to permit transfers and repositionable so as to allow for unobstructed transfers; adequate back support; torso and leg restraints that are adequate to prevent injury during transport; and a unitary foot support that provides sufficient clearance to traverse the threshold of the lavatory and is repositionable so as to allow for unobstructed transfer. All restraints must be operable by the passenger.

(7) The on-board wheelchair must be maneuverable in a forward orientation partially into at least one aircraft lavatory to permit transfer from the on-board wheelchair to the toilet.

(8) The on-board wheelchair must be maneuverable into the aircraft lavatory without protruding into the clear space needed to completely close the lavatory door.

(9) The on-board wheelchair must prominently display instructions for proper use.

(f) You are not required to expand the existing FAA-certificated on-board wheelchair stowage space of the aircraft, or modify the interior arrangement of the lavatory or the aircraft, in order to comply with this section. However, if the on-board wheelchair that you obtain does not fit within the original stowage space, and another space exists (e.g., an overhead compartment) where the on-board wheelchair could fit consistent with FAA safety standards, then you must stow the on-board wheelchair in that space and must request any necessary FAA approval to do so. You are not required to make the on-board wheelchair available if the pilot-in-command determines that safety or security considerations preclude its use.

(g) You must acquire an OBW that complies with as many requirements set forth in paragraph (e) of this section as are available. You are not responsible for the failure of third parties to develop and deliver an on-board wheelchair that complies with a requirement set forth in paragraph (e) of this section so long as you make reasonable efforts to purchase such an OBW and inform the Department at the address cited in § 382.159 that an on-board wheelchair meeting that requirement is unavailable despite your reasonable efforts. If you cannot provide a wheelchair meeting requirement (e)(8) of this section despite your reasonable efforts, then you must provide, on request, the use of the visual barrier (e.g., a curtain) described in § 382.63(f)(7) to enable the passenger to perform lavatory functions in privacy.

(h)(1) If you replace an on-board wheelchair supplied on aircraft with an FAA-certificated maximum seating capacity of 125 or more after October 2, 2026, then you must replace it with an on-board wheelchair that meets the standards set forth in paragraph (e) of this section.

(2) After October 2, 2026, if you purchase or otherwise obtain a new on-board wheelchair for use on aircraft with more than 60 passenger seats, it must meet the standards set forth in paragraph (e) of this section.

(3) Any on-board wheelchair supplied on aircraft with an FAA-certificated maximum seating capacity of more than 60 passenger seats and that has an accessible lavatory and that was delivered after October 2, 2026, must meet the standards set forth in paragraph (e) of this section.

(4) After October 2, 2031, any on-board wheelchair that you provide for passengers' use on aircraft with more than 60 passenger seats must meet the standards set forth in paragraph (e) of this section.

(5) For purposes of paragraphs (h)(2) through (4) of this section, you must acquire OBWs that comply with as many of the safety and accessibility requirements in paragraph (e) of this section as are available. You must inform the Department at the address cited in 14 CFR 382.159 that an on-board wheelchair meeting that requirement is unavailable, if that is the case.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended by Docket No. DOT-OST-2021-0137, 88 FR 50034, Aug. 1, 2023; DOT-OST-2022-0144, 89 FR 102441, Dec. 17, 2024]

§ 382.67 What is the requirement for priority space in the cabin to store passengers' wheelchairs?

(a) As a carrier, you must ensure that there is priority space (i.e., a closet, or a row of seats where a wheelchair may be strapped using a strap kit that complies with applicable Federal Aviation Administration or applicable foreign government regulations on the stowage of cargo in the cabin compartment) in the cabin of sufficient size to stow at least one typical adult-sized folding, collapsible, or break-down manual passenger wheelchair, the dimensions of which are 13 inches by 36 inches by 42 inches or less without having to remove the wheels or otherwise disassemble it. This section applies to any aircraft with 100 or more passenger seats and this space must be other than the overhead compartments and under-seat spaces routinely used for passengers' carry-on items.

(b) If you are a carrier that uses the seat-strapping method to stow a manual passenger wheelchair, you must ensure that there is priority space for at least two such wheelchairs, if stowing the second passenger wheelchair would not displace passengers.

(c) If you are a carrier that uses a closet as the priority space to stow a manual passenger wheelchair, you must install a sign or placard prominently on the closet indicating that such wheelchairs and other assistive devices are to be stowed in this area with priority over other items brought onto the aircraft by other passengers or crew, including crew luggage, as set forth in § 382.123.

(d) If passengers holding confirmed reservations are not able to travel on a flight because their seats are being used to stow a passenger's wheelchair as required by paragraph (a) of this section, carriers must compensate those passengers in an amount to be calculated as provided for in instances of involuntary denied boarding under 14 CFR part 250, where part 250 applies.

(e) As a carrier, you must never request or suggest that a passenger not stow his or her wheelchair in the cabin to accommodate other passengers (e.g., informing a passenger that stowing his or her wheelchair in the cabin will require other passengers to be removed from the flight), or for any other non-safety related reason (e.g., that it is easier for the carrier if the wheelchair is stowed in the cargo compartment).

(f) As a carrier, you must offer pre-boarding to a passenger stowing his or her wheelchair in the cabin.

(g) As a foreign carrier, you must meet the requirement of this section for new aircraft ordered after May 13, 2009, or delivered after May 13, 2010. As a U.S. carrier, this section applies to you with respect to new aircraft you operate that were ordered after April 5, 1990, or which were delivered after April 5, 1992.

[78 FR 67923, Nov. 12, 2013]

§ 382.69 What requirements must carriers meet concerning the accessibility of videos, DVDs, and other audio-visual presentations shown on-aircraft to individuals who are deaf or hard of hearing?

(a) As a carrier, you must ensure that all new videos, DVDs, and other audio-visual displays played on aircraft for safety purposes, and all such new audio-visual displays played on aircraft for informational purposes that were created under your control, are high-contrast captioned. The captioning must be in the predominant language or languages in which you communicate with passengers on the flight.

(b) The requirements of paragraph (a) of this section go into effect with respect to audio-visual displays used for safety purposes on November 10, 2009.

(c) Between May 13, 2009 and November 9, 2009, U.S. carriers must ensure that all videos, DVDs, and other audio-visual displays played on aircraft for safety purposes have open captioning or an inset for a sign language interpreter, unless such captioning or inset either would interfere with the video presentation so as to render it ineffective or would not be large enough to be readable, in which case these carriers must use an equivalent non-video alternative for transmitting the briefing to passengers with hearing impairments.

(d) The requirements of paragraph (a) of this section go into effect with respect to informational displays on January 8, 2010.

§ 382.71 What other aircraft accessibility requirements apply to carriers?

(a) As a carrier, you must maintain all aircraft accessibility features in proper working order.

(b) You must ensure that any replacement or refurbishing of the aircraft cabin or its elements does not reduce the accessibility of that element to a level below that specified for new aircraft in this part.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 74 FR 11471, Mar. 18, 2009]

§ 382.72 Must carriers allow a service animal to accompany a passenger with a disability?

You must allow a service animal to accompany a passenger with a disability. You must not deny transportation to a service animal based on the animal's breed or type or on the basis that its carriage may offend or annoy carrier personnel or persons traveling on the aircraft.

[Doc. No. DOT-OST-2018-0068, 85 FR 79774, Dec. 10, 2020]

§ 382.73 How do carriers determine if an animal is a service animal that must be accepted for transport? May a carrier require that a service animal be under the control of the service animal user or handler?

(a) You may rely on one or more of the factors set forth in paragraphs (a)(1) through)(3) of this section to determine if an animal is a service animal that must be accepted for transport.

(1) You may make two inquiries to determine whether an animal qualifies as a service animal. You may ask if the animal is required to accompany the passenger because of a disability and what work or task the animal has been trained to perform. You must not ask about the nature or extent of a person's disability or ask that the service animal demonstrate its work or task.

(2) You may observe the behavior of an animal. A trained service animal will remain under the control of its handler. It does not run freely around an aircraft or an airport gate area, bark or growl repeatedly at other persons or other animals on the aircraft or in the airport gate area, bite, jump on, or cause injury to people, or urinate or defecate in the cabin or gate area. An animal that engages in such disruptive behavior demonstrates that it has not been successfully trained to behave properly in a public setting and carriers are not required to treat it as a service animal without a carrier in the cabin, even if the animal performs an assistive function for a passenger with a disability.

(3) You may look for physical indicators, such as a harness or vest on the animal, to determine if the animal is a service animal.

(b) You may require that a service animal be harnessed, leashed, or otherwise tethered at all times by the service animal user or service animal handler while in areas of the airport that you own, lease or control, or on an aircraft.

[Doc. No. DOT-OST-2018-0068, 85 FR 79774, Dec. 10, 2020]

§ 382.74 How many service animals must a carrier transport in the cabin of aircraft?

You are not required to accept more than two service animals for a single passenger with a disability.

[Doc. No. DOT-OST-2018-0068, 85 FR 79774, Dec. 10, 2020]

§ 382.75 May a carrier require documentation from passengers with disabilities seeking to travel with a service animal?

(a) If a passenger with a disability seeks to travel with a service animal, you may require the passenger to provide you, as a condition of permitting the service animal to travel in the cabin, a current completed U.S. Department of Transportation Service Animal Air Transportation Form. Current means the form was completed on or after the date the passenger purchased his or her airline ticket.

(b) On a flight segment scheduled to take 8 hours or more, you may, as a condition of permitting a service animal to travel in the cabin, require the passenger with a disability traveling with the service animal to confirm that the animal will not need to relieve itself on the flight, or that the animal can relieve itself in a way that does not create a health or sanitation issue on the flight by providing a current DOT Service Animal Relief Attestation Form. Current means the form was completed on or after the date the passenger purchased his or her airline ticket.

(c) You are not permitted to require documentation from passengers with disabilities traveling with service animals beyond the completion of the forms identified in paragraphs (a) and (b) of this section except to comply with requirements on transport of animals by a Federal agency, a U.S. territory or a foreign jurisdiction.

(d) As a U.S. air carrier, if you require service animal users to submit the forms identified in paragraphs (a) and (b) of this section, you must have copies of these forms available for passengers at each airport you serve. As a foreign air carrier, if you require service animal users to submit the forms identified in paragraphs (a) and (b) of this section, you must have copies of the forms available for passengers at each airport serving a flight you operate that begins or ends at a U.S. airport.

(e) If you have a website, you must have the forms identified in paragraphs (a) and (b) available to passengers in an accessible format. You must mail copies of the forms identified in paragraphs (a) and (b) to passengers upon request.

(f) If you require a passenger with a disability traveling with a service animal to submit the forms identified in paragraphs (a) and (b) of this section in advance of the passenger's date of travel, you must provide the passenger the option of submitting the completed form(s) to you electronically or by hardcopy.

(g)(1) If a passenger's reservation was made more than 48 hours in advance of the first originally scheduled departure time on the passenger's itinerary, you may require that passenger provide up to 48 hours advance notice by submitting the form identified in paragraph (a) of this section.

(2) If a passenger's reservation was made more than 48 hours in advance of the first originally scheduled departure time on the passenger's itinerary and a flight segment on the passenger's itinerary is scheduled to take 8 hours or more, you may require that the passenger provide up to 48 hours advance notice by submitting the form identified in paragraph (b) of this section.

(3) If a passenger's reservation was made less than 48 hours in advance of the first originally scheduled departure time on the passenger's itinerary, you may not require that passenger provide advance notice of his or her intent to travel with a service animal. You may require that the passenger complete the forms identified in paragraphs (a) and (b) of this section and submit a copy of the form to you at the passenger's departure gate on the date of travel.

(h) If the passenger does not meet the advance notice requirements you establish consistent with this section, you must still provide the accommodation if you can do so by making reasonable efforts, without delaying the flight.

[Doc. No. DOT-OST-2018-0068, 85 FR 79774, Dec. 10, 2020]

§ 382.76 May a carrier require a service animal user to check-in physically at the airport?

You may not require a passenger with a disability to check-in physically at the airport, rather than using the online check-in available to the general public, on the basis that the passenger is traveling with a service animal.

[Doc. No. DOT-OST-2018-0068, 85 FR 79774, Dec. 10, 2020]

§ 382.77 May carriers restrict the location and placement of service animals on aircraft?

(a) You must permit a service animal to accompany a passenger with a disability on the passenger's lap or in the passenger's foot space, unless this location and placement would:

(1) Be inconsistent with safety requirements set by the FAA or the foreign carrier's government; or

(2) Encroach into another passenger's space.

(b) Before refusing to transport a large service animal that cannot be accommodated on the passenger's lap or in the passenger's foot space without encroaching into another passenger's space, you must offer the passenger the opportunity to move with the animal to another seat location within the same class of service, if available on the aircraft, where the animal can be accommodated. You are not required to reseat other passengers to accommodate a service animal except as required for designated priority seats in Subpart F.

(c) If there are no alternatives available to enable the passenger to travel with the service animal in the cabin of the scheduled flight, you must offer the passenger the opportunity to transport the service animal in the cargo hold free of charge or travel on a later flight to the extent there is space available on a later flight and the transport is consistent with the safety requirements set by the FAA or a foreign carrier's government.

[Doc. No. DOT-OST-2018-0068, 85 FR 79774, Dec. 10, 2020]

§ 382.78 May carriers charge individuals with disabilities for the damage their service animal causes?

While you generally cannot charge an individual with a disability for transporting service animals, or for providing other services that this part requires, you may charge a passenger with a disability for damage caused by his or her service animal so long as you normally charge individuals without disabilities for similar kinds of damage.

[Doc. No. DOT-OST-2018-0068, 85 FR 79774, Dec. 10, 2020]

§ 382.79 Under what other circumstances may carriers refuse to provide transportation to a service animal traveling with a passenger with a disability?

(a) You may deny transport to a service animal under the following circumstances:

(1) The animal poses a direct threat to the health or safety of others (see definition in § 382.3);

(2) The animal causes a significant disruption in the cabin or at an airport gate area, or its behavior on the aircraft or at an airport gate area indicates that it has not been trained to behave properly in public (e.g., running freely, barking or growling repeatedly at other persons on the aircraft, biting or jumping on people, or urinating or defecating in the cabin or gate area);

(3) The animal's carriage would violate applicable safety or health requirements of any U.S. federal agency, U.S. territory or foreign government; or

(4) The passenger with a disability seeking to travel with a service animal in the cabin of the aircraft does not provide completed current forms as set forth in § 382.75 (a) and (b) to the carrier when requested to do so.

(b) In determining whether to deny transport to a service animal on the basis that the animal poses a direct threat under paragraph (a)(1) of this section, you must make an individualized assessment, independent of the dog's breed or type, based on reasonable judgment that relies on the best available objective evidence to ascertain the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedure will mitigate the risk. A current completed U.S. Department of Transportation Service Animal Air Transportation Form may be used in making this determination.

(c) In determining whether to deny transport to a service animal on the basis that the animal has misbehaved and/or has caused a significant disruption in the cabin under paragraph (a)(2) of this section, you must make an individualized assessment, independent of the dog's breed or type, based on reasonable judgment that relies on the best available objective evidence to ascertain the probability that the misbehavior and/or disruption will continue to occur; and whether reasonable modifications of policies, practices, or procedure will mitigate the misbehavior and/or the disruption. A current completed U.S. Department of Transportation Service Animal Air Transportation Form and a current completed U.S. Department of Transportation Service Animal Relief Attestation Form may be used in making this determination.

(d) In conducting the analysis required under paragraphs (a)(1) and (2) of this section, you must not deny transportation to the service animal if there are means available short of refusal that would mitigate the problem (e.g., muzzling a barking service dog or taking other steps to comply with animal health regulations needed to permit entry of the service animal into a domestic territory or a foreign country).

(e) If you refuse to provide transportation to a service animal based on any provision in this part, you must provide the individual with a disability accompanied by the service animal a written statement of the reason for the refusal. This statement must include the specific basis for the carrier's opinion that the refusal meets the standards of paragraphs (a) through (c) of this section or is otherwise specifically permitted by this part. You must provide this written statement to the individual with a disability accompanied by the service animal either at the airport, or within 10 calendar days of the refusal of transportation.

[Doc. No. DOT-OST-2018-0068, 85 FR 79774, Dec. 10, 2020]

§ 382.80 May carriers impose additional restrictions on the transport of service animals?

Carriers are not permitted to establish additional restrictions on the transport of service animals outside of those specifically permitted by the provisions in this part, unless required by applicable FAA, TSA, or other Federal requirements or a foreign carrier's government.

[Doc. No. DOT-OST-2018-0068, 85 FR 79774, Dec. 10, 2020]

§ 382.81 For which passengers must carriers make seating accommodations?

As a carrier, you must provide the following seating accommodations to the following passengers on request, if the passenger self-identifies to you as having a disability specified in this section and the type of seating accommodation in question exists on the particular aircraft. Once the passenger self-identifies to you, you must ensure that the information is recorded and properly transmitted to personnel responsible for providing the accommodation.

(a) For a passenger who uses an aisle chair to access the aircraft and who cannot readily transfer over a fixed aisle armrest, you must provide a seat in a row with a movable aisle armrest. You must ensure that your personnel are trained in the location and proper use of movable aisle armrests, including appropriate transfer techniques. You must ensure that aisle seats with movable armrests are clearly identifiable.

(b) You must provide an adjoining seat for a person assisting a passenger with a disability in the following circumstances:

(1) When a passenger with a disability is traveling with a personal care attendant who will be performing a function for the individual during the flight that airline personnel are not required to perform (e.g., assistance with eating);

(2) When a passenger with a vision impairment is traveling with a reader/assistant who will be performing functions for the individual during the flight;

(3) When a passenger with a hearing impairment is traveling with an interpreter who will be performing functions for the individual during the flight; or

(4) When you require a passenger to travel with a safety assistant (see § 382.29).

(c) For a passenger with a disability traveling with a service animal, you must provide, as the passenger requests, either a bulkhead seat or a seat other than a bulkhead seat.

(d) For a passenger with a fused or immobilized leg, you must provide a bulkhead seat or other seat that provides greater legroom than other seats, on the side of an aisle that better accommodates the individual's disability.

§ 382.83 Through what mechanisms do carriers make seating accommodations?

(a) If you are a carrier that provides advance seat assignments to passengers (i.e., offer seat assignments to passengers before the day of the flight), you must comply with the requirements of § 382.81 of this part by any of the following methods:

(1) You may “block” an adequate number of the seats used to provide the seating accommodations required by § 382.81.

(i) You must not assign these seats to passengers who do not meet the criteria of § 382.81 until 24 hours before the scheduled departure of the flight.

(ii) At any time up until 24 hours before the scheduled departure of the flight, you must assign a seat meeting the requirements of this section to a passenger with a disability meeting one or more of the requirements of § 382.81 who requests it, at the time the passenger initially makes the request.

(iii) If a passenger with a disability specified in § 382.81 does not make a request at least 24 hours before the scheduled departure of the flight, you must meet the passenger's request to the extent practicable, but you are not required to reassign a seat assigned to another passenger in order to do so.

(2) You may designate an adequate number of the seats used to provide seating accommodations required by § 382.81 as “priority seats” for passengers with a disability.

(i) You must provide notice that all passengers assigned these seats (other than passengers with a disability listed in § 382.81 of this part) are subject to being reassigned to another seat if necessary to provide a seating accommodation required by this section.

(ii) You may provide this notice through your computer reservation system, verbal information provided by reservation personnel, ticket notices, gate announcements, counter signs, seat cards or notices, frequent-flier literature, or other appropriate means.

(iii) You must assign a seat meeting the requirements of this section to a passenger with a disability listed in § 382.81 of this part who requests the accommodation at the time the passenger makes the request. You may require such a passenger to check in and request the seating accommodation at least one hour before the standard check-in time for the flight. If all designated priority seats that would accommodate the passenger have been assigned to other passengers, you must reassign the seats of the other passengers as needed to provide the requested accommodation.

(iv) If a passenger with a disability listed in § 382.81 does not check in at least an hour before the standard check-in time for the general public, you must meet the individual's request to the extent practicable, but you are not required to reassign a seat assigned to another passenger in order to do so.

(b) If you assign seats to passengers, but not until the date of the flight, you must use the “priority seating” approach of paragraph (a)(2) of this section.

(c) If you do not provide advance seat assignments to passengers, you must allow passengers specified in § 382.81 to board the aircraft before other passengers, including other “preboarded” passengers, so that the passengers needing seating accommodations can select seats that best meet their needs.

(d) As a carrier, if you wish to use a different method of providing seating assignment accommodations to passengers with disabilities from those specified in this subpart, you must obtain the written concurrence of the Department of Transportation. Contact the Department at the address cited in § 382.159 of this part.

§ 382.85 What seating accommodations must carriers make to passengers in circumstances not covered by § 382.81 (a) through (d)?

As a carrier, you must provide the following seating accommodations to a passenger who self-identifies as having a disability other than one in the four categories listed in § 382.81 (a) through (d) of this part and as needing a seat assignment accommodation in order to readily access and use the carrier's air transportation services:

(a) As a carrier that assigns seats in advance, you must provide accommodations in the following ways:

(1) If you use the “seat-blocking” mechanism of § 382.83(a)(1) of this part, you must implement the requirements of this section as follows:

(i) When a passenger with a disability not described in § 382.81(a) through (d) of this part makes a reservation more than 24 hours before the scheduled departure time of the flight, you are not required to offer the passenger one of the seats blocked for the use of passengers with a disability listed under § 382.81.

(ii) However, you must assign to the passenger any seat, not already assigned to another passenger that accommodates the passenger's needs, even if that seat is not available for assignment to the general passenger population at the time of the request.

(2) If you use the “designated priority seats” mechanism of § 382.83(a)(2) of this part, you must implement the requirements of this section as follows:

(i) When a passenger with a disability not described in § 382.81 makes a reservation, you must assign to the passenger any seat, not already assigned to another passenger, that accommodates the passenger's needs, even if that seat is not available for assignment to the general passenger population at the time of the request. You may require a passenger making such a request to check in one hour before the standard check-in time for the flight.

(ii) If such a passenger is assigned to a designated priority seat, he or she is subject to being reassigned to another seat as provided in § 382.83(a)(2)(i) of this subpart.

(b) On flights where advance seat assignments are not offered, you must provide seating accommodations under this section by allowing passengers to board the aircraft before other passengers, including other “preboarded” passengers, so that the individuals needing seating accommodations can select seats that best meet their needs.

(c) If you assign seats to passengers, but not until the date of the flight, you must use the “priority seating” approach of section 382.83(a)(2).

§ 382.87 What other requirements pertain to seating for passengers with a disability?

(a) As a carrier, you must not exclude any passenger with a disability from any seat or require that a passenger with a disability sit in any particular seat, on the basis of disability, except to comply with FAA or applicable foreign government safety requirements.

(b) In responding to requests from individuals for accommodations under this subpart, you must comply with FAA and applicable foreign government safety requirements, including those pertaining to exit seating (see 14 CFR 121.585 and 135.129).

(c) If a passenger's disability results in involuntary active behavior that would result in the person properly being refused transportation under § 382.19, and the passenger could be transported safely if seated in another location, you must offer to let the passenger sit in that location as an alternative to being refused transportation.

(d) If you have already provided a seat to a passenger with a disability to furnish an accommodation required by this subpart, you must not (except in the circumstance described in § 382.85(a)(2)(ii)) reassign that passenger to another seat in response to a subsequent request from another passenger with a disability, without the first passenger's consent.

(e) You must never deny transportation to any passenger in order to provide accommodations required by this subpart.

(f) You are not required to furnish more than one seat per ticket or to provide a seat in a class of service other than the one the passenger has purchased in order to provide an accommodation required by this part.

§ 382.89 How timely must the service required under this Subpart be provided by carriers to passengers with disabilities?

(a) As a carrier, the assistance you provide with respect to this subpart must be performed in a prompt manner.

(b) Whether the assistance is prompt is dependent on the totality of the circumstances, except, for as set forth in paragraph (c) of this section.

(c) Prompt assistance for a person who uses a boarding chair (i.e., aisle chair) in deplaning means:

(1) Personnel and boarding chair must be available to deplane the passenger when the last passenger who did not request deplaning assistance departs the aircraft;

(2) The passenger's personal wheelchair must be available as close as possible to the door of the aircraft to the maximum extent possible, except:

(i) Where this practice would be inconsistent with Federal regulations governing transportation security or the transportation of hazardous materials; or

(ii) When the passenger requests the wheelchair be returned at a location other than the door of the aircraft; and

(3) When a passenger's personal wheelchair is not available at the door of the aircraft for the reasons set forth in paragraph (c)(2) of this section, an airport wheelchair must be available as close as possible to the door of the aircraft for the passenger's use.

[DOT-OST-2022-0144, 89 FR 102442, Dec. 17, 2024]

§ 382.91 What assistance must carriers provide to passengers with a disability in moving within the terminal?

(a) As a carrier, you must provide or ensure the provision of assistance requested by or on behalf of a passenger with a disability, or offered by carrier or airport operator personnel and accepted by a passenger with a disability, in transportation between gates to make a connection to another flight. If the arriving flight and the departing connecting flight are operated by different carriers, the carrier that operated the arriving flight (i.e., the one that operates the first of the two flights that are connecting) is responsible for providing or ensuring the provision of this assistance, even if the passenger holds a separate ticket for the departing flight. It is permissible for the two carriers to mutually agree that the carrier operating the departing connecting flight (i.e., the second flight of the two) will provide this assistance, but the carrier operating the arriving flight remains responsible under this section for ensuring that the assistance is provided.

(b) You must also provide or ensure the provision of assistance requested by or on behalf of a passenger with a disability, or offered by carrier or airport operator personnel and accepted by a passenger with a disability, in moving from the terminal entrance (or a vehicle drop-off point adjacent to the entrance) through the airport to the gate for a departing flight, or from the gate to the terminal entrance (or a vehicle pick-up point adjacent to the entrance after an arriving flight).

(1) This requirement includes assistance in accessing key functional areas of the terminal, such as ticket counters and baggage claim.

(2) This requirement also includes a brief stop upon the passenger's request at the entrance to a rest room (including an accessible rest room when requested). As a carrier, you are required to make such a stop only if the rest room is available on the route to the destination of the enplaning, deplaning, or connecting assistance and you can make the stop without unreasonable delay. To receive such assistance, the passenger must self-identify as being an individual with a disability needing the assistance.

(c) As a carrier at a U.S. airport, you must, on request, in cooperation with the airport operator, provide for escorting a passenger with a service animal to an animal relief area provided under § 382.51(a)(5) of this part.

(d) As part of your obligation to provide or ensure the provision of assistance to passengers with disabilities in moving through the terminal (e.g., between the terminal entrance and the gate, between gate and aircraft, from gate to a baggage claim area), you must assist passengers who are unable to carry their luggage because of a disability with transporting their gate-checked or carry-on luggage. You may request the credible verbal assurance that a passenger cannot carry the luggage in question. If a passenger is unable to provide credible assurance, you may require the passenger to provide documentation as a condition of providing this service.

§ 382.93 Must carriers offer preboarding to passengers with a disability?

As a carrier, you must offer preboarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, stow accessibility equipment, or be seated.

§ 382.95 What are carriers' general obligations with respect to boarding and deplaning assistance?

(a) As a carrier, you must provide or ensure the provision of assistance requested by or on behalf of passengers with a disability, or offered by carrier or airport operator personnel and accepted by passengers with a disability, in enplaning and deplaning. This assistance must include, as needed, the services of personnel and the use of ground wheelchairs, accessible motorized carts, boarding wheelchairs, and/or on-board wheelchairs where provided in accordance with this part, and ramps or mechanical lifts.

(b) As a carrier, you must, except as otherwise provided in this subpart, provide boarding and deplaning assistance through the use of lifts or ramps at any U.S. commercial service airport with 10,000 or more annual enplanements where boarding and deplaning by level-entry loading bridges or accessible passenger lounges is not available.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended by DOT-OST-2022-0144, 89 FR 102442, Dec. 17, 2024]

§ 382.97 To which aircraft does the requirement to provide boarding and deplaning assistance through the use of lifts apply?

The requirement of section 382.95(b) of this part to provide boarding and deplaning assistance through the use of lifts applies with respect to all aircraft with a passenger capacity of 19 or more, with the following exceptions:

(a) Float planes;

(b) The following 19-seat capacity aircraft models: the Fairchild Metro, the Jetstream 31 and 32, the Beech 1900 (C and D models), and the Embraer EMB-120;

(c) Any other aircraft model determined by the Department of Transportation to be unsuitable for boarding and deplaning assistance by lift, ramp, or other suitable device.

The Department will make such a determination if it concludes that—

(1) No existing boarding and deplaning assistance device on the market will accommodate the aircraft without a significant risk of serious damage to the aircraft or injury to passengers or employees, or

(2) Internal barriers are present in the aircraft that would preclude passengers who use a boarding or aisle chair from reaching a non-exit row seat.

§ 382.99 What agreements must carriers have with the airports they serve?

(a) As a carrier, you must negotiate in good faith with the airport operator of each U.S. airport described in § 382.95(b) to ensure the provision of lifts for boarding and deplaning where level-entry loading bridges are not available.

(b) You must have a written, signed agreement with the airport operator allocating responsibility for meeting the boarding and deplaning assistance requirements of this subpart between or among the parties. For foreign carriers, with respect to all covered aircraft, this requirement becomes effective May 13, 2010.

(c) For foreign carriers, the agreement with a U.S. airport must provide that all actions necessary to ensure accessible boarding and deplaning for passengers with a disability are completed as soon as practicable, but no later than May 13, 2011.

(d) Under the agreement, you may, as a carrier, require that passengers wishing to receive boarding and deplaning assistance requiring the use of a lift for a flight check in for the flight one hour before the standard check-in time for the flight. If the passenger checks in after this time, you must nonetheless provide the boarding and deplaning assistance by lift if you can do so by making a reasonable effort, without delaying the flight.

(e) The agreement must ensure that all lifts and other accessibility equipment are maintained in proper working condition.

(f) All carriers and airport operators involved are jointly and severally responsible for the timely and complete implementation of the agreement.

(g) You must make a copy of this agreement available, on request, to representatives of the Department of Transportation.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 74 FR 11471, Mar. 18, 2009]

§ 382.101 What other boarding and deplaning assistance must carriers provide?

When level-entry boarding and deplaning assistance is not required to be provided under this subpart, you must, as a carrier, provide or ensure the provision of boarding and deplaning assistance by any available means to which the passenger consents. However, you must never use hand-carrying (i.e., directly picking up the passenger's body in the arms of one or more carrier personnel to effect a level change the passenger needs to enter or leave the aircraft), even if the passenger consents, unless this is the only way of evacuating the individual in the event of an emergency. The situations in which level-entry boarding is not required but in which you must provide this boarding and deplaning assistance include, but are not limited to, the following:

(a) The boarding or deplaning process occurs at a U.S. airport that is not a commercial service airport that has 10,000 or more enplanements per year;

(b) The boarding or deplaning process occurs at a foreign airport;

(c) You are using an aircraft subject to an exception from the lift boarding and deplaning assistance requirements under § 382.97 (a)-(c) of this subpart;

(d) The deadlines established in § 382.99(c) have not yet passed; and

(e) Circumstances beyond your control (e.g., unusually severe weather; unexpected mechanical problems) prevent the use of a lift.

§ 382.103 May a carrier leave a passenger unattended in a wheelchair or other device?

As a carrier, you must not leave a passenger who has requested assistance required by this subpart unattended by the personnel responsible for enplaning, deplaning, or connecting assistance in a ground wheelchair, boarding wheelchair, or other device, in which the passenger is not independently mobile, for more than 30 minutes. This requirement applies even if another person (e.g., family member, personal care attendant) is accompanying the passenger, unless the passenger explicitly waives the obligation.

§ 382.105 What is the responsibility of carriers at foreign airports at which airport operators have responsibility for enplaning, deplaning, and connecting assistance?

At a foreign airport at which enplaning, deplaning, or connecting assistance is provided by the airport operator, rather than by carriers, as a carrier you may rely on the services provided by the airport operator to meet the requirements of this subpart. If the services provided by the airport operator are not sufficient to meet the requirements of this subpart, you must supplement the airport operator's services to ensure that these requirements are met. If you believe you are precluded by law from supplementing the airport operator's services, you may apply for a conflict of laws waiver under § 382.9 of this part.

§ 382.111 What services must carriers provide to passengers with a disability on board the aircraft?

As a carrier, you must provide services within the aircraft cabin as requested by or on behalf of passengers with a disability, or when offered by carrier personnel and accepted by passengers with a disability, as follows:

(a) Assistance in moving to and from seats, as part of the enplaning and deplaning processes;

(b) Assistance in preparation for eating, such as opening packages and identifying food;

(c) If there is an on-board wheelchair on the aircraft, assistance with the use of the on-board wheelchair to enable the person to move to and from a lavatory;

(d) Assistance to a semi-ambulatory person in moving to and from the lavatory, not involving lifting or carrying the person; or

(e) Assistance in stowing and retrieving carry-on items, including mobility aids and other assistive devices stowed in the cabin (see also 382.91(d)). To receive such assistance, the passenger must self-identify as being an individual with a disability needing the assistance.

(f) Effective communication with passengers who have vision impairments or who are deaf or hard-of-hearing, so that these passengers have prompt access to information the carrier provides to other passengers (e.g. weather, on-board services, flight delays, connecting gates at the next airport).

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 75 FR 44887, July 30, 2010]

§ 382.113 What services are carriers not required to provide to passengers with a disability on board the aircraft?

As a carrier, you are not required to provide extensive special assistance to qualified individuals with a disability. For purposes of this section, extensive special assistance includes the following activities:

(a) Assistance in actual eating;

(b) Assistance within the restroom or assistance at the passenger's seat with elimination functions; and

(c) Provision of medical services.

§ 382.115 What requirements apply to on-board safety briefings?

As a carrier, you must comply with the following requirements with respect to on-board safety briefings:

(a) You must conduct an individual safety briefing for any passenger where required by 14 CFR 121.571(a)(3) and (a)(4), 14 CFR 135.117(b), or other FAA requirements.

(b) You may offer an individual briefing to any other passenger, but you may not require an individual to have such a briefing except as provided in paragraph (a) of this section.

(c) You must not require any passenger with a disability to demonstrate that he or she has listened to, read, or understood the information presented, except to the extent that carrier personnel impose such a requirement on all passengers with respect to the general safety briefing. You must not take any action adverse to a qualified individual with a disability on the basis that the person has not “accepted” the briefing.

(d) When you conduct an individual safety briefing for a passenger with a disability, you must do so as inconspicuously and discreetly as possible.

(e) The accessibility requirements for onboard video safety presentations that carriers must meet are outlined in section 382.69.

§ 382.119 What information must carriers give individuals with vision or hearing impairment on aircraft?

(a) As a carrier, you must ensure that passengers with a disability who identify themselves as needing visual or hearing assistance have prompt access to the same information provided to other passengers on the aircraft as described in paragraph (b) of this section, to the extent that it does not interfere with crewmembers' safety duties as set forth in FAA and applicable foreign regulations.

(b) The covered information includes but is not limited to the following: information concerning flight safety, procedures for takeoff and landing, flight delays, schedule or aircraft changes that affect the travel of persons with disabilities, diversion to a different airport, scheduled departure and arrival time, boarding information, weather conditions at the flight's destination, beverage and menu information, connecting gate assignments, baggage claim, individuals being paged by airlines, and emergencies (e.g., fire or bomb threat).

§ 382.121 What mobility aids and other assistive devices may passengers with a disability bring into the aircraft cabin?

(a) As a carrier, you must permit passengers with a disability to bring the following kinds of items into the aircraft cabin, provided that they can be stowed in designated priority storage areas or in overhead compartments or under seats, consistent with FAA, PHMSA, TSA, or applicable foreign government requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items.

(1) Manual wheelchairs, including folding or collapsible wheelchairs;

(2) Other mobility aids, such as canes (including those used by persons with impaired vision), crutches, and walkers; and

(3) Other assistive devices for stowage or use within the cabin (e.g., prescription medications and any medical devices needed to administer them such as syringes or auto-injectors, vision-enhancing devices, and POCs, ventilators and respirators that use non-spillable batteries, as long as they comply with applicable safety, security and hazardous materials rules).

(b) In implementing your carry-on baggage policies, you must not count assistive devices (including the kinds of items listed in paragraph (a) of this section) toward a limit on carry-on baggage.

§ 382.123 What are the requirements concerning priority cabin stowage for wheelchairs and other assistive devices?

(a) The following rules apply to the stowage of passengers' wheelchairs or other assistive devices in the priority stowage area provided for in § 382.67 of this part:

(1) You must ensure that a passenger with a disability who uses a wheelchair and takes advantage of the opportunity to preboard the aircraft can stow his or her wheelchair in this area, with priority over other items brought onto the aircraft by other passengers or crew enplaning at the same airport, consistent with FAA, PHMSA, TSA, or applicable foreign government requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items. You must move items that you or your personnel have placed in the priority stowage area (e.g., crew luggage, an on-board wheelchair) to make room for the passenger's wheelchair, even if these items were stowed in the priority stowage area before the passenger seeking to stow a wheelchair boarded the aircraft (e.g., the items were placed there on a previous leg of the flight).

(2) You must also ensure that a passenger with a disability who takes advantage of the opportunity to preboard the aircraft can stow other assistive devices in this area, with priority over other items (except wheelchairs) brought onto the aircraft by other passengers enplaning at the same airport consistent with FAA, PHMSA, TSA, or applicable foreign government requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items.

(3) You must ensure that a passenger with a disability who does not take advantage of the opportunity to preboard is able to use the area to stow his or her wheelchair or other assistive device on a first-come, first-served basis along with all other passengers seeking to stow carry-on items in the area.

(b) If a wheelchair exceeds the space provided for in § 382.67 of this part while fully assembled but will fit if wheels or other components can be removed without the use of tools, you must remove the applicable components and stow the wheelchair in the designated space. In this case, you must stow the removed components in areas provided for stowage of carry-on luggage.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 78 FR 67924, Nov. 12, 2013]

§ 382.125 What procedures do carriers follow when wheelchairs, other mobility aids, and other assistive devices must be stowed in the cargo compartment?

(a) As a carrier, you must stow wheelchairs, other mobility aids, or other assistive devices in the baggage compartment if an approved stowage area is not available in the cabin or the items cannot be transported in the cabin consistent with FAA, PHMSA, TSA, or applicable foreign government requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items.

(b) You must give wheelchairs, other mobility aids, and other assistive devices priority for stowage in the baggage compartment over other cargo and baggage. Only items that fit into the baggage compartment and can be transported consistent with FAA, PHMSA, TSA, or applicable foreign government requirements concerning security, safety, and hazardous materials with respect to the stowage of items in the baggage compartment need be transported. Where this priority results in other passengers' baggage being unable to be carried on the flight, you must make your best efforts to ensure that the other baggage reaches the passengers' destination on the carrier's next flight to the destination.

(c) You must provide for the checking and timely return of passengers' wheelchairs, other mobility aids, and other assistive devices as close as possible to the door of the aircraft, so that passengers may use their own equipment to the extent possible, except

(1) Where this practice would be inconsistent with Federal regulations governing transportation security or the transportation of hazardous materials; or

(2) When the passenger requests the return of the items at the baggage claim area instead of at the door of the aircraft.

(d) In order to achieve the timely return of wheelchairs, you must ensure that passengers' wheelchairs, other mobility aids, and other assistive devices are among the first items retrieved from the baggage compartment.

(e) You must notify passengers in writing when they check wheelchairs or scooters to be stowed in the baggage compartment that they have the right to contact a CRO, how they can contact a CRO, and the right to file a claim with the airline if their wheelchairs or scooters are mishandled while in your custody. You must provide this notification in an accessible format for individuals with disabilities.

(f)(1) You must notify passengers with disabilities, before the aircraft cabin door closes, whether their wheelchairs or scooters have been loaded in the cargo compartments of their flights, including whether their device could not fit on the passenger's scheduled flight because of its size or weight.

(2) If a passenger's wheelchair or scooter is not loaded on his or her scheduled flight for whatever reason, you must offer to disembark the passenger and rebook them at no additional cost on the next available flight operated by you or a partner carrier. In addition, when you become aware that a passenger's wheelchair or scooter does not fit on the passenger's scheduled flight, if that is the case, you must offer to rebook the passenger at no additional cost on the next available flight operated by you or a partner carrier where the wheelchair or scooter will fit, if such an aircraft is available.

(3) You must notify passengers with disabilities, before they deplane, when their wheelchairs or scooters have been unloaded from the cargo compartments of their flights upon arrival.

(4) You must provide the notifications required by paragraphs (f)(1) and (3) of this section in an accessible format for individuals with disabilities.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended by DOT-OST-2022-0144, 89 FR 102442, Dec. 17, 2024]

§ 382.127 What procedures apply to stowage of battery-powered mobility aids?

(a) Whenever baggage compartment size and aircraft airworthiness considerations do not prohibit doing so, you must, as a carrier, accept a passenger's battery-powered wheelchair or other similar mobility device, including the battery, as checked baggage, consistent with the requirements of 49 CFR 175.10(a)(15) and (16) and the provisions of paragraphs (b) through (f) of this section.

(b) You may require that passengers with a disability wishing to have battery-powered wheelchairs or other similar mobility devices transported on a flight check in one hour before the check-in time for the general public. If the passenger checks in after this time, you must nonetheless carry the wheelchair or other similar mobility device if you can do so by making a reasonable effort, without delaying the flight.

(c) If the battery on the passenger's wheelchair or other similar mobility device has been labeled by the manufacturer as non-spillable as provided in 49 CFR 173.159(d)(2), or if a battery-powered wheelchair with a spillable battery can be loaded, stored, secured and unloaded in an upright position, you must not require the battery to be removed and separately packaged. Notwithstanding this requirement, you must remove and package separately any battery that is inadequately secured to a wheelchair or, for a spillable battery, is contained in a wheelchair that cannot be loaded, stowed, secured and unloaded in an upright position, in accordance with 49 CFR 175.10(a)(15) and (16). A damaged or leaking battery should not be transported.

(d) When it is necessary to detach the battery from the wheelchair, you must, upon request, provide packaging for the battery meeting the requirements of 49 CFR 175.10(a)(15) and (16) and package the battery. You may refuse to use packaging materials or devices other than those you normally use for this purpose.

(e) You must not disconnect the battery on wheelchairs or other mobility devices equipped with a non-spillable battery completely enclosed within a case or compartment integral to the design of the device unless an FAA or PHMSA safety regulation, or an applicable foreign safety regulation having mandatory legal effect, requires you to do so.

(f) You must not drain batteries.

§ 382.129 What other requirements apply when passengers' wheelchairs, other mobility aids, and other assistive devices must be disassembled for stowage?

(a) As a carrier, you must permit passengers with a disability to provide written directions concerning the disassembly and reassembly of their wheelchairs, other mobility aids, and other assistive devices. You must carry out these instructions to the greatest extent feasible, consistent with FAA, PHMSA, TSA, or applicable foreign government requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items.

(b) When wheelchairs, other mobility aids, or other assistive devices are disassembled by the carrier for stowage, you must reassemble them and ensure their prompt return to the passenger. You must return wheelchairs, other mobility aids, and other assistive devices to the passenger in the condition in which you received them.

§ 382.130 What are the handling requirements for wheelchairs, scooters, other mobility aids, and other assistive devices and what obligations apply when wheelchairs or other assistive devices are mishandled?

(a) You must return checked wheelchairs, scooters, other mobility aids, and other assistive devices to the passenger in the condition in which you received them. Whenever a passenger's checked wheelchair, scooter, other mobility aid, or other assistive device that was in your custody is not returned to the passenger in the same condition it was received, there is a rebuttable presumption that you mishandled the passenger's wheelchair, scooter, other mobility aid, or other assistive device in violation of the ACAA.

(1) The presumption of a violation in this paragraph (a) can be overcome if you can successfully demonstrate that the alleged mishandling of the wheelchair, scooter, other mobility aid, or other assistive device did not occur while the wheelchair, scooter, other mobility aid, or assistive device was in your control and custody (e.g., the damage occurred before the passenger checked the wheelchair, scooter, other mobility aid, or assistive device; the damage occurred after you returned the wheelchair, scooter, other mobility aid, or assistive device to the passenger) or that the passenger's claim is false or fraudulent.

(2) The presumption of a violation in this paragraph (a) cannot be overcome by demonstrating that the mishandling of a checked wheelchair, scooter, other mobility aid, or other assistive device is the result of “an act of God” or other circumstances beyond the control of the airline.

(b) When you become aware that a passenger's wheelchair or scooter has been mishandled (i.e., your personnel notices that the wheelchair or assistive device has been mishandled or the passenger notifies airline personnel of the mishandling of the wheelchair or assistive device, whichever occurs first), you must immediately notify the impacted passenger in writing of his or her rights to file a claim with the carrier, to receive a loaner wheelchair or scooter from the carrier with certain customizations described in paragraph (e) of this section, to choose a preferred vendor for repairs or replacement of the device, and to have a Complaints Resolution Official (CRO) available and be provided information on how to contact the CRO. You must provide this notification in an accessible format for individuals with disabilities.

(c)(1) When a passenger's checked wheelchair or scooter has been delayed while in your custody, you must ensure that the device is transported to the passenger's final destination within 24 hours of the passenger's arrival for domestic flights and short international flights between the United States and a foreign point that is 12 hours or less in duration and within 30 hours of the passenger's arrival for long international flights between the United States and a foreign point that is more than 12 hours in duration. You must transport the delayed device by whatever means are available to safely do so.

(2) You must provide passengers a choice between picking up the delayed wheelchair or scooter at the passenger's final destination airport or having the delayed wheelchair or scooter delivered to a reasonable location requested by the passenger, such as the passenger's home or hotel. Depending on the passenger's choice, the delayed wheelchair or scooter is considered to be provided to the passenger either when the passenger or another person authorized to act on behalf of the passenger picks up the delayed wheelchair or scooter at his or her destination airport or when you deliver the delayed wheelchair or scooter to the passenger or another person authorized to act on behalf of the passenger at a reasonable location requested by the passenger, such as the passenger's home or hotel.

(3) If a passenger files a claim with you for a delayed wheelchair or scooter, you must provide them updates when there is a status change for the delayed device.

(4) In consultation with disability rights organizations, you must establish and provide safe and adequate seating accommodations at the airport to be used by individuals with disabilities who are waiting for delayed personal wheelchairs or scooters or waiting for loaner wheelchairs or scooters after a passenger's wheelchair or scooter is mishandled by you and cannot be promptly returned.

(5) You must reimburse passengers for the cost(s) of any transportation to or from the airport that the passenger incurred as a direct result of you delaying the passenger's wheelchair or scooter. You may require passengers to submit documentation that substantiates the cost(s), such as receipts or invoices, to receive reimbursement.

(d) When a passenger's checked wheelchair or scooter has been lost, damaged, or pilfered while in your custody, you must:

(1) Provide the passenger a reasonable timeframe to inspect the wheelchair or scooter and to file a claim with the carrier for the mishandling;

(2) Provide the passenger the following options if repair or replacement is needed:

(i) The passenger may file a claim with you and elect for the carrier to handle the repair or replacement of the wheelchair or scooter. If the passenger selects this option, you must promptly repair or replace the wheelchair or scooter, with a device of equivalent or greater function and safety, and pay the cost of repair or replacement; or

(ii) The passenger may file a claim with you and elect to use the passenger's preferred vendor to repair or replace the wheelchair or scooter. If the passenger selects this option, you are responsible for promptly transporting the passenger's wheelchair or scooter to the passenger's preferred vendor, unless the passenger has indicated that he or she will arrange for the transport themselves, and for directly paying the cost of transport and repair or replacement, with a device of equivalent or greater function and safety; and

(3) Promptly review all claims received within a reasonable time of the repaired or replaced wheelchair or scooter being returned to the passenger alleging that the provided repairs were not sufficient. If the passenger's claim is warranted and the initial repairs were insufficient, then you must promptly repair or replace the device to the passenger's satisfaction.

(e) While the passenger is waiting for his or her mishandled personal wheelchair or scooter to be returned, repaired, or replaced, you must use your best efforts to work with the passenger and to provide an adequate loaner wheelchair or scooter that meets the passenger's functional, mobility-related and safety-related needs, to the maximum extent possible. You must pay for the cost of the loaner wheelchair or scooter. If the loaner wheelchair or scooter you offer does not meet the passenger's functional and safety-related needs as well as the passenger's existing device, the passenger may find and secure an alternative loaner wheelchair or scooter that is better than the one you offered, and you must reimburse the passenger for the cost of that loaner within 30 days of the passenger's request. You may require the passenger to provide documentation substantiating the cost, such as receipts or invoices, to receive the reimbursement.

(f) The liability limits for carriers under the Montreal Convention will apply if the wheelchair or scooter mishandling occurs on an international flight.

[DOT-OST-2022-0144, 89 FR 102442, Dec. 17, 2024]

§ 382.131 Do baggage liability limits apply to mobility aids and other assistive devices?

With respect to transportation to which 14 CFR part 254 applies, the limits to liability for loss, damage, or delay concerning wheelchairs or other assistive devices provided in part 254 do not apply. The basis for calculating the compensation for a lost, damaged, or destroyed wheelchair or other assistive device shall be the original purchase price of the device.

§ 382.132 What requirements apply when a passenger who uses a wheelchair or scooter cannot purchase a certain flight because his or her wheelchair or scooter will not fit in the cabin or cargo compartment of the aircraft for that flight?

(a) As part of your obligation under § 382.11 to not exclude a qualified individual with a disability from or deny the person the benefit of any air transportation or related services that are available to other persons, to the extent a passenger who uses a wheelchair or scooter cannot book his or her preferred flight because his or her wheelchair or scooter cannot fit in the cabin or cargo compartment of the aircraft of the preferred flight, and the passenger must book a more expensive flight that can accommodate the passenger's wheelchair or scooter, you must, upon request, reimburse the passenger the difference between the more expensive flight the passenger purchased and had to take and the preferred flight that the passenger would have purchased and taken if his or her wheelchair or scooter had been able to fit.

(b) As a condition for issuing reimbursements in paragraph (a) of this section, you may require the following from passengers with disabilities:

(1) The preferred flight and the more expensive flight are on the same airline;

(2) The preferred flight and the more expensive flight are on the same day;

(3) The preferred flight and the more expensive flight have the same origin and destination;

(4) Reasonable documentation to verify: the dimensions of the passenger's wheelchair or scooter; the cost of the passenger's preferred flight that could not accommodate the passenger's wheelchair or scooter; and the cost of the more expensive flight the passenger purchased and had to take.

(c) You must provide the reimbursement required by paragraph (a) of this section within 30 days of receiving a request and the reasonable documentation permitted in paragraph (b) of this section, if you require such documentation.

(d) You must disclose on your website accurate information on the documentation you require from the passenger to support a reimbursement claim.

[DOT-OST-2022-0144, 89 FR 102443, Dec. 17, 2024]

§ 382.133 What are the requirements concerning the evaluation and use of passenger-supplied electronic devices that assist passengers with respiration in the cabin during flight?

(a) Except for on-demand air taxi operators, as a U.S. carrier conducting passenger service you must permit any individual with a disability to use in the passenger cabin during air transportation an electronic assistive device specified in paragraph (c) of this section on all aircraft originally designed to have a maximum passenger capacity of more than 19 seats unless:

(1) The device does not meet applicable FAA requirements for medical portable electronic device; or

(2) The device cannot be stowed and used in the passenger cabin consistent with applicable TSA, FAA, and PHMSA regulations.

(b) Except for foreign carriers conducting operations of a nature equivalent to on-demand air taxi operations by a U.S. carrier, as a foreign carrier conducting passenger service you must permit any individual with a disability to use in the passenger cabin during air transportation to, from or within the United States, an electronic assistive device specified in paragraph (d) of this section on all aircraft originally designed to have a maximum passenger capacity of more than 19 seats unless:

(1) The device does not meet requirements for medical portable electronic devices set by the foreign carrier's government if such requirements exist;

(2) The device does not meet requirements for medical portable electronic devices set by the FAA for U.S. carriers in circumstances where requirements for medical portable electronic devices have not been set by the foreign carrier's government and the foreign carrier elects to apply FAA requirements for medical portable electronic devices; or

(3) The device cannot be stowed and used in the passenger cabin consistent with applicable TSA, FAA and PHMSA regulations, and the safety or security regulations of the foreign carrier's government.

(c) Except as provided in paragraph (a) of this section, as a covered U.S. air carrier, you must accept the passenger supplied electronic assistive device in this paragraph (c):

(1) A portable oxygen concentrator (POC), a ventilator, a respirator or a continuous positive airway pressure machine that displays a manufacturer's label that indicates the device meets FAA requirements; and

(2) The following POC models whether or not they are labeled:

(i) AirSep Focus;

(ii) AirSep FreeStyle;

(iii) AirSep FreeStyle 5;

(iv) AirSep LifeStyle;

(v) Delphi RS-00400;

(vi) DeVilbiss Healthcare iGo;

(vii) Inogen One;

(viii) Inogen One G2;

(ix) Inogen One G3;

(x) Inova Labs LifeChoice;

(xi) Inova Labs LifeChoice Activox;

(xii) International Biophysics LifeChoice;

(xiii) Invacare Solo2;

(xiv) Invacare XPO2;

(xv) Oxlife Independence Oxygen Concentrator;

(xvi) Oxus RS-00400;

(xvii) Precision Medical EasyPulse;

(xviii) Respironics EverGo;

(xix) Respironics SimplyGo;

(xx) SeQual Eclipse;

(xxi) SeQual eQuinox Oxygen System (model 4000);

(xxii) SeQual Oxywell Oxygen System (model 4000);

(xxiii) SeQual SAROS; and

(xxiv) VBox Trooper Oxygen Concentrator.

(d) Except as provided in paragraph (b) of this section, as a covered foreign air carrier, you must accept the supplied electronic assistive devices in this paragraph (d):

(1) A POC, a ventilator, a respirator or a continuous positive airway pressure machine that displays a manufacturer's label according to FAA requirements in circumstances where requirements for labeling these devices have not been set by the foreign carrier's government; and

(2) The following POC models whether or not they are labeled:

(i) AirSep Focus;

(ii) AirSep FreeStyle;

(iii) AirSep FreeStyle 5;

(iv) AirSep LifeStyle;

(v) Delphi RS-00400;

(vi) DeVilbiss Healthcare iGo;

(vii) Inogen One;

(viii) Inogen One G2;

(ix) Inogen One G3;

(x) Inova Labs LifeChoice;

(xi) Inova Labs LifeChoice Activox;

(xii) International Biophysics LifeChoice;

(xiii) Invacare Solo2;

(xiv) Invacare XPO2;

(xv) Oxlife Independence Oxygen Concentrator;

(xvi) Oxus RS-00400;

(xvii) Precision Medical EasyPulse;

(xviii) Respironics EverGo;

(xix) Respironics SimplyGo;

(xx) SeQual Eclipse;

(xxi) SeQual eQuinox Oxygen System (model 4000);

(xxii) SeQual Oxywell Oxygen System (model 4000);

(xxiii) SeQual SAROS; and

(xxiv) VBox Trooper Oxygen Concentrator.

(e) As a U.S. carrier, you must provide information during the reservation process as indicated in paragraphs (e)(1) through (6) of this section upon inquiry from an individual concerning the use in the cabin during air transportation of a ventilator, respirator, continuous positive airway machine, or a POC. The information in this paragraph (e) must be provided:

(1) Any applicable requirement for a manufacturer-affixed label to reflect that the device has been tested to meet applicable FAA requirements for medical portable electronic devices;

(2) The maximum weight and dimensions (length, width, height) of the device to be used by an individual that can be accommodated in the aircraft cabin consistent with FAA safety requirements;

(3) The requirement to bring an adequate number of batteries as outlined in paragraph (h)(2) of this section and to ensure that extra batteries carried onboard to power the device are packaged and protected from short circuit and physical damage in accordance with applicable PHMSA regulations regarding spare batteries carried by passengers in an aircraft cabin;

(4) Any requirement, if applicable, that an individual contact the carrier operating the flight 48 hours before scheduled departure to learn the expected maximum duration of his/her flight in order to determine the required number of batteries for his/her particular ventilator, respirator, continuous positive airway pressure machine, or POC;

(5) Any requirement, if applicable, of the carrier operating the flight for an individual planning to use such a device to check-in up to one hour before that carrier's general check-in deadline; and

(6) For POCs, the requirement of § 382.23(b)(1)(ii) to present to the operating carrier at the airport a physician's statement (medical certificate).

(f) As a foreign carrier operating flights to, from or within the United States, you must provide the information during the reservation process as indicated in paragraphs (f)(1) through (7) of this section upon inquiry from an individual concerning the use in the cabin during air transportation on such a flight of a ventilator, respirator, continuous positive airway machine, or POC. The information in this paragraph (f) must be provided:

(1) Any applicable requirement for a manufacturer-affixed label to reflect that the device has been tested to meet requirements for medical portable electronic devices set by the foreign carrier's government if such requirements exist;

(2) Any applicable requirement for a manufacturer-affixed label to reflect that the device has been tested to meet requirements for medical portable electronic devices set by the FAA for U.S. carriers if requirements for medical portable electronic devices have not been set by the foreign carrier's government and the foreign carrier elects to apply FAA requirements for medical portable electronic devices;

(3) The maximum weight and dimensions (length, width, height) of the device to be used by an individual that can be accommodated in the aircraft cabin consistent with the safety regulations of the foreign carrier's government;

(4) The requirement to bring an adequate number of batteries as outlined in paragraph (h)(2) of this section and to ensure that extra batteries carried onboard to power the device are packaged in accordance with applicable government safety regulations;

(5) Any requirement, if applicable, that an individual contact the carrier operating the flight 48 hours before scheduled departure to learn the expected maximum duration of his/her flight in order to determine the required number of batteries for his/her particular ventilator, respirator, continuous positive airway pressure machine, or POC;

(6) Any requirement, if applicable, of the carrier operating the flight for an individual planning to use such a device to check-in up to one hour before that carrier's general check-in deadline; and

(7) Any requirement, if applicable, that an individual who wishes to use a POC onboard an aircraft present to the operating carrier at the airport a physician's statement (medical certificate).

(g) In the case of a codeshare itinerary, the carrier whose code is used on the flight must either inform the individual inquiring about using a ventilator, respirator, CPAP machine or POC onboard an aircraft to contact the carrier operating the flight for information about its requirements for use of such devices in the cabin, or provide such information on behalf of the codeshare carrier operating the flight.

(h)(1) As a U.S. or foreign carrier subject to paragraph (a) or (b) of this section, you must inform any individual who has advised you that he or she plans to operate his/her device in the aircraft cabin, within 48 hours of his/her making a reservation or 24 hours before the scheduled departure date of his/her flight, whichever date is earlier, of the expected maximum flight duration of each segment of his/her flight itinerary.

(2) You may require an individual to bring an adequate number of fully charged batteries onboard, based on the battery manufacturer's estimate of the hours of battery life while the device is in use and the information provided in the physician's statement, to power the device for not less than 150% of the expected maximum flight duration.

(3) If an individual does not comply with the conditions for acceptance of a medical portable electronic device as outlined in this section, you may deny boarding to the individual in accordance with § 382.19(c) and in that event you must provide a written explanation to the individual in accordance with § 382.19(d).

[Doc. No. FAA-2014-0554, 81 FR 33120, May 24, 2016]

§ 382.141 What training are carriers required to provide for their personnel (i.e., employees and contractors)?

(a) As a carrier that operates aircraft with 19 or more passenger seats, you must ensure training, meeting the requirements of this paragraph, for all personnel who interact with the traveling public or who handle passengers' assistive devices, as appropriate to the duties of each employee or contractor.

(1) General. You must ensure training to proficiency concerning:

(i) The requirements of this part and other applicable Federal regulations affecting the provision of air travel to passengers with a disability;

(ii) Your procedures, consistent with this part, concerning the provision of air travel to passengers with a disability, including the proper and safe operation of any equipment used to accommodate passengers with a disability; and

(iii) Your procedures that safeguard the safety and dignity of passengers with disabilities when providing service required under this part.

(2) Communication. You must ensure employees and contractors who interact with the traveling public are trained with respect to awareness of different types of disabilities, including how to distinguish among the differing abilities of individuals with disabilities.

(i) You must ensure such employees and contractors are trained on appropriate ways to communicate and interact with passengers with disabilities, including persons with physical, sensory, speech, mental, intellectual, or emotional disabilities (e.g., communicating directly with the individual with a disability instead of to the travel companion/interpreter).

(ii) You must also ensure such employees and contractors are trained to recognize requests for effective communication accommodation from individuals who have disabilities impacting communication (e.g., hearing or vision impaired individuals, non-verbal individuals), and to use the most common methods for communicating with these individuals that are readily available, such as writing notes or taking care to enunciate clearly, for example. Training in sign language is not required. You must also train these employees to recognize requests for communication accommodations from deaf-blind passengers and to use established means of communicating with these passengers when they are available, such as passing out Braille cards if you have them, reading an information sheet that a passenger provides, or communicating with a passenger through an interpreter, for example.

(3) Physical assistance. You must ensure that employees and contractors who provide physical assistance to passengers with disabilities who use wheelchairs or scooters are trained in the matters listed in paragraphs (a)(1) and (2) of this section, and the following, as appropriate to the duties of each person:

(i) Hands-on training concerning safe and dignified physical assistance, including: transfers to and from personal or airport wheelchairs, aisle chairs, and aircraft seats; proper lifting techniques to safeguard passengers; how to troubleshoot common challenges in providing physical assistance; and proper use of equipment used to physically assist passengers with disabilities; and

(ii) Other training concerning the collecting and sharing of passenger information, such as Special Service Request (SSR) codes, needed to ensure safe, dignified, and prompt physical assistance, and effective communications with passengers with mobility disabilities, or their companion if direct communication with the individual with a disability is not possible.

(iii) As part of this training, the employees and contractors must be able to successfully demonstrate their knowledge on the matters listed in paragraphs (a)(3)(i) and (ii) of this section (e.g., competency assessments or certification exams).

(4) Handling of wheelchairs and scooters. You must ensure that employees and contractors who handle passengers' wheelchairs or scooters are trained in the matters listed in paragraphs (a)(1) and (2) of this section, and the following, as appropriate to the duties of each person:

(i) Hands-on training concerning common types of wheelchairs and scooters and their features, airport and airline equipment used to load and unload wheelchairs and scooters, and methods for safely moving and stowing wheelchairs, including lifting techniques, wheelchair disassembly, reconfiguration, and reassembly, and securement in the cargo compartment of the aircraft; and

(ii) Other training concerning the collecting and sharing of information regarding a passenger's wheelchair or scooter, including using any airline wheelchair handling form(s) that may exist, to ensure the safe and proper handling of such assistive devices, and effective communications with passengers with mobility disabilities, or their companion if direct communication with the individual with a disability is not possible.

(iii) As part of this training, the employees and contractors must be able to successfully demonstrate their knowledge on the matters listed in paragraphs (a)(4)(i) and (ii) of this section (e.g., competency assessments or certification exams).

(5) Consulting with disability rights organizations. You must consult with organizations representing individuals with disabilities in your home country when developing your training program and your policies and procedures. When making changes to such training programs and related policies and procedures that will have a significant impact on assistance provided to individuals with disabilities, you must consult with organizations representing individuals with disabilities who would be affected by those changes. If such organizations are not available in your home country, you must consult with individuals with disabilities and/or international organizations representing individuals with disabilities.

(6) Training frequency. You must ensure that all personnel who are required to receive training receive refresher training on the matters covered by this section, as appropriate to the duties of each employee and contractor, as needed to maintain proficiency. The training program must describe how proficiency will be maintained.

(i) All personnel who provide physical assistance to passengers with disabilities must receive initial training described in paragraph (a)(3) of this section by June 17, 2026, and at least once every twelve months thereafter. All personnel who provide physical assistance to passengers with disabilities hired after June 17, 2026, must receive initial training described in paragraph (a)(3) of this section prior to assuming their duties and at least once every twelve months thereafter.

(ii) All personnel who handle passengers' wheelchairs or scooters must receive initial training described in paragraph (a)(4) of this section by June 17, 2026, and at least once every twelve months thereafter. All personnel who handle passengers' wheelchairs or scooters hired after June 17, 2026, must receive initial training described in paragraph (a)(4) of this section prior to assuming their duties and at least once every twelve months thereafter.

(iii) All other personnel must receive training prior to assuming their duties and at least once every three years thereafter.

(7) Contractors. You must provide, or ensure that your contractors receive, training concerning travel by passengers with disabilities. This training is required only for those contractors who interact directly with the traveling public or who handle passengers' assistive devices, and it must be tailored to the employees' functions. Training for contractors must meet the requirements of paragraphs (a)(1) through (6) of this section.

(8) Complaint Resolution Officials (CROs). The employees you designate as CROs, for purposes of § 382.151 of this part, must receive training concerning the requirements of this part, including the training described in paragraphs (a)(3) and (4) of this section and the duties of a CRO prior to assuming their duties as a CRO and at least once every twelve months thereafter.

(b) If you are a carrier that operates only aircraft with fewer than 19 passenger seats, you must ensure that your employees and contractors who directly interact with the traveling public are trained, as appropriate to their duties, to ensure that they are familiar with the matters listed in paragraph (a)(1) of this section, as well as to ensure they are knowledgeable on how to communicate with individuals with differing disabilities, how to physically assist individuals with mobility disabilities, and how to properly handle passengers' wheelchairs and scooters.

[DOT-OST-2022-0144, 89 FR 102443, Dec. 17, 2024]

§ 382.143 When must carriers complete training for their personnel?

(a) As a U.S. carrier, you must meet the training requirements of § 382.141 by the following times.

(1) Employees designated as CROs shall receive training concerning the requirements of this part and the duties of a CRO before assuming their duties under § 382.151 (see § 382.141(a)(7)). You must ensure that all employees performing the CRO function receive annual refresher training concerning their duties and the provisions of this regulation. The one-time training for CROs about the changes to Part 382 must take place by May 13, 2009. For employees who have already received CRO training, this training may be limited to changes from the previous version of Part 382.

(2) The one-time training for existing employees about changes to Part 382 (see § 382.141(a)(8)) must take place for each such employee no later than the next scheduled recurrent training taking place after May 13, 2009 or within one year after May 13, 2009, whichever comes first.

(3) For crewmembers subject to training requirements under 14 CFR Part 121 or 135 whose employment in any given position commences after May 13, 2009, before they assume their duties; and

(4) For other personnel whose employment in any given position commences after May 13, 2009, within 60 days after the date on which they assume their duties.

(b) As a foreign carrier that operates aircraft with 19 or more passenger seats, you must provide training meeting the requirements of § 382.141(a) for all personnel who deal with the traveling public in connection with flights that begin or end at a U.S. airport, as appropriate to the duties of each employee. You must ensure that personnel required to receive training complete the training by the following times:

(1) Employees designated as CROs shall receive training in accordance with paragraph (a)(1) of this section, by May 13, 2009.

(2) For crewmembers and other personnel who are employed on May 13, 2009, within one year after that date;

(3) For crewmembers whose employment commences after May 13, 2010, before they assume their duties;

(4) For other personnel whose employment in any given position commences after May 13, 2010, or within 60 days after the date on which they assume their duties; and

(5) For crewmembers and other personnel whose employment in any given position commences after May 13, 2009, but before May 13, 2010, by May 13, 2010 or a date 60 days after the date of their employment, whichever is later.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 74 FR 11472, Mar. 18, 2009]

§ 382.145 What records concerning training must carriers retain?

(a) As a carrier that operates aircraft with 19 or more passenger seats, you must incorporate procedures implementing the requirements of this part in the manuals or other guidance or instructional materials provided for the carrier and contract personnel who provide services to passengers, including, but not limited to, pilots, flight attendants, reservation and ticket counter personnel, gate agents, ramp and baggage handling personnel, and passenger service office personnel. You must retain these records for review by the Department on the Department's request. If, upon such review, the Department determines that any portion of these materials must be changed in order to comply with this part, DOT will direct you to make appropriate changes. You must incorporate and implement these changes.

(b) You must retain for three years individual employee training records demonstrating that all persons required to receive initial and refresher training have done so.

§ 382.151 What are the requirements for providing Complaints Resolution Officials?

(a) As a carrier providing service using aircraft with 19 or more passenger seats, you must designate one or more CROs.

(b) As a U.S. carrier, you must make a CRO available at each airport you serve during all times you are operating at that airport. As a foreign carrier, you must make a CRO available at each airport serving flights you operate that begin or end at a U.S. airport. You may make the CRO available in person at the airport or via telephone, at no cost to the passenger. If a telephone link to the CRO is used, TTY service or a similarly effective technology must be available so that persons with hearing impairments may readily communicate with the CRO. You must make CRO service available in the language(s) in which you make your services available to the general public.

(c) You must make passengers with a disability aware of the availability of a CRO and how to contact the CRO in the following circumstances:

(1) In any situation in which any person complains or raises a concern with your personnel about discrimination, accommodations, or services with respect to passengers with a disability, and your personnel do not immediately resolve the issue to the customer's satisfaction or provide a requested accommodation, your personnel must immediately inform the passenger of the right to contact a CRO and then contact a CRO on the passenger's behalf or provide the passenger a means to do so (e.g., a phone, a phone card plus the location and/or phone number of the CRO available at the airport). Your personnel must provide this information to the passenger in a format he or she can use.

(2) Your reservation agents, contractors, and Web sites must provide information equivalent to that required by paragraph (c)(1) of this section to passengers with a disability using those services who complain or raise a concern about a disability-related issue.

(d) Each CRO must be thoroughly familiar with the requirements of this part and the carrier's procedures with respect to passengers with a disability. The CRO is intended to be the carrier's “expert” in compliance with the requirements of this part.

(e) You must ensure that each of your CROs has the authority to make dispositive resolution of complaints on behalf of the carrier. This means that the CRO must have the power to overrule the decision of any other personnel, except that the CRO is not required to be given authority to countermand a decision of the pilot-in-command of an aircraft based on safety.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 74 FR 11472, Mar. 18, 2009; 75 FR 44887, July 30, 2010]

§ 382.153 What actions do CROs take on complaints?

When a complaint is made directly to a CRO for a carrier providing service using aircraft with 19 or more passenger seats, the CRO must promptly take dispositive action as follows:

(a) If the complaint is made to a CRO before the action or proposed action of carrier personnel has resulted in a violation of a provision of this part, the CRO must take, or direct other carrier personnel to take, whatever action is necessary to ensure compliance with this part.

(b) If an alleged violation of a provision of this part has already occurred, and the CRO agrees that a violation has occurred, the CRO must provide to the complainant a written statement setting forth a summary of the facts and what steps, if any, the carrier proposes to take in response to the violation.

(c) If the CRO determines that the carrier's action does not violate a provision of this part, the CRO must provide to the complainant a written statement including a summary of the facts and the reasons, under this part, for the determination.

(d) The statements required to be provided under this section must inform the complainant of his or her right to pursue DOT enforcement action under this part. The CRO must provide the statement in person to the complainant at the airport if possible; otherwise, it must be forwarded to the complainant within 30 calendar days of the complaint.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 75 FR 44887, July 30, 2010]

§ 382.155 How must carriers respond to written complaints?

(a) As a carrier providing service using aircraft with 19 or more passenger seats, you must respond to written complaints received by any means (e.g., letter, fax, e-mail, electronic instant message) concerning matters covered buy this part.

(b) As a passenger making a written complaint, you must state whether you had contacted a CRO in the matter, provide the name of the CRO and the date of the contact, if available, and enclose any written response you received from the CRO.

(c) As a carrier, you are not required to respond to a complaint postmarked or transmitted more than 45 days after the date of the incident, except for complaints referred to you by the Department of Transportation.

(d) As a carrier, you must make a dispositive written response to a written disability complaint within 30 days of its receipt. The response must specifically admit or deny that a violation of this part has occurred.

(1) If you admit that a violation has occurred, you must provide to the complainant a written statement setting forth a summary of the facts and the steps, if any, you will take in response to the violation.

(2) If you deny that a violation has occurred, your response must include a summary of the facts and your reasons, under this part, for the determination.

(3) Your response must also inform the complainant of his or her right to pursue DOT enforcement action under this part.

[Doc. No. DOT-OST-2004-19482, 73 FR 27665, May 13, 2008, as amended at 75 FR 44887, July 30, 2010]

§ 382.157 What are carriers' obligations for recordkeeping and reporting on disability-related complaints?

(a) For the purposes of this section, a disability-related complaint means a specific written expression of dissatisfaction received from, or submitted on behalf, of an individual with a disability concerning a difficulty associated with the person's disability, which the person experienced when using or attempting to use an air carrier's or foreign carrier's services.

(b) If you are a carrier covered by this part, conducting passenger operations with at least one aircraft having a designed seating capacity of more than 60 passengers, this section applies to you. As a foreign carrier, you are covered by this section only with respect to disability-related complaints associated with any flight segment originating or terminating in the United States.

(c) You must categorize disability-related complaints that you receive according to the type of disability and nature of complaint. Data concerning a passenger's disability must be recorded separately in the following areas: vision impaired, hearing impaired, vision and hearing impaired, mentally impaired, communicable disease, allergies (e.g., food allergies, chemical sensitivity), paraplegic, quadriplegic, other wheelchair, oxygen, stretcher, other assistive device (cane, respirator, etc.), and other disability. Data concerning the alleged discrimination or service problem related to the disability must be separately recorded in the following areas: refusal to board, refusal to board without an attendant, security issues concerning disability, aircraft not accessible, airport not accessible, advance notice dispute, seating accommodation, failure to provide adequate or timely assistance, damage to assistive device, storage and delay of assistive device, service animal problem, unsatisfactory information, and other.

(d) You must submit an annual report summarizing the disability-related complaints that you received during the prior calendar year using the form specified at the following internet address: http://382reporting.ost.dot.gov. You must submit this report by the last Monday in January of each year for complaints received during the prior calendar year. You must make submissions through the World Wide Web except for situations where you can demonstrate that you would suffer undue hardship if not permitted to submit the data via paper copies, disks, or e-mail, and DOT has approved an exception. All fields in the form must be completed; carriers are to enter “0” where there were no complaints in a given category. Each annual report must contain the following certification signed by your authorized representative: “I, the undersigned, do certify that this report has been prepared under my direction in accordance with the regulations in 14 CFR Part 382. I affirm that, to the best of my knowledge and belief, this is a true, correct, and complete report.” Electronic signatures will be accepted.

(e) You must retain correspondence and record of action taken on all disability-related complaints for three years after receipt of the complaint or creation of the record of action taken. You must make these records available to Department of Transportation officials at their request.

(f)(1) As either carrier in a codeshare relationship, you must comply with paragraphs (c) through (e) of this section for—

(i) Disability-related complaints you receive from or on behalf of passengers with respect to difficulties encountered in connection with service you provide;

(ii) Disability-related complaints you receive from or on behalf of passengers when you are unable to reach agreement with your codeshare partner as to whether the complaint involves service you provide or service your codeshare partner provides; and

(iii) Disability-related complaints forwarded by another carrier or governmental agency with respect to difficulties encountered in connection with service you provide.

(2) As either carrier in a codeshare relationship, you must forward to your codeshare partner disability-related complaints you receive from or on behalf of passengers with respect to difficulties encountered in connection with service provided by your code-sharing partner.

(g) Each carrier, except for carriers in codeshare situations, shall comply with paragraphs (c) through (e) of this section for disability-related complaints it receives from or on behalf of passengers as well as disability-related complaints forwarded by another carrier or governmental agency with respect to difficulties encountered in connection with service it provides.

(h) Carriers that do not submit their data via the Web shall use the disability-related complaint data form specified in appendix A to this part when filing their annual report summarizing the disability-related complaints they received. The report shall be mailed, by the date specified in paragraph (d) of this section, to the following address: U.S. Department of Transportation, Aviation Consumer Protection Division (C-75), 1200 New Jersey Avenue, SE., West Building, Room W96-432, Washington, DC 20590.

§ 382.159 How are complaints filed with DOT?

(a) Any person believing that a carrier has violated any provision of this part may seek assistance or file an informal complaint at the Department of Transportation no later than 6 months after the date of the incident by either:

(1) Going to the web site of the Department's Aviation Consumer Protection Division at http://airconsumer.ost.dot.gov and selecting “Air Travel Problems and Complaints,” or

(2) Writing to Department of Transportation, Aviation Consumer Protection Division (C-75), 1200 New Jersey Avenue, SE., Washington, DC 20590.

(b) Any person believing that a carrier has violated any provision of this part may also file a formal complaint under the applicable procedures of 14 CFR part 302.

(c) You must file a formal complaint under this part within six months of the incident on which the complaint is based in order to ensure that the Department of Transportation will investigate the matter.

§ 383.1 Purpose and periodic adjustment.

(a) Purpose. This part adjusts the civil penalty liability amounts prescribed in 49 U.S.C. 46301(a) for inflation in accordance with the Act cited in paragraph (b) of this section.

(b) Periodic adjustment. DOT will periodically adjust the maximum civil penalties set forth in 49 U.S.C. 46301 and this part as required by the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

§ 383.2 Amount of penalty.

Civil penalties payable to the U.S. Government for violations of Title 49, Chapters 401 through 421, pursuant to 49 U.S.C. 46301(a), are as follows:

(a) A general civil penalty of not more than $75,000 (or $1,875 for individuals or small businesses) applies to violations of statutory provisions and rules or orders issued under those provisions, other than those listed in paragraph (b) of this section (see 49 U.S.C. 46301(a)(1)); and

(b) With respect to small businesses and individuals, notwithstanding the general civil penalty specified in paragraph (a) of this section, the following civil penalty limits apply:

(1) A maximum civil penalty of $17,062 applies for violations of most provisions of Chapter 401, including the anti-discrimination provisions of sections 40127 (general provision), and 41705 (discrimination against the disabled) and rules and orders issued pursuant to those provisions (see 49 U.S.C. 46301(a)(5)(A));

(2) A maximum civil penalty of $8,531 applies for violations of section 41719 and rules and orders issued pursuant to that provision (see 49 U.S.C. 46301(a)(5)(C)); and

(3) A maximum civil penalty of $4,267 applies for violations of section 41712 or consumer protection rules or orders (see 49 U.S.C. 46301(a)(5)(D)).

[89 FR 106292, Dec. 30, 2024]

§ 385.1 Definitions.

Petition for review means a petition asking the appropriate Reviewing Official to exercise his or her discretionary right of review of staff action.

Precedent means applicable judicial decisions and decisions by the Department, or by its predecessor where consistent with Department policy.

Reviewing Official means the Assistant Secretary for Aviation and International Affairs, the General Counsel, or the Director of the Bureau of Transportation Statistics, as appropriate to the subject matter under review, but not with regard to General Counsel and Administrative Law Judge decisions made under this part.

Staff action means the exercise of a function under Subparts I, II and IV of Subtitle VII of Title 49 of the United States Code (Transportation) by a staff member pursuant to assignment under this part.

Staff members means officers and employees of the Department who are assigned authority under this part.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984, as amended by Amdt. 1-261, 59 FR 10061, Mar. 3, 1994; 60 FR 66726, Dec. 26, 1995; Doc. No. OST-96-1268, 61 FR 19167, May 1, 1996; Doc. No. DOT-OST-2014-0140, 84 FR 15942, Apr. 16, 2019]

§ 385.2 Applicability.

This part describes the organization of the Department insofar as, pursuant to authority conferred on it by section 40113 of 49 U.S.C. Subtitle VII, the Department has adopted rules herein or elsewhere which make continuing assignments of authority with respect to any of its functions of making orders or other determinations, many of which are not required to be made on an evidentiary record upon notice and hearing or which are not the subject of contest, and Department personnel have been assigned to perform such functions. Delegations by the Secretary of Transportation to Secretarial Officers of functions under Subparts I, II, and IV of 49 U.S.C. Subtitle VII appear in 49 CFR part 1. This part also sets forth the procedures governing discretionary review by the appropriate Reviewing Official of action taken under such assignments. Nothing in this part shall be construed as precluding the Department from issuing, by appropriate order, temporary delegations of authority with respect to any functions described in this part or with respect to any other functions which can be lawfully delegated.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984, as amended at 60 FR 66726, Dec. 26, 1995; Doc. No. OST-96-1268, 61 FR 19167, May 1, 1996; Doc. No. DOT-OST-2014-0140, 84 FR 15942, Apr. 16, 2019]

§ 385.3 Scope of staff action.

Applications for relief which, pursuant to this part, may be granted by staff members under assigned authority, and proceedings on such requests shall be governed by applicable rules in the same manner as if no assignment had been made (see § 385.5). In such proceedings, each staff member may determine any procedural matters which may arise, including, inter alia, service of documents on additional persons; filing of otherwise unauthorized documents; waivers of procedural requirements; requests for hearing; requests for additional information; dismissal of applications upon the applicant's request, moot applications, or incomplete or otherwise defective applications; and extensions of time. Such determinations, except those which would terminate the matter, shall be subject to review only in connection with review of the staff member's decision on the merits. The dismissal of incomplete or otherwise defective applications under authority set forth in this part shall be without prejudice except where under otherwise applicable law the time for making application has run out or where the defect is not corrected within a reasonable time fixed by the staff member. Under the authority assigned to the staff as set forth in this part to approve, disapprove, grant, or deny, relief may be granted or denied in part and grants may be made subject to lawful and reasonable conditions. Moreover, where applicable, the authority to grant relief also includes authority to renew or extend an existing authorization.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984; Amdt. 1, 50 FR 7170, Feb. 21, 1985]

§ 385.4 Form of staff action.

Unless otherwise specified, staff action shall be by order or informal writing (letters, telegrams, decision marked on copy of application form, etc.). Such orders or informal writings shall contain a recital that action is taken pursuant to authority assigned herein, shall, in cases where there are “parties or interveners,” or where there may be an adverse effect upon a person with a substantial interest, contain a brief reference to the right of aggrieved parties to petition the Reviewing Official for review pursuant to applicable procedural rules, including a statement of the time within which petitions must be filed (§ 385.51); shall state whether the filing of a petition shall preclude the action from becoming effective; and shall be in the name of the person exercising the assigned function. They shall contain all findings, determinations and conclusions which would be required or appropriate if they were issued by the Secretary. Upon request, the appropriate Department Official shall attest as Departmental action orders or informal writings issued pursuant to this part which have become the action of the Department (§ 385.52).

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984; Amdt. 1, 50 FR 7170, Feb. 21, 1985]

§ 385.5 Procedures prescribed in other regulations.

Procedures set forth in this part do not supersede procedures applicable to matters on which decision has been assigned unless otherwise specifically provided herein: Provided, however, That any provisions in other regulations which provide for reconsideration of nonhearing determinations are not applicable to decisions made under authority assigned herein or to decisions made upon review thereof by the Reviewing Official.

§ 385.6 Referral to the Reviewing Official.

When the staff member finds that the public interest so requires, or that, with respect to other than matters requiring immediate action as hereafter specified, there will be insufficient time for discretionary review of his or her decision upon petition, the staff member shall, in lieu of exercising the authority, submit the matter to the Reviewing Official for decision. In any case in which the staff member finds that immediate action is required with respect to any matter assigned herein, the disposition of which is governed by prior precedent and policy, the staff member may take appropriate action and specify that the filing of a petition for review shall not preclude such action from becoming effective.

§ 385.7 Exercise of authority by superiors.

Any assignment of authority to a staff member other than the Chief Administrative Law Judge, the Administrative Law Judge, and the General Counsel, shall also be deemed to be made, severally, to each such staff member's respective superiors. In accordance with the Department's principle of management responsibility, the superior may choose to exercise the assigned power personally. Moreover, the Secretary may at any time exercise any authority assigned herein.

[Docket No. T-1, 49 FR 50985, Dec. 31, 1984, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15942, Apr. 16, 2019]

§ 385.8 Exercise of authority in “acting” capacity.

Unless the assignment provides otherwise, staff members serving in an “acting” capacity may exercise the authority assigned to the staff members for whom they are acting.

§ 385.10 Authority of Chief Administrative Law Judge, Office of Hearings.

The Chief Administrative Law Judge has authority to:

(a) Consolidate, upon recommendation of the Director, Office of International Aviation (or such staff member of the Office of International Aviation as he or she may designate), into one proceeding cases involving the investigation of a tariff or of complaints concerned with related tariffs.

(b) With respect to matters to be decided after notice and hearing:

(1) Dismiss applications or complaints (except those falling under subpart D of part 302 of this chapter (Procedural Regulations)) when such dismissal is requested or consented to by the applicant or complainant, or where such party has failed to prosecute such application or complaint;

(2) Dismiss proceedings upon his or her finding that the proceeding has become moot or that no further basis for continuation exists; and

(3) Dismiss an application subject to dismissal as stale under part 302 of this chapter.

[49 FR 50985, Dec. 31, 1984, as amended at 55 FR 20448, May 17, 1990; 65 FR 6457, Feb. 9, 2000]

§ 385.11 Authority of the Administrative Law Judges, Office of Hearings.

The Administrative Law Judges, Office of Hearings, have authority to take the following actions in matters to which they are respectively assigned:

(a) Grant or deny intervention in formal proceedings.

(b) With respect to matters to be decided after notice and hearing, dismiss applications or complaints (except those falling under subpart D of part 302 of this chapter (Procedural Regulations)) when such dismissal is requested or consented to by the applicant or complainant, or where such party has failed to prosecute such application or complaint.

(c) Grant requests for consolidation of applications for route authority within the scope of the proceeding before him or her, and deny requests for consolidation of applications for route authority not within the scope of the proceeding.

(d) Approve or disapprove proposed settlements of enforcement proceedings submitted under § 302.215 of this chapter.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984, as amended at 65 FR 6457, Feb. 9, 2000]

§ 385.12 Authority of the Director, Office of Aviation Analysis.

The Director, Office of Aviation Analysis, has authority:

(a) With respect to applications filed under section 41102 to engage in interstate or foreign scheduled or charter air transportation, section 41103 to engage in all-cargo air transportation, or section 41738 to engage in certain commuter air transportation:

(1) To issue an order stating the Department's intention to process the application through show-cause procedures or other expedited procedures, where that course of action is clear under current policy and precedent.

(2) To issue an order to show cause proposing to grant such application in those cases where no objections to the application have been filed, and where the Department has already found the applicant to be fit, willing and able to provide service of the same basic scope and character.

(3) To issue an order, subject to any Presidential review required under section 41307 of 49 U.S.C. Subtitle VII, making final an order to show cause issued under paragraph (a)(2) of this section, where no objections to the order to show cause have been filed.

(4) To issue an order dismissing an application:

(i) When dismissal is requested or consented to by the applicant;

(ii) For lack of prosecution; or

(iii) When the application has become moot.

(5) To review Air Carrier Certificates and Operations Specifications issued by the Federal Aviation Administration to carriers that have been granted certificate or commuter air carrier authority, and information concerning those carriers' fitness to operate under that authority that emerged following the issuance of orders establishing their fitness, and—

(i) To amend orders issuing the certificate or commuter air carrier authority to advance the effective dates of the authority if the review is satisfactory;

(ii) To stay the effectiveness of such orders for up to 30 days if the review is unsatisfactory;

(iii) To lift the stay of effectiveness imposed under paragraph (a)(5)(ii) of this section when the unsatisfactory conditions that required issuance of the stay have been resolved; or

(iv) To issue notices announcing the effective date of the certificate or commuter air carrier authority.

(b) To approve or deny applications of air carriers:

(1) For exemptions from section 41102 or 41103of 49 U.S.C. Subtitle VII, and from orders issued thereunder, and from applicable regulations under this chapter where the course of action is clear under current policy or precedent.

(2) For waivers of the Department's filing fee requirements under part 389 of this chapter, in accordance with current policy or precedent.

(3) For relief under section 40109 of 49 U.S.C. Subtitle VII to hold out, arrange, and coordinate the operation of air ambulance flights as indirect air carriers in accordance with established precedent.

(c) To waive the deadlines in § 377.10(c) of this chapter for filing applications for the renewal of temporary authorizations when, in the Director's judgment, the public interest would be served. The provisions of § 377.10(d) of this chapter shall apply in the same manner as to a timely filed application.

(d) With respect to air carrier names:

(1) To register names and trade names of certificated and commuter air carriers pursuant to part 215 of this chapter.

(2) To reissue certificates issued under sections 41102 or 41103 of 49 U.S.C. Subtitle VII when revisions thereof are necessitated by a change in the name of a carrier, provided that no issue of substance concerning the operating authority of the carrier is involved.

(e) To approve, deny, or cancel registrations filed with the Department by air taxi operators pursuant to part 298 of this chapter.

(f) To approve certificates of insurance filed with the Department on behalf of U.S. and foreign air carriers in accordance with the provisions of part 205 of this chapter.

(g) With respect to mail rates:

(1) To issue show-cause orders proposing to make modifications of a technical nature in the mail rate formula applicable to temporary or final service mail rate orders.

(2) To issue final orders establishing temporary and final service mail rates:

(i) In those cases where no objection has been filed following release of the show-cause order, and where the rates established are the same as those proposed in the show-cause order; and

(ii) In those cases where it is necessary to make modifications of a technical nature in the rates proposed in the show-cause order.

(3) To issue final orders amending mail rate orders of air carriers to reflect changes in the names of the carriers subject to the orders.

(4) To issue a letter, in the case of air mail contracts filed with the Department under part 302 of this chapter against which no complaints have been filed, stating that the contract will not be disapproved by the Department and may become effective immediately.

(5) To issue final orders making quarterly fuel rate adjustments to Alaska bush and mainline mail rates set by the Department under 49 U.S.C. 41901, 41902, and 41903.

(h) With respect to essential air service (EAS) proceedings:

(1) To establish procedural dates.

(2) To issue orders setting interim rates of compensation for carriers required to provide essential air service.

(3) To issue orders approving a carrier's alternate service pattern if:

(i) The resulting level of service at the eligible place would be equal to or greater than the level of service earlier determined to be essential for that place;

(ii) The community concerned does not object to the carrier's implementation of the alternate service pattern; and

(iii) The carrier is not receiving a subsidy for the service or implementation of the alternate service pattern would not increase the carrier's subsidy.

(4) To issue orders adjusting the operational and/or financial unit rates of the payout formula for a carrier receiving subsidy under section 41732 of 49 U.S.C. Subtitle VII where the adjustment will not increase the total amount of compensation that the carrier will receive.

(5) To renew, up to five times in succession, an order under section 41734 of 49 U.S.C. Subtitle VII to an air carrier to continue providing essential air service while the Department attempts to find a replacement carrier.

(6) To request service and subsidy proposals from carriers interested in providing essential air service to an eligible place.

(7) To issue final orders establishing interim or final subsidy rates under section 41732 or final adjustments of compensation for continued service under section 41732 in those cases where no objection has been filed to a show-cause order, and where the rates established are the same as or less than those proposed in the approved show-cause order.

(8) With respect to provisions for terminations, suspensions, or reductions of service under part 323 of this chapter:

(i) To require any person who files a notice, objection, or answer to supply additional information.

(ii) To require service of a notice, objection, or answer upon any person.

(iii) To accept late-filed objections or answers, upon motion, for good cause shown.

(iv) To extend the time for filing objections for answers, when the initial notice has been filed earlier than required under § 323.5 of this chapter.

(9) To issue final air carrier selection orders establishing final subsidy rates for EAS provided under 49 U.S.C. 41733:

(i) Where the compensation to be paid is the same as or less than the existing rate, and where the community does not object to the selected option;

(ii) For EAS eligible Alaska communities, when the subsidy rate to be paid is less than $125,000, and where the community does not object to the selected option; and

(iii) In cases where only one air carrier submitted one service or subsidy option.

(10) With respect to provisions for terminations, suspensions, or reductions of service under part 323 of this chapter:

(i) To require any person who files a notice, objection, or answer to supply additional information.

(ii) To require service of a notice, objection, or answer upon any person.

(iii) To accept late-filed objections or answers, upon motion, for good cause shown.

(iv) To extend the time for filing objections for answers, when the initial notice has been filed earlier than required under § 323.5 of this chapter.

(i) To issue procedural orders or notices in antitrust immunity cases filed under part 303 of this chapter with respect to:

(1) Granting or denying requests for adjustments to procedural deadlines where there is no objection;

(2) Making other adjustments to a procedural schedule where the policy is clear and consistent with precedent;

(3) Granting parties to a proceeding access to confidential documents filed under a request for public non-disclosure pursuant to § 302.12 of this chapter, where providing such access is consistent under current policy and precedent; and

(4) In uncontested proceedings, ordering the filing of additional documents deemed relevant to the Department's consideration of the application, including the filing of documents for in-camera review, where doing so is consistent with past policy and precedent.

[Doc. No. OST-96-1268, 61 FR 19167, May 1, 1996, as amended at 70 FR 25773, May 16, 2005; Doc. No. DOT-OST-2014-0140, 84 FR 15942, Apr. 16, 2019]

§ 385.13 Authority of the Director, Office of International Aviation.

The Director, Office of International Aviation, has authority to:

(a) Approve or deny applications for exemptions, where the course of action is clear under current policy or precedent:

(1) For air carriers, from chapter 411 of 49 U.S.C. Subtitle VII and from certificates and orders issued under that chapter;

(2) For foreign air carriers, from section 41301 and from permits and related orders issued under chapter 413;

(3) For air carriers and foreign air carriers, from chapter 415 and from orders issued and tariffs filed under that chapter; and

(4) From orders and applicable regulations under this chapter.

(b) With respect to applications for certificates of public convenience and necessity under section 41102 and foreign air carrier permits under section 41302:

(1) Issue an order to show cause proposing to grant such application in those cases where no objections to the application have been filed, and the applicant has already been found fit, willing, and able by the Department to provide service of the same basic scope and character;

(2) For general tariff exemptions that apply to all U.S. and foreign air carriers pursuant to 14 CFR part 293;

(3) Issue an order stating the Department's intention to process the application through show-cause procedures;

(4) Issue an order, subject to Presidential review under section 41307, to make final an order to show cause issued under the circumstances of paragraph (b)(1) of this section, where no objections to the show-cause order have been filed;

(5) Issue orders granting uncontested applications by U.S. carriers to provide foreign air transportation where the carrier has already been found fit, willing, and able to provide service of the same basic scope or character; and

(6) Issue orders granting uncontested applications by foreign air carriers to provide foreign air transportation where the course of action is clear under current policy or precedent.

(c) With respect to an application under section 41102 for a certificate to engage in foreign scheduled air transportation, issue an order instituting an investigation of the applicant's fitness and other issues related to the application, where no person has already filed an objection to the application and the investigation will be conducted by oral hearing procedures.

(d) Issue an order to show cause why a foreign air carrier permit should not be revoked under section 41304 when:

(1) The government of the permit holder's home country represents that it does not object to revocation of the permit; and

(2) The permit holder—

(i) Has ceased operations; or

(ii) No longer holds valid authority from its own government to operate the services in its permit.

(e) Approve or disapprove requests by foreign air carriers for authorizations provided for, or waivers of restrictions contained, in any agreement or in any permit or order of the Department, when no person disclosing a substantial interest objects or where the course of action is clear under current policy or precedent.

(f) Waive the deadlines in § 377.10(c) of this chapter for filing applications for renewal of unexpired temporary authorizations when, in the Director's judgment, the public interest would be served. The provisions of § 377.10(d) of this chapter shall apply in the same manner as to a timely filed application.

(g) Extend the time allowed for action on a complaint of unfair or discriminatory practices, filed under section 41310, for an additional period or periods of 30 days each, not to exceed the 180th day after filing unless that deadline has been waived by the complainant.

(h) Grant or deny applications for statements of authorization under parts 207, 208, and 212 of this chapter, and requests for waivers of the requirements of parts 207, 208, and 212 of this chapter, where grant or denial of the request is in accordance with current policy or precedent.

(i) Approve or disapprove charter trips by foreign air carriers, and those by air carriers that are predominantly in foreign air transportation, when prior authorization is required by:

(1) Any provision of this chapter; or

(2) An order of the Department.

(j) Approve or disapprove requests by foreign air carriers for waivers of the 30-day advance filing requirement for proposed schedules whose filing the Department has ordered under part 213 of this chapter.

(k) Approve, when no person disclosing a substantial interest objects, or disapprove requests by foreign air carriers for special authorizations provided for in part 216 of this chapter.

(l) With respect to applications for statements of authorization to conduct intermodal cargo services under part 222 of this chapter:

(1) Approve applications under part 222 of this chapter where no person with a substantial interest raises objections citing specific facts of nonreciprocity or of restraints on competition by U.S. air carriers;

(2) Reject applications under part 222 of this chapter where there is no agreement by the United States permitting the proposed services; or

(3) Require that an applicant under part 222 of this chapter submit additional information.

(m) Approve or disapprove issuance of foreign aircraft permits provided for in part 375, subparts E and H, of this chapter.

(n) Grant or deny applications of foreign air carriers for renewal of emergency exemptions granted under 49 U.S.C. 40109(g).

(o) Grant or deny applications by air carriers and foreign air carriers under part 389 of this chapter for waivers of the Department's filing fee requirements, in accordance with current policy or precedent.

(p) Determine matters in proceedings under section 40109 and chapters 411, 413 and 415, that have not been set for oral evidentiary hearing, in addition to those authorized under § 385.3, such matters to include, inter alia, filing times, service of documents, submissions of additional information, filing of otherwise unauthorized documents, access to information for which confidential treatment has been requested, rejection of incomplete or otherwise defective applications, and solicitation of applications for authority.

(q) Approve or disapprove applications under part 223 of this chapter for permission to furnish free or reduced-rate foreign air transportation.

(r) With respect to International Air Transport Association (IATA) agreements filed with the Department pursuant to sections 41309 and 41308 of 49 U.S.C. Subtitle VII, or agreements filed pursuant to previous statutory authority of the Department's predecessor:

(1) Issue orders approving, disapproving, or exempting IATA agreements relating to fare and rate matters under section 41309, and granting or denying antitrust immunity under section 41308, where the course of action is clear under current policy and precedent.

(2) Issue orders describing filed agreements, establishing procedural dates for submission of justification, comments and replies, which support or oppose agreements, and prescribing the particular types of data to be included in such submission.

(s) Reject any tariff, supplement, or revised page that is filed by any U.S. air carrier or foreign air carrier, and that is subject to rejection because it is not consistent with chapter 415 of 49 U.S.C. Subtitle VII or with part 221 or 222 of this chapter. Where a tariff, supplement or loose-leaf page is filed on more than 60 days' notice and is not rejected within the first 30 days (including the filing date), it shall not be rejected after such 30-day period under this authority unless the issuing carrier is given an opportunity to remove the cause for rejection by the effective date, by special tariff permission if necessary, and fails to take such corrective action.

(t) Approve or disapprove any application for special tariff permission under part 221, subpart P, of this chapter to make tariff changes upon less than statutory notice.

(u) Approve or disapprove applications for waiver of part 221 of this chapter.

(v) Institute an investigation of, or institute an investigation and suspend the effectiveness of, a tariff or change in a tariff which:

(1) Is substantially similar to a prior tariff under investigation or suspension; and

(2) Is filed by or on behalf of one or more of the parties to the prior tariff; and

(3) Is filed within 90 days after the expiration, modification, or cancellation of the prior tariff, or within 90 days after the effective date of an order requiring its cancellation or modification.

(w) In instances when an investigation of a tariff is pending, or the tariff is under suspension, or when a complaint requesting investigation or suspension of a tariff has been filed:

(1) Permit cancellation of the tariff; or

(2) If the grounds for the investigation or complaint have been removed through cancellation, expiration or modification of the tariff, either dismiss the investigation or complaint, or terminate the suspension.

(x) Extend the period of suspension of a tariff when the proceedings concerning the lawfulness of such tariff cannot be concluded before the expiration of the existing suspension period, provided that the aggregate of such extensions may not be for a longer period than permitted under section 41509.

(y) Cancel the suspension of and/or dismiss an investigation of a tariff relating to service predominantly in foreign air transportation where the course of action is clear under current policy and precedent.

(z) Issue orders and notices adjusting the Standard Foreign Fare Level to reflect percentage changes in actual operating costs per available seat mile.

(aa) Issue notices updating the list of country-pair markets.

(bb) With respect to Canadian charter air taxi operations:

(1) To approve applications for registration, or require that a registrant submit additional information, or reject an application for registration for failure to comply with part 294 of this chapter.

(2) To cancel, revoke, or suspend the registration of any Canadian charter air taxi operator using small aircraft registered under part 294 of this chapter that:

(i) Filed with the Department a written notice that it is discontinuing operations;

(ii) Is no longer designated by its home government to operate the services contemplated by its registration;

(iii) Holds a foreign air carrier permit under section 41302 to operate large aircraft charters between the United States and Canada;

(iv) Fails to keep its filed certificate of insurance current;

(v) No longer is substantially owned or effectively controlled by persons who are:

(A) Citizens of Canada;

(B) The Government of Canada; or

(C) A combination of both; or

(vi) No longer holds current effective Operations Specifications issued by the FAA.

(3) To grant or deny requests for a waiver of part 294 of this chapter, where grant or denial of the request is in accordance with current policy or precedent.

(cc) With respect to foreign air freight forwarders:

(1) To approve applications for registration, or require that a registrant submit additional information, or reject an application for registration for failure to comply with part 297 of this chapter.

(2) To cancel the registration of any foreign air freight forwarder or foreign cooperative shippers association that files a written notice with the Department indicating the discontinuance of common carrier activities.

(3) To exempt the registrant from the requirement contained in § 297.20 of this chapter that substantial ownership and effective control reside in citizens of the country that the applicant claims as its country of citizenship, where the course of action is clear under current precedent or policies.

(dd) With respect to charter operations:

(1) To grant or deny requests for waiver of parts 212, 372, and 380 of this chapter, where grant or denial of the request is in accordance with established precedent.

(2) To approve or disapprove direct air carrier escrow agreements filed pursuant to part 212 of this chapter.

(3) To reject or accept Public Charter prospectuses filed under part 380 of this chapter.

(4) With respect to the procedures for the registration of foreign charter operators under subpart E of part 380 of this chapter:

(i) To approve applications for registration, or require that a registrant submit additional information, or reject an application for registration for failure to comply with part 380 of this chapter.

(ii) To notify the applicant that its application will require further analysis or procedures, or is being referred to the Assistant Secretary for Aviation and International Affairs for formal action.

(iii) To cancel the registration of a foreign charter operator if it files a written notice with the Department that it is discontinuing its charter operations.

(iv) To waive provisions of subpart E of part 380 of this chapter.

[Doc. No. OST-96-1268, 61 FR 19169, May 1, 1996, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15943, Apr. 16, 2019]

§ 385.14 Authority of the General Counsel.

The General Counsel has authority to:

(a) Issue proposed or final regulations for the purpose of making editorial changes or corrections to the Department's rules and regulations to carry out Subparts I, II and IV of Part A of Subtitle VII of the Transportation Code at 49 U.S.C. 40101 et seq., with the concurrence of the staff offices primarily responsible for the parts or sections involved: Provided, that any final regulation so issued shall have an effective date not less than 20 days after its date of publication in the Federal Register, and shall include a brief reference to the review procedures established in subpart C of this part.

(b) Where a petition for review is duly filed, reverse any rulemaking action taken pursuant to paragraph (a) of this section by withdrawing a proposed or final regulation issued thereunder. Any action taken by the General Counsel, pursuant to the authority of this section, shall not be subject to the review procedures of this part.

(c) Issue orders deferring action until after oral argument on motions submitted by parties subsequent to the issuance of an Administrative Law Judge's initial or recommended decision.

(d) Reissue existing regulations for the purpose of incorporating prior amendments adopted by the Department.

(e) Compromise any civil penalties being imposed in enforcement cases.

(f) Issue orders initiating and terminating informal nonpublic investigations under part 305 of this chapter (Procedural Regulations).

(g) Issue orders requiring air carriers to prepare and submit within a specified reasonable period, special reports, copies of agreements, records, accounts, papers, documents, and specific answers to questions upon which information is deemed necessary. Special reports shall be under oath whenever the General Counsel so requires.

(h) Institute and prosecute in the proper court, as agent of the Department, all necessary proceedings for the enforcement of the provisions of the act or any rule, regulation, requirement, or order thereunder, or any term, condition, or limitation of any certificate or permit, and for the punishment of all violations thereof. Any action taken by the General Counsel, pursuant to the authority of this section, shall not be subject to the review procedures of this part.

(i) Make findings regarding the reasonable necessity for the application of the Department's authority to obtain access to lands, buildings, and equipment, and to inspect, examine, and make notes and copies of accounts, records, memorandums, documents, papers, and correspondence of persons having control over, or affiliated with, any person subject to regulation under Subparts I, II, and IV of Part A of Subtitle VII of the Transportation Code at 49 U.S.C. 40101 et seq. through issuance of an appropriate order, letter, or other transmittal.

(j) Issue orders denying or granting conditional or complete confidential treatment of information supplied by any person to the Office of Aviation Enforcement and Proceedings. Confidential treatment may only be granted upon a finding that, if the information were in the Department's possession and a Freedom of Information Act (FOIA) request were made for the information:

(1) At the time of the confidentiality request, the FOIA request would be denied on the basis of one or more of the FOIA exemptions; and

(2) At any later time, the FOIA request would also be denied, absent a material change in circumstances (which may include a demonstration that the asserted exemption does not apply).

[Doc. No. DOT-OST-2014-0140, 84 FR 15944, Apr. 16, 2019]

§ 385.15 [Reserved]

§ 385.16 Heads of Offices and Assistant General Counsels.

The heads of Offices and Assistant General Counsels have the authority to:

(a) Grant requests for permission to withdraw petitions, applications, motions, complaints, or other pleadings or documents which the respective Office has responsibility for processing where such authority has not otherwise been assigned in this regulation.

(b) Grant extensions of time for filing of documents or reports which are required to be filed by regulation or Department order and which reports or documents the respective Office has the responsibility for processing.

(c) Grant waivers of the environmental procedures set by Department order in any proceeding or portion of a proceeding dealing with environmental matters.

(d) Establish procedures on a case-by-case basis for environmental proceedings to ensure compliance with applicable law.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated by Doc. No. OST-96-1268, 61 FR 19170, May 1, 1996]

§ 385.17 Authority of the Assistant General Counsel for Regulation and Enforcement.

The Assistant General Counsel for Regulation and Enforcement has authority to:

(a) Call public meetings in pending rulemaking proceedings,

(b) Issue a notice suspending the effective dates of final regulations issued by the General Counsel pending Departmental determination of review proceedings instituted thereon, whether by petition or upon order of the Department. (Such a notice is not subject to the review procedures of subpart C of this part.), and

(c) Approve or disapprove, for good cause shown, requests to extend the time for filing comments on all proposed or final new or amended regulations, and requests to extend comment periods following the issuance of final rules.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated by Doc. No. OST-96-1268, 61 FR 19170, May 1, 1996]

§ 385.18 Authority of the Docket Officer, Docket Operations Office.

The Docket Officer, Docket Operations Office, has the authority to coordinate and perform all administrative functions of the Department provided for in sections 2, 3 and 5 of Executive Order 12597 issued May 13, 1987, except that this delegation shall not include the exercise of the authority delegated by the President to the Secretary by sections 2 and 5 of that Order to determine not to disapprove orders of the Department in certain cases.

[Amdt. 385-3, 52 FR 18905, May 20, 1987. Redesignated by Doc. No. OST-96-1268, 61 FR 19170, May 1, 1996. Amended by Doc. No. DOT-OST-2014-0140, 84 FR 15944, Apr. 16, 2019]

§ 385.19 Authority of the Director, Office of Airline Information, Bureau of Transportation Statistics.

The Director, Office of Airline Information, Bureau of Transportation Statistics (BTS) has authority to:

(a) Conduct all rulemaking proceedings concerning accounting, reporting, and record retention requirements for carrying out Subparts I, II, and IV of 49 U.S.C. Subtitle VII, except the issuance of final rules and the disposition of petitions for reconsideration.

(b) Interpret the accounting, reporting, and record retention requirements used to carry out Subparts I, II, and IV of 49 U.S.C. Subtitle VII.

(c) Waive any of the accounting, reporting, and record retention requirements upon a showing of the existence of such facts, circumstances or other grounds, and subject to such limitations or conditions as may be prescribed for waivers in the applicable regulations, unless such authority is otherwise specifically assigned.

(d) Dismiss petitions for Department or BTS action with respect to accounting, reporting, and record retention matters when such dismissal is requested or consented to by the petitioner.

(e) Require special reports, documentation, or modifications to reports required by this chapter from any air carrier upon a determination that such reports or documentation or modifications are necessary to meet temporary information needs, assist in an evaluation of continued financial fitness, or comply with special information requests by Congress, Department officials, or another agency or component of the Federal Government.

(f) Grant or deny a request by an air carrier or foreign air carrier for an extension of a filing date for reports required by subchapters A and D of this chapter.

(g) Grant or deny requests by air carriers for substitution of their own forms, adaptation of Department forms, or use of ADP media to meet special needs where Department approval of such forms or ADP media is required by subchapter A of this chapter.

(h) Determine the data necessary to complete the International Civil Aviation Organization reports required by U.S. Treaty; as provided in Order 81-3-120, establish any necessary supplemental reporting requirements; and dispose of petitions for extensions of filing dates or waivers with respect to the data required for such reports.

(i) Grant or deny motions filed under § 302.12 of this chapter requesting confidential treatment of aviation economic information or reports filed with BTS and place the decision in the motion's docket, which decision will be subject to review through a petition for reconsideration filed within ten days of issuance, to be acted upon by the Director, BTS.

(j) Grant or deny requests filed under § 241.22 of this chapter for confidential treatment of preliminary year-end financial reports.

(k) Grant or deny requests filed under § 248.5 of this chapter for confidential treatment of individual air carrier special reports.

(l) Grant or deny requests for use of domestic and international service segment and market data in accordance with the limitations on the availability of these data contained in § 241.19-6 of this chapter and Order 81-12-9.

(m) Grant or deny requests for use of international Origin and Destination Survey statistics in accordance with the limitations on the availability of these data contained in § 241.19-7 of this chapter.

(n) Grant or deny requests for individual air carrier fuel data in accordance with the limitations on the availability of these data contained in paragraph (k) of the reporting instructions for Schedule P-12(a), which are contained in § 241.24 of this chapter.

(o) Grant or deny requests for individual air carrier financial data in accordance with the limitation on the availability of these data contained in paragraph (d) of the reporting instructions for Schedule F-1, which are contained in § 298.62 of this chapter.

(p) Grant or deny requests for individual air carrier financial data as reported on Schedule P-1(a) in accordance with § 241.22(b)(3) of this chapter.

[53 FR 51751, Dec. 23, 1988, as amended at 60 FR 66726, 66727, Dec. 26, 1995. Redesignated and amended by Doc. No. OST-96-1268, 61 FR 19170, May 1, 1996; 65 FR 6457, Feb. 9, 2000; 75 FR 41585, July 16, 2010; Doc. No. DOT-OST-2014-0140, 84 FR 15944, Apr. 16, 2019]

§ 385.20 Authority of the Inspector General.

The Inspector General has authority to:

(a) Require special reports, including documentation, from any air carrier regarding audits and other examinations of carrier facilities, operations, and accounting and statistical records.

(b)(1) For accounting purpose, make findings regarding the reasonable necessity for the application of the Department authority to obtain access to lands, buildings, and equipment, and to inspect, examine, and make notes and copies of accounts, records, documents, papers, and correspondence of persons having control over, or affiliated with, any person subject to regulation used to carry out titles IV and X of the Act through issuance of an appropriate order, letter, or other transmittal;

(2) Authorize one or more auditors or special agents to conduct audits, inspections, and examinations and to make notes and copies in accordance with such findings.

(c) Release to the carrier that is the subject of a financial audit the audit report and other information developed during the audit.

(d) Require submission by carriers of special statements necessary to an explanation of any carrier accounting practice.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated by Doc. No. OST-96-1268, 61 FR 19170, May 1, 1996]

§ 385.21 Authority of the Chief, Accounting Division, Office of Budget and Policy, Federal Transit Administration.

The Chief, Accounting Division, Office of Budget and Policy, Federal Transit Administration, has authority to:

(a) Approve and order the payment of refunds of filing fees paid under § 389.27(b) of this chapter when such refunds have been authorized by either the Director, Office of Aviation Analysis, or the Director, Office of International Aviation.

(b) Pay from appropriated funds all properly documented claims consistent with Treasury, OMB, GAO, and DOT policies.

(c) Make minor or routine adjustments to payments based on audit reports prepared by the Inspector General, and through routine internal examinations of claims and vouchers.

(d) Design air carrier subsidy claim forms for small community service under 49 U.S.C. 41737.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984; Amdt. 1, 50 FR 7170, Feb. 21, 1985. Redesignated and amended by Doc. No. OST-96-1268, 61 FR 19170, May 1, 1996]

§ 385.30 Persons who may petition for review.

Petitions for review may be filed by the applicant; by persons who have availed themselves of the opportunity, if any, to participate in the matter at the staff action level; and by persons who have not had opportunity to so participate or show good and sufficient cause for not having participated: Provided, That such persons, other than the applicant, disclose a substantial interest which would be adversely affected by the respective staff action.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated by Doc. No. OST-96-1268, 61 FR 19171, May 1, 1996]

§ 385.31 Petitions for review.

(a) Time for filing. Petitions for review shall be filed and served within seven (7) days after the date of the staff action to which they relate, but a different period may be fixed in such staff action consistent with effective preservation of the right to petition for discretionary review and the exigencies of the situation.

(b) Contents. Petitions for review shall demonstrate that (1) a finding of material fact is clearly erroneous; (2) a legal conclusion is contrary to law, Department rules, or precedent; (3) a substantial and important question of policy is involved; (4) a prejudicial procedural error has occurred; or (5) the staff action is substantially deficient on its face. The petition shall briefly and specifically state the alleged grounds for review and the relief sought. If persons who participated at the staff action level set forth any new facts, arguments, or other new matter, an explanation must be furnished as to why said matter was not previously adduced at the staff action level. In the absence of a valid explanation, the Department may disregard such new matter.

(c) Form and filing. Petitions shall comply with the form and filing requirements of §§ 302.3 and 302.4 of this chapter. (Rules of practice in Economic Proceedings). Petitions shall not exceed 10 pages in length. A greater length, however, may be specified in the staff action taken. The petitions shall be accompanied by proof of required service. However, persons who seek review of a civil penalty proposed by the Assistant General Counsel for Aviation Enforcement and Proceedings pursuant to § 385.15(a) may submit their request therefor by letter to the Department with a copy to the Assistant General Counsel for Aviation Enforcement and Proceedings and need not comply with the above form and filing requirements.

(d) Service. A petition filed by a person other than the applicant shall be served on the applicant. Petitions shall also be served on any persons who have served documents on the petitioner at the staff action level; and on such other persons as may be directed by the Department or the staff member who took the action to be reviewed.

(e) Answers. The applicant and such other persons as disclose a substantial interest which would be adversely affected by the relief sought in the petition may, within seven (7) days after filing the petition, file an answer thereto. A different period for the filing of answers may be fixed in the staff action. Such answers shall comply with the form and filing requirements applicable to petitions and shall be served on the applicant and any other person who has theretofore served a document in the matter on such respondent.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated and amended by Doc. No. OST-96-1268, 61 FR 19171, May 1, 1996; 65 FR 6457, Feb. 9, 2000]

§ 385.32 Effective date of staff action.

Unless, within the time provided by or pursuant to this part, a petition for review is filed or the Department gives notice that it will review on its own motion, staff action shall, without further proceedings, be effective and become the action of the Department upon the expiration of such period. A timely petition for review filed in accordance with the provisions of this section, or notice given by the Department of review on its own motion, shall stay the staff action pending disposition by the Department, unless the Department determines otherwise or unless the staff action provides otherwise in accordance with subpart A of this part. However, in cases where the Department's regulations provide that permissions or approvals are granted, or that other legal effects result, within a stated period from the filing with the Department of a prescribed document, unless the Department gives notice to the contrary or takes other action within said period, such notice given or action taken by a staff member under delegated authority shall toll the running of such period. A timely petition for review of staff action which is not stayed by its filing which is received after or not acted upon before the effective date of the action shall be entertained and disposed of on its merits as a petition for reconsideration.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated by Doc. No. OST-96-1268, 61 FR 19171, May 1, 1996. Amended by Doc. No. DOT-OST-2014-0140, 84 FR 15945, Apr. 16, 2019]

§ 385.33 Review by the staff.

Where a petition for review is duly filed, the staff member may, upon consideration of all documents properly filed, reverse his or her decision. Except in the case of Administrative Law Judges, action taken by a staff member other than an office head or Assistant General Counsel may be reversed by the respective office head or Assistant General Counsel who is in the supervisory chain of command with respect to the staff member who took the initial action. If the initial action is reversed, the petition for review will not be submitted to the Reviewing Official. Staff action reversing the initial action shall be subject to petition for Department review as any other staff action.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated by Doc. No. OST-96-1268, 61 FR 19171, May 1, 1996]

§ 385.34 Decision by the Reviewing Official.

(a) Decline of right to review. If the Reviewing Official declines the right to exercise discretionary review, the staff action stayed by the petition for review shall become effective on the second business day following the date of service of the order, unless the order provides otherwise.

(b) Exercise of right to review. The Reviewing Official will exercise his or her discretionary right of review either upon petition or on his or her own motion. The Reviewing official may by order provide for interlocutory relief pending his or her decision on the merits and may limit the issues on review. The Reviewing Official may affirm, modify or set aside the staff action, may order the matter remanded, or may order further submittals or other proceedings before making a decison on the merits. In case the Reviewing Official affirms the staff action, staff action stayed by the petition for review shall become effective on the second business day following the date of service of the Reviewing Official's order, unless the order provides otherwise. Decisions by the Reviewing Official under this part are final and are not subject to petitions for reconsideration.

[Doc. No. T-1, 49 FR 50985, Dec. 31, 1984; Amdt. 1, 50 FR 7170, Feb. 21, 1985. Redesignated by Doc. No. OST-96-1268, 61 FR 19171, May 1, 1996]

§ 389.1 Policy and scope.

Pursuant to the provisions of 31 U.S.C. 9701, Fees and charges for Government services and things of value, and as implemented by the Office of Management and Budget's Circular A-25, dated July 8, 1993, the Department sets forth in this part fees and charges to be paid for the use of certain services and resources of the Department as prescribed in this part.

§ 389.10 Applicability of subpart.

This subpart describes certain services and resources made available by the Department and prescribes the fees and charges for those services and resources.

§ 389.11 Available services and resources.

Upon request and payment of fees as provided in this part, there are available, with respect to documents subject to inspection, services as follows:

(a) Locating and copying records and documents;

(b) Certification of copies of documents under seal of the Department; and

(c) Transcripts of hearings and proceedings.

§ 389.12 Payment of fees and charges.

The fees charged for services and resources shall be paid for electronically at http://www.pay.gov, a secure government-wide collection portal, except for charges for reporting services that are performed under competitive bid contracts with non-Government firms. Fees for reporting are payable to the firms providing the services. Payments to pay.gov can be made directly from a bank account or by credit/debit card.

§ 389.13 Fees for services.

Fees for services and resources described in this subpart and subpart C of this part are pursuant to those fees set forth in 49 CFR part 7, subpart F, §§ 7.41 through 7.43, 7.45 and 7.46.

§ 389.20 Applicability of subpart.

(a) This subpart applies to the filing of certain documents and records with the Department by non-government parties, and prescribes fees for their processing.

(b) For the purpose of this subpart, record means an electronic tariff record submitted to the Department under subpart R of 14 CFR part 221, and contains a set of information that describes one (1) tariff fare, or a set of information that describes one (1) related element associated with such tariff fare.

§ 389.21 Payment of fees.

(a) Except as provided in paragraph (b) of this section, any document for which a filing fee is required by § 389.25 shall be paid for electronically at http://www.pay.gov, a secure government-wide collection portal, unless a waiver or modification of the filing fee has been requested and approved. Payments can be made directly from a bank account or by credit/debit card.

(b) Registration for all air taxi operators shall be accompanied by an 8 dollar ($8) registration filing fee in the form of a check, draft, or postal money order payable to the U.S. Department of Transportation.

(c) Where a document seeks authority or relief in the alternative and therefore would otherwise be subject to more than one filing fee, only the highest fee shall be required.

(d) Where a document relating to a single transaction or matter seeks multiple authorities or relief and therefore would otherwise be subject to more than one filing fee, only the highest fee shall be required. Where a document relating to more than one transaction or matter seeks multiple authorities or relief, the required filing fee shall be determined by combining the highest fees for each transaction or matter. For purposes of this paragraph (d), a specific number of charters or inclusive tours described in one application will be regarded as a single transaction or matter.

(e) No fee shall be returned after the document has been filed with the Department, except as provided in §§ 389.23 and 389.27.

§ 389.22 Failure to make proper payment.

In accordance with 49 CFR part 7, subpart F, § 7.42, the Department will assess interest on unpaid fees on the 31st day following the day on which a notice of the amount due is first mailed to the requestor, unless the Department has granted an application for waiver or modification of the fees.

§ 389.23 Application for waiver or modification of fees.

(a) Applications may be filed asking for waiver or modification of any fee paid under this subpart. Each applicant shall set forth the reasons why a waiver or modification should be granted, and by what legal authority.

(b) Applications asking for a waiver or modification of fees shall be sent to the Director, Office of Aviation Analysis, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590. This provision is in accordance § 385.30 of this chapter. When no petition for review is filed with the Department, or when the Department reviews the Director's decision, if the amount found due is not paid within 10 days after receipt of notification of the final determination, the document shall be returned to the filing party.

§ 389.24 Foreign air carriers.

A foreign air carrier, or such carriers, if from the same country, acting jointly, may apply for a waiver of the requirements of this part based on reciprocity for U.S. air carriers contained in the requirement of their home governments, or as provided in a treaty or agreement with the United States. To apply for a waiver under this section, foreign air carriers shall send waiver requests to the Director, Office of International Aviation. The request should include applicable official government rules, decisions, statements of policy, or comparable evidence concerning filing fees for U.S. air carriers, or for all carriers serving that country. Once a waiver has been granted for a specific country, no further waiver applications need be filed for that country.

§ 389.25 Schedule of processing fees.

(a) Document-filing fees.

Code | Document

Interstate Air Transportation

Certificate of Public Convenience and Necessity (49 U.S.C. Chapter 411)

1 | Application for Certificate of Public Convenience and Necessity Interstate Air Transportation—Charter Authority Only | 850

2 | Application for Certificate of Public Convenience and Necessity Interstate Air Transportation—Scheduled Service | 850

3 | Dormant Authority | 290

4 | Application for Certificate of Public Convenience and Necessity Interstate Air Transportation—Cargo Authority Only | 670

5 | Application to transfer Certificate of Public Convenience and Necessity Interstate Air Transportation | 290

6 | Air Taxi Registration | 8

7 | Application for Commuter Air Carrier Authorization | 670

8 | Change of Name (registration of trade name or reissuance of certificate) | 56

9 | Exemption Request—General (49 U.S.C. Chapter 401)

10 | Request for an Exemption from 49 U.S.C. Chapter 415 | 53

11 | Request for an Exemption from 49 U.S.C Chapter 411 | 280

12 | Request for an Exemption from 49 U.S.C Chapter 417 | 120

13 | Request for a Service Mail Rate Petition 49 U.S.C. Chapter 419 | 420

Foreign Air Transportation—U.S. Carriers (49 U.S.C. Chapter 411)

14 | Application for Certificate of Public Convenience and Necessity Foreign Air Transportation—Scheduled Service | 900

15 | Amendment to Application for Certificate of Public Convenience and Necessity Foreign Air Transportation—Scheduled Service | 425

16 | Application for Certificate of Public Convenience and Necessity Foreign Air Transportation—Charter Service | 600

17 | Amendment to Application for Certificate of Public Convenience and Necessity Foreign Air Transportation—Charter Service | 200

18 | Transfer of Certificate of Public Convenience and Necessity Foreign Air Transportation—Scheduled or Charter Service | 255

19 | Change of Name (registration of trade name or reissuance of certificate) | 56

Foreign Air Carrier Permit (49 U.S.C. Chapter 413)

20 | Foreign Air Carrier Permit—Initial Application | 760

21 | Foreign Air Carrier Permit—Amendment/Renewal of permit | 475

22 | Foreign Air Carrier Permit—Amendment to application for a permit | 215

Exemption (49 U.S.C. Chapter 401)

23 | Request for an Exemption from 49 U.S.C. Chapter 415 | 53

24 | Request for an Exemption from 49 U.S.C. Chapters 411/413 (10 or fewer flights) | 77

25 | Request for an Exemption from 49 U.S.C. Chapters 411/413 (More than 10 flights) | 360

26 | Request for an Exemption from 49 U.S.C. Chapters 411/413 (Filed less than 10 days before effective date requested) | 1 17

27 | Other (U.S. and foreign air carriers) | 360

28 | Emergency cabotage (49 U.S.C. Chapter 401) | 360

29 | Relief for U.S. and foreign indirect air carriers (49 U.S.C. Chapter 401) | 370

Undocketed Items

30 | Canadian Charter Air Taxi Registration | 30

31 | Foreign Freight Forwarder Registration | 11

32 | Foreign Tour Operator Registration | 10

33 | Foreign Aircraft Permit (14 CFR part 375) | 25

34 | Special Authorization (14 CFR part 375) | 12

35 | Charter Statement of Authorization | 8

36 | Intermodal Statement of Authorization | 10

37 | Special Authority (14 CFR part 216) | 37

38 | Fee for filing items 33-37 if filed less than time required before effective date | 1 11

39 | IATA resolutions | 61

Other (U.S. and Foreign Air Carriers)

Charters:

40 | Public Charter Prospectus | 39

41 | OMPC Operation Authorization | 665

42 | Waiver of Charter Regulations | 39

Tariffs:

43 | Pages | 2

44 | Special Tariff Permission | 12

45 | Waiver of Tariff Regulations | 12

46 | Exemption request | 371

Agreements filed under 49 U.S.C. Chapter 413

47 | Prior Approval (docketed) | 1,080

48 | Routine (non-docketed) | 64

49 | Application for free and reduced-rate transportation | 16

1 Additional.

(b) Electronic tariff filing fees. The filing fee for one (1) or more transactions proposed in any existing record, or for any new or canceled records, shall be 5 cents per record; Provided: That no fee shall be assessed for those records submitted to the Department pursuant to 14 CFR 221.500(b).

§ 389.26 Special rules for tariff page filings.

(a) Tariffs issued by carriers. The filing fee for tariff pages filed by U.S. air carriers will be charged even if the tariff includes matters involving participating foreign air carriers. It will also be charged if the tariff is issued by a foreign air carrier and includes matters involving participating U.S. air carriers, unless the foreign air carrier has obtained a waiver under § 389.24. The fee will not be charged for a blank looseleaf page unless it cancels matter in the preceding issue of the page.

(b) Tariffs issued by publishing agents. (1) If the tariff is issued for one or more air carriers exclusively, the fee will be charged for each page.

(2) If the tariff is issued for one or more air carriers and one or more foreign air carriers, the fee will be charged for each page, except for those pages that the issuing agent states contain only:

(i) Matters pertaining exclusively to foreign air carriers that have been granted a waiver; or

(ii) Changes in matters pertaining to foreign air carriers that have been granted a waiver and that are included on the same page with other matters that are reissued without change.

(3) The fee will not be charged for a blank looseleaf page unless it cancels matters in the preceding page.

(4) No fee will be charged when two pages are published back-to-back, one page is not subject to the fee under paragraph (b)(2) of this section, and the page on the reverse is issued without substantive change.

(5) The fee will be charged for two looseleaf pages containing a correction number check sheet unless all other pages of the tariff are exempt from the fee.

§ 389.27 Refund of fee.

Any fee charged under this part may be refunded in full or in part upon request if the document for which it is charged is withdrawn before final action is taken. Such requests shall be filed in accordance with § 389.23.

§ 398.1 Purpose.

The purpose of this part is to establish general guidelines for the determination of basic essential air service for each eligible place under 49 U.S.C. 41731 and 41732. Procedures for the determination of the essential air service level for a place are contained in part 325 of this chapter.

§ 398.2 Number and designation of hubs.

(a) What is a hub? The Department considers hubs as belonging to any one of three classifications:

(1) A large hub is a place accounting for at least 1.00 percent of the total enplanements in the United States;

(2) A medium hub is a place accounting for at least 0.25 percent but less than 1.00 percent of the total enplanements in the United States; and

(3) A small hub is a place accounting for at least 0.05 percent but less than 0.25 percent of the total enplanements in the United States.

(b) How many hubs? (1) As a general matter, the Department will require service to one large or medium hub.

(2) In Alaska or when the nearest large or medium hub is more than 400 miles from the eligible place, the Department may instead require service to a small hub or nonhub.

(3) In some cases, the Department may require service to two hubs, of which at least one will be a large or medium hub. The Department will require service to two hubs if an eligible place has close commercial, geographic, and political ties to both hubs and if there is sufficient traffic from the eligible place to support two round trips a day to both hubs. If traffic is not sufficient, the Department may require one round trip a day to both hubs if the community requests such service.

(4) In no event will essential air service consist of service to more than two hubs.

(c) Which hub? (1) In designating hubs, the Department will weigh all of the following factors:

(i) The extent to which candidate hubs provide access to the national air transportation system;

(ii) The commercial, geographic, and political ties of candidate hubs to the eligible place;

(iii) The traffic levels to candidate hubs, as shown by traffic studies and origin and designation data;

(iv) The distance of candidate hubs from the eligible place; and

(v) The size of candidate hubs. Large size will be a positive factor, but principally as substantiating the access and community-ties factors.

(2) For Alaska, rather than requiring service to a hub, the Department may instead require that service from an eligible place be provided to a nearby focal point for traffic which, in turn, has service to a hub.

§ 398.3 Specific airports.

(a) At an eligible place, essential air service may be specified as service to a particular airport. In the case of hyphenated places, essential air service will be specified as service to more than one airport only if clearly necessary and if the multi-airport service is economically feasible and justified on the basis of traffic levels at those airports.

(b) At a hub, essential air service is not usually specified as service to a particular airport.

§ 398.4 Equipment.

(a) Except in Alaska, service will be provided by aircraft offering at least 15 passenger seats, unless:

(1) Average daily enplanements at the place did not exceed 11 passengers for any fiscal year from 1976 through 1986;

(2) The requirement would necessitate the payment of compensation in a fiscal year for service at the place when compensation would otherwise not be necessary; or

(3) The affected community agrees in writing to the use of smaller aircraft to provide service at the place.

(b) The aircraft must have at least two engines and use two pilots, unless scheduled air transportation has not been provided to the place in aircraft with at least two engines and using two pilots for at least 60 consecutive operating days at any time since October 31, 1978.

(c) The aircraft must be pressurized when the service regularly involves flights above 8,000 feet in altitude.

(d) All aircraft must meet the applicable safety standards of the Federal Aviation Administration.

(e) The aircraft must be conveniently accessible to passengers by stairs rather than over the wing.

§ 398.5 Frequency of flights.

(a) Except in Alaska, at least two round trips each weekday and two round trips each weekend.

(b) In Alaska, a level of service at least equal to that provided in 1976, or two round trips each week, whichever is greater, except that the Department and the appropriate State authority of Alaska may agree to a different level of service after consulting with the affected community.

(c) An essential air service level may be set at more than that stated in paragraphs (a) and (b) of this section if:

(1) Historical traffic data and studies of traffic-generating potential for the place indicate that more frequent service is needed to accommodate passengers and accompanying baggage with the aircraft used at that place;

(2) More flights are needed because the capacity available to the eligible place is being shared with traffic destined for an intermediate stop or for a place beyond the eligible place;

(3) More flights are needed to accommodate passengers because smaller aircraft are being used at the place;

(4) More flights are needed in order to ensure adequate connecting opportunities as provided for by § 398.7; or

(5) For Alaska, the appropriate state agency agrees that more frequent service is needed to accommodate cargo traffic with the aircraft used at the eligible place.

(d) For eligible places where traffic levels vary substantially with the season, a two-tier level of essential air service may be established with required flight frequencies changing accordingly.

§ 398.6 Seat guarantees.

(a) The number of seats guaranteed at the eligible place will be sufficient to accommodate the estimated passenger traffic at an average load factor of 60 percent, except that an average load factor of 50 percent will be used when service is provided with aircraft having fewer than 15 passenger seats.

(b) Only under unusual circumstances will an eligible place's essential air service level be set at a number of flights that will accommodate more than 40 passengers a day in each direction (a total of 80 inbound and outbound passengers). Generally, 40 passengers can be accommodated by guaranteeing 67 seats a day in each direction (a total of 134 inbound and outbound seats).

(c) The Department may guarantee an eligible place more than 67 seats a day if:

(1) The number of stops between or beyond the eligible place and the hub results in available aircraft capacity being shared with passengers at those other places;

(2) The distance between the eligible place and the designated hub requires the use of large aircraft;

(3) The eligible place has suffered an abrupt and significant reduction in its service that warrants a temporary increase in the maximum guaranteed capacity; or

(4) Other unusual circumstances warrant guaranteeing the eligible place more than 67 seats a day.

§ 398.7 Timing of flights.

To qualify as essential air service, flights must depart at reasonable times, considering the needs of passengers with connecting flights at the hub. It is the policy of the Department to consider the reasonableness of the time in view of the purpose for which the local passengers are traveling. If travel is primarily to connect with other flights at the hub, local flight times should be designed to link with those flights. If travel is primarily local (i.e., to and from the hub), there should be at least one morning flight in each direction and one late-afternoon or evening flight in each direction.

§ 398.8 Number of intermediate stops.

(a) Except in Alaska, no more than one intermediate stop is permitted in providing essential air service between the eligible place and its hub, unless otherwise agreed to with the community. In cases where an eligible place receives service to two hubs, however, more than one intermediate stop is permitted between that place and its secondary hub.

(b) In Alaska, more than one intermediate stop is permitted if required by low traffic levels at the eligible place or by the long distance between the eligible place and its hub.

(c) The Department may specify nonstop service when necessary to make the service viable.

(d) Where an eligible place normally is an intermediate stop that shares available capacity with another place, it is the policy of the Department either to require additional capacity (more flights or larger aircraft) between the eligible place and its hub or to specify some turnaround operations on that route segment.

§ 398.9 Load factor standards.

The load factor standards used in this part may be raised for individual eligible places under either of the following circumstances:

(a) The place is served by the carrier as part of a linear route; or

(b) It would be in the interest of the community, the carrier, or the general public to raise the load factor standard for that place.

§ 398.10 Overflights.

The Department considers it a violation of 49 U.S.C. 41732 and the air service guarantees provided under this part for an air carrier providing essential air service to an eligible place to overfly that place, except under one or more of the following circumstances:

(a) The carrier is not compensated for serving that place and another carrier is providing by its flights the service required by the Department's essential air service determination for that place;

(b) Circumstances beyond the carrier's control prevent it from landing at the eligible place;

(c) The flight involved is not in a market where the Department has determined air service to be essential; or

(d) The eligible place is a place in Alaska for which the Department's essential air service determination permits the overflight.

§ 399.1 Applicability.

All statements of general policy adopted by the Department for the guidance of the public will be published in this part, except as provided in § 399.2.

§ 399.2 Exclusions.

The following types of policies are generally not included in this part:

(a) Policies relating solely to the internal management of the Department;

(b) Policies requiring secrecy in the public interest or in the interest of national defense;

(c) Policies that are repetitive of 49 U.S.C. 40101;

(d) Policies that are fully expressed in a procedural or substantive rule of the Department, or in any opinion, decision, order, certificate, permit, exemption, or waiver of the Department;

(e) Expressions of encouragement or admonition to industry to follow a certain course of action;

(f) Positions on legislative items and on other matters that are outside the scope of the Department's current statutory powers and duties.

[PS-21, 29 FR 1446, Jan. 29, 1964, as amended by PS-63, 40 FR 6643, Feb. 13, 1975, Doc. No. DOT-OST-2014-0140, 84 FR 15947, Apr. 16, 2019]

§ 399.3 Statements in other Department documents.

No statement contained in any Department opinion, decision, order, certificate, permit, exemption, or waiver shall be considered a statement of policy within the meaning of this part, even though such statements may constitute a precedent in future cases or declare future policy to be followed in like cases. Similarly, a denial by the Department or relief sought, or statements of the Department's reasons for failure to issue a rule upon which rulemaking proceedings have been commenced shall not be considered statements of policy, except to the extent that it is specifically stated that such denial or failure is based upon a policy thereafter to be followed.

§ 399.4 Nature and effect of policy statements.

Policy statements published in this part will be observed by the Department until rescinded, but any policy may be amended from time to time as experience or changing conditions may require. Changes in policy may be made with or without advance notice to the public and will become effective upon publication in the Federal Register unless otherwise provided. If it appears to the Department, in its consideration of any matter before it, that the application of a policy published in this part would run counter to an express provision of law or policy enunciated by Congress in 49 U.S.C., the published policy shall not be applicable to such matter.

[PS-21, 29 FR 1446, Jan. 29, 1964, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15947, Apr. 16, 2019]

§ 399.5 Arrangement of policy statements.

The statements of general policy relating to the various duties and functions of the Department are grouped according to subject matter in the following subparts; the titles of the subparts indicate the general subject matter included therein.

§§ 399.10-399.11 [Reserved]

§ 399.12 Negotiation by air carriers for landing rights in foreign countries.

(a) It is the policy of the Department(jointly with the Department of State) that, as a general rule, landing rights abroad for United States flag air carriers will be acquired through negotiation by the U.S. Government with foreign governments rather than by direct negotiation between an air carrier and a foreign government.

(b) It is corollary to the foregoing policy that no United States air carrier may avail itself of representations by one foreign government to further its interest with another foreign government, especially with respect to landing rights, except insofar as such representations have been specifically authorized by the U.S. Government.

§§ 399.13-399.17 [Reserved]

§ 399.18 Maximum duration of fixed-term route authorization granted by exemption; renewal of such authority.

It is the policy of the Department to limit the duration of exemptions which authorize fixed-term route service to a maximum period of two years, and to entertain requests for renewal of such authority only when incorporated in a duly filed application for substantially equivalent certificate authority under section 401 of the Act. (See § 377.10(c) of this chapter (Special Regulations).)

[PS-21, 29 FR 1446, Jan. 29, 1964, as amended at 65 FR 6457, Feb. 9, 2000]

§ 399.19 [Reserved]

§ 399.21 Charter exemptions (except military).

In deciding applications for exemptions from section 41102 of Title 49 of the United States Code by air carriers seeking to perform charter service in air transportation, we will give primary weight to the chartering public's own assessment of the air carrier services that best meet its transportation needs. Therefore, we will not, as a general rule, consider as relevant to our decision on such applications, objections based upon (1) offers by the objectors to perform the charter service, and/or (2) estimates of revenue or traffic diversion, unless in the latter case the objectors demonstrate that the diversion resulting from grant of the exemption would threaten their ability to fulfill their certificate obligations.

[PS-78, 43 FR 31886, July 24, 1978, as amended at 60 FR 43531, Aug. 22, 1995]

§ 399.35 Special tariff permission.

The Secretary of Transportation may approve, under such terms as the Secretary may require, a carrier's application for Special Tariff Permission to file a tariff for foreign air transportation required under part 293 of this chapter on less than the notice required by 49 U.S.C. 41504(b).

[Doc. No. DOT-OST-2014-0140, 84 FR 15947, Apr. 16, 2019]

§ 399.36 Unreasonable discrimination.

(a) As used in this section:

(1) Unreasonable discrimination means unjust discrimination or unreasonable preference or prejudice; and

(2) Rate means rate, fare, or charge.

(b) Except in unusual circumstances or as provided in paragraph (c) of this section, the Departmentwill find a rate for domestic air transportation to constitute unreasonable discrimination only if:

(1) There is a reasonable probability that the rate will result in significant long-run economic injury to passengers or shippers;

(2) The rate is in fact discriminatory according to a reasonable cost allocation or other rational basis;

(3) The rate does not provide transportation or other statutorily recognized benefits that justify the discrimination; and

(4) Actual and potential competitive forces cannot reliably be expected to eliminate the undesirable effects of the discrimination within a reasonable period.

(c) A rate that discriminates on the basis of the status of the traffic carried will not be presumed to be unreasonably discriminatory, unless the use of the status categories in question is contrary to established national anti-discrimination policy.

[PS-93, 45 FR 36062, May 29, 1980]

§ 399.39 Equipment purchase deposits.

Equipment purchase deposits are advance payments made by air carriers to manufacturers for the purchase of equipment to be delivered in the future, or funds segregated by air carriers for this purpose. It is the policy of the Department not to recognize equipment purchase deposits in an air carrier's investment base for ratemaking purposes. When equipment is acquired by an air carrier and placed in air-transport service, the Department will recognize in the air carrier's investment base interest on purchase deposits on such equipment capitalized and amortized in accordance with the Uniform System of Accounts and Reports for Certificated Air Carriers (part 241 of this chapter).

[PS-32, 32 FR 5370, Mar. 30, 1967]

§ 399.60 Standards for determining priorities of hearing.

(a) General. This policy statement describes the general standards which will be used by the Department in determining the order in which it will designate for hearing those matters on its docket which are to be decided after notice and hearing. Among such matters are applications for certificates of public convenience and necessity or for foreign air carrier permits; complaint cases; and various rate-making proceedings.

(b) Standards. Matters will be assigned for hearing in accordance with the degree of relative priority which each matter is entitled to on the basis of the comparative public interest involved therein. Among other things, the Department will take into account:

(1) Statutory requirements for preference or statutory limitations on the time within which the Department shall act;

(2) The impact of delay on the public or particular persons;

(3) The need for promptly securing compliance with the provisions of the Act;

(4) The time for which the matter has already been pending and which would be required to dispose of it;

(5) Whether the application requests renewal of an existing temporary authorization; and

(6) In matters relating to operating authority:

(i) Whether a proposal might reduce subsidy or increase economy of operations;

(ii) Whether an application proposes new service;

(iii) The volume of traffic that might be affected by the grant or denial of the proposal;

(iv) The period that has elapsed since the Department considered the service needs of the places or areas involved; and

(v) The relative availability of necessary staff members of the carriers, communities and the Department, in the light of other proceedings already in progress, to handle the processing of the case.

Interested persons may urge upon the Department such considerations as they believe should lead it to accord a particular application a priority different from that which the Department has given it.

[PS-21, 29 FR 1446, Jan. 29, 1964, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15947, Apr. 16, 2019]

§ 399.61 Presentations of public and civic bodies in route proceedings.

For the purpose of implementing the Department's policy to provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence and otherwise to expedite route proceedings, and in light of experience, the following guidelines are hereby established:

(a) Public and civic bodies which represent the same geographic area or community should consolidate their presentation of evidence, briefs or oral argument to the examiner and the Department;

(b) A public body or a civic organization, or several such bodies or organizations whose presentation of evidence is consolidated, should keep to a minimum the number of witnesses used to present the factual evidence in support of the community's position;

(c) Exhibits offered in evidence by a public body or civic organization should be limited to evidence of the economic characteristics of the community and area involved, data as to community of interest and traffic, evidence with respect to the sufficiency of existing service, and airport data, and should not include data relating to number of electricity, water and gas meters, telephones, schools, freight car loadings, building permits, sewer connections, or volume of bank deposits in the community.

§ 399.62 Target dates in hearing cases.

(a) Applicability. This section applies to initial and recommended decisions of administrative law judges, final decisions, and decisions on petitions for review or reconsideration in cases in which the Department has ordered a trial-type hearing before an administrative law judge.

(b) Issuance of target dates. In cases to which this section applies, the Department or the administrative law judge, as the situation calls for, shall issue a notice of the target date for the completion of the initial or recommended decision, final decision, or decision on a petition for review or reconsideration. The Department or the administrative law judge shall endeavor to render the pending decision not later than the target date.

(c) Time for promulgating target dates. (1) In the case of initial, recommended, or final decisions, notice of target dates shall be issued, served, and filed within 20 days of the submission of closing briefs, or the conclusion of oral argument to the administrative law judge or the Department, as may be appropriate.

(2) In the case of petitions for review or for reconsideration, notices of target dates shall be issued, served, and filed within 20 days of the date for the filing of answers: Provided, That, in the case of petitions for reconsideration of Department decisions awarding new route authority, the Department shall, in lieu of issuing individual target dates, endeavor to render its decision no later than the day preceding the effective date of the new authority awarded.

[PS-71, 41 FR 41407, Sept. 22, 1976, as amended by PS-73, 42 FR 21611, Apr. 28, 1977]

§ 399.63 Role of staff in route proceedings.

(a) General. This policy statement establishes the standards applicable to staff participation in oral hearing cases involving award of route authority.

(b) Standards. The staff's role during such hearings, primarily because it acts in the broad public interest, and not for a particular private or local interest, is to assure that essential evidence is introduced to resolve the public interest issues; that the evidence submitted by the parties is subject to adversary testing, and that decisional options are developed with the public interest in mind. In route cases designated by the Department that offer the opportunity for developing new policies to adapt to the administration of the Federal Aviation Act or that raise unusual evidentiary issues, a prehearing presentation by staff of decisional options will contribute to a better trial record, be consistent with traditional notions of fundamental fairness, better serve the Department's decisionmaking needs and ultimately serve the public interest. In any route case where the Department has not required the staff to participate by making a prehearing presentation, the staff shall present a prehearing presentation of decisional options if the administrative law judge finds that there exists unusual policy or evidentiary issues which clearly require such a presentation. We believe it is not desirable for the staff to advocate the adoption of a single decisional option at the outset of a case. Accordingly,

(1) In route cases designated by the Department that offer the opportunity for developing new policies, the staff shall make a prehearing presentation of the decisional options available, and describe the kinds of evidence needed or available to develop each option. The staff need not and should not be required to develop evidence on each option. In every case, after the close of the hearing, however, the staff shall advocate a position based upon one or more of the decisional options identified in its prehearing presentation or developed at trial.

(2) In any route case in which the administrative law judge finds that there exists unusual policy or evidentiary issues clearly requiring a prehearing presentation, the staff shall submit a prehearing statement of the decisional options available.

(3) To the extent possible, the Department, in its instituting orders, will identify or designate the cases which involve the development of new policies or unusual evidentiary issues that will require the type of staff participation described in § 399.63(b)(1).

[PS-76, 43 FR 19354, May 5, 1978]

§ 399.70 Cross-references to the Office of the Secretary's Rulemaking Procedures.

The rules and policies relating to the disposition of rulemaking petitions by the Department of Transportation Office of the Secretary are located in its rulemaking procedures contained in 49 CFR part 5. The criteria for identifying significant rules and determining whether a regulatory analysis will be performed are set forth in the Department's Regulatory Policies and Procedures, 44 FR 11034, February 26, 1979, and Executive Order 12866.

[Doc. No. OST-96-1429, 61 FR 29019, June 7, 1996]

§ 399.73 Definition of small business for Regulatory Flexibility Act.

For the purposes of the Department's implementation of chapter 6 of title 5, United States Code (Regulatory Flexibility Act), a direct air carrier or foreign air carrier is a small business if it provides air transportation only with small aircraft as defined in § 298.2 of this chapter (up to 60 seats/18,000 pound payload capacity).

[Doc. No. OST-96-1429, 61 FR 29019, June 7, 1996, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15947, Apr. 16, 2019]

§ 399.75 Rulemakings relating to unfair or deceptive practices.

(a) General. Unless specifically required by statute, the Department shall only issue a proposed or final regulation under the authority of 49 U.S.C. 41712(a) if the Department articulates the basis for declaring a practice in air transportation or the sale of air transportation to be unfair or deceptive to consumers, employing the definitions of “unfair” and “deceptive” set forth in § 399.79.

(b) Procedural requirements. Except as provided in paragraph (c), when issuing a proposed regulation to determine a practice in air transportation or the sale of air transportation to be unfair or deceptive to consumers under the authority of 49 U.S.C. 41712(a), the Department shall adhere to the following procedural requirements:

(1) Request for a hearing. Following publication of a proposed regulation, and before the close of the comment period, any interested party may file in the rulemaking docket a petition, directed to the General Counsel, to hold a hearing on the proposed regulation. The General Counsel shall determine whether to grant the petition in accordance with the requirements of this section.

(2) Grant of petition for hearing. Except as provided in paragraph (b)(3) of this section, the petition shall be granted if the petitioner makes a plausible prima facie showing that:

(i) The proposed rule depends on conclusions concerning one or more specific scientific, technical, economic, or other factual issue that is genuinely in dispute or that may not satisfy the requirements of the Information Quality Act (Section 515 of Pub. L. 106-554);

(ii) The ordinary public comment process is unlikely to provide an adequate examination of the issues to permit a fully informed judgment; and

(iii) The resolution of the disputed factual issues would likely have a material effect on the costs and benefits of the proposed rule.

(3) Denial of petition for hearing. A petition meeting the requirements of paragraph (b)(2) of this section may be denied if the General Counsel determines the requested hearing would not advance the consideration of the proposed rule and the General Counsel's ability to make the rulemaking determinations required by this section.

(4) Explanation and appeal of denial. If a petition is denied in whole or in part, the General Counsel shall include a detailed explanation of the factual basis for the denial, including findings on each of the relevant factors identified in paragraph (b)(2) or (3) of this section. The General Counsel's denial of a petition, in whole or in part, may be appealed by the petitioner to the Secretary within 30 days of the date on which the General Counsel's explanation of the factual basis for the denial is issued.

(5) Hearing notice. If the General Counsel grants the petition, or if the denial of a petition is reversed on appeal to the Secretary, the General Counsel shall publish notification of the hearing in the Federal Register. The document shall specify the proposed rule at issue and the specific factual issues to be considered at the hearing. The scope of the hearing shall be limited to the factual issues specified in the notice.

(6) Hearing process. (i) A hearing under this section shall be conducted using procedures approved by the General Counsel, and interested parties shall have a reasonable opportunity to participate in the hearing through the presentation of testimony and written submissions.

(ii) The General Counsel shall arrange for a neutral officer to preside over the hearing and shall provide a reasonable opportunity to question the presenters.

(iii) After the hearing and after the record of the hearing is closed, the hearing officer shall place in the docket minutes of the hearing with sufficient detail as to reflect fully the evidence and arguments presented on the issues, along with proposed findings addressing the disputed issues of fact identified in the hearing notice.

(iv) Interested parties who participated in the hearing shall be given an opportunity to file statements of agreement or objection in response to the hearing officer's proposed findings. The complete record of the hearing shall be made part of the rulemaking record.

(7) Actions following hearing. (i) Following the completion of the hearing process, the General Counsel shall consider the record of the hearing, including the hearing officer's proposed findings, and shall make a reasoned determination whether to terminate the rulemaking, to proceed with the rulemaking as proposed, or to modify the proposed rule.

(ii) If the General Counsel decides to terminate the rulemaking, the General Counsel shall publish a document in the Federal Register announcing the decision and explaining the reasons for the decision.

(iii) If the General Counsel decides to finalize the proposed rule without material modifications, the General Counsel shall explain the reasons for the decision and provide responses to the hearing record in the preamble to the final rule.

(iv) If the General Counsel decides to modify the proposed rule in material respects, the General Counsel shall publish a new or supplemental notice of proposed rulemaking in the Federal Register explaining the General Counsel's responses to and analysis of the hearing record, setting forth the modifications to the proposed rule, and providing additional reasonable opportunity for public comment on the proposed modified rule.

(8) Interagency review process. The hearing procedures under this paragraph (b)(8) shall not impede or interfere with the interagency review process of the Office of Information and Regulatory Affairs for the proposed rulemaking.

(c) When issuing a proposed regulation under this section that is defined as high impact or economically significant within the meaning of DOT Order 2100.6B or 49 CFR part 5, the Department shall follow the procedural requirements set forth therein.

[DOT-OST-2025-0633, 91 FR 39878, July 1, 2026]

§ 399.79 Policies relating to unfair and deceptive practices.

(a) Applicability. This policy shall apply to the Department's aviation consumer protection actions pursuant to 49 U.S.C. 41712(a).

(b) Definitions. (1) A practice is “unfair” to consumers if it causes or is likely to cause substantial injury, which is not reasonably avoidable, and the harm is not outweighed by benefits to consumers or competition.

(2) A practice is “deceptive” to consumers if it is likely to mislead a consumer, acting reasonably under the circumstances, with respect to a material matter. A matter is material if it is likely to have affected the consumer's conduct or decision with respect to a product or service.

(c) Intent. Proof of intent is not necessary to establish unfairness or deception for purposes of 49 U.S.C. 41712(a).

(d) Specific regulations prevail. Where an existing regulation applies to the practice of an air carrier, foreign air carrier, or ticket agent, the terms of that regulation apply rather than the general definitions set forth in this section.

(e) Informal enforcement proceedings. (1) Before any determination is made on how to resolve a matter involving a potential unfair or deceptive practice, the U.S. Department of Transportation's Office of Aviation Consumer Protection will provide an opportunity for the alleged violator to be heard and present relevant evidence, including but not limited to:

(i) In cases where a specific regulation applies, evidence tending to establish that the regulation at issue was not violated and, if applicable, that mitigating circumstances apply;

(ii) In cases where a specific regulation does not apply, evidence tending to establish that the conduct at issue was not unfair or deceptive as defined in paragraph (b) of this section; and

(iii) Evidence tending to establish that consumer harm was limited, or that the air carrier, foreign air carrier, or ticket agent has taken steps to mitigate consumer harm.

(2) During this informal process, if the Office of Aviation Consumer Protection reaches agreement with the alleged violator to resolve the matter with the issuance of an order declaring a practice in air transportation or the sale of air transportation to be unfair or deceptive to consumers under the authority of 49 U.S.C. 41712(a), and when a regulation issued under the authority of section 41712 does not apply to the practice at issue, then the Department shall articulate in the order the basis for concluding that the practice is unfair or deceptive to consumers as defined in this section.

(f) Formal enforcement proceedings before an administrative law judge. When there are reasonable grounds to believe that an airline or ticket agent has violated 49 U.S.C. 41712, and efforts to settle the matter have failed, the Office of Aviation Consumer Protection may issue a notice instituting an enforcement proceeding before an administrative law judge pursuant to 14 CFR 302.407. After the issues have been formulated, if the matter has not been resolved through pleadings or otherwise, the parties will receive reasonable written notice of the time and place of the hearing as set forth in 14 CFR 302.415.

[Docket No. DOT-OST-2019-0182, 85 FR 78717, Dec. 7, 2020, as amended at 86 FR 17294, Apr. 2, 2021; Docket No. DOT-OST-2021-0142, 88 FR 39353, June 16, 2023; DOT-OST-2025-0633, 91 FR 39878, July 1, 2026]

§ 399.80 Unfair and deceptive practices of ticket agents.

It is the policy of the Department to regard as an unfair or deceptive practice or unfair method of competition the practices enumerated in paragraphs (a) through (n) of this section by a ticket agent of any size and the practice enumerated in paragraph (s) of this section by a ticket agent that sells air transportation online and is not considered a small business under the Small Business Administration's size standards set forth in 13 CFR 121.201:

(a) Misrepresentations 1 which may induce members of the public to believe that the ticket agent is an air carrier.

1 The word “misrepresentation” used in this list includes any statement or representation made in advertising or made orally to members of the public which is false, fraudulent, deceptive or misleading, or which has the tendency or capacity to deceive or mislead.

(b) Using or displaying or permitting or suffering to be used or displayed the name, trade name, slogan or any abbreviation thereof, of the ticket agent, in advertisements, on or in places of business, or on aircraft in connection with the name of an air carrier with whom it does business, in such manner that it may mislead or confuse the traveling public with respect to the agency status of the ticket agent.

(c) Misrepresentations as to the quality or kind of service, type or size of aircraft, time of departure or arrival, points served, route to be flown, stops to be made, or total trip-time from point of departure to destination.

(d) Misrepresentation as to qualifications of pilots or safety record or certification of pilots, aircraft or air carriers.

(e) Misrepresentations that passengers are directly insured when they are not so insured; for example, where the only insurance in force is that protecting the air carrier in event of liability.

(f) Misrepresentations as to fares and charges for air transportation or services in connection therewith.

(g) Misrepresentation that special discounts or reductions are available, when such discounts or reductions are not specific in the lawful tariffs of the air carrier which is to perform the transportation.

(h) [Reserved]

(i) Misrepresentations that special priorities for reservations are available when such special considerations are not in fact granted to members of the public generally.

(j) Selling air transportation to persons on a reservation or charter basis for specified space, flight, or time, or representing that such definite reservation or charter is or will be available or has been arranged, without a binding commitment with an air carrier for the furnishing of such definite reservation or charter as represented or sold.

(k) Selling or issuing tickets or other documents to passengers to be exchanged or used for air transportation knowing or having reason to know or believe that such tickets or other documents will not be or cannot be legally honored by air carriers for air transportation.

(l) Failing to make a prompt refund of airfare (including any taxes and ancillary fees) to a consumer, upon request, for a cancelled flight or a significantly delayed or changed flight if the consumer chooses not to travel or accept compensation in lieu of a refund in situations described in 14 CFR 260.6(a) and (b) when the ticket agent is the merchant of record. Failing to provide a prompt refund of airfare (including any taxes and ancillary fees), upon request, for a significantly delayed or changed flight itinerary to consumers on the same reservation as an individual with a disability who does not want to continue travel because of a significant change described in paragraph (l)(1)(vii)(E) of this section related to downgrades or paragraph (l)(1)(vii)(G) of this section related to aircraft substitution which result in one or more accessibility features needed by the individual with a disability becoming unavailable or because of the significant change described in paragraph (l)(1)(vii)(F) of this section related to change in connecting airports. A prompt refund is one that is made within 7 business days of the ticket agent receiving information from a carrier as specified in 14 CFR 260.6(d), as required by 12 CFR part 1026 for credit card purchases, and within 20 calendar days of refund becoming due for cash, check, debit card, or other forms of purchases. Ticket agents must provide the refunds in the original form of payment (i.e., money is returned to individual using whatever payment method the individual used to make the original payment, such as a check, a credit card, a debit card, cash, or airline miles), unless the consumer agrees to receive the refund in another form of payment that is cash equivalent. A ticket agent may retain a service fee charged when issuing the original ticket to the extent that service is for more than processing payment for a flight that the consumer found. That fee must be on a per-passenger basis and its existence, amount, and the non-refundable nature if that is the case must be clearly and prominently disclosed to consumers at the time they purchase the airfare. Ticket agents may offer alternative transportation, travel credits, vouchers, or other compensation that remains valid and redeemable by the consumer for a period of at least 5 years from the date on which such voucher, credit, or other form of compensation in lieu of refunds but must first inform consumers that they are entitled to a refund if that is the case. Ticket agents must clearly disclose any material restrictions, conditions, and limitations on travel credits, vouchers, or other compensation they offer, including the expiration date of the travel credits, vouchers, or other compensation, which must be provided, upon request, to an individual who self identifies as an individual with a disability in an electronic format accessible to the recipient.

(1) For purposes of this paragraph (l), the following definitions apply:

(i) Business days means Monday through Friday, excluding Federal holidays in the United States.

(ii) Cancelled flight or cancellation means a flight with a specific flight number scheduled to be operated between a specific origin-destination city pair that was published in a carrier's Computer Reservation System at the time of the ticket sale but was not operated by the carrier.

(iii) Cash equivalent means a form of payment that can be used like cash, including but not limited to a check, a prepaid card, funds transferred to the passenger's bank account, funds provided through digital payment methods (e.g., PayPal, Venmo), or a gift card that is widely accepted in commerce. It is not cash equivalent if consumers bear the burden for maintenance or usage fees related to the payment.

(iv) Class of service means seating in the same cabin class such as First, Business, Premium Economy, or Economy class, which is defined based on seat location in the aircraft and seat characteristics such as width, seat recline angles, or pitch (including the amount of legroom).

(v) Covered flight means a scheduled flight to, from, or within the United States.

(vi) Merchant of record means the entity responsible for processing payments by consumers for airfare, as shown in the consumer's financial charge statements such as debit or credit card charge statements.

(vii) Significant delayed or changed flight means a covered flight itinerary with a delay or change made by a U.S. or foreign carrier where as the result of the delay or change:

(A) The consumer is scheduled to depart from the origination airport three hours or more for domestic itineraries and six hours or more for international itineraries earlier than the original scheduled departure time;

(B) The consumer is scheduled to arrive at the destination airport three hours or more for domestic itineraries or six hours or more for international itineraries later than the original scheduled arrival time;

(C) The consumer is scheduled to depart from a different origination airport or arrive at a different destination airport;

(D) The consumer is scheduled to travel on an itinerary with more connection points than that of the original itinerary;

(E) The consumer is downgraded to a lower class of service;

(F) The consumer with a disability is scheduled to travel through one or more connecting airports that are different from the original itinerary; or

(G) The consumer with a disability is scheduled to travel on substitute aircraft on which one or more accessibility features needed by the passenger are unavailable.

(m) Misrepresentations regarding the handling, forwarding or routing of baggage or other property, or the loss or tracing thereof, or failing or refusing to honor proper claims for loss of or damage to baggage or other property.

(n) Misrepresentation as to the requirements that must be met by persons or organizations in order to qualify for charter or group fare flights.

(o)-(r) [Reserved]

(s) Failing to disclose and offer web-based discount fares to prospective passengers who contact the agent through other channels (e.g., by telephone or in the agent's place of business) and indicate they are unable to use the agent's website due to a disability.

[PS-21, 29 FR 1446, Jan. 29, 1964, as amended at 78 FR 67916, Nov. 12, 2013; Docket No. DOT-OST-2014-0056, 81 FR 76829, Nov. 3, 2016; Doc. No. DOT-OST-2014-0140, 84 FR 15947, Apr. 16, 2019; DOT-OST-2022-0089, 89 FR 32838, Apr. 26, 2024; DOT-OST-2022-0109, 89 FR 34674, Apr. 30, 2024; DOT-OST-2022-0089, 89 FR 65538, Aug. 12, 2024; DOT-OST-2026-0199, 91 FR 40371, July 2, 2026]

§ 399.81 Unrealistic or deceptive scheduling.

(a) The unrealistic scheduling of flights by any air carrier providing scheduled passenger air transportation is an unfair or deceptive practice and an unfair method of competition within the meaning of 49 U.S.C. 41712.

(b) With respect to the advertising of schedule performance, it is an unfair or deceptive practice and an unfair method of competition to use any figures purporting to reflect schedule or on-time performance without indicating the basis of the calculation, the time period involved, and the pairs of points or the percentage of system-wide operations thereby represented and whether the figures include all scheduled flights or only scheduled flights actually performed.

(c) Chronically delayed flights. (1) This paragraph (c) applies to any air carrier that is a “reporting carrier” as defined in Part 234 of Department regulations (14 CFR Part 234).

(2) For the purposes of this paragraph (c), a chronically delayed flight means any domestic flight that is operated at least 10 times a month, and arrives more than 30 minutes late (including cancelled flights) more than 50 percent of the time during that month.

(3) For purposes of this paragraph (c), the Department considers all of a carrier's flights that are operated in a given city-pair market whose scheduled departure times are within 30 minutes of the most frequently occurring scheduled departure time to be one single flight.

(4) The holding out of a chronically delayed flight for more than four consecutive one-month periods represents one form of unrealistic scheduling and is an unfair or deceptive practice and an unfair method of competition within the meaning of 49 U.S.C. 41712.

[Doc. No. DOT-OST-2007-0022, 74 FR 69003, Dec. 30, 2009; Doc. No. DOT-OST-2014-0140, 84 FR 15947, Apr. 16, 2019]

§ 399.82 Passing off of carrier identity by affiliation between carriers.

(a) Applicability. This policy shall apply to proceedings in which the Department, in exercising its regulatory powers with respect to air carriers and foreign air carriers, is required to determine whether carriers have engaged in unfair or deceptive practices, or unfair methods of competition. The standards herein shall not be construed to supersede any action previously taken by the Department in a particular proceeding dealing with the subject matter of this statement, but to the extent not inconsistent therewith shall provide standards which supplement, or implement such specific Department action. The limitation of this policy statement to certain affiliated carriers should not be construed as an indication that the Department will permit other carriers to pass off by means of activities which are inconsistent with the minimum safeguards set forth in paragraph (c) of this section. In such cases the Department may determine in an adjudicatory proceeding that the activities engaged in have a tendency to pass off and constitute an unfair or deceptive practice or an unfair method of competition.

(b) Definition. For the purpose of this statement, the term affiliation, as between an air carrier and a foreign air carrier, shall mean that one of the carriers directly or indirectly has one of the following relationships to the other:

(1) Owns or controls 10 percent or more of the securities of the other, with or without an accompanying power to vote;

(2) Is jointly controlled with the other carrier, directly or indirectly by a third person; or

(3) Provides general agency services for the other carrier.

For the purpose of this statement, general agency services shall mean services performed under an agreement between an air carrier and a foreign air carrier which provides for the general representation of one by the other in a specified area or point, in relation to services such as the following: Solicitation and sale of passenger, express, and cargo transportation; airport transportation and hotel accommodations; local advertising and publicity, local sales offices; passenger services; local government representation; purchase, lease or other acquisition of equipment; or aircraft and transit services, aircraft inspection, aircraft dispatch.

(c) Minimum safeguards. The minimum safeguards which the Department will consider as adequate to foreclose passing off by affiliated carriers are as follows:

(1) An air carrier and any affiliated foreign air carrier shall not engage in joint public relations activities at points served by both carriers which tend to pass off the services of one carrier as the services of the other carrier or as part of a unified system of which each is a part;

(2) Where one affiliated carrier provides general agency services for the other carrier, at points served by both carriers, it shall specifically identify all flights of the other carrier as flights of that carrier without reference to any relationship to the carrier performing the agency services;

(3) All forms of display (including aircraft insignia), scheduled publications, advertising, or printed matter employed by affiliated carriers shall not state or imply that the services of either carrier are performed in common with the other carrier or as part of a single system. In cases where it is necessary to indicate that any agency service is performed by one affiliated carrier for the other, the references to the carrier performing the agency should be sufficiently subordinated to the name of the other carrier as to emphasize the limited role of the agent;

(4) Telephone facilities at points served by both carriers should preserve the identity of the individual carriers;

(5) Where joint traffic or sales facilities are maintained by affiliated carriers, the separate identity of each carrier should be maintained by reasonably comparable use of display advertising, desk-space, personnel uniforms, and other facilities and activities;

(6) Where one carrier sells time payment tickets for travel over the other carrier (except interline travel), the application form should identify the carrier performing the transportation;

(7) The respective personnel of the affiliated carriers shall preserve the individual identity of the respective carriers in all public dealings.

(d) Unfair and deceptive practice. It is the policy of the Department to regard any joint activity of an affiliated air carrier and a foreign air carrier as an unfair or deceptive practice or unfair method of competition where such joint activity does not satisfy the minimum safeguards enumerated in the preceding subsection.

(e) Exceptions. Exceptions to a safeguard set forth in paragraph (c) of this section may be recognized for activities in a foreign country if the Department finds that special circumstances pertaining to the country render the safeguard inappropriate. Exceptions on other grounds may be recognized pursuant to § 399.4.

[PS-29, 30 FR 13781, Oct. 29, 1965, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15947, Apr. 16, 2019]

§ 399.83 Unfair or deceptive practice of air carrier, foreign air carrier, or ticket agent in orally confirming to prospective passenger reserved space on scheduled flights.

It is the policy of the Department to consider the practice of an air carrier, foreign air carrier, or ticket agent, of stating to a prospective passenger by telephone or other means of communication that a reservation of space on a scheduled flight in air transportation is confirmed before a passenger has received a ticket specifying thereon his confirmed reserved space, to be an unfair or deceptive practice and an unfair method of competition in air transportation or the sale thereof within the meaning of 49 U.S.C. 41712, unless the tariff of the particular air carrier or foreign air carrier provides for confirmation of reserved space by the means so used.

[PS-58, 39 FR 38096, Oct. 29, 1974, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15948, Apr. 16, 2019]

§ 399.84 Price advertising and opt-out provisions.

(a) The Department considers any advertising or solicitation by a direct air carrier, indirect air carrier, an agent of either, or a ticket agent, for passenger air transportation, a tour (i.e., a combination of air transportation and ground or cruise accommodations) or tour component (e.g., a hotel stay) that must be purchased with air transportation that states a price for such air transportation, tour, or tour component to be an unfair and deceptive practice in violation of 49 U.S.C. 41712, unless the price stated is the entire price to be paid by the customer to the carrier, or agent, for such air transportation, tour, or tour component. Though charges included within the single total price listed (e.g., government taxes) may be stated separately or through links or “pop ups” on websites that display the total price, such charges may not be false or misleading, may not be displayed prominently, may not be presented in the same or larger size as the total price, and must provide cost information on a per passenger basis that accurately reflects the cost of the item covered by the charge.

(b) The Department considers any advertising by the entities listed in paragraph (a) of this section of an each-way airfare that is available only when purchased for round-trip travel to be an unfair and deceptive practice in violation of 49 U.S.C. 41712, unless such airfare is advertised as “each way” and in such a manner so that the disclosure of the round-trip purchase requirement is clearly and conspicuously noted in the advertisement and is stated prominently and proximately to the each-way fare amount. The Department considers it to be an unfair and deceptive practice to advertise each-way fares contingent on a round-trip purchase requirement as “one-way” fares, even if accompanied by prominent and proximate disclosure of the round trip purchase requirement.

(c) When offering a ticket for purchase by a consumer, for passenger air transportation or for a tour (i.e., a combination of air transportation and ground or cruise accommodations) or tour component (e.g., a hotel stay) that must be purchased with air transportation, a direct air carrier, indirect air carrier, an agent of either, or a ticket agent, may not offer additional optional services in connection with air transportation, a tour, or tour component whereby the optional service is automatically added to the consumer's purchase if the consumer takes no other action, i.e., if the consumer does not opt out. The consumer must affirmatively “opt in” (i.e., agree) to such a service and the fee for it before that fee is added to the total price for the air transportation-related purchase. The Department considers the use of “opt-out” provisions to be an unfair and deceptive practice in violation of 49 U.S.C. 41712.

[76 FR 23166, Apr. 25, 2011, as amended by DOT-OST-2022-0109, 89 FR 34674, Apr. 30, 2024; DOT-OST-2026-0199, 91 FR 40371, July 2, 2026]

§ 399.85 Notice of baggage fees and other fees.

(a) If a U.S. or foreign air carrier has a website accessible for ticket purchases by the general public in the U.S., the carrier must promptly and prominently disclose any increase in its fee for carry-on or first and second checked bags and any change in the first and second checked bags or carry-on allowance for a passenger on the homepage of that website (e.g., provide a link that says “changed bag rules” or similarly descriptive language and takes the consumer from the homepage directly to a pop-up or a place on another web page that details the change in baggage allowance or fees and the effective dates of such changes). Such notice must remain on the homepage for at least three months after the change becomes effective.

(b) If a U.S. carrier, a foreign air carrier, an agent of either, or a ticket agent has a website accessible for ticket purchases by the general public in the U.S., the carrier or agent must clearly and prominently disclose on the first screen in which the agent or carrier offers a fare quotation for a specific itinerary selected by a consumer that additional airline fees for baggage may apply and where consumers can see these baggage fees. An agent may refer consumers to the airline websites where specific baggage fee information may be obtained or to its own site if it displays airlines' baggage fees.

(c) On all e-ticket confirmations for air transportation within, to or from the United States, including the summary page at the completion of an online purchase and a post-purchase email confirmation, a U.S. carrier, a foreign air carrier, an agent of either, or a ticket agent that advertises or sells air transportation in the United States must include information regarding the passenger's free baggage allowance and the applicable fee for a carry-on bag and the first and second checked bag. Carriers must provide this information in text form in the e-ticket confirmation. Agents may provide this information in text form in the e-ticket confirmations or through a hyperlink to the specific location on airline websites or their own website where this information is displayed. The fee information provided for a carry-on bag and the first and second checked bag must be expressed as specific charges taking into account any factors (e.g., frequent flyer status, early purchase, and so forth) that affect those charges.

(d) If a U.S. or foreign air carrier has a website marketed to U.S. consumers where it advertises or sells air transportation, the carrier must prominently disclose on its website information on fees for all optional services that are available to a passenger purchasing air transportation. Such disclosure must be clear, with a conspicuous link from the carrier's homepage directly to a page or a place on a page where all such optional services and related fees are disclosed. For purposes of this section, the term “optional services” is defined as any service the airline provides, for a fee, beyond passenger air transportation. Such fees include, but are not limited to, charges for checked or carry-on baggage, advance seat selection, in-flight beverages, snacks and meals, pillows and blankets and seat upgrades. In general, fees for particular services may be expressed as a range; however, baggage fees must be expressed as specific charges taking into account any factors (e.g., frequent flyer status, early purchase, and so forth) that affect those charges.

(e) For air transportation within, to or from the United States, a carrier marketing a flight under its identity that is operated by a different carrier, otherwise known as a code-share flight, must through its website disclose to consumers booked on a code-share flight any differences between its optional services and related fees and those of the carrier operating the flight. This disclosure may be made through a conspicuous notice of the existence of such differences on the marketing carrier's website or a conspicuous hyperlink taking the reader directly to the operating carrier's fee listing or to a page on the marketing carrier's website that lists the differences in policies among code-share partners.

(f) The Department considers the failure to give the appropriate notice described in paragraphs (a) through (e) of this section to be an unfair and deceptive practice within the meaning of 49 U.S.C. 41712.

[DOT-OST-2022-0109, 89 FR 34675, Apr. 30, 2024, as amended by DOT-OST-2026-0199, 91 FR 40371, July 2, 2026]

§ 399.86 Payments for non-air transportation services for air cargo.

The Department considers that payments by air carriers and foreign air carriers to shippers, indirect air carriers, or foreign indirect air carriers for non-air transportation preparation of air cargo shipments are for services ancillary to the air transportation, and are not prohibited under section 403 of the Act.

[PS-86, 44 FR 45609, Aug. 3, 1979]

§ 399.87 Baggage allowances and fees.

For passengers whose ultimate ticketed origin or destination is a U.S. point, U.S. and foreign carriers must apply the baggage allowances and fees that apply at the beginning of a passenger's itinerary throughout his or her entire itinerary. In the case of code-share flights that form part of an itinerary whose ultimate ticketed origin or destination is a U.S. point, U.S. and foreign carriers must apply the baggage allowances and fees of the marketing carrier throughout the itinerary to the extent that they differ from those of any operating carrier.

[Doc. No. DOT-OST-2010-0140, 76 FR 23167, Apr. 25, 2011]

§ 399.88 Prohibition on post-purchase price increase.

(a) It is an unfair and deceptive practice within the meaning of 49 U.S.C. 41712 for any seller of scheduled air transportation within, to or from the United States, or of a tour (i.e., a combination of air transportation and ground or cruise accommodations), or tour component (e.g., a hotel stay) that includes scheduled air transportation within, to or from the United States, to increase the price of that air transportation, tour or tour component to a consumer, including but not limited to an increase in the price of the seat, an increase in the price for the carriage of passenger baggage, or an increase in an applicable fuel surcharge, after the air transportation has been purchased by the consumer, except in the case of an increase in a government-imposed tax or fee. A purchase is deemed to have occurred when the full amount agreed upon has been paid by the consumer.

(b) A seller of scheduled air transportation within, to or from the United States or a tour (i.e., a combination of air transportation and ground or cruise accommodations), or tour component (e.g., a hotel stay) that includes scheduled air transportation within, to or from the United States, must notify a consumer of the potential for a post-purchase price increase due to an increase in a government-imposed tax or fee and must obtain the consumer's written consent to the potential for such an increase prior to purchase of the scheduled air transportation, tour or tour component that includes scheduled air transportation. Imposition of any such increase without providing the consumer the appropriate notice and without obtaining his or her written consent of the potential increase constitutes an unfair and deceptive practice within the meaning of 49 U.S.C. 41712.

[Doc. No. DOT-OST-2010-0140, 76 FR 23167, Apr. 25, 2011, as amended by DOT-OST-2022-0109, 89 FR 34677, Apr. 30, 2024; DOT-OST-2026-0199, 91 FR 40372, July 2, 2026]

§ 399.89 Disclosure of potential for price increase before payment.

Any seller of scheduled air transportation within, to or from the United States, or of a tour (i.e., a combination of air transportation and ground or cruise accommodations), or tour component (e.g., a hotel stay) that includes scheduled air transportation within, to or from the United States, must notify a consumer of the potential for a price increase that could take place prior to the time that the full amount agreed upon has been paid by the consumer, including but not limited to an increase in the price of the seat, an increase in the price for the carriage of passenger baggage, an increase in an applicable fuel surcharge, or an increase in a government-imposed tax or fee and must obtain the consumer's written consent to the potential for such an increase prior to accepting any payment for the scheduled air transportation, or tour or tour component that includes scheduled air transportation. Imposition of any such increase without providing the consumer the appropriate notice and obtaining his or her written consent to the potential increase constitutes an unfair and deceptive practice within the meaning of 49 U.S.C. 41712.

[Doc. No. DOT-OST-2010-0140, 76 FR 23167, Apr. 25, 2011]

§ 399.91 Air carrier participation in programs of technical assistance to airlines of less developed countries.

This policy shall apply to proceedings under 49 U.S.C. 41309 in which the Department is required to make any determination as to the public interest or consistency with 49 U.S.C. Subtitle VII of any agreement or relationship sought to be entered into by an air carrier, or officer or director thereof, with a foreign airline in connection with the performance of some activity pursuant to a technical assistance contract financed by an agency of the U.S. Government.

[Doc. No. DOT-OST-2014-0140, 84 FR 15948, Apr. 16, 2019]

§ 399.120 Duration of certificates in limited-entry markets.

All certificate authority that the Department grants to U.S. air carriers in carrier selection proceedings will be awarded in the form of experimental certificates of five years' duration pursuant to49 U.S.C. 41102 and 41110. This provision does not alter or amend permanent certificates issued prior to January 1, 1985.

[Doc. No. 43403, 51 FR 43188, Dec. 1, 1986, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15948, Apr. 16, 2019]

§ 400.1 Basis.

The basis for the regulations in this chapter is the Commercial Space Launch Act of 1984, and applicable treaties and international agreements to which the United States is party.

§ 400.2 Scope.

The regulations in this chapter set forth the procedures and requirements applicable to the authorization and supervision under 51 U.S.C. subtitle V, chapter 509, of commercial space transportation activities conducted in the United States or by a U.S. citizen. The regulations in this chapter do not apply to—

(a) Space activities carried out by the United States Government on behalf of the United States Government;

(b) The launch of an amateur rocket as defined in § 1.1 of chapter I of this title; or

(c) A launch of a tethered launch vehicle that meets all the following criteria:

(1) Launch vehicle. The launch vehicle must—

(i) Be unmanned;

(ii) Be powered by a liquid or hybrid rocket motor;

(iii) Not use any of the toxic propellants of Table I417-2 and Table I417-3 in Appendix I of part 417 of this chapter; and

(iv) Carry no more than 5,000 pounds of propellant.

(2) Tether system. The tether system must—

(i) Not yield or fail under—

(A) The maximum dynamic load on the system; or

(B) A load equivalent to two times the maximum potential engine thrust.

(ii) Have a minimum safety factor of 3.0 for yield stress and 5.0 for ultimate stress.

(iii) Constrain the launch vehicle within 75 feet above ground level as measured from the ground to the attachment point of the vehicle to the tether.

(iv) Display no damage prior to the launch.

(v) Be insulated or located such that it will not experience thermal damage due to the launch vehicle's exhaust.

(3) Separation distances. The launch operator must separate its launch from the public and the property of the public by a distance no less than that provided for each quantity of propellant listed in Table A of this section.

Table A—Separation Distances for Tethered Launches

Propellant carried (lbs.) | Distance (ft.) of the public and property of the public from the launch point

1-500 | 900

501-1,000 | 1,200

1001-1,500 | 1,350

1,501-2,000 | 1,450

2,001-2,500 | 1,550

2,501-3,000 | 1,600

3,001-3,500 | 1,650

3,501-4,000 | 1,700

4,001-4,500 | 1,750

4,501-5,000 | 1,800

[Doc. No. FAA-2012-0045, 80 FR 31834, June 4, 2015]

§ 401.1 The Office of Commercial Space Transportation.

The Office of Commercial Space Transportation, referred to in these regulations as the “Office,” is a line of business within the Federal Aviation Administration and is located in the Federal Aviation Administration Headquarters, 800 Independence Avenue, SW., Room 331, Washington, DC 20591.

[Amdt. 401-3, 68 FR 35289, June 13, 2003]

§ 401.3 The Associate Administrator for Commercial Space Transportation.

The Office is headed by an Associate Administrator to exercise the Secretary's authority to license or permit and otherwise regulate commercial space transportation and to discharge the Secretary's responsibility to encourage, facilitate, and promote commercial space transportation by the United States private sector.

[Doc. No. FAA-2006-24197, 72 FR 17016, Apr. 6, 2007]

§ 401.5 [Reserved]

§ 401.7 Definitions.

For the purposes of this chapter unless otherwise excepted, the following definitions apply:

Act means 51 U.S.C Subtitle V, Programs Targeting Commercial Opportunities, chapter 509—Commercial Space Launch Activities, 51 U.S.C. 50901-50923.

Anomaly means any condition during licensed or permitted activity that deviates from what is standard, normal, or expected, during the verification or operation of a system, subsystem, process, facility, or support equipment.

Associate Administrator means the Associate Administrator for Commercial Space Transportation, Federal Aviation Administration, or any person designated by the Associate Administrator to exercise the authority or discharge the responsibilities of the Associate Administrator.

Casualty means serious injury or death.

Casualty area means the area surrounding each potential debris or vehicle impact point where serious injuries, or worse, can occur.

Command control system means the portion of a flight safety system that includes all components needed to send a flight abort control signal to the on-board portion of a flight safety system.

Contingency abort means a flight abort with a landing at a planned location that has been designated in advance of vehicle flight.

Countdown means the timed sequence of events that must take place to initiate flight of a launch vehicle or reentry of a reentry vehicle.

Crew means any employee or independent contractor of a licensee, transferee, or permittee, or of a contractor or subcontractor of a licensee, transferee, or permittee, who performs activities in the course of that employment or contract directly relating to the launch, reentry, or other operation of or in a launch vehicle or reentry vehicle that carries human beings. A crew consists of flight crew and any remote operator.

Critical asset means an asset that is essential to the national interests of the United States. Critical assets include property, facilities, or infrastructure necessary for national security purposes, high priority civil space purposes, or assured access to space for national priority missions.

Critical payload means a payload and essential infrastructure directly supporting such a payload that is a critical asset that:

(1) Is so costly or unique that it cannot be readily replaced; or

(2) The time frame for its replacement would adversely affect the national interests of the United States.

Crossrange means the distance measured along a line whose direction is either 90 degrees clockwise (right crossrange) or counter-clockwise (left crossrange) to the projection of a vehicle's planned nominal velocity vector azimuth onto a horizontal plane tangent to the ellipsoidal Earth model at the vehicle's sub-vehicle point. The terms right crossrange and left crossrange may also be used to indicate direction.

Deorbit means the flight of a vehicle that begins with the final command to commit to a perigee below 70 nautical miles (approximately 130 kilometers), and ends when all vehicle components come to rest on the Earth.

Disposal means the return or attempt to return, purposefully, a launch vehicle stage or component, not including a reentry vehicle, from Earth orbit to Earth, in a controlled manner.

Downrange means the distance measured along a line whose direction is parallel to the projection of a vehicle's planned nominal velocity vector azimuth into a horizontal plane tangent to the ellipsoidal Earth model at the vehicle sub-vehicle point. The term downrange may also be used to indicate direction.

Effective casualty area means the aggregate casualty area of each piece of debris created by a vehicle failure at a particular point on its trajectory. The effective casualty area for each piece of debris is a modeling construct in which the area within which 100 percent of the population are assumed to be a casualty, and outside of which 100 percent of the population are assumed not to be a casualty.

Equivalent level of safety means an approximately equal level of safety as determined by qualitative or quantitative means.

Expected casualty means the mean number of casualties predicted to occur per flight operation if the operation were repeated many times.

Expendable launch vehicle means a launch vehicle whose propulsive stages are flown only once.

Experimental permit or permit means an authorization by the FAA to a person to launch or reenter a reusable suborbital rocket.

Explosive debris means solid propellant fragments or other pieces of a vehicle or payload that result from breakup of the vehicle during flight and that explode upon impact with the Earth's surface and cause overpressure.

Federal launch or reentry site means a launch or reentry site, from which launches routinely take place, that is owned and operated by the government of the United States.

Flight abort means the process to limit or restrict the hazards to public safety, and the safety of property, presented by a launch vehicle or reentry vehicle, including any payload, while in flight by initiating and accomplishing a controlled ending to vehicle flight.

Flight abort rules means the conditions under which a flight safety system must abort the flight to ensure compliance with the safety criteria in § 450.101.

Flight crew means crew that is on board a vehicle during a launch or reentry.

Flight hazard area means any region of land, sea, or air that must be surveyed, publicized, controlled, or evacuated to ensure compliance with the safety criteria in § 450.101.

Flight safety limit means criteria to ensure that public safety and critical assets are protected from the flight of a vehicle when a flight safety system functions properly.

Flight safety system means a system used to implement flight abort. A flight safety system includes any flight safety system located on board a launch or reentry vehicle; any ground based command control system; any support system, including telemetry subsystems and tracking subsystems, necessary to support a flight abort decision; and the functions of any personnel who operate the flight safety system hardware or software.

Government astronaut means an individual who—

(1) Is designated by the National Aeronautics and Space Administration under Title 51, United States Code, Section 20113(n);

(2) Is carried within a launch vehicle or reentry vehicle in the course of their employment, which may include performance of activities directly relating to the launch, reentry, or other operation of the launch vehicle or reentry vehicle; and

(3) Is either—

(i) An employee of the United States Government, including the uniformed services, engaged in the performance of a Federal function under authority of law or an Executive act; or

(ii) An international partner astronaut.

Hazard control means a preventative measure or mitigation put in place for systems or operations to reduce the severity of a hazard or the likelihood of the hazard occurring.

Hazardous debris means any object or substance capable of causing a casualty or loss of functionality to a critical asset. Hazardous debris includes inert debris and explosive debris such as an intact vehicle, vehicle fragments, any detached vehicle component whether intact or in fragments, payload, and any planned jettison bodies.

Hazardous materials means hazardous materials as defined in 49 CFR 172.101.

Instantaneous impact point means a predicted impact point, following thrust termination of a vehicle.

International partner astronaut means an individual designated under Article 11 of the International Space Station Intergovernmental Agreement, by a partner to that agreement other than the United States, as qualified to serve as an International Space Station crew member.

International Space Station Intergovernmental Agreement means the Agreement Concerning Cooperation on the International Space Station, signed in Washington, DC, on January 29, 1998 (TIAS 12927).

Key flight safety event means a flight activity that has an increased likelihood of causing a failure compared with other portions of flight.

Launch means to place or try to place a launch vehicle or reentry vehicle and any payload or human being from Earth in a suborbital trajectory, in Earth orbit in outer space, or otherwise in outer space, including activities involved in the preparation of a launch vehicle or payload for launch, when those activities take place at a launch site in the United States.

Launch operator means a person who conducts or who will conduct the launch of a launch vehicle and any payload.

Launch or reentry system means the integrated set of subsystems, personnel, products, and processes that, when combined, carries out a launch or reentry.

Launch site means the location on Earth from which a launch takes place (as defined in a license the Secretary issues or transfers under this chapter) and necessary facilities at that location.

Launch vehicle means a vehicle built to operate in, or place a payload in, outer space or a suborbital rocket.

Launch window means an approved period of time during which the flight of a launch vehicle may be initiated.

Liftoff means any motion of the launch vehicle with intention to initiate flight.

Limits of a useful mission means the trajectory data or other parameters that bound the performance of a useful mission, including flight azimuth limits.

Mishap means any event, or series of events associated with a licensed or permitted activity resulting in any of the following:

(1) A fatality or serious injury (as defined in 49 CFR 830.2);

(2) A malfunction of a safety-critical system;

(3) A failure of the licensee's or permittee's safety organization, safety operations, safety procedures;

(4) High risk, as determined by the FAA, of causing a serious or fatal injury to any space flight participant, crew, government astronaut, or member of the public;

(5) Substantial damage, as determined by the FAA, to property not associated with licensed or permitted activity;

(6) Unplanned substantial damage, as determined by the FAA, to property associated with licensed or permitted activity;

(7) Unplanned permanent loss of a launch or reentry vehicle during licensed activity or permitted activity;

(8) The impact of hazardous debris outside the planned landing site or designated hazard area; or

(9) Failure to complete a launch or reentry as planned as reported in § 450.213(b).

Neighboring operations personnel means those members of the public located within a launch or reentry site, or an adjacent launch or reentry site, who are not associated with a specific hazardous licensed or permitted operation currently being conducted, but are required to perform safety, security, or critical tasks at the site and are notified of the operation.

Nominal means, in reference to launch vehicle performance, trajectory, or stage impact point, a launch vehicle flight where all vehicle aerodynamic parameters are as expected, all vehicle internal and external systems perform exactly as planned, and there are no external perturbing influences other than atmospheric drag and gravity.

Normal flight means the flight of a properly performing vehicle whose real-time vacuum instantaneous impact point does not deviate from the nominal vacuum instantaneous impact point by more than the sum of the wind effects and the three-sigma guidance and performance deviations in the uprange, downrange, left-crossrange, or right-crossrange directions.

Normal trajectory means a trajectory that describes normal flight.

Operating environment means an environment that a launch or reentry vehicle component will experience during its lifecycle. Operating environments include shock, vibration, thermal cycle, acceleration, humidity, thermal vacuum, or other environments relevant to system or material degradation.

Operation hazard means a hazard created by an operating environment or by an unsafe act.

Operation of a launch site means the conduct of approved safety operations at a permanent site to support the launching of vehicles and payloads.

Operation of a reentry site means the conduct of safety operations at a permanent site on Earth at which a reentry vehicle and its payload, if any, is intended to land.

Operator means a holder of a license or permit under 51 U.S.C. Subtitle V, chapter 509.

Orbital insertion means the point at which a vehicle achieves a minimum 70-nautical mile perigee based on a computation that accounts for drag.

Payload means an object that a person undertakes to place in outer space by means of a launch vehicle, including components of the vehicle specifically designed or adapted for that object.

Person means an individual or an entity organized or existing under the laws of a State or country.

Physical containment means a launch vehicle does not have sufficient energy for any hazards associated with its flight to reach the public or critical assets.

Physical electronic storage means a physical device that can store electronic documents and files including but not limited to an optical disc, a memory card, a USB flash drive, or an external hard drive.

Pilot means a flight crew member who has the ability to control, in real time, a launch or reentry vehicle's flight path.

Populated area means—

(1) An outdoor location, structure, or cluster of structures that may be occupied by people;

(2) Sections of roadways and waterways that are frequented by automobile and boat traffic; or

(3) Agricultural lands, if routinely occupied by field workers.

Probability of casualty means the likelihood that a person will suffer a serious injury or worse, including a fatal injury, due to all hazards from an operation at a specific location.

Public means, for a particular licensed or permitted launch or reentry, people that are not involved in supporting the launch or reentry and includes those people who may be located within the launch or reentry site, such as visitors, individuals providing goods or services not related to launch or reentry processing or flight, and any other operator and its personnel.

Reenter; reentry means to return or attempt to return, purposefully, a reentry vehicle and its payload or human being, if any, from Earth orbit or from outer space to Earth.

Reentry operator means a person responsible for conducting the reentry of a reentry vehicle as specified in a license issued by the FAA.

Reentry site means the location on Earth where a reentry vehicle is intended to return. It includes the area within three standard deviations of the intended landing point (the predicted three-sigma footprint).

Reentry vehicle means a vehicle designed to return from Earth orbit or outer space to Earth substantially intact. A reusable launch vehicle that is designed to return from Earth orbit or outer space to Earth substantially intact is a reentry vehicle.

Reentry window means an approved period of time during which the reentry of a reentry vehicle may be initiated.

Remote operator means a crew member who—

(1) Has the ability to control, in real time, a launch or reentry vehicle's flight path; and

(2) Is not on board the controlled vehicle.

Reusable launch vehicle (RLV) means a launch vehicle that is designed to return to Earth substantially intact and therefore may be launched more than one time or that contains vehicle stages that may be recovered by a launch operator for future use in the operation of a substantially similar launch vehicle.

Risk means a measure that accounts for both the probability of occurrence of a hazardous event and the consequence of that event to persons or property.

Safety critical means essential to safe performance or operation. A safety-critical system, subsystem, component, condition, event, operation, process, or item, is one whose proper recognition, control, performance, or tolerance, is essential to ensuring public safety and the safety of property.

Service life means, for a safety-critical system component, the sum total of the component's storage life and operating life.

Sigma means a single standard deviation from a fixed value, such as a mean.

Software function means a collection of computer code that implements a requirement or performs an action. This includes firmware and operating systems.

Space flight participant means an individual, who is not crew or a government astronaut, carried on board a launch vehicle or reentry vehicle.

State and United States means, when used in a geographical sense, the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the United States Virgin Islands, Guam, and any other commonwealth, territory, or possession of the United States.

Suborbital rocket means a vehicle, rocket-propelled in whole or in part, intended for flight on a suborbital trajectory, and the thrust of which is greater than its lift for the majority of the rocket-powered portion of its ascent.

Suborbital trajectory means 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.

Sub-vehicle point means the location on an ellipsoidal Earth model where the normal to the ellipsoid passes through the vehicle's center of gravity.

System hazard means a hazard associated with a system and generally exists even when no operation is occurring.

Tether system means a device that contains launch vehicle hazards by physically constraining a launch vehicle in flight to a specified range from its launch point. A tether system includes all components, from the tether's point of attachment to the vehicle to a solid base, that experience load during a tethered launch.

Toxic hazard area means a region on the Earth's surface where toxic concentrations and durations may be greater than accepted toxic thresholds for acute casualty, in the event of a worst case release or maximum credible release scenario during launch or reentry.

Uncontrolled area is an area of land not controlled by a launch or reentry operator, a launch or reentry site operator, an adjacent site operator, or other entity by agreement.

Unguided suborbital launch vehicle means a suborbital rocket that does not contain active guidance or a directional control system.

United States citizen means:

(1) Any individual who is a citizen of the United States;

(2) Any corporation, partnership, joint venture, association, or other entity organized or existing under the laws of the United States or any State; and

(3) Any corporation, partnership, joint venture, association, or other entity which is organized or exists under the laws of a foreign nation, if the controlling interest in such entity is held by an individual or entity described in paragraph (1) or (2) of this definition. Controlling interest means ownership of an amount of equity in such entity sufficient to direct management of the entity or to void transactions entered into by management. Ownership of at least fifty-one percent of the equity in an entity by persons described in paragraph (1) or (2) of this definition creates a rebuttable presumption that such interest is controlling.

Uprange means the distance measured along a line that is 180 degrees to the downrange direction.

Useful mission means a mission that can attain one or more objectives.

Validation means an evaluation to determine that each safety measure derived from a system safety process is correct, complete, consistent, unambiguous, verifiable, and technically feasible. Validation ensures that the right safety measure is implemented, and that the safety measure is well understood.

Verification means an evaluation to determine that safety measures derived from a system safety process are effective and have been properly implemented. Verification provides measurable evidence that a safety measure reduces risk to acceptable levels.

Wind weighting safety system means equipment, procedures, analysis and personnel functions used to determine the launcher elevation and azimuth settings that correct for wind effects that an unguided suborbital launch vehicle will experience during flight.

Window closure means a period of time when launch or reentry is not permitted in order to avoid a collision with an object in orbit. A window closure may occur within a launch or reentry window, may delay the start of a window, or terminate a window early.

[Doc. No. FAA-2019-0229, Amdt. 401-9, 85 FR 79707, Dec. 10, 2020; Doc. No. FAA-2023-1656, Amdt. No. 401-10, 89 FR 76726, Sept. 19, 2024]

§ 402.1 Applicability and definitions.

(a) This part applies to any person subject to the requirements in subchapter C of this chapter.

(b) For purposes of this part, “document in any format” includes documents (electronic or physical), and also other tangible items, such as data plates or marked parts.

§ 402.3 Falsification, reproduction, alteration, or omission.

(a) No person may make or cause to be made any fraudulent or intentionally false statement in:

(1) Any document in any format, submitted under any provision referenced in § 402.1 of this part, consisting of or related to any acceptance, application, approval, authorization, permit, license, waiver, record, report, or similar; or

(2) Any document in any format that is kept, made, or used to show compliance with any requirement under the provisions referenced in § 402.1.

(b) No person may make or cause to be made any production, reproduction, or alteration, for fraudulent purpose, of:

(1) Any document in any format, submitted or granted under any provision referenced in § 402.1, consisting of or related to any acceptance, application, approval, authorization, permit, license, waiver, record, report, or similar; or

(2) Any document in any format that is kept, made, or used to show compliance with any requirement under the provisions referenced in § 402.1.

(c) No person may knowingly omit or cause to be omitted a material fact in:

(1) Any document in any format, submitted under any provision referenced in § 402.1, consisting of or related to any acceptance, application, approval, authorization, permit, license, waiver, record, report, or similar; or

(2) Any document in any format that is kept, made, or used to show compliance with any requirement under the provisions referenced in § 402.1.

(d) The commission by any person of an act prohibited under paragraphs (a) through (c) of this section is a basis for:

(1) Denying, suspending, modifying, revoking, rescinding, removing, or withdrawing any acceptance, application, approval, authorization, permit, license, waiver, or similar, issued or granted by the Administrator and held by that person; or

(2) A civil penalty.

§ 402.5 Incorrect statement or omission.

(a) The following may serve as a basis for suspending, modifying, revoking, rescinding, removing, withdrawing, or denying an acceptance, application, approval, authorization, permit, license, waiver, or similar, issued or granted by the Administrator:

(1) An incorrect statement or omission of fact, by any person, in or from any document in any format, submitted under any provision referenced in § 402.1, that was material to the issuance, validity, or granting of that acceptance, application, approval, authorization, permit, license, waiver, or similar; or

(2) An incorrect statement or omission of a material fact by any person, in or from any document in any format that is kept, made, or used to show compliance with any requirement under the provisions referenced in § 402.1, that was material to the issuance, validity, or granting of that acceptance, application, approval, authorization, permit, license, waiver, or similar.

(b) [Reserved]

§ 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.

[Doc. No. FAA-2016-6761, Amdt. No. 404-6, 83 FR 28534, June 20, 2018]

§ 404.3 General.

(a) Any person may petition the Associate Administrator to:

(1) Issue, amend, or repeal a regulation to eliminate as a requirement for a license or permit any requirement of Federal law applicable to commercial space launch and reentry activities and the operation of launch and reentry sites;

(2) Waive any such requirement in the context of a specific application for a license or permit; or

(3) Waive the requirement for a license, except as provided in § 404.7(b).

(b) A petition filed under this section may request, under § 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 ASTpetition@faa.gov; or

(2) For paper submission, send one copy of 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.

[Doc. No. FAA-2005-21234, 71 FR 51971, Aug. 31, 2006, as amended at 72 FR 68475, Dec. 5, 2007; Doc. No. FAA-2016-6761; Amdt. No. 404-6, 83 FR 28534, June 20, 2018]

§ 404.5 Filing a petition for waiver.

(a) A petition for waiver must be submitted at least 60 days before the proposed effective date of the waiver, unless the Administrator agrees to a different time frame in accordance with § 404.15.

(b) The petition for waiver must include:

(1) The specific section or sections of 14 CFR chapter III from which the petitioner seeks relief;

(2) The extent of the relief sought and the reason the relief is being sought;

(3) The reason 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; and

(4) Any additional facts, views, and data available to the petitioner to support the waiver request.

[Doc. No. FAA-2019-0229, Amdt. 404-7, 85 FR 79709, Dec. 10, 2020]

§ 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 of property, or any national security or foreign policy interest of the United States.

(b) Waiver ineligibility. 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.

[Doc. No. FAA-2016-6761, Amdt. No. 404-6, 83 FR 28534, June 20, 2018]

§ 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.

[Doc. No. FAA-2016-6761, Amdt. No. 404-6, 83 FR 28534, June 20, 2018]

§ 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.

[Doc. No. FAA-2016-6761, Amdt. No. 404-6, 83 FR 28534, June 20, 2018]

§ 404.13 Rulemaking.

(a) The FAA's rulemaking procedures are located in subpart A of part 11 of this title, 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 §§ 404.17 and 404.19 also apply.

[Doc. No. FAA-2016-6761, Amdt. No. 404-6, 83 FR 28534, June 20, 2018]

§ 404.15 Alternative Time Frames.

(a) General. Unless otherwise approved by the Administrator, an applicant, a licensee, a permittee, or a safety element approval holder must meet the time frames set forth in this chapter.

(b) Request to change a time frame. An applicant, a licensee, a permittee, or a safety element approval holder may file a written request to the FAA to propose an alternative time frame to any of the time frames included in the chapter III sections listed in Appendix A to part 404. The request must be—

(1) Emailed to ASTApplications@faa.gov in accordance with § 413.7; or

(2) Mailed to the Federal Aviation Administration, Associate Administrator for Commercial Space Transportation, Room 331, 800 Independence Avenue SW, Washington, DC 20591. Attention: Alternative Time Frame Request.

(c) Administrator review. The Administrator will review and make a decision or grant a request for an alternative time frame as follows:

(1) The FAA will conduct its review on a case-by-case basis, taking into account the complexity of the request, the timeliness of the request, and whether the requested alternative allows sufficient time for the FAA to conduct its review and make the requisite public health and safety, safety of property, and national security and foreign policy findings;

(2) The FAA will provide its decision in writing; and

(3) The FAA may grant the request, deny the request, or grant an alternative time frame that differs from what was requested.

[Doc. No. FAA-2019-0229, Amdt. 404-7, 85 FR 79710, Dec. 10, 2020]

§ 404.17 Additional rulemaking proceedings.

The FAA may initiate other rulemaking proceedings, if necessary or desirable. For example, it may invite interested people to present oral arguments, participate in conferences, appear at informal hearings, or participate in any other proceedings.

[Doc. No. FAA-2006-24197, 72 FR 17016, Apr. 6, 2007]

§ 404.19 Hearings.

(a) Sections 556 and 557 of Title 5, United States Code, do not apply to hearings held under this part. As a fact-finding forum, each hearing held under this part is nonadversarial and there are no formal pleadings or adverse parties. Any rule issued in a proceeding in which a hearing is held is not based exclusively on the record of the hearing, but on the entire record of the rulemaking proceeding.

(b) The Associate Administrator designates a representative to conduct any hearing held under this part. The FAA Chief Counsel designates a legal officer for the hearing.

[53 FR 11013, Apr. 4, 1988, as amended by Amdt. 404-2, 68 FR 35289, June 13, 2003]

§ 405.1 Monitoring of licensed, permitted, and other activities.

Each licensee or permittee must allow access by and cooperate with Federal officers or employees or other individuals authorized by the Associate Administrator to observe licensed facilities and activities, including launch sites and reentry sites, as well as manufacturing, production, testing, and training facilities, or assembly sites used by any contractor, licensee, or permittee to produce, assemble, or test a launch or reentry vehicle and to integrate a payload with its launch or reentry vehicle. Observations are conducted to monitor the activities of the licensee, permittee, or contractor at such time and to such extent as the Associate Administrator considers reasonable and necessary to determine compliance with the license or permit or to perform the Associate Administrator's responsibilities pertaining to payloads for which no Federal license, authorization, or permit is required.

[Doc. No. FAA-2006-24197, 72 FR 17016, Apr. 6, 2007]

§ 405.3 Authority to modify, suspend or revoke.

(a) The FAA may modify a license or permit issued under this chapter upon application by the licensee or permittee or upon the FAA's own initiative, if the FAA finds that the modification is consistent with the requirements of the Act.

(b) The FAA may suspend or revoke any license or permit issued to such licensee or permittee under this chapter if the FAA finds that a licensee or permittee has substantially failed to comply with any requirement of the Act, any regulation issued under the Act, the terms and conditions of a license or permit, or any other applicable requirement; or that public health and safety, the safety of property, or any national security or foreign policy interest of the United States so require.

(c) Unless otherwise specified by the Office, any modification, suspension or revocation made by the Office under this section:

(1) Takes effect immediately; and

(2) Continues in effect during any review of such action under Part 406 of this chapter.

(d) Whenever the FAA takes any action under this section, the FAA immediately notifies the licensee or permittee in writing of the FAA's finding and the action, which the FAA has taken or proposes to take regarding such finding.

[Doc. No. 43810, 53 FR 11014, Apr. 4, 1988, as amended by Amdt. 405-3, 72 FR 17016, Apr. 6, 2007]

§ 405.5 Emergency orders.

The Associate Administrator may immediately terminate, prohibit, or suspend a licensed or permitted launch, reentry, or operation of a launch or reentry site if the Associate Administrator determines that—

(a) The licensed or permitted launch, reentry, or operation of a launch or reentry site is detrimental to public health and safety, the safety of property, or any national security or foreign policy interest of the United States; and

(b) The detriment cannot be eliminated effectively through the exercise of other authority of the Office.

[53 FR 11014, Apr. 4, 1988, as amended by Amdt. 405-1, 65 FR 56657, Sept. 19, 2000; Amdt. 405-3, 72 FR 17017, Apr. 6, 2007]

§ 406.1 Hearings in license, permit, and payload actions.

(a) Pursuant to 51 U.S.C. 50912, the following are entitled to a determination on the record after an opportunity for a hearing in accordance with 5 U.S.C. 554.

(1) An applicant for a license and a proposed transferee of a license regarding any decision to issue or transfer a license with conditions or to deny the issuance or transfer of such license;

(2) An owner or operator of a payload regarding any decision to prevent the launch or reentry of the payload;

(3) A licensee regarding any decision to suspend, modify, or revoke a license or to terminate, prohibit, or suspend any licensed activity;

(4) An applicant for a permit regarding an FAA decision to issue a permit with conditions or to deny the issuance of the permit; and

(5) A permittee regarding any decision to suspend, modify, or revoke a permit or to terminate, prohibit, or suspend any permitted activity.

(b) An administrative law judge will be designated to preside over any hearing held under this part.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-4, 72 FR 17017, Apr. 6, 2007; Amdt. 406-7, 77 FR 20532, Apr. 5, 2012]

§ 406.3 Submissions; oral presentation in license, permit, and payload actions.

(a) The FAA will make decisions about license, permit, and payload actions under this subpart based on written submissions unless the administrative law judge requires an oral presentation.

(b) Submissions must include a detailed exposition of the evidence or arguments supporting the petition. Where an applicant must demonstrate an equivalent level of safety or fidelity, the applicant must make a clear and convincing demonstration.

(c) Petitions shall be filed as soon as practicable, but in no event more than 30 days after issuance of decision or finding under § 406.1.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-3, 71 FR 50530, Aug. 25, 2006; Amdt. 406-4, 72 FR 17017, Apr. 6, 2007]

§ 406.5 Administrative law judge's recommended decision in license, permit, and payload actions.

(a) The Associate Administrator, who shall make the final decision on the matter at issue, shall review the recommended decision of the administrative law judge. The Associate Administrator shall make such final decision within thirty days of issuance of the recommended decision.

(b) The authority and responsibility to review and decide rests solely with the Associate Administrator and may not be delegated.

§ 406.7 [Reserved]

§ 406.9 Civil penalties.

(a) Civil penalty liability. Under 51 U.S.C. 50917(c), a person found by the Federal Aviation Administration (FAA) to have violated a requirement of the Act, a regulation issued under the Act, or any term or condition of a license or permit issued or transferred under the Act, is liable to the United States for a civil penalty of not more than $299,772 for each violation. A separate violation occurs for each day the violation continues.

(b) Delegations. The authority to impose civil penalties is exercised by an agency attorney as described in § 406.105.

(c) Notice of proposed civil penalty. A civil penalty action is initiated when the agency attorney advises a person, referred to as the respondent, of the charges or other reasons upon which the FAA bases the proposed action and allows the respondent to answer the charges and to be heard as to why the civil penalty should not be imposed. A notice of proposed civil penalty states the facts alleged; any requirement of the Act, a regulation issued under the Act, or any term or condition of a license or permit issued or transferred under the Act allegedly violated by the respondent; and the amount of the proposed civil penalty. Not later than 30 days after receipt of the notice of proposed civil penalty the respondent may elect to proceed by one or more of the following:

(1) Pay the amount of the proposed civil penalty or an agreed upon amount, in which case the agency attorney will issue either an order imposing civil penalty or a compromise order in that amount.

(2) Submit to the agency attorney one of the following:

(i) Written information, including documents and witnesses statements, demonstrating that a violation did not occur or that a penalty, or the amount of the proposed penalty, is not warranted by the circumstances.

(ii) A written request to reduce the proposed civil penalty, the amount of reduction, and the reasons and any document supporting a reduction of the proposed civil penalty, including records indicating a financial inability to pay or records showing that payment of the proposed civil penalty would prevent the person from continuing in business.

(iii) A written request for an informal conference to discuss the matter with the agency attorney and to submit relevant information.

(3) Request that a final notice of proposed civil penalty be issued so that the respondent may request a hearing in accordance with paragraph (g) of this section.

(d) Final notice of proposed civil penalty. A final notice of proposed civil penalty (final notice) provides the last opportunity for the respondent to request a hearing.

(1) The agency attorney issues a final notice if one of the following occurs:

(i) The respondent fails to respond to the notice of proposed civil penalty not later than 30 days after the date the respondent received the notice of proposed civil penalty.

(ii) The parties have not agreed to a resolution of the action after participating in informal procedures under paragraph (c)(2) of this section.

(iii) The respondent requests the issuance of a final notice in accordance with paragraph (c)(3) of this section.

(2) Not later than 15 days after the date the respondent received the final notice of proposed civil penalty, the respondent shall do one of the following:

(i) Submit the amount of the proposed civil penalty or an agreed-upon amount, in which case the agency attorney issues either an order imposing civil penalty or a compromise order in that amount.

(ii) Request a hearing in accordance with paragraph (g) of this section.

(e) Order imposing civil penalty. An order imposing civil penalty is the final order of the Secretary imposing a civil penalty. An order imposing civil penalty is issued for a violation described in paragraph (a) of this section after notice and an opportunity for a hearing.

(1) The agency attorney either issues an order imposing civil penalty, or another document becomes an order imposing civil penalty, as described below.

(i) The agency attorney issues an order imposing civil penalty if, in response to a notice of proposed civil penalty or a final notice of proposed civil penalty, the respondent pays or agrees to pay a civil penalty in the amount proposed or an agreed upon amount (other than an agreement for a compromise order under paragraph (f) of this section).

(ii) Unless the respondent requests a hearing not later than 15 days after the date the respondent received a final notice of proposed civil penalty, the final notice of proposed civil penalty becomes an order imposing civil penalty.

(iii) Unless an appeal is filed with the FAA decisionmaker in accordance with § 406.175, if the administrative law judge finds that a violation occurred and determines that a civil penalty, in an amount found appropriate by the administrative law judge, is warranted, an initial decision of an administrative law judge under subpart B of this part becomes an order imposing civil penalty.

(iv) Unless a complaint is filed with a United States district court in accordance with § 406.176, if the FAA decisionmaker finds that a violation occurred and determines that a civil penalty, in an amount found appropriate by the FAA decisionmaker, is warranted, a final decision and order of the FAA decisionmaker under subpart B of this part becomes an order imposing civil penalty. If a person seeks judicial review not later than 60 days after the final decision and order has been served on the respondent, the final decision and order is stayed.

(2) [Reserved]

(f) Compromise order. The agency attorney at any time may agree to compromise any civil penalty with no finding of violation. Under such agreement, the agency attorney issues a compromise order stating:

(1) The respondent agrees to pay a civil penalty.

(2) The FAA makes no finding of a violation.

(3) The compromise order may not be used as evidence of a prior violation in any subsequent civil penalty action, license, or permit action.

(g) Request for hearing. Any respondent who has been issued a final notice of proposed civil penalty may, not later than 15 days after the date the respondent received the final notice, request a hearing under subpart B of this part.

(1) The respondent must file a written request for hearing with the Federal Docket Management System (U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590) and must serve a copy of the request on the agency attorney. Sections 406.113 and 406.115 state how filing and service must be done.

(2) The request for hearing must be dated and signed.

(h) Method of payment. A respondent must pay a civil penalty by check or money order, payable to the Federal Aviation Administration.

(i) Collection of civil penalties. If a respondent does not pay a civil penalty imposed by an order imposing civil penalty or a compromise order within 60 days after service of the final order, the FAA may refer the order to the United States Department of Treasury or Department of Justice to collect the civil penalty.

(j) Exhaustion of administrative remedies. A respondent may seek judicial review of a final decision and order of the FAA decisionmaker as provided in § 406.179. A respondent has not exhausted administrative remedies for purposes of judicial review if the final order is one of the following:

(1) An order imposing civil penalty issued by an agency attorney under paragraph (e)(1)(i) of this section.

(2) A final notice of proposed civil penalty that becomes an order imposing civil penalty under paragraph (e)(1)(ii) of this section.

(3) An initial decision of an administrative law judge that was not appealed to the FAA decisionmaker.

(4) A compromise order under paragraph (f) of this section.

(k) Compromise. The FAA may compromise or remit a civil penalty that has been proposed or imposed under this section.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-4, 72 FR 17017, Apr. 6, 2007; 72 FR 68475, Dec. 5, 2007; 75 FR 30693, June 2, 2010; Amdt. 406-7, 77 FR 20532, Apr. 5, 2012; 79 FR 61992, Oct. 16, 2014; Amdt. 406-10, 81 FR 43469, July 5, 2016; Doc. No. FAA-2016-7004, Amdt. 406-11, 82 FR 17101, Apr. 10, 2017; 83 FR 60743, Nov. 27, 2018; 84 FR 37070, July 31, 2019; 86 FR 1755, Jan. 11, 2021; 86 FR 23251, May 3, 2021; 87 FR 15865, Mar. 21, 2022; 88 FR 1124, Jan. 6, 2023; 88 FR 89559, Dec. 28, 2023; 89 FR 106292, Dec. 30, 2024]

§§ 406.10-406.100 [Reserved]

§ 406.101 Applicability.

(a) Adjudications to which these rules apply. These rules apply to the following adjudications:

(1) A civil penalty action in which the respondent has requested a hearing under § 406.9.

(2) [Reserved]

(b) [Reserved]

§ 406.103 Definitions that apply in part 406.

For the purpose of this part:

Administrative law judge means an administrative law judge appointed pursuant to the provisions of 5 U.S.C. 3105.

Attorney means a person licensed by a state, the District of Columbia, or a territory of the United States to practice law or appear before the courts of that state or territory.

Complainant in a civil penalty action means the proponent of the civil penalty in the FAA.

FAA decisionmaker means the Associate Administrator for Commercial Space Transportation, or the Administrator of the Federal Aviation Administration, acting in the capacity of the decisionmaker on appeal; or a person who has been delegated the authority to act for the FAA decisionmaker. As used in this part, the FAA decisionmaker is the official authorized to issue a final decision and order of the Secretary in an action.

Mail means U.S. first class mail, U.S. certified mail, U.S. registered mail, or an express courier service.

Party means the respondent or the complainant.

Personal delivery includes hand-delivery or use of a same-day messenger service. “Personal delivery” does not include the use of Government interoffice mail service.

Properly addressed means using an address contained in agency records; a residential, business, or other address used by a person on any document submitted under this part; or any other address determined by other reasonable and available means.

Respondent means a person who has been charged with a violation.

§ 406.105 Separation of functions for prosecuting civil penalties and advising the FAA decisionmaker.

(a) Agency attorney. The authority to prosecute civil penalties within the FAA is exercised by an agency attorney in accordance with § 406.9.

(1) The following officials have the authority to act as the agency attorney under this part: The Deputy Chief Counsel; the Assistant Chief Counsel for Enforcement; the Assistant Chief Counsel for Regulations; the Assistant Chief Counsel for Europe, Africa, and Middle East Area Office; each Regional Counsel; and each Center Counsel. This authority may be delegated further.

(2) An agency attorney may not include:

(i) The Chief Counsel or the Assistant Chief Counsel for Litigation;

(ii) Any attorney on the staff of the Assistant Chief Counsel for Litigation who advises the FAA decisionmaker regarding an initial decision or any appeal to the FAA decisionmaker; or

(iii) Any attorney who is supervised in a civil penalty action by a person who provides such advice to the FAA decisionmaker in that action or a factually-related action.

(b) Advisors to the FAA decisionmaker. (1) The Chief Counsel, the Assistant Chief Counsel for Litigation or an attorney on the staff of the Assistant Chief Counsel for Litigation, will advise the FAA decisionmaker regarding an initial decision or any appeal of an action to the FAA decisionmaker.

(2) An agency employee engaged in the performance of investigative or prosecutorial functions must not, in that case or a factually-related case, participate or give advice in a decision by the administrative law judge or by the FAA decisionmaker on appeal, except as counsel or a witness in the public proceedings.

§ 406.107 Appearances of parties, and attorneys and representatives.

(a) Any party may appear and be heard in person.

(b) Any party may be accompanied, represented, or advised by an attorney or representative designated by the party.

(1) An attorney or representative who represents a party must file a notice of appearance in the action with the Docket Management System and must serve a copy of the notice of appearance on each other party before participating in any proceeding governed by this subpart.

(2) The attorney or representative must include his or her name, address, and telephone number in the notice of appearance.

(3) That attorney or representative in any proceeding governed by this subpart may examine the party.

(4) Service of a document on the party's attorney or representative is considered to be service on the party.

(c) An agency attorney represents the complainant.

§ 406.109 Administrative law judges—powers and limitations.

(a) Powers of an administrative law judge. In accordance with the rules of this subpart, an administrative law judge may:

(1) Give notice of, and hold, prehearing conferences and hearings;

(2) Administer oaths and affirmations;

(3) Issue subpoenas authorized by law and requested by the parties;

(4) Rule on offers of proof;

(5) Receive relevant and material evidence;

(6) Regulate the course of the hearing in accordance with the rules of this subpart;

(7) Hold conferences to settle or to simplify the issues by consent of the parties;

(8) Dispose of procedural motions and requests; and

(9) Make findings of fact and conclusions of law, and issue an initial decision.

(b) Duties to maintain the record. (1) The administrative law judge must file with the FDMS, or instruct the party to file with the FDMS, a copy of each document that is submitted to the administrative law judge that has not bee filed with FDMS, except the portions of those documents that contain confidential information.

(2) The administrative law judge must file with the FDMS a copy of each ruling and order issued by the administrative law judge, except those portions that contain confidential information.

(3) The administrative law judge must file with the FDMS, or instruct the court reporter to file with the FDMS, a copy of each transcript and exhibit, except those portions that contain confidential information.

(4) The administrative law judge must maintain any confidential information filed in accordance with § 406.117 and deliver it to the Assistant Chief Counsel for Litigation when the administrative law judge no longer needs it.

(c) Limitations on the power of the administrative law judge. The administrative law judge may not issue an order of contempt, award costs to any party, or impose any sanction not specified in this subpart. If the administrative law judge imposes any sanction not specified in this subpart, a party may file an interlocutory appeal of right pursuant to § 406.173(c). This section does not preclude an administrative law judge from issuing an order that bars a person from a specific proceeding based on a finding of obstreperous or disruptive behavior in that specific proceeding.

(d) Disqualification. The administrative law judge may disqualify himself or herself at any time. A party may file a motion, pursuant to § 406.141(f)(8), requesting that an administrative law judge be disqualified from the proceedings.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68475, Dec. 5, 2007]

§ 406.111 Signing documents.

(a) Signature required. The party, or the party's attorney or representative, must sign each document tendered for filing or served on each party.

(b) Effect of signing a document. By signing a document, the party, or the party's attorney or representative, certifies that he or she has read the document and, based on reasonable inquiry and to the best of that individual's knowledge, information, and belief, the document is—

(1) Consistent with these rules;

(2) Warranted by existing law or that a good faith argument exists for extension, modification, or reversal of existing law; and

(3) Not unreasonable or unduly burdensome or expensive, not made to harass any person, not made to cause unnecessary delay, not made to cause needless increase in the cost of the proceedings, or for any other improper purpose.

(c) Sanctions. If an individual signs a document in violation of this section, the administrative law judge or the FAA decisionmaker must:

(1) Strike the pleading signed in violation of this section;

(2) Strike the request for discovery or the discovery response signed in violation of this section and preclude further discovery by the party;

(3) Deny the motion or request signed in violation of this section;

(4) Exclude the document signed in violation of this section from the record;

(5) Dismiss the interlocutory appeal and preclude further appeal on that issue by the party who filed the appeal until an initial decision has been entered on the record; or

(6) Dismiss the appeal of the administrative law judge's initial decision to the FAA decisionmaker.

§ 406.113 Filing documents with the Docket Management System (DMS) and sending documents to the administrative law judge and Assistant Chief Counsel for Litigation.

(a) The Federal Docket Management System (FDMS). (1) Documents filed in a civil penalty adjudication are kept in the Federal Docket Management System (FDMS), except for documents that contain confidential information in accordance with 406.117. The FDMS is an electronic docket. Documents that are filed are scanned into the electronic docket and an index is made of all documents that have been filed so that any person may view the index and documents as provided in paragraph (f) of this section.

(2) A party is not required to file written interrogatories and responses, requests for production of documents or tangible items and responses, and requests for admission and responses with the Federal Docket Management System or submit them to administrative law judge, except as provided in 406.143.

(b) Method of filing. A person filing a document must mail or personally deliver the signed original and one copy of each document to the FDMS at the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. A person must serve a copy of each document on each party in accordance with 406.115.

(c) Date of filing. The date of filing is the date of personal delivery, or if mailed, the mailing date shown on any certificate of service, the date shown on the postmark if there is no certificate of service, or other mailing data shown by other evidence if there is no certificate of service or postmark. The date shown in the FDMS index is not necessarily the date of service. It is the date the FDMS received the document.

(d) Form. FDMS scans the document into its electronic docket. To ensure that FDMS can scan the document and correctly identify it in the index, each person filing a document must comply with the following:

(1) Each document must be legible. It may be handwritten, typewritten, or printed from a computer.

(2) Each document must have a caption on its first page, clearly visible, with the following information:

(i) “FAA Space Adjudication.”

(ii) Case name, such as “In the matter of X Corporation.”

(iii) FAA Case Number and FDMS docket number, if assigned.

(iv) Name of the document being filed, including the party filing the document, such as “Respondent's Motion to Dismiss.”

(v) “Confidential information filed with administrative law judge” or “Confidential information filed with Assistant Chief Counsel for Litigation” if the party is filing confidential information under 406.117.

(3) The document must be capable of being scanned and be easy to read both in paper form and as scanned into the electronic docket. A document that meets the following specifications is capable of being scanned using automatic feeders and is easy to read both in paper form and as scanned into the electronic docket. Documents that do not meet these specifications may not be legible.

(i) On white paper.

(ii) On paper not larger than 8 1/2 by 11 inches.

(iii) In black ink.

(iv) Text double-spaced. Footnotes and long quotes may be single spaced.

(v) At least 12 point type.

(vi) Margins at least 1 inch on each side.

(vii) The original not bound or hole-punched, only held together with removable metal clips or the like. The copy that is filed or sent to the administrative law judge or Assistant Chief Counsel for Litigation, and the copy served on another party, need not meet this specification.

(viii) The original has no tabs. The copy that is filed or sent to the administrative law judge or Assistant Chief Counsel for Litigation, and the copy served on another party, need not meet this specification.

(e) Sending documents to the administrative law judge or Assistant Chief Counsel for Litigation. Sending the document directly to the administrative law judge or to the Assistant Chief Counsel for Litigation is not a substitute for filing the original with the FDMS, except for confidential information under 406.117.

(f) Viewing and copying the record. Any person may view and copy the record, except for confidential information, as follows:

(1) During regular business hours at the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.

(2) Through the Internet at http://www.regulations.gov.

(3) By requesting it from the FDMS and paying reasonable costs.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68476, Dec. 5, 2007]

§ 406.115 Serving documents on other parties.

(a) Service required. A person must serve on each other party at the time of filing a copy of any document filed with the Federal Docket Management System. Service on a party's attorney or representative of record is adequate service on the party.

(b) Method of service. A person must serve documents by personal delivery or by mail.

(c) Certificate of service. A person may attach a certificate of service to a document filed with the FDMS. Any certificate of service must include a statement, dated and signed by the individual filing the document, that the document was served on each party, the method of service, and the date of service.

(d) Date of service. The date of service is the date of personal delivery; or if mailed, the mailing date shown on the certificate of service, the date shown on the postmark if there is no certificate of service, or other mailing date shown by other evidence if there is no certificate of service or postmark. The date shown in the FDMS index is not necessarily the date of service. It is the date the FDMS received the document.

(e) Additional time after service by mail. Whenever a party has a right or a duty to act or to make any response within a prescribed period after service by mail, or on a specified date after service by mail, 5 days is added to the prescribed period.

(f) Service by the administrative law judge. The administrative law judge must serve a copy of each document including, but not limited to, notices of pre-hearing conferences and hearings, rulings on motions, decisions, and orders, upon each party to the proceedings by personal delivery or by mail.

(g) Service made. A document is deemed served in accordance with this subpart if it was properly addressed; was sent in accordance with this subpart; and was returned, not claimed, or refused. Service is considered valid as of the date and the time that the document was mailed, or personal delivery of the document was refused.

(h) Presumption of service. There is a presumption of service where a party or a person, who customarily receives mail, or receives it in the ordinary course of business, at either the person's residence or the person's principal place of business, acknowledges receipt of the document.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68476, Dec. 5, 2007]

§ 406.117 Confidential information.

(a) Filing confidential information. If a party wants certain information that the party is filing not made available to the public, the party must do the following:

(1) Place the information in a separate sealed envelope and clearly mark the envelope “CONFIDENTIAL.” At least the first page of the document in the envelope also must be marked “CONFIDENTIAL.”

(2) Attach to this envelope a cover document marked “Confidential information filed with administrative law judge” or “Confidential information filed with Assistant Chief Counsel for Litigation.” The cover document must include, at the least, a short statement of what is being filed, such as “Respondent's motion for confidentiality order.”

(3) Unless such a motion has already been granted, enclose a motion for confidentiality order in accordance with paragraph (c) of this section. The motion must be in the sealed envelope if it contains confidential information; otherwise the motion must be outside of the sealed envelope.

(b) Marked information not made public. If a party files a document in a sealed envelope clearly marked “CONFIDENTIAL” the document may not be made available to the public unless and until the administrative law judge or the FAA decisionmaker decides it may be made available to the public in accordance with 51 U.S.C. 50916.

(c) Motion for confidentiality order. If a party is filing, is requested to provide in discovery, or intends to offer at the hearing, information that the party does not wish to be available to the public, the party must file a motion for a confidentiality order.

(1) The party must state the specific grounds for withholding the information from the public.

(2) If the party claims that the information is protected under 51 U.S.C. 50916, and if both the complainant and the respondent agree that the information is protected under that section, the administrative law judge must grant the motion. If one party does not agree that the information is protected under 51 U.S.C. 50916 the administrative law judge must decide. Either party may file an interlocutory appeal of right under § 406.173(c).

(3) If the party claims that the information should be protected on grounds other than those provided by 51 U.S.C. 50916 the administrative law judge must grant the motion if, based on the motion and any response to the motion, the administrative law judge determines that disclosure would be detrimental to safety, disclosure would not be in the public interest, or that the information is not otherwise required to be made available to the public.

(4) If the administrative law judge determines that the information is not necessary to decide the case or would not otherwise lead to the discovery of relevant material, the administrative law judge must preclude any inquiry into the matter by any party.

(5) If the administrative law judge determines that the requested material may be disclosed during discovery, the administrative law judge may order that the material may be discovered and disclosed under limited conditions or may be used only under certain terms and conditions.

(6) If the administrative law judge determines that the requested material is necessary to decide the case, or would otherwise lead to the discovery of relevant material, and that a confidentiality order is warranted, the administrative law judge must—

(i) Provide an opportunity for review of the document by the attorneys of record off the record.

(ii) Provide procedures for excluding the information from the record, or order that portion of the record that includes confidential information be closed.

(iii) Order that the parties must not disclose the information in any manner and the parties must not use the information in any other proceeding.

(7) If an administrative law judge orders a record closed, in whole or in part:

(i) The closed record is not available to the public.

(ii) The closed record is available to the parties' attorneys of record.

(iii) The administrative law judge may determine whether the closed record is available to the parties, the parties' representatives, or other persons such as witnesses for a party.

(iv) No party, attorney of record, representative of record, or person who receives information from such persons, may disclose information that has been protected under this section except to a person authorized by this section or the administrative law judge to receive it.

(v) If a person other than one authorized by this section desires to view or copy a closed record, the person must file a motion to open the record.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-7, 77 FR 20532, Apr. 5, 2012]

§ 406.119 Computation of time.

(a) This section applies to any period of time prescribed or allowed by this subpart, by notice or order of the administrative law judge or the FAA decisionmaker, or by any applicable statute.

(b) The date of an act, event, or default, after which a designated time period begins to run, is not included in a computation of time under this subpart.

(c) The last day of a time period is included in a computation of time unless it is a Saturday, Sunday, or a legal holiday. If the last day of the time period is a Saturday, Sunday, or legal holiday, the time period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday.

§ 406.121 Extension of time.

Before an appeal is filed with the FAA decisionmaker, the parties may seek an extension of time as follows:

(a) Extension of time by agreement of the parties. The parties may agree to extend for a reasonable period of time for filing a document under this subpart with the agreement of the administrative law judge. The party seeking the extension of time must submit a draft order to the administrative law judge for signature, file it with the Federal Docket Management System, and serve it on each party.

(b) Motion for extension of time. If the parties do not agree to an extension of time for filing a document, a party desiring an extension may file with the Federal Docket Management System and serve a written motion for an extension of time not later than 7 days before the document is due unless good cause for the late filing is shown. The administrative law judge may grant the extension of time if good cause for the extension is shown.

(c) Failure to rule. If the administrative law judge fails to rule on a written motion for an extension of time by the date the document is due, the motion for an extension of time is granted for no more than 20 days after the original date the document was to be filed.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68476, Dec. 5, 2007]

§ 406.123 Waivers.

Waivers of any rights provided by statute or regulation must be in writing or by stipulation made at a hearing and entered into the record. The parties must set forth the precise terms of the waiver and any conditions.

§ 406.127 Complaint and answer in civil penalty adjudications.

(a) Complaint—(1) Filing. The complainant must file the original and one copy of the complaint with the Federal Docket Management System, or may file a written motion pursuant to 406.141(f)(1) instead of filling a complaint, not later than 20 days after receipt by the complainant of a request for hearing. The complainant should suggest a location for the hearing when filing the complaint.

(2) Service. The complainant must personally deliver or mail a copy of the complaint to the respondent, or the respondent's attorney or representative who has filed a notice of appearance in accordance with § 406.107.

(3) Contents of complaint. The final notice of proposed civil penalty issued under § 406.9(d) may be filed as the complaint. A complaint must set forth the following in sufficient detail to provide notice:

(i) The facts alleged.

(ii) Any requirement of the Act, a regulation issued under the Act, or any term or condition of a license or permit issued or transferred under the Act allegedly violated by the respondent.

(iii) The proposed civil penalty.

(b) Answer—(1) Time for filing. The respondent must file an answer to the complaint, or may file a written motion pursuant to § 406.141(f)(2) instead of filing an answer, not later than 30 days after service of the complaint.

(2) Form. The answer must be in writing. The answer may be in the form of a letter but must be dated and signed by the person responding to the complaint. The answer must be legible, and may be handwritten, typed, or printed from a computer.

(3) Filing and service. A respondent must file the answer with the Federal Docket Management System and serve a copy of the answer on the agency attorney who filed the complaint.

(4) Contents of answer—(i) Specific denial of allegations required. The respondent must admit, deny, or state that the respondent is without sufficient knowledge or information to admit or deny, each numbered paragraph of the complaint. Any statement or allegation contained in the complaint that is not specifically denied in the answer constitutes an admission of the truth of that allegation. An administrative law judge shall treat a general denial of the complaint as a failure to file an answer.

(ii) Affirmative defenses. The answer must specifically state any affirmative defense that the respondent asserts.

(iii) Request for relief. The answer may include a brief statement of any relief requested.

(iv) Hearing location. The respondent should suggest a location for the hearing when filing the answer.

(5) Failure to file answer. A respondent's failure to file an answer without good cause constitutes an admission of the truth of each allegation contained in the complaint.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-4, 72 FR 17017, Apr. 6, 2007; 72 FR 68476, Dec. 5, 2007]

§ 406.133 Amendment of pleadings.

(a) Time. A party must file with the Federal Docket Management System and serve on each other party any amendment to a complaint or an answer as follows:

(1) Not later than 15 days before the scheduled date of a hearing, a party may amend a complaint or an answer without the consent of the administrative law judge.

(2) Less than 15 days before the scheduled date of a hearing, the administrative law judge may allow amendment of a complaint or an answer only for good cause shown in a motion to amend.

(b) Responses. The administrative law judge must allow a reasonable time, but not more than 20 days from the date of filing, for other parties to respond to an amendment to a complaint or answer.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007]

§ 406.135 Withdrawal of complaint or request for hearing.

At any time before or during a hearing, the complainant may withdraw a complaint or a party may withdraw a request for a hearing without the consent of the administrative law judge. If the complainant withdraws the complaint or a party withdraws the request for a hearing and the answer, the administrative law judge must dismiss the proceedings under this subpart with prejudice.

§ 406.137 Intervention.

(a) A person may file with the Federal Docket Management System and serve on each other party a motion for leave to intervene as party in an adjudication. Except for good cause shown, a motion for leave to intervene must be filed not later than 10 days before the hearing.

(b) The administrative law judge may grant a motion for leave to intervene if the administrative law judge finds that—

(1) Intervention will not unduly broaden the issues or delay the proceedings, and

(2) The intervener will be bound by any order or decision entered in the action or the intervener has a property, financial, or other legitimate interest that may not be addressed adequately by the parties.

(c) The administrative law judge may determine the extent to which an intervener may participate in the proceedings.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007]

§ 406.139 Joint procedural or discovery schedule.

(a) General. The parties may agree to submit a schedule for filing all prehearing motions or for conducting discovery or both.

(b) Form and content of schedule. If the parties agree to a joint procedural or discovery schedule, one of the parties must file with the Federal Docket Management System and serve the joint schedule, setting forth the dates to which the parties have agreed. One of the parties must draft an order establishing a joint schedule for the administrative law judge.

(1) The joint schedule may include, but need not be limited to, times for requests for discovery, any objections to discovery requests, responses to discovery requests, submission of prehearing motions, responses to prehearing motions, exchange of exhibits to be introduced at the hearing, and lists of witnesses that may be called at the hearing.

(2) Each party must sign the original joint schedule.

(c) Time. The parties may agree to submit all prehearing motions and responses and may agree to close discovery in the proceedings under the joint schedule within a reasonable time before the date of the hearing, but not later than 15 days before the hearing.

(d) Order establishing joint schedule. The administrative law judge must approve the joint schedule filed by the parties by signing the joint schedule and filing it with the Federal Docket Management System.

(e) Disputes. The administrative law judge must resolve any dispute regarding discovery or regarding compliance with the joint schedule as soon as possible so that the parties may continue to comply with the joint schedule.

(f) Sanctions for failure to comply with joint schedule. If a party fails to comply with the order establishing a joint schedule, the administrative law judge may direct that party to comply with a motion to compel discovery; or, limited to the extent of the party's failure to comply with a motion or discovery request, the administrative law judge may:

(1) Strike that portion of a party's pleadings;

(2) Preclude prehearing or discovery motions by that party;

(3) Preclude admission of that portion of a party's evidence at the hearing; or

(4) Preclude that portion of the testimony of that party's witnesses at the hearing.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007]

§ 406.141 Motions.

(a) General. A party applying for an order or ruling not specifically provided in this subpart must do so by motion. A party must comply with the requirements of this section when filing a motion for consideration by the administrative law judge or the FAA decisionmaker on appeal.

(b) Contents. A party must state the relief sought by the motion and the particular grounds supporting that relief. If a party has evidence in support of a motion, the party must attach any evidence, including affidavits, to the motion.

(c) Form and time. Except for oral motions heard on the record, a motion made prior to the hearing must be in writing. Unless otherwise agreed by the parties or for good cause shown, a party must file any prehearing motion with the Federal Docket Management System and serve each other party not later than 30 days before the hearing.

(d) Answers to motions. Any party may file and serve an answer, with affidavits or other evidence in support of the answer, not later than 10 days after service of a written motion on that party. When a motion is made during a hearing, the answer may be made at the hearing on the record, orally or in writing, within a reasonable time determined by the administrative law judge.

(e) Rulings on motions. The administrative law judge must rule on all motions as follows:

(1) Discovery motions. The administrative law judge must resolve all pending discovery motions not later than 10 days before the hearing.

(2) Prehearing motions. The administrative law judge must resolve all pending prehearing motions not later than 7 days before the hearing. If the administrative law judge issues a ruling or order orally, the administrative law judge must serve a written copy of the ruling or order, within 3 days, on each party. In all other cases, the administrative law judge must issue rulings and orders in writing and must serve a copy of the ruling or order on each party.

(3) Motions made during the hearing. The administrative law judge may issue rulings and orders on motions made during the hearing orally. Oral rulings or orders on motions must be made on the record.

(f) Specific motions—(1) Complainant's motion to dismiss a request for a hearing as prematurely filed. The complainant may file a motion to dismiss a request for a hearing as prematurely filed instead of filing a complaint. If the motion is not granted, the complainant must file the complaint and must serve a copy of the complaint on each party not later than 10 days after service of the administrative law judge's ruling or order on the motion to dismiss. If the motion to dismiss is granted and the proceedings are terminated without a hearing, the respondent may file an appeal in accordance with § 406.175. If required by the decision on appeal, the complainant must file a complaint and must serve a copy of the complaint on each party not later than 10 days after service of the decision on appeal.

(2) Respondent's motions instead of an answer. A respondent may file one or more of the following motions instead of filing an answer. If the administrative law judge denies the motion, the respondent must file an answer not later than 10 days after service of the denial of the motion.

(i) Respondent's motion to dismiss complaint for failure to state a claim for which a civil penalty may be imposed. A respondent may file a motion to dismiss the complaint for failure to state a claim for which a civil penalty may be imposed instead of filing an answer. The motion must show that the complaint fails to state a violation of the Act, a regulation issued under the Act, or any term or condition of a license issued or transferred under the Act.

(ii) Respondent's motion to dismiss allegations or complaint for staleness. Instead of filing an answer to the complaint, a respondent may move to dismiss the complaint, or that part of the complaint that alleges a violation that occurred more than 5 years before an agency attorney issued a notice of proposed civil penalty to the respondent, as provided by 28 U.S.C. 2462.

(iii) Respondent's motion for more definite statement. A respondent may file a motion requesting a more definite statement of the allegations contained in the complaint instead of filing an answer. The respondent must set forth, in detail, the indefinite or uncertain allegations contained in a complaint or response to any pleading and must submit the details that the party believes would make the allegation or response definite and certain. If the administrative law judge grants the motion, the complainant must supply a more definite statement not later than 15 days after service of the ruling granting the motion. If the complainant fails to supply a more definite statement, the administrative law judge must strike the allegations in the complaint to which the motion is directed. If the administrative law judge denies the motion, the respondent must file an answer and must serve a copy of the answer on each party not later than 10 days after service of the order of denial.

(3) Other motions to dismiss. A party may file a motion to dismiss, specifying the grounds for dismissal.

(4) Complainant's motion for more definite statement. The complainant may file a motion requesting a more definite statement if an answer fails to respond clearly to the allegations in the complaint. The complainant must set forth, in detail, the indefinite or uncertain allegations contained in the answer and must submit the details that the complainant believes would make the allegation or response definite and certain. If the administrative law judge grants the motion, the respondent must supply a more definite statement not later than 15 days after service of the ruling on the motion. If the respondent fails to supply a more definite statement, the administrative law judge must strike those statements in the answer to which the motion is directed. An administrative law judge shall treat a respondent's failure to supply a more definite statement as an admission of unanswered allegations in the complaint.

(5) Other motions for more definite statement. A party may file a motion for more definite statement of any pleading that requires or permits a response under this subpart. A party must set forth, in detail, each indefinite or uncertain allegation contained in a pleading or response and must submit the details that would make each allegation definite and certain.

(6) Motion to strike. Any party may make a motion to strike any insufficient allegation or defense, or any redundant, immaterial, or irrelevant matter in a pleading. A party must file a motion to strike and must serve a copy on each party before a response to that pleading is required under this subpart or, if a response is not required, not later than 10 days after service of the pleading.

(7) Motion for decision. A party may make a motion for decision, regarding all or any part of the proceedings, at any time before the administrative law judge has issued an initial decision in the proceedings. The administrative law judge must grant a party's motion for decision if the pleadings, depositions, answers to interrogatories, admissions, matters that the administrative law judge has officially noticed, or evidence introduced during the hearing show that there is no genuine issue of material fact and that the party making the motion is entitled to a decision as a matter of law. The party making the motion for decision has the burden of showing that there is no genuine issue of material fact disputed by the parties.

(8) Motion for disqualification. A party may file a motion for disqualification. A party may file the motion at any time after the administrative law judge has been assigned to the proceedings but must make the motion before the administrative law judge files an initial decision in the proceedings.

(i) Motion and supporting affidavit. A party must state the grounds for disqualification, including, but not limited to, personal bias, pecuniary interest, or other factors showing reason for disqualification, in the motion for disqualification. A party must submit an affidavit with the motion for disqualification that sets forth, in detail, the matters alleged to constitute grounds for disqualification.

(ii) Answer. A party may respond to the motion for disqualification not later than 5 days after service of the motion for disqualification.

(iii) Decision on motion for disqualification. The administrative law judge must issue a decision on the motion for disqualification not later than 15 days after the motion has been filed. If the administrative law judge finds that the motion for disqualification and supporting affidavit show a basis for disqualification, the administrative law judge must withdraw from the proceedings immediately. If the administrative law judge finds that disqualification is not warranted, the administrative law judge must deny the motion and state the grounds for the denial on the record. If the administrative law judge fails to rule on a party's motion for disqualification within 15 days after the motion has been filed, the motion is granted.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007]

§ 406.143 Discovery.

(a) Initiation of discovery. Any party may initiate discovery described in this section, without the consent or approval of the administrative law judge, at any time after a complaint has been filed.

(b) Methods of discovery. The following methods of discovery are permitted under this section: depositions on oral examination or written questions of any person; written interrogatories directed to a party; requests for production of documents or tangible items to any person; and requests for admission by a party. A party is not required to file written interrogatories and responses, requests for production of documents or tangible items and responses, and requests for admission and responses with the Federal Docket Management System or submit any of them to the administrative law judge. In the event of a discovery dispute, a party must attach a copy of these documents in support of a motion filed under this section.

(c) Service on the agency. A party must serve each discovery request directed to the agency or any agency employee with the agency attorney.

(d) Time for response to discovery request. Unless otherwise directed by this subpart or agreed by the parties, a party must respond to a request for discovery, including filing objections to a request for discovery, not later than 30 days after service of the request.

(e) Scope of discovery. Subject to the limits on discovery set forth in paragraph (f) of this section, a party may discover any matter that is not privileged and that is relevant to the subject matter of the proceeding. A party may discover information that relates to the claim or defense of any party including the existence, description, nature, custody, condition, and location of any document or other tangible item and the identity and location of any person having knowledge of discoverable matter. A party may discover facts known, or opinions held, by an expert who any other party expects to call to testify at the hearing. A party has no ground to object to a discovery request on the basis that the information sought would not be admissible at the hearing if the information sought during discovery is reasonably calculated to lead to the discovery of admissible evidence.

(f) Limiting discovery. The administrative law judge must limit the frequency and extent of discovery permitted by this section if a party shows that—

(1) The information requested is cumulative or repetitious;

(2) The information requested can be obtained from another less burdensome and more convenient source;

(3) The party requesting the information has had ample opportunity to obtain the information through other discovery methods permitted under this section; or

(4) The method or scope of discovery requested by the party is unduly burdensome or expensive.

(g) Confidentiality order. A party or person who has received a discovery request for information that is related to a trade secret, confidential or sensitive material, competitive or commercial information, proprietary data, or information on research and development, may file and serve a motion for a confidentiality order in accordance with § 406.117.

(h) Protective order. A party or a person who has received a request for discovery may file a motion for protective order and must serve a copy of the motion for protective order on each party. The party or person making the motion must show that the protective order is necessary to protect the party or the person from annoyance, embarrassment, oppression, or undue burden or expense. As part of the protective order, the administrative law judge may:

(1) Deny the discovery request;

(2) Order that discovery be conducted only on specified terms and conditions, including a designation of the time or place for discovery or a determination of the method of discovery; or

(3) Limit the scope of discovery or preclude any inquiry into certain matters during discovery.

(i) Duty to supplement or amend response. A party who has responded to a discovery request has a duty to supplement or amend the response, as soon as the information is known, as follows:

(1) A party must supplement or amend any response to a question requesting the identity and location of any person having knowledge of discoverable matters.

(2) A party must supplement or amend any response to a question requesting the identity of each person who will be called to testify at the hearing as an expert witness and the subject matter and substance of that witness' testimony.

(3) A party must supplement or amend any response that was incorrect when made or any response that was correct when made but is no longer correct, accurate, or complete.

(j) Depositions. The following rules apply to all depositions taken pursuant to this section:

(1) Form. A deposition must be taken on the record and reduced to writing. The person being deposed must sign the deposition unless the parties agree to waive the requirement of a signature.

(2) Administration of oaths. Within the United States, or a territory or possession subject to the jurisdiction of the United States, a party must take a deposition before a person authorized to administer oaths by the laws of the United States or authorized by the law of the place where the examination is held. In a foreign country, a party must take a deposition in any manner allowed by the Federal Rules of Civil Procedure.

(3) Notice of deposition. A party must serve a notice of deposition, stating the time and place of the deposition and the name and address of each person to be examined, on the person to be deposed, must submit the notice to the administrative law judge, and must file the notice with the Federal Docket Management System, and must serve the notice on each party, not later than 7 days before the deposition. A party may serve a notice of deposition less than 7 days before the deposition only with consent of the administrative law judge. If a subpoena duces tecum is to be served on the person to be examined, the party must attach to the notice of deposition a copy of the subpoena duces tecum that describes the materials to be produced at the deposition.

(4) Use of depositions. A party may use any part or all of a deposition at a hearing authorized under this subpart only upon a showing of good cause. The deposition may be used against any party who was present or represented at the deposition or who had reasonable notice of the deposition.

(k) Interrogatories. (1) A party may not serve more than 30 interrogatories to each other party. Each subpart of an interrogatory must be counted as a separate interrogatory.

(2) A party must file a motion for leave to serve more than 30 interrogatories on a party before serving additional interrogatories on a party. The administrative law judge must grant the motion only if the party shows good cause for the party's failure to inquire about the information previously and that the information cannot reasonably be obtained using less burdensome discovery methods or be obtained from other sources.

(3) A party must answer each interrogatory separately and completely in writing.

(4) A party, or the party's attorney or representative of record, must sign the party's responses to interrogatories.

(5) If a party objects to an interrogatory, the party must state the objection and the reasons for the objection.

(6) An opposing party may offer into evidence any part or all of a party's responses to interrogatories at a hearing under this subpart to the extent that the response is relevant, material, and not repetitious.

(l) Requests for admission. A party may serve a written request for admission of the truth of any matter within the scope of discovery under this section or the authenticity of any document described in the request. A party must set forth each request for admission separately. A party must serve a copy of each document referenced in the request for admission unless the document has been provided or is reasonably available for inspection and copying.

(1) Time. A party's failure to respond to a request for admission is not later than 30 days after service of the request constitutes an admission of the truth of the statement or statements contained in the request for admission. The administrative law judge may determine that a failure to respond to a request for admission does not constitute an admission of the truth if a party shows that the failure was due to circumstances beyond the control of the party or the party's attorney or representative.

(2) Response. A party may object to a request for admission. The objection must be in writing and signed by the party or the party's attorney or representative of record, and must state the reasons for objection. A party may specifically deny the truth of the matter or describe the reasons why the party is unable to truthfully deny or admit the matter. If a party is unable to deny or admit the truth of the matter, the party must show that the party has made reasonable inquiry into the matter or that the information known to, or readily obtainable by, the party is insufficient to enable the party to admit or deny the matter. A party may admit or deny any part of the request for admission. If an administrative law judge determines that a response does not comply with the requirements of this rule or that the response is insufficient, the matter is admitted.

(3) Effect of admission. Any matter admitted or treated as admitted under this section is conclusively established for the purpose of the hearing and appeal.

(m) Motion to compel discovery. A party may make a motion to compel discovery if a person refuses to answer a question during a deposition, a party fails or refuses to answer an interrogatory, a person gives an evasive or incomplete answer during a deposition or when responding to an interrogatory, or a party fails or refuses to produce documents or tangible items. During a deposition, the proponent of a question may complete the deposition or may adjourn the examination before making a motion to compel if a person refuses to answer.

(n) Failure to comply with a discovery order or order to compel. If a party fails to comply with a discovery order or an order to compel, the administrative law judge, limited to the extent of the party's failure to comply with the discovery order or motion to compel, may:

(1) Strike that portion of a party's pleadings;

(2) Preclude prehearing or discovery motions by that party;

(3) Preclude admission of that portion of a party's evidence at the hearing; or

(4) Preclude that portion of the testimony of that party's witnesses at the hearing.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007]

§ 406.147 Notice of hearing.

(a) Notice. The administrative law judge must give each party at least 60 days notice of the date, time, and location of the hearing.

(b) Date, time, and location of the hearing. The administrative law judge must set a reasonable date, time, and location for the hearing within the United States. The administrative law judge must consider the need for discovery and any joint procedural or discovery schedule submitted by the parties when determining the hearing date. The administrative law judge must give due regard to the convenience of the parties, the location where the majority of the witnesses reside or work, and whether a scheduled air carrier serves the location.

(c) Earlier hearing. With the consent of the administrative law judge, the parties may agree to hold the hearing on an earlier date than the date specified in the notice of hearing.

(d) Space hearing consolidated with aviation hearing under 14 CFR part 13 subpart G. With the consent of the administrative law judge, the parties may agree to hold the hearing, or parts of the hearing, together with a hearing under 14 CFR part 13 subpart G if the cases involve some common issues of fact. If the hearings are consolidated, the administrative law judge may issue a consolidated initial decision covering both cases. The Administrator will serve as the FAA decisionmaker on appeal for both cases and will issue a consolidated decision, with the Associate Administrator for Commercial Space Transportation serving as an advisor to the FAA decisionmaker.

§ 406.149 Evidence.

(a) General. A party is entitled to present the party's case or defense by oral, documentary, or demonstrative evidence, to submit rebuttal evidence, and to conduct any cross-examination that may be required for a full and true disclosure of the facts.

(b) Admissibility. A party may introduce any oral, documentary, or demonstrative evidence in support of the party's case or defense. The administrative law judge must admit any oral, documentary, or demonstrative evidence introduced by a party but must exclude irrelevant, immaterial, or unduly repetitious evidence.

(c) Hearsay evidence. Hearsay evidence is admissible in proceedings governed by this subpart. The fact that evidence submitted by a party is hearsay goes only to the weight of the evidence and does not affect its admissibility.

§ 406.151 Standard of proof.

The administrative law judge must issue an initial decision or must rule in a party's favor only if the decision or ruling is supported by, and in accordance with, the reliable, probative, and substantial evidence contained in the record. In order to prevail, the party with the burden of proof must prove the party's case or defense by a preponderance of reliable, probative, and substantial evidence.

§ 406.153 Burden of proof.

(a) Except in the case of an affirmative defense, in a civil penalty adjudication the burden of proof is on the complainant.

(b) Except as otherwise provided by statute or rule, the proponent of a motion, request, or order has the burden of proof.

(c) A party who has asserted an affirmative defense has the burden of proving the affirmative defense.

§ 406.155 Offer of proof.

A party whose evidence has been excluded by a ruling of the administrative law judge may offer the evidence for the record on appeal.

§ 406.157 Expert or opinion witnesses.

An employee of the FAA may not be called as an expert or opinion witness for any party other than the agency, in any proceeding governed by this part. An employee of a respondent may not be called as an expert or opinion witness for the complainant in any proceeding governed by this part to which the respondent is a party.

§ 406.159 Subpoenas.

(a) Request for subpoena. A party may obtain from the administrative law judge a subpoena to compel the attendance of a witness at a deposition or hearing or to require the production of documents or tangible items. The administrative law judge must deliver the subpoena, signed by the administrative law judge but otherwise in blank, to the party. The party must complete the subpoena, stating the title of the action and the date and time for the witness' attendance or production of documents or items. The party who obtained the subpoena must serve the subpoena on the witness.

(b) Motion to quash or modify the subpoena. A party, or any person upon whom a subpoena has been served, may file a motion to quash or modify the subpoena at or before the time specified in the subpoena for compliance. The applicant must describe, in detail, the basis for the motion to quash or modify the subpoena including, but not limited to, a statement that the testimony, document, or tangible evidence is not relevant to the proceeding, that the subpoena is not reasonably tailored to the scope of the proceeding, or that the subpoena is unreasonable and oppressive. A motion to quash or modify the subpoena will stay the effect of the subpoena pending a decision by the administrative law judge on the motion.

(c) Enforcement of subpoena. Upon a showing that a person has failed or refused to comply with a subpoena, the Secretary may apply to the appropriate district court of the United States to seek enforcement of the subpoena in accordance with 51 U.S.C. 50917(c). A party may request the Secretary to seek such enforcement.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-7, 77 FR 20533, Apr. 5, 2012]

§ 406.161 Witness fees.

(a) General. Unless otherwise authorized by the administrative law judge, the party who applies for a subpoena to compel the attendance of a witness at a deposition or hearing, or the party at whose request a witness appears at a deposition or hearing, must pay the witness fees described in this section.

(b) Amount. Except for an employee of the agency who appears at the direction of the agency, a witness who appears at a deposition or hearing is entitled to the same fees and mileage expenses as are paid to a witness in a court of the United States in comparable circumstances.

§ 406.163 Record.

(a) Exclusive record. The transcript of all testimony in the hearing; all exhibits received into evidence; the complaint, answer, and amendments thereto; all motions, applications, and requests, and responses thereto; and all rulings constitute the exclusive record for decision of the proceedings and the basis for the issuance of any orders in the proceeding.

(b) A person may keep the original document, data, or other evidence, with the consent of the administrative law judge, by substituting a legible copy for the record.

§ 406.165 Argument before the administrative law judge.

(a) Argument during the hearing. During the hearing, the administrative law judge must give the parties a reasonable opportunity to present arguments on the record supporting or opposing motions, objections, and rulings if the parties request an opportunity for argument. The administrative law judge may request written arguments during the hearing if the administrative law judge finds that submission of written arguments would be reasonable.

(b) Final oral argument. At the conclusion of the hearing and before the administrative law judge issues an initial decision in the proceedings, the parties are entitled to submit oral proposed findings of fact and conclusions of law, exceptions to rulings of the administrative law judge, and supporting arguments for the findings, conclusions, or exceptions. At the conclusion of the hearing, a party may waive final oral argument.

(c) Post-hearing briefs. The administrative law judge may request written post-hearing briefs before the administrative law judge issues an initial decision if the administrative law judge finds that submission of written briefs would be reasonable. If a party files a written post-hearing brief, the party must include proposed findings of fact and conclusions of law, exceptions to rulings of the administrative law judge, and supporting arguments for the findings, conclusions, or exceptions. The administrative law judge must give the parties a reasonable opportunity, not more than 30 days after receipt of the transcript, to prepare and submit the briefs.

§ 406.167 Initial decision.

(a) Contents. The administrative law judge must issue an initial decision at the conclusion of the hearing. In each oral or written decision, the administrative law judge must include findings of fact and conclusions of law, and the grounds supporting those findings and conclusions, upon all material issues of fact, the credibility of witnesses, the applicable law, any exercise of the administrative law judge's discretion, the amount of any civil penalty found appropriate by the administrative law judge, and a discussion of the basis for any order issued in the proceedings. The administrative law judge is not required to provide a written explanation for rulings on objections, procedural motions, and other matters not directly relevant to the substance of the initial decision. If the administrative law judge refers to any previous unreported or unpublished initial decision, the administrative law judge must make copies of that initial decision available to all parties and the FAA decisionmaker.

(b) Oral decision. Except as provided in paragraph (c) of this section, at the conclusion of the hearing, the administrative law judge must issue the initial decision and order orally on the record.

(c) Written decision. The administrative law judge may issue a written initial decision not later than 30 days after the conclusion of the hearing or submission of the last posthearing brief if the administrative law judge finds that issuing a written initial decision is reasonable. The administrative law judge must serve a copy of any written initial decision on each party.

§ 406.173 Interlocutory appeals.

(a) General. Unless otherwise provided in this subpart, a party may not appeal a ruling or decision of the administrative law judge to the FAA decisionmaker until the initial decision has been entered on the record. A decision or order of the FAA decisionmaker on an interlocutory appeal does not constitute a final order of the Secretary for the purposes of judicial review under 5 U.S.C. chapter 7.

(b) Interlocutory appeal for cause. If a party files a written request for an interlocutory appeal for cause, or orally requests an interlocutory appeal for cause, the proceedings are stayed until the administrative law judge issues a decision on the request. If the administrative law judge grants the request, the proceedings are stayed until the FAA decisionmaker issues a decision on the interlocutory appeal. The administrative law judge must grant an interlocutory appeal for cause if a party shows that delay of the interlocutory appeal would be detrimental to the public interest or would result in undue prejudice to any party.

(c) Interlocutory appeals of right. If a party notifies the administrative law judge of an interlocutory appeal of right, the proceedings are stayed until the FAA decisionmaker issues a decision on the interlocutory appeal. A party may file an interlocutory appeal, without the consent of the administrative law judge, before an initial decision has been entered in the case of:

(1) A ruling or order by the administrative law judge barring a party, or a party's attorney or representative, from the proceedings.

(2) A ruling or order by the administrative law judge allegedly in violation of the limitations on the administrative law judge under § 406.109(c).

(3) Failure of the administrative law judge to grant a motion for a confidentiality order based on 51 U.S.C. 50916, under § 406.117(c)(2).

(4) Failure of the administrative law judge to dismiss the proceedings in accordance with § 406.135.

(d) Procedure. A party must file with the Federal Docket Management System and serve each other party a notice of interlocutory appeal, with supporting documents, not later than 10 days after the administrative law judge's decision forming the basis of an interlocutory appeal of right or not later than 10 days after the administrative law judge's decision granting an interlocutory appeal for cause. A party must file with the Federal Docket Management System a reply brief, if any, and serve a copy of the reply brief on each party, not later than 10 days after service of the appeal brief. The FAA decisionmaker must render a decision on the interlocutory appeal, on the record and as a part of the decision in the proceedings, within a reasonable time after receipt of the interlocutory appeal.

(e) Rejection of interlocutory appeal. The FAA decisionmaker may reject frivolous, repetitive, or dilatory appeals, and may issue an order precluding one or more parties from making further interlocutory appeals in a proceeding in which there have been frivolous, repetitive, or dilatory interlocutory appeals.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007; Amdt. 406-7, 77 FR 20533, Apr. 5, 2012]

§ 406.175 Appeal from initial decision.

(a) Notice of appeal. A party may appeal the initial decision, and any decision not previously appealed pursuant to 406.173, by filing with the Federal Docket Management System and serving on each party a notice of appeal. A party must file the notice of appeal not later than 10 days after entry of the oral initial decision on the record or service of the written initial decision on the parties.

(b) Issues on appeal. A party may appeal only the following issues:

(1) Whether each finding of fact is supported by a preponderance of reliable, probative, and substantial evidence;

(2) Whether each conclusion of law is made in accordance with applicable law, precedent, and public policy; and

(3) Whether the administrative law judge committed any prejudicial errors during the hearing that support the appeal.

(c) Perfecting an appeal. Unless otherwise agreed by the parties, a party must perfect an appeal, not later than 50 days after entry of the oral initial decision on the record or service of the written initial decision on the party, by filing an appeal brief.

(1) Extension of time by agreement of the parties. The parties may agree to extend the time for perfecting the appeal with the consent of the FAA decisionmaker, who serves a letter confirming the extension of time on each party.

(2) Motion for extension. If the parties do not agree to an extension of time for perfecting an appeal, a party desiring an extension of time may file a motion for an extension and must serve a copy of the motion on each party. The FAA decisionmaker may grant an extension if good cause for the extension is shown in the motion.

(d) Appeal briefs. A party must file the appeal brief with the Federal Docket Management System and serve each party.

(1) A party must set forth, in detail, the party's specific objections to the initial decision or rulings in the appeal brief. A party also must set forth, in detail, the basis for the appeal, the reasons supporting the appeal, and the relief requested in the appeal. If the party relies on evidence contained in the record for the appeal, the party must specifically refer to the pertinent evidence contained in the record in the appeal brief.

(2) The FAA decisionmaker may dismiss an appeal, on the FAA decisionmaker's own initiative or upon motion of any other party, where a party has filed a notice of appeal but fails to perfect the appeal by timely filing an appeal brief.

(e) Reply brief. Unless otherwise agreed by the parties, any party may file a reply brief with the Federal Docket Management System and serve on each other party not later than 35 days after the appeal brief has been served on that party. If the party relies on evidence contained in the record for the reply, the party must specifically refer to the pertinent evidence contained in the record in the reply brief.

(1) Extension of time by agreement of the parties. The parties may agree to extend the time for filing a reply brief with the consent of the FAA decisionmaker, who will serve a letter confirming the extension of time on each party.

(2) Motion for extension. If the parties do not agree to an extension of time for filing a reply brief, a party desiring an extension of time may file and serve a motion for an extension and must serve a copy of the motion on each party. The FAA decisionmaker may grant an extension if good cause for the extension is shown in the motion.

(f) Other briefs. The FAA decisionmaker may allow any person to submit an amicus curiae brief in an appeal of an initial decision. A party may not file more than one appeal brief or reply brief without permission of the FAA decisionmaker. A party may file with the Federal Docket Management System a motion for permission to file an additional brief and must serve a copy of the motion on each other party. The party may not file the additional brief with the motion. The FAA decisionmaker may grant permission to file an additional brief if the party demonstrates good cause for allowing additional argument on the appeal. The FAA decisionmaker will allow a reasonable time for the party to file the additional brief.

(g) Number of copies. A party must file the original brief and two copies of the brief with the Federal Docket Management System and serve one copy on each other party.

(h) Oral argument. The FAA decisionmaker has sole discretion to permit oral argument on the appeal. On the FAA decisionmaker's own initiative or upon written motion by any party, the FAA decisionmaker may find that oral argument will contribute substantially to the development of the issues on appeal and may grant the parties an opportunity for oral argument.

(i) Waiver of objections on appeal. If a party fails to object to any alleged error regarding the proceedings in an appeal or a reply brief, the party waives any objection to the alleged error. The FAA decisionmaker is not required to consider any objection or argument in a brief if the party does not specifically refer in the brief to the pertinent evidence from the record.

(j) FAA decisionmaker's decision on appeal. The FAA decisionmaker will review the record, the briefs on appeal, and the oral argument, if any, to determine if the administrative law judge committed prejudicial error in the proceedings or that the initial decision should be affirmed, modified, or reversed. The FAA decisionmaker may affirm, modify, or reverse the initial decision, make any necessary findings, or may remand the case for any proceedings that the FAA decisionmaker determines may be necessary.

(1) The FAA decisionmaker may raise any issue, on the FAA decisionmaker's own initiative, that is required for proper disposition of the proceedings. The FAA decisionmaker will give the parties a reasonable opportunity to submit arguments on the new issues before making a decision on appeal. If an issue raised by the FAA decisionmaker requires the consideration of additional testimony or evidence, the FAA decisionmaker will remand the case to the administrative law judge for further proceedings and an initial decision related to that issue. If an issue raised by the FAA decisionmaker is solely an issue of law or the issue was addressed at the hearing but was not raised by a party in the briefs on appeal, a remand of the case to the administrative law judge for further proceedings is not required but may be provided in the discretion of the FAA decisionmaker.

(2) The FAA decisionmaker will issue the final decision and order of the Administrator on appeal in writing and will serve a copy of the decision and order on each party.

(3) A final decision and order of the FAA decisionmaker is precedent in any other civil penalty action under this part. Any issue, finding or conclusion, order, ruling, or initial decision of an administrative law judge that has not been appealed to the FAA decisionmaker is not precedent in any other civil penalty action.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007]

§ 406.177 Petition to reconsider or modify a final decision and order of the FAA decisionmaker on appeal.

(a) General. Any party may petition the FAA decisionmaker to reconsider or modify a final decision and order issued by the FAA decisionmaker on appeal from an initial decision. A party must file a petition to reconsider or modify with the Federal Docket Management System not later than 30 days after service of the FAA decisionmaker's final decision and order on appeal and must serve a copy of the petition on each party. The FAA decisionmaker will not reconsider or modify an initial decision and order issued by an administrative law judge that has not been appealed by any party to the FAA decisionmaker.

(b) Contents. A party must state briefly and specifically the alleged errors in the final decision and order on appeal, the relief sought by the party, and the grounds that support, the petition to reconsider or modify.

(1) If the petition is based, in whole or in part, on allegations regarding the consequences of the FAA decisionmaker's decision, the party must describe these allegations and must describe, and support, the basis for the allegations.

(2) If the petition is based, in whole or in part, on new material not previously raised in the proceedings, the party must set forth the new material and include affidavits of prospective witnesses and authenticated documents that would be introduced in support of the new material. The party must explain, in detail, why the new material was not discovered through due diligence prior to the hearing.

(c) Repetitious and frivolous petition. The FAA decisionmaker will not consider a repetitious or frivolous petition. The FAA decisionmaker may summarily dismiss any repetitious or frivolous petition to reconsider or modify.

(d) Reply to petition. Any other party may reply to a petition to reconsider or modify, not later than 10 days after service of the petition on that party, by filing a reply. A party must serve a copy of the reply on each party.

(e) Effect of filing petition. Unless otherwise ordered by the FAA decisionmaker, filing a petition under this section stays the effective date of the FAA decisionmaker's final decision and order on appeal, and tolls the time allowed for judicial review.

(f) FAA decisionmaker's decision on petition. The FAA decisionmaker may affirm, modify, or reverse the final decision and order on appeal, or may remand the case for any proceedings that the FAA decisionmaker determines may be necessary.

[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007]

§ 406.179 Judicial review of a final decision and order.

(a) A person may seek judicial review of a final decision and order of the FAA decisionmaker as provided in 5 U.S.C. chapter 7 and 28 U.S.C. 1331. A party seeking judicial review must file with a United States district court.

(b) In accordance with § 406.9(e)(iv), if a person seeks judicial review not later than 60 days after the final decision and order has been served on the respondent, the final decision and order is stayed.

(c) In accordance with § 406.9(i), if a respondent does not pay a civil penalty and does not file an appeal with the United States district court within 60 days after service of the final decision and order, the FAA may refer the order to the United States Department of Treasury or Department of Justice to collect the civil penalty.

§ 413.1 Scope of this part.

(a) This part explains how to apply for a license or experimental permit. These procedures apply to all applications for obtaining a license or permit, transferring a license, and renewing a license or permit. In this part, the term application means either an application in its entirety, or a portion of an application for incremental review and determination in accordance with § 450.33 of this chapter.

(b) Use paragraphs (b)(1) through (7) in the following table to locate specific requirements:

Subject | Part

(1) License to Operate a Launch Site | 420

(2) License to Operate a Reentry Site | 433

(3) Experimental Permits | 437

(4) Launch and Reentry License Requirements | 450

[Doc. No. FAA-2019-0229, Amdt. 413-12, 85 FR 79710, Dec. 10, 2020]

§ 413.3 Who must obtain a license or permit.

(a) A person must obtain a license in accordance with this section, unless eligible for an experimental permit under paragraph (f) of this section.

(b) A person must obtain a license to—

(1) Launch a launch vehicle from the United States;

(2) Operate a launch site within the United States;

(3) Reenter a reentry vehicle in the United States; or

(4) Operate a reentry site within the United States.

(c) A person who is a U.S. citizen or an entity organized under the laws of the United States or any State must obtain a license to—

(1) Launch a launch vehicle outside the United States;

(2) Operate a launch site outside the United States;

(3) Reenter a reentry vehicle outside the United States; or

(4) Operate a reentry site outside the United States.

(d) A foreign entity in which a United States citizen has a controlling interest must obtain a license to launch a launch vehicle from or to operate a launch site in—

(1) Any place that is outside the territory or territorial waters of any nation, unless there is an agreement in force between the United States and a foreign nation providing that such foreign nation has jurisdiction over the launch or the operation of the launch site; or

(2) The territory of any foreign nation, including its territorial waters, if there is an agreement in force between the United States and that foreign nation providing that the United States has jurisdiction over the launch or the operation of the launch site.

(e) A foreign entity in which a U.S. citizen has a controlling interest must obtain a license to reenter a reentry vehicle or to operate a reentry site in—

(1) Any place that is outside the territory or territorial waters of any nation, unless there is an agreement in force between the United States and a foreign nation providing that such foreign nation has jurisdiction over the reentry or the operation of the reentry site; or

(2) The territory of any foreign nation if there is an agreement in force between the United States and that foreign nation providing that the United States has jurisdiction over the reentry or the operation of the reentry site.

(f) A person, individual, or foreign entity otherwise requiring a license under this section may instead obtain an experimental permit to launch or reenter a reusable suborbital vehicle under part 437 of this chapter.

[Doc. No. FAA-2006-24197, 72 FR 17017, Apr. 6, 2007, as amended by Doc. No. FAA-2023-1656, Amdt. No. 413-13, 89 FR 76726, Sept. 19, 2024]

§ 413.5 Pre-application consultation.

A prospective applicant must consult with the FAA before submitting an application to discuss the application process and possible issues relevant to the FAA's licensing or permitting decision. Early consultation helps an applicant to identify possible regulatory issues at the planning stage when changes to an application or to proposed licensed or permitted activities are less likely to result in significant delay or costs to the applicant.

[Doc. No. FAA-2006-24197, 72 FR 17018, Apr. 6, 2007]

§ 413.7 Application submission.

(a) An applicant must make an application in writing and in English. The applicant must file the application with the Federal Aviation Administration either by paper, by use of physical electronic storage, or by email in the following manner:

(1) For applications submitted on paper, an applicant must send two copies of the application to the Federal Aviation Administration, Associate Administrator for Commercial Space Transportation, Room 331, 800 Independence Avenue SW., Washington, DC 20591. Attention: Application Review.

(2) For an application submitted by use of physical electronic storage, the applicant must either mail the application to the address specified in paragraph (a)(1) of this section or hand-deliver the application to an authorized FAA representative. The application and the physical electronic storage containing the application must also satisfy all of the following criteria:

(i) The application must include a cover letter that is printed on paper and signed by the person who signed the application or by an authorized representative of the applicant;

(ii) The cover letter must identify each document that is included on the physical electronic storage; and

(iii) The physical electronic storage must be in a format such that its contents cannot be altered.

(3) For an application submitted by email, an applicant must send the application as an email attachment, or as a link to a secure server, to ASTApplications@faa.gov. The application and the email to which the application is attached or linked must also satisfy the following criteria:

(i) The email to which the application is attached or linked must be sent from an email address controlled by the person who signed the application or by an authorized representative of the applicant;

(ii) The email must identify each document that is included as an attachment or that is stored on a secure server; and

(iii) The electronic files must be date-stamped and have version control documentation.

(b) Administrative information. An application must identify the following:

(1) The name and address of the applicant;

(2) The name, address, and telephone number of any person to whom inquiries and correspondence should be directed; and

(3) The type of license or permit for which the applicant is applying.

(c) Signature and certification of accuracy. An application must be legibly signed, dated, and certified as true, complete, and accurate by one of the following:

(1) For a corporation: An officer or other individual authorized to act for the corporation in licensing or permitting matters.

(2) For a partnership or a sole proprietorship: A general partner or proprietor, respectively.

(3) For a joint venture, association, or other entity: An officer or other individual authorized to act for the joint venture, association, or other entity in licensing or permitting matters.

(d) Safety approval. If the applicant proposes to include a safety element for which the FAA issued a safety approval under part 414 in the proposed license activity, the applicant must—

(1) Identify the safety approval in the application and explain the proposed use of the approved safety element.

(2) Show that the proposed use of the approved safety element is consistent with the designated scope specified in the safety approval.

(3) Certify that the safety element will be used according to any terms and conditions of the issued safety approval.

(e) Measurement system consistency. For each analysis, an applicant must employ a consistent measurements system, whether English or metric, in its application and licensing information.

[Amdt. 413-03, 64 FR 19614, Apr. 21, 1999, as amended by Amdt. 413-6, 71 FR 46852, Aug. 15, 2006; Amdt. 413-8, 71 FR 51972, Aug. 31, 2006; Amdt. 413-7, 71 FR 56005, Sept. 26, 2006; Amdt. 413-9, 72 FR 17018, Apr. 6, 2007; Amdt. 413-11, 80 FR 30151, May 27, 2015; Doc. No. FAA-2019-0229, Amdt. 413-12, 85 FR 79711, Dec. 10, 2020]

§ 413.9 Confidentiality.

(a) Any person furnishing information or data to the FAA may request in writing that trade secrets or proprietary commercial or financial data be treated as confidential. The request must be made at the time the information or data is submitted, and state the period of time for which confidential treatment is desired.

(b) Information or data for which any person or agency requests confidentiality must be clearly marked with an identifying legend, such as “Proprietary Information,” “Proprietary Commercial Information,” “Trade Secret,” or “Confidential Treatment Requested.” Where this marking proves impracticable, a cover sheet containing the identifying legend must be securely attached to the compilation of information or data for which confidential treatment is requested.

(c) If a person requests that previously submitted information or data be treated confidentially, the FAA will do so to the extent practicable in light of any prior distribution of the information or data.

(d) Information or data for which confidential treatment has been requested or information or data that qualifies for exemption under section 552(b)(4) of Title 5, United States Code, will not be disclosed to the public unless the Associate Administrator determines that the withholding of the information or data is contrary to the public or national interest.

§ 413.11 Acceptance of an application.

The FAA will initially screen an application to determine whether it is complete enough for the FAA to start its review. After completing the initial screening, the FAA will notify the applicant in writing of one of the following:

(a) The FAA accepts the application and will initiate review; or

(b) The application is so incomplete or indefinite that the FAA cannot start to evaluate it. The FAA will reject it and notify the applicant, stating each reason for rejecting it and what action the applicant must take for the FAA to accept the application. The FAA may return a rejected application to the applicant or may hold it until the applicant takes the required actions.

[Doc. No. FAA-2006-24197, 72 FR 17018, Apr. 6, 2007; Doc. No. FAA-2019-0229, Amdt. 413-12, 85 FR 79711, Dec. 10, 2020]

§ 413.13 Complete application.

The FAA's acceptance of an application does not mean it has determined that the application is complete. If, in addition to the information required by this chapter, the FAA requires other information necessary for a determination that public health and safety, safety of property, and national security and foreign policy interests of the United States are protected during the conduct of a licensed or permitted activity, an applicant must submit the additional information.

[Doc. No. FAA-2006-24197, 72 FR 17018, Apr. 6, 2007]

§ 413.15 Review period.

(a) Review period duration. Unless otherwise specified in this chapter, the FAA reviews and makes a license or permit determination on an accepted application in accordance with the time frame specified in 51 U.S.C. 50905(a)(1). The FAA will establish the time frame for any incremental review and determination with an applicant on a case-by-case basis during pre-application consultation.

(b) Review period tolled. If an accepted application does not provide sufficient information to continue or complete the reviews or evaluations required by this chapter for a license, permit, or incremental determination, or an issue exists that would affect a determination, the FAA notifies the applicant, in writing, and informs the applicant of any information required to complete the application. If the FAA cannot review an accepted application because of lack of information or for any other reason, the FAA will toll the review period until the FAA receives the information it needs or the applicant resolves the issue.

(c) Notice. Except for applications under incremental review and determination in accordance with § 450.33, if the FAA does not make a decision in accordance with the time frame specified in 51 U.S.C. 50905(a)(1) for an accepted license application or 51 U.S.C. 50906(a) for an accepted permit application, the FAA informs the applicant, in writing, of any outstanding information needed to complete the review, or of any issues that would affect the decision.

[Doc. No. FAA-2019-0229, Amdt. 413-12, 85 FR 79711, Dec. 10, 2020]

§ 413.17 Continuing accuracy of application; supplemental information; amendment.

(a) An applicant must ensure the continuing accuracy and completeness of information furnished to the FAA as part of a pending license or permit application. If at any time the information an applicant provides is no longer accurate and complete in all material respects, the applicant must submit new or corrected information. As part of this submission, the applicant must recertify the accuracy and completeness of the application under § 413.7. If an applicant does not comply with any of the requirements set forth in this paragraph, the FAA can deny the license or permit application.

(b) An applicant may amend or supplement a license or permit application at any time before the FAA issues or transfers the license or permit.

(c) [Reserved]

[Doc. No. FAA-2024-0021, Amdt. 413-14, 90 FR 59377, Dec. 19, 2025]

§ 413.19 Issuing a license or permit.

After the FAA completes its reviews and makes the decisions required by this chapter, the FAA issues a license or permit to the applicant.

[Doc. No. FAA-2006-24197, 72 FR 17019, Apr. 6, 2007]

§ 413.21 Denial of a license application.

(a) The FAA informs an applicant, in writing, if it denies an application and states the reasons for denial.

(b) If the FAA has denied an application in its entirety, the applicant may either—

(1) Attempt to correct any deficiencies identified and ask the FAA to reconsider the revised application, in which case the FAA has 60 days or the number of days remaining in the review period, whichever is greater, within which to reconsider the decision; or

(2) Request a hearing in accordance with part 406 of this chapter, for the purpose of showing why the application should not be denied.

(c) An applicant whose application is denied after reconsideration under paragraph (b)(1) of this section may request a hearing in accordance with paragraph (b)(2) of this section.

[Amdt. 413-03, 64 FR 19614, Apr. 21, 1999, as amended by Amdt. 413-9, 72 FR 17019, Apr. 6, 2007; Doc. No. FAA-2019-0229, Amdt. 413-12, 85 FR 79711, Dec. 10, 2020]

§ 413.23 License or permit renewal.

(a) Eligibility. A licensee or permittee may apply to renew its license or permit by submitting to the FAA a written application for renewal at least 90 days before the license expires or at least 60 days before the permit expires, unless the Administrator agrees to a different time frame in accordance with § 404.15.

(b) Application. (1) A license or permit renewal application must satisfy the requirements set forth in this part and any other applicable part of this chapter.

(2) The application may incorporate by reference information provided as part of the application for the expiring license or permit, including any modifications to the license or permit.

(3) An applicant must describe any proposed changes in its conduct of licensed or permitted activities and provide any additional clarifying information required by the FAA.

(c) Review of application. The FAA reviews the application to determine whether to renew the license or permit for an additional term. The FAA may incorporate by reference any findings that are part of the record for the expiring license or permit.

(d) Renewal of license or permit. After the FAA finishes its reviews, the FAA issues an order modifying the expiration date of the license or permit. The FAA may impose additional or revised terms and conditions necessary to protect public health and safety and the safety of property and to protect U.S. national security and foreign policy interests.

(e) Denial of license or permit renewal. The FAA informs a licensee or permittee, in writing, if the FAA denies the application for renewal and states the reasons for denial. If the FAA denies an application, the licensee or permittee may follow the procedures of § 413.21 of this part.

[Doc. No. FAA-2006-24197, 72 FR 17019, Apr. 6, 2007, as amended by Doc. No. FAA-2019-0229, Amdt. 413-12, 85 FR 79711, Dec. 10, 2020]

§ 414.1 Scope.

This part establishes procedures for obtaining a safety element approval and renewing and transferring an existing safety element approval. Safety element approvals issued under this part may be used to support the application review for one or more vehicle operator license requests under other parts of this chapter.

§ 414.3 Definitions.

Safety element. For purposes of this part, a safety element is any one of the items or persons (personnel) listed in paragraphs (1) and (2) of the definition of “safety element approval” in this section.

Safety element approval. For purposes of this part, a safety element approval is an FAA document containing the FAA determination that one or more of the safety elements listed in paragraphs (1) and (2) of this definition, when used or employed within a defined envelope, parameter, or situation, will not jeopardize public health and safety or safety of property. A safety element approval may be issued independent of a license, and does not confer any authority to conduct activities for which a license is required under 14 CFR chapter III. A safety element approval does not relieve its holder of the duty to comply with all applicable requirements of law or regulation that may apply to the holder's activities.

(1) Launch vehicle, reentry vehicle, safety system, process, service, or any identified component thereof; or

(2) Qualified and trained personnel, performing a process or function related to licensed activities or vehicles.

§ 414.5 Applicability.

This part applies to an applicant that wants to obtain a safety element approval for any of the safety elements defined under this part and to persons granted a safety element approval under this part. Any person eligible under this part may apply to become the holder of a safety element approval.

§ 414.7 Eligibility.

(a) There is no citizenship requirement to obtain a safety element approval.

(b) You may be eligible for a safety element approval if you are—

(1) A designer, manufacturer, or operator of a launch or reentry vehicle or component thereof;

(2) The designer or developer of a safety system or process; or

(3) Personnel who perform safety-critical functions in conducting a licensed launch or reentry.

(c) A safety element approval applicant must have sufficient knowledge and expertise to show that the design and operation of the safety element for which safety element approval is sought qualify for a safety element approval.

(d) Only the safety elements defined under this part are eligible for a safety element approval.

§ 414.9 Pre-application consultation.

The applicant must consult with the FAA before submitting an application. Unless the applicant or the FAA requests another form of consultation, consultation is oral discussion with the FAA about the application process and the potential issues relevant to the FAA's safety element approval decision.

§ 414.11 Application.

An applicant may submit an application for a safety element approval in one of two ways:

(a) Separate from a vehicle operator license application in accordance with § 414.13; or

(b) Concurrent with a vehicle operator license application in accordance with § 414.15.

§ 414.13 Application separate from a vehicle operator license application.

(a) An applicant must make an application in writing and in English. The applicant must file the application with the Federal Aviation Administration either by paper, by use of physical electronic storage, or by email in the following manner:

(1) For an application submitted on paper, an applicant must send two copies of the application to the Federal Aviation Administration, Associate Administrator for Commercial Space Transportation, Room 331, 800 Independence Avenue SW, Washington, DC 20591. Attention: Application Review.

(2) For an application submitted by use of physical electronic storage, the applicant must either mail the application to the address specified in paragraph (a)(1) of this section or hand-deliver the application to an authorized FAA representative. The application and the physical electronic storage containing the application must also satisfy all of the following criteria:

(i) The application must include a cover letter that is printed on paper and signed by the person who signed the application or by an authorized representative of the applicant;

(ii) The cover letter must identify each document that is included on the physical electronic storage; and

(iii) The physical electronic storage must be in a format such that its contents cannot be altered.

(3) For an application submitted by email, an applicant must send the application as an email attachment, or as a link to a secure server, to ASTApplications@faa.gov. The application and the email to which the application is attached must also satisfy the following criteria:

(i) The email to which the application is attached must be sent from an email address controlled by the person who signed the application or by an authorized representative of the applicant; and

(ii) The email must identify each document that is included as an attachment or that is stored on a secure server; and

(iii) The electronic files must be date-stamped and have version control documentation.

(b) The application must identify the following basic information:

(1) Name and address of the applicant.

(2) Name, address, and telephone number of any person to whom inquiries and correspondence should be directed.

(3) Safety element as defined under this part for which the applicant seeks a safety element approval.

(c) The application must contain the following technical information:

(1) A Statement of Conformance letter, describing the specific criteria the applicant used to show the adequacy of the safety element for which a safety element approval is sought, and showing how the safety element complies with the specific criteria.

(2) The specific operating limits for which the safety element approval is sought.

(3) The following as applicable:

(i) Information and analyses required under this chapter that may be applicable to demonstrating safe performance of the safety element for which the safety element approval is sought.

(ii) Engineering design and analyses that show the adequacy of the proposed safety element for its intended use, such that the use in a licensed launch or reentry will not jeopardize public health or safety or the safety of property.

(iii) Relevant manufacturing processes.

(iv) Test and evaluation procedures.

(v) Test results.

(vi) Maintenance procedures.

(vii) Personnel qualifications and training procedures.

(d) The application must be legibly signed, dated, and certified as true, complete, and accurate by one of the following:

(1) For a corporation, an officer or other individual authorized to act for the corporation in licensing or safety element approval matters.

(2) For a partnership or a sole proprietorship, a general partner or proprietor, respectively.

(3) For a joint venture, association, or other entity, an officer or other individual duly authorized to act for the joint venture, association, or other entity in licensing matters.

(e) Failure to comply with any of the requirements set forth in this section is sufficient basis for denial of a safety element approval application.

§ 414.15 Application concurrent with vehicle operator license application.

(a) An applicant for a vehicle operator license may also identify one or more sections of its application for which it seeks to obtain a safety element approval concurrently with a license. An applicant applying for a safety element approval concurrently with a license must—

(1) Meet the applicable requirements of part 450;

(2) Provide the information required in § 414.13(b)(3) and (c)(2) and (3); and

(3) Specify the sections of the license application that support the application for a safety element approval.

(b) The scope of the safety element approval will be limited to what the application supports. The technical criteria for reviewing a safety element submitted as part of a vehicle operator license application are limited to the applicable requirements of part 450.

§ 414.17 Confidentiality.

(a) To ensure confidentiality of data or information in the application, the applicant must—

(1) Send a written request with the application that trade secrets or proprietary commercial or financial data be treated as confidential, and include in the request the specific time frame confidential treatment is required.

(2) Mark data or information that require confidentiality with an identifying legend, such as “Proprietary Information,” “Proprietary Commercial Information,” “Trade Secret,” or “Confidential Treatment Requested.” Where this marking proves impracticable, attach a cover sheet that contains the identifying legend to the data or information for which confidential treatment is sought.

(b) If the applicant requests confidential treatment for previously submitted data or information, the FAA will honor that request to the extent practicable in case of any prior distribution of the data or information.

(c) Data or information for which confidential treatment is requested or data or information that qualifies for exemption under section 552(b)(4) of title 5, U.S.C., will not be disclosed to the public unless the Associate Administrator determines that withholding the data or information is contrary to the public or national interest.

§ 414.19 Processing the initial application.

(a) The FAA will initially screen an application to determine if the application is complete enough for the FAA to start the review.

(b) After completing the initial screening, the FAA will inform the applicant in writing of one of the following:

(1) The FAA accepts the application and will begin the reviews or evaluations required for a safety element approval determination under this part.

(2) The FAA rejects the application because it is incomplete or indefinite, making initiation of the reviews or evaluations required for a safety element approval determination under this part inappropriate.

(c) The written notice will state the reason(s) for rejection and corrective actions necessary for the application to be accepted. The FAA may return a rejected application to the applicant or may hold it until the applicant provides more information.

(d) The applicant may withdraw, amend, or supplement an application any time before the FAA makes a final determination on the safety element approval application by making a written request to the Associate Administrator. If the applicant amends or supplements the initial application, the revised application must meet all the applicable requirements under this part.

§ 414.21 Maintaining the continued accuracy of the initial application.

The applicant is responsible for the continuing accuracy and completeness of information provided to the FAA as part of the safety element approval application. If at any time after submitting the application, circumstances occur that cause the information to no longer be accurate and complete in any material respect, the applicant must submit a written statement to the Associate Administrator explaining the circumstances and providing the new or corrected information. The revised application must meet all requirements under § 414.13 or § 414.15.

§ 414.23 Technical criteria for reviewing a safety element approval application.

The FAA will determine whether a safety element is eligible for and may be issued a safety element approval. The FAA will base its determination on performance-based criteria, against which it may assess the effect on public health and safety and on safety of property, in the following hierarchy:

(a) FAA or other appropriate Federal regulations.

(b) Government-developed or adopted standards.

(c) Industry consensus performance-based criteria or standard.

(d) Applicant-developed criteria. Applicant-developed criteria are performance standards customized by the manufacturer that intends to produce the system, system component, or part. The applicant-developed criteria must define—

(1) Design and minimum performance;

(2) Quality assurance system requirements;

(3) Production acceptance test specifications; and

(4) Continued operational safety monitoring system characteristics.

§ 414.25 Terms and conditions for issuing a safety element approval; duration of a safety element approval.

(a) The FAA will issue a safety element approval to an applicant that meets all the requirements under this part.

(b) The scope of the safety element approval will be limited by the scope of the safety demonstration contained in the application on which the FAA based the decision to grant the safety element approval.

(c) The FAA will determine specific terms and conditions of a safety element approval individually, limiting the safety element approval to the scope for which it was approved. The terms and conditions will include reporting requirements tailored to the individual safety element approval.

(d) A safety element approval is valid for five years and may be renewed.

§ 414.27 Maintaining the continued accuracy of the safety element approval application.

(a) The holder of a safety element approval must ensure the continued accuracy and completeness of representations contained in the safety element approval application, on which the approval was issued, for the entire term of the safety element approval.

(b) If any representation contained in the application that is material to public health and safety or safety of property ceases to be accurate and complete, the safety element approval holder must prepare and submit a revised application according to § 414.13 or § 414.15 under this part. The safety element approval holder must point out any part of the safety element approval or the associated application that would be changed or affected by a proposed modification. The FAA will review and make a determination on the revised application under the terms of this part.

§ 414.29 Safety element approval records.

The holder of a safety element approval must maintain all records necessary to verify that the holder's activities are consistent with the representations contained in the application for which the approval was issued for the duration of the safety element approval plus one year.

§ 414.31 Safety element approval renewal.

(a) Eligibility. A holder of a safety element approval may apply to renew it by sending the FAA a written application at least 90 days before the expiration date of the approval, unless the Administrator agrees to a different time frame in accordance with § 404.15.

(b) Application. (1) A safety element approval renewal application must meet all the requirements under § 414.13 or § 414.15.

(2) The application may incorporate by reference information provided as part of the application for the expiring safety element approval or any modification to that approval.

(3) Any proposed changes in the conduct of a safety element for which the FAA has issued a safety element approval must be described and must include any added information necessary to support the fitness of the proposed changes to meet the criteria upon which the FAA evaluated the safety element approval application.

(c) Review of application. The FAA conducts the reviews required under this part to determine whether the safety element approval may be renewed. We may incorporate by reference any findings that are part of the record for the expiring safety element approval.

(d) Grant of safety element approval renewal. If the FAA makes a favorable safety element approval determination, the FAA issues an order that amends the expiration date of the safety element approval or issues a new safety element approval. The FAA may impose added or revised terms and conditions necessary to protect public health and safety and the safety of property.

(e) Written notice. The FAA will provide written notice to the applicant of its determination on the safety element approval renewal request.

(f) Denial of a safety element approval renewal. If the FAA denies the renewal application, the applicant may correct any deficiency the FAA identified and request a reconsideration of the revised application. The applicant also has the right to appeal a denial as set forth in subpart D of this part.

§ 414.33 Safety element approval transfer.

(a) Only the FAA may approve a transfer of a safety element approval.

(b) Either the holder of a safety element approval or the prospective transferee may request a safety element approval transfer.

(c) Both the holder and prospective transferee must agree to the transfer.

(d) The person requesting the transfer must submit a safety element approval application according to § 414.13 or § 414.15, must meet the applicable requirements of this part, and may incorporate by reference relevant portions of the initial application.

(e) The FAA will approve a transfer of a safety element approval only after all the approvals and determinations required under this chapter for a safety element approval have been met. In conducting reviews and issuing approvals and determinations, the FAA may incorporate by reference any findings made part of the record to support the initial safety element approval determination. The FAA may modify the terms and conditions of a safety element approval to reflect any changes necessary because of a safety element approval transfer.

(f) The FAA will provide written notice to the person requesting the safety element approval transfer of our determination.

§ 414.35 Monitoring compliance with the terms and conditions of a safety element approval.

Each holder of a safety element approval must allow access by, and cooperate with, Federal officers or employees or other individuals authorized by the Associate Administrator to inspect manufacturing, production, testing, or assembly performed by a holder of a safety element approval or its contractor. The FAA may also inspect a safety element approval process or service, including training programs and personnel qualifications.

§ 414.37 Modification, suspension, or revocation of a safety element approval.

(a) The safety element approval holder. The safety element approval holder may submit an application to the FAA to modify the terms and conditions of the holder's safety element approval. The application must meet all the applicable requirements under this part. The FAA will review and make a determination on the application using the same procedures under this part applicable to an initial safety element approval application. If the FAA denies the request to modify a safety element approval, the holder may correct any deficiency the FAA identified and request reconsideration. The holder also has the right to appeal a denial as set forth in subpart D of this part.

(b) The FAA. If the FAA finds it is in the interest of public health and safety, safety of property, or if the safety element approval holder fails to comply with any applicable requirements of this part, any terms and conditions of the safety element approval, or any other applicable requirement, the FAA may—

(1) Modify the terms and conditions of the safety element approval; or

(2) Suspend or revoke the safety element approval.

(c) Effective date. Unless otherwise stated by the FAA, any modification, suspension, or revocation of a safety element approval under paragraph (b)—

(1) Takes effect immediately; and

(2) Continues in effect during any reconsideration or appeal of such action under this part.

(d) Notification and right to appeal. If the FAA determines it is necessary to modify, suspend, or revoke a safety element approval, we will notify the safety element approval holder in writing. If the holder disagrees with the FAA's determination, the holder may correct any deficiency the FAA identified and request a reconsideration of the determination. The applicant also has the right to appeal the determination as set forth in subpart D of this part.

§ 414.41 Hearings in safety element approval actions.

(a) The FAA will give the safety element approval applicant or holder, as appropriate, written notice stating the reason for issuing a denial or for modifying, suspending, or revoking a safety element approval under this part.

(b) A safety element approval applicant or holder is entitled to a determination on the record after an opportunity for a hearing.

§ 414.43 Submissions; oral presentations in safety element approval actions.

(a) Determinations in safety element approval actions under this part will be made on the basis of written submissions unless the administrative law judge, on petition or on their own initiative, determines that an oral presentation is required.

(b) Submissions must include a detailed exposition of the evidence or arguments supporting the petition.

(c) Petitions must be filed as soon as practicable, but in no event more than 30 days after issuance of decision or finding under § 414.37.

§ 414.45 Administrative law judge's recommended decision in safety element approval actions.

(a) The Associate Administrator, who will make the final decision on the matter at issue, will review the recommended decision of the administrative law judge. The Associate Administrator will make such final decision within 30 days of issuance of the recommended decision.

(b) The authority and responsibility to review and decide rests solely with the Associate Administrator and may not be delegated.

§ 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.

[Doc. No. FAA-2016-6761, Amdt. No. 420-8, 83 FR 28535, June 20, 2018]

§ 420.3 Applicability.

This part applies to any person seeking a license to operate a launch site or to a person licensed under this part. A person operating a site that only supports amateur rocket activities as defined in 14 CFR 1.1, does not need a license under this part to operate the site.

[Doc. No. FAA-2007-27390, 73 FR 73782, Dec. 4, 2008]

§ 420.5 Definitions.

For the purpose of this part.

Ballistic coefficient means the weight of an object divided by the quantity product of the coefficient of drag of the object and the area of the object.

Compatibility means the chemical property of materials that may be located together without increasing the probability of an accident or, for a given quantity, the magnitude of the effects of such an accident.

Debris dispersion radius (Dmax) means the estimated maximum distance from a launch point that debris travels given a worst-case launch vehicle failure and flight termination early in flight. For an expendable launch vehicle, flight termination is assumed to occur at 10 seconds into flight.

Downrange area means a portion of a flight corridor beginning where a launch area ends and ending 5,000 nautical miles from the launch point, or where the IIP leaves the surface of the Earth, whichever is shorter, for an orbital launch vehicle; and ending with an impact dispersion area for a guided sub-orbital launch vehicle.

E,F,G coordinate system means an orthogonal, Earth-fixed, geocentric, right-handed system. The origin of the coordinate system is at the center of an ellipsoidal Earth model. The E-axis is positive directed through the Greenwich meridian. The F-axis is positive directed though 90 degrees east longitude. The EF-plane is coincident with the ellipsoidal Earth model's equatorial plane. The G-axis is normal to the EF-plane and positive directed through the north pole.

E,N,U coordinate system means an orthogonal, Earth-fixed, topocentric, right-handed system. The origin of the coordinate system is at a launch point. The E-axis is positive directed east. The N-axis is positive directed north. The EN-plane is tangent to an ellipsoidal Earth model's surface at the origin and perpendicular to the geodetic vertical. The U-axis is normal to the EN-plane and positive directed away from the Earth.

Effective casualty area (Ac) means the aggregate casualty area of each piece of debris created by a launch vehicle failure at a particular point on its trajectory. The effective casualty area for each piece of debris is the area within which 100 percent of the unprotected population on the ground are assumed to be a casualty, and outside of which 100 percent of the population are assumed not to be a casualty. An effective casualty area accounts for the characteristics of the debris piece, including its size, the path angle of its trajectory, impact explosions, and debris skip, splatter, and bounce. An effective casualty area also accounts for the size of a person.

Energetic liquid means a liquid, slurry, or gel, consisting of, or containing an explosive, oxidizer, fuel, or combination of the above, that may undergo, contribute to, or cause rapid exothermic decomposition, deflagration, or detonation.

Explosive means any chemical compound or mechanical mixture that, when subjected to heat, impact, friction, detonation or other suitable initiation, undergoes a rapid chemical change that releases large volumes of highly heated gases that exert pressure in the surrounding medium. The term applies to materials that either detonate or deflagrate.

Explosive division means the division within hazard class 1 of an explosive as defined in the United Nations Organization classification system for transport of dangerous goods, and as determined in accordance with 49 CFR part 173, subpart C.

Explosive equivalent means a measure of the blast effects from explosion of a given quantity of material expressed in terms of the weight of trinitrotoluene (TNT) that would produce the same blast effects when detonated.

Explosive hazard facility means a facility or location at a launch site where solid propellants, energetic liquids, or other explosives are stored or handled.

Flight azimuth means the initial direction in which a launch vehicle flies relative to true north expressed in degrees-decimal-degrees.

Flight corridor means an area on the Earth's surface estimated to contain the hazardous debris from nominal flight of a launch vehicle, and non-nominal flight of a launch vehicle assuming a perfectly functioning flight termination system or other flight safety system.

Guided suborbital launch vehicle means a suborbital rocket that employs an active guidance system.

Hazard class means the class of an explosive as defined by the United Nations Organization classification system for transport of dangerous goods, and as determined in accordance with 49 CFR part 173, subpart C.

Impact dispersion area means an area representing an estimated three standard deviation dispersion about a nominal impact point of an intermediate or final stage of a suborbital launch vehicle.

Impact dispersion factor means a constant used to estimate, using a stage apogee, a three standard deviation dispersion about a nominal impact point of an intermediate or final stage of a suborbital launch vehicle.

Impact dispersion radius (Ri) means a radius that defines an impact dispersion area.

Impact range means the distance between a launch point and the impact point of a suborbital launch vehicle stage.

Impact range factor means a constant used to estimate, when multiplied by a stage apogee, the nominal impact point of an intermediate or final stage of a suborbital launch vehicle.

Instantaneous impact point (IIP) means an impact point, following thrust termination of a launch vehicle. IIP may be calculated with or without atmospheric drag effects

Intraline distance means the minimum distance permitted between any two explosive hazard facilities in the ownership, possession or control of one launch site customer.

Launch area means, for a flight corridor defined in accordance with appendix A of this part, the portion of a flight corridor from the launch point to a point 100 nautical miles in the direction of the flight azimuth. For a flight corridor defined in accordance with appendix B of this part, a launch area is the portion of a flight corridor from the launch point to the enveloping line enclosing the outer boundary of the last debris dispersion circle.

Launch point means a point on the Earth from which the flight of a launch vehicle begins, and is defined by its geodetic latitude, longitude and height on an ellipsoidal Earth model.

Liquid propellant means:

(1) A monopropellant on a launch vehicle or related device; or

(2) Incompatible energetic liquids co-located for purposes of serving as propellants on a launch vehicle or a related device where the incompatible energetic liquids are housed in tanks connected by piping for purposes of mixing.

Maximum credible event means a hypothesized worst-case accidental explosion, fire, or agent release that is likely to occur from a given quantity and disposition of explosives, chemical agents, or reactive material.

Net explosive weight (NEW) means the total weight, expressed in pounds, of explosive material or explosive equivalency contained in an item.

Nominal means, in reference to launch vehicle performance, trajectory, or stage impact point, a launch vehicle flight where all launch vehicle aerodynamic parameters are as expected, all vehicle internal and external systems perform as planned, and there are no external perturbing influences (e.g., winds) other than atmospheric drag and gravity.

Overflight dwell time means the period of time it takes for a launch vehicle's IIP to move past a populated area. For a given populated area, the overflight dwell time is the time period measured along the nominal trajectory IIP ground trace from the time point whose normal with the trajectory intersects the most uprange part of the populated area to the time point whose normal with the trajectory intersects the most downrange part of the populated area.

Overflight exclusion zone means a portion of a flight corridor which must remain clear of the public during the flight of a launch vehicle.

Populated area means a land area with population.

Population density means the number of people per unit area in a populated area.

Position data means data referring to the current position of a launch vehicle with respect to flight time expressed through the X, Y, Z coordinate system.

Public area means any area outside a hazard area and is an area that is not in the possession, ownership or other control of a launch site operator or of a launch site customer who possesses, owns or otherwise controls that hazard area.

Public area distance means the minimum distance permitted between a public area and an explosive hazard facility.

Public traffic route means any highway or railroad that the general public may use.

Public traffic route distance means the minimum distance permitted between a public highway or railroad line and an explosive hazard facility.

Trajectory means the position and velocity components as a function of time of a launch vehicle relative to an x, y, z coordinate system, expressed in x, y, z, x , y , z .

Unguided sub-orbital launch vehicle means a sub-orbital rocket that does not have a guidance system.

X, Y, Z coordinate system means an orthogonal, Earth-fixed, topocentric, right-handed system. The origin of the coordinate system is at a launch point. The x-axis coincides with the initial launch azimuth and is positive in the downrange direction. The y-axis is positive to the left looking downrange. The xy-plane is tangent to the ellipsoidal earth model's surface at the origin and perpendicular to the geodetic vertical. The z-axis is normal to the xy-plane and positive directed away from the earth.

φ0, λ0, h0 means a latitude, longitude, height system where φ0 is the geodetic latitude of a launch point, λ0 is the east longitude of the launch point, and h0 is the height of the launch point above the reference ellipsoid. φ0 and λ0 are expressed in degrees-decimal-degrees.

[Doc. No. FAA-1999-5833, 65 FR 62861, Oct. 19, 2000, as amended by Amdt. 420-3, 72 FR 17019, Apr. 6, 2007; Amdt. 420-6, 77 FR 55113, Sept. 7, 2012; Doc. No. FAA-2019-0229, Amdt. 420-9, 85 FR 79716, Dec. 10, 2020]

§§ 420.6-420.14 [Reserved]

§ 420.15 Information requirements.

(a) General—(1) Launch site operator. An applicant shall identify the name and address of the applicant, and the name, address, and telephone number of any person to whom inquiries and correspondence should be directed.

(2) Launch site. An applicant shall provide the name and location of the proposed launch site and include the following information:

(i) A list of downrange equipment;

(ii) A description of the layout of the launch site, including launch points;

(iii) The types of launch vehicles to be supported at each launch point;

(iv) The range of launch azimuths planned from each launch point; and

(v) The scheduled operational date.

(3) Foreign ownership. Identify foreign ownership of the applicant, as follows:

(i) For a sole proprietorship or partnership, all foreign owners or partners;

(ii) For a corporation, any foreign ownership interest of 10 percent or more; and

(iii) For a joint venture, association, or other entity, any foreign entities participating in the entity.

(b) Environmental. The FAA is responsible for complying with the procedures and policies of the National Environmental Policy Act (NEPA) and other applicable environmental laws, regulations, and Executive Orders prior to issuing a launch site license. An applicant must provide the FAA with information needed to comply with such requirements. The FAA will consider and document the potential environmental effects associated with issuing a launch site license.

(1) Environmental impact statement or environmental assessment. When directed by the FAA, an applicant must—

(i) Prepare an Environmental Assessment with FAA oversight;

(ii) Assume financial responsibility for preparation of an Environmental Impact Statement by an FAA-selected and -managed consultant contractor; or

(iii) Submit information to support a written re-evaluation of a previously submitted Environmental Assessment or Environmental Impact Statement when requested by the FAA.

(2) Categorical exclusion. The FAA may determine that a categorical exclusion is appropriate upon receipt of supporting information from an applicant.

(3) Environmental information. An application must include an approved FAA Environmental Assessment, Environmental Impact Statement, categorical exclusion determination, or written re-evaluation covering all planned licensed activities in compliance with NEPA and the Council on Environmental Quality Regulations for Implementing the Procedural Provisions of NEPA.

(c) Launch site location. (1) Except as provided by paragraph (c)(2) of this section, an applicant shall provide the information necessary to demonstrate compliance with §§ 420.19-420.29.

(2) An applicant who is proposing to locate a launch site at an existing launch point at a federal launch range is not required to comply with paragraph (c)(1) of this section if a launch vehicle of the same type and class as proposed for the launch point has been safely launched from the launch point.

(d) Explosive site plan. (1) Except as provided by paragraph (d)(2) of this section, an applicant shall submit an explosive site plan that complies with §§ 420.63, 420.65, 420.67, and 420.69.

(2) If an applicant plans to operate a launch site located on a federal launch range, and if the applicant is required by the federal launch range to comply with the federal launch range's explosive safety requirements, the applicant shall submit the explosive site plan submitted to the federal launch range.

(e) Launch site operations. An applicant shall provide the information necessary to demonstrate compliance with the requirements of §§ 420.53, 420.55, 420.57, 420.59, 420.61, and 420.71.

[Docket No. FAA-1999-5833, 65 FR 62861, Oct. 19, 2000, as amended by Doc. No. FAA-2019-0229, Amdt. 420-9, 85 FR 79716, Dec. 10, 2020]

§ 420.17 Bases for issuance of a license.

(a) The FAA will issue a license under this part when the FAA determines that:

(1) The application provides the information required by § 420.15;

(2) The FAA has completed an analysis of the environmental impacts associated with the proposed operation of the launch site, in accordance with NEPA, 40 CFR parts 1500-1508, and FAA Order 1050.1D;

(3) The launch site location meets the requirements of §§ 420.19, 420.21, 420.23, 420.25, 420.27, and 420.29;

(4) The applicant has completed the agreements required by § 420.31;

(5) The application demonstrates that the applicant shall satisfy the requirements of §§ 420.53, 420.55, 420.57, 420.59, 420.61 and 420.71;

(6) The explosive site plan meets the criteria of §§ 420.63, 420.65, 420.67 and 420.69; and

(7) Issuing a license would not jeopardize foreign policy or national security interests of the United States.

(b) The FAA advises an applicant, in writing, of any issue arising during an application review that would lead to denial. The applicant may respond in writing, submit additional information, or amend its license application.

§ 420.19 Launch site location review—general.

(a) To gain approval for a launch site location, an applicant shall demonstrate that for each launch point proposed for the launch site, at least one type of expendable or reusable launch vehicle can be flown from the launch point safely. For purposes of the launch site location review:

(1) A safe launch must possess a risk level estimated, in accordance with the requirements of this part, not to exceed an expected number of 1 × 10−4 casualties (Ec) to the collective members of the public exposed to hazards from the flight.

(2) Types of launch vehicles include orbital expendable launch vehicles, guided sub-orbital expendable launch vehicles, unguided sub-orbital expendable launch vehicles, and reusable launch vehicles. Orbital expendable launch vehicles are further classified by weight class, based on the weight of payload the launch vehicle can place in a 100-nm orbit, as defined in table 1.

(b) If an applicant proposes to have more than one type of launch vehicle flown from a launch point, the applicant shall demonstrate that each type of expendable or reusable launch vehicle planned to be flown from the launch point can be flown from the launch point safely.

(c) If an applicant proposes to have more than one weight class of orbital expendable launch vehicles flown from a launch point, the applicant shall demonstrate that the heaviest weight class planned to be flown from the launch point can be flown from the launch point safely.

Table 1 of § 420.19—Orbital Expendable Launch Vehicle Classes by Payload Weight (lbs)

100 nm orbit | Weight class

Small | Medium | Medium large | Large

28 degrees inclination * | ≤4400 | >4400 to ≤11100 | >11100 to ≤18500 | >18500

90 degrees inclination | ≤3300 | >3300 to ≤8400 | >8400 to ≤15000 | >15000

* 28 degrees inclination orbit from a launch point at 28 degrees latitude.

[Docket No. FAA-1999-5833, 65 FR 62861, Oct. 19, 2000, as amended by Docket No. FAA-2014-0418, Amdt. No. 420-7, 81 FR 47026, July 20, 2016]

§ 420.21 Launch site location review—launch site boundary.

(a) The distance from any proposed launch point to the closest launch site boundary must be at least as great as the debris dispersion radius of the largest launch vehicle type and weight class proposed for the launch point.

(b) For a launch site supporting any expendable launch vehicle, an applicant shall use the largest distance provided by table 2 for the type and weight class of any launch vehicle proposed for the launch point.

(c) For a launch site supporting any reusable launch vehicle, an applicant shall determine the debris dispersion radius that represents the maximum distance from a launch point that debris travels given a worst-case launch vehicle failure in the launch area. An applicant must clearly and convincingly demonstrate the validity of its proposed debris dispersion radius.

Table 2 of § 420.21—Minimum Distance From Launch Point to Launch Site Boundary (feet)

Orbital expendable launch vehicle class | Type of suborbital launch vehicle

Small | Medium | Medium large | Large | Guided | Unguided

7300 | 9300 | 10600 | 13000 | 8000 | 1600

§ 420.23 Launch site location review—flight corridor.

(a) Guided orbital expendable launch vehicle. For a guided orbital expendable launch vehicle, an applicant shall define a flight corridor that:

(1) Encompasses an area that the applicant estimates, in accordance with the requirements of this part, to contain debris with a ballistic coefficient of ≥3 pounds per square foot, from any non-nominal flight of a guided orbital expendable launch vehicle from the launch point to a point 5000 nm downrange, or where the IIP leaves the surface of the Earth, whichever is shorter;

(2) Includes an overflight exclusion zone where the public risk criteria of 1 × 10−4 would be exceeded if one person were present in the open; and

(3) Uses one of the methodologies provided in appendix A or B of this part.

(b) Guided sub-orbital expendable launch vehicle. For a guided sub-orbital expendable launch vehicle, an applicant shall define a flight corridor that:

(1) Encompasses an area that the applicant estimates, in accordance with the requirements of this part, to contain debris with a ballistic coefficient of ≥3 pounds per square foot, from any non-nominal flight of a guided sub-orbital expendable launch vehicle from the launch point to impact with the earth's surface;

(2) Includes an impact dispersion area for the launch vehicle's last stage;

(3) Includes an overflight exclusion zone where the public risk criteria of 1 × 10−4 would be exceeded if one person were present in the open; and

(4) Uses one of the methodologies provided in appendix A or B to this part.

(c) Unguided sub-orbital expendable launch vehicle. (1) For an unguided sub-orbital expendable launch vehicle, an applicant shall define the following using the methodology provided by appendix D of this part:

(i) Impact dispersion areas that the applicant estimates, in accordance with the requirements of this part, to contain the impact of launch vehicle stages from nominal flight of an unguided sub-orbital expendable launch vehicle from the launch point to impact with the earth's surface; and

(ii) An overflight exclusion zone where the public risk criteria of 1 × 10−4 would be exceeded if one person were present in the open.

(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.

(d) Reusable launch vehicle. For a reusable launch vehicle, an applicant shall define a flight corridor that contains the hazardous debris from nominal and non-nominal flight of a reusable launch vehicle. The applicant must provide a clear and convincing demonstration of the validity of its flight corridor.

[Docket No. FAA-1999-5833, 65 FR 62861, Oct. 19, 2000, as amended by Docket No. FAA-2014-0418, Amdt. No. 420-7, 81 FR 47026, July 20, 2016; Doc. No. FAA-2016-6761, Amdt. No. 420-8, 83 FR 28535, June 20, 2018]

§ 420.25 Launch site location review—risk analysis.

(a) If a flight corridor or impact dispersion area defined by § 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.

(b) For licensed launches, the FAA will not approve the location of the proposed launch point if the estimated expected casualty exceeds 1 × 10−4.

[Doc. No. FAA-1999-5833, 65 FR 62861, Oct. 19, 2000, as amended by Amdt. 420-3, 72 FR 17019, Apr. 6, 2007; Docket No. FAA-2014-0418, Amdt. No. 420-7, 81 FR 47027, July 20, 2016; Doc. No. FAA-2016-6761, Amdt. No. 420-8, 83 FR 28535, June 20, 2018]

§ 420.27 Launch site location review—information requirements.

An applicant shall provide the following launch site location review information in its application:

(a) A map or maps showing the location of each launch point proposed, and the flight azimuth, IIP, flight corridor, and each impact range and impact dispersion area for each launch point;

(b) Each launch vehicle type and any launch vehicle class proposed for each launch point;

(c) Trajectory data;

(d) Wind data, including each month and any percent wind data used in the analysis;

(e) Any launch vehicle apogee used in the analysis;

(f) Each populated area located within a flight corridor or impact dispersion area;

(g) The estimated casualty expectancy calculated for each populated area within a flight corridor or impact dispersion area;

(h) The effective casualty areas used in the analysis;

(i) The estimated casualty expectancy for each flight corridor or set of impact dispersion areas; and

(j) If populated areas are located within an overflight exclusion zone, a demonstration that there are times when the public is not present or that the applicant has an agreement in place to evacuate the public from the overflight exclusion zone during a launch.

§ 420.29 Launch site location review for unproven launch vehicles.

An applicant for a license to operate a launch site for an unproven launch vehicle shall provide a clear and convincing demonstration that its proposed launch site location provides an equivalent level of safety to that required by this part.

§ 420.30 Launch site location review for permitted launch vehicles.

If an applicant plans to use its proposed launch site solely for launches conducted under an experimental permit, the FAA will approve a launch site location if the FAA has approved an operating area under part 437 for launches from that site.

[Doc. No. FAA-2006-24197, 72 FR 17019, Apr. 6, 2007]

§ 420.31 Agreements.

(a) Except as provided by paragraph (c) of this section, an applicant shall complete an agreement with the local U.S. Coast Guard district to establish procedures for the issuance of a Notice to Mariners prior to a launch and other such measures as the Coast Guard deems necessary to protect public health and safety.

(b) Except as provided by paragraph (c) of this section, an applicant shall complete an agreement with the FAA Air Traffic Control (ATC) office having jurisdiction over the airspace through which launches will take place, to establish procedures for the issuance of a Notice to Airmen prior to a launch and for closing of air routes during the launch window and other such measures as the FAA ATC office deems necessary to protect public health and safety.

(c) An applicant that plans to operate a launch site located on a federal launch range does not have to comply with section 420.31 if the applicant is using existing federal launch range agreements with the U.S. Coast Guard and the FAA ATC office having jurisdiction over the airspace through which launches will take place.

§§ 420.32-420.40 [Reserved]

§ 420.41 License to operate a launch site—general.

(a) A license to operate a launch site authorizes a licensee to operate a launch site in accordance with the representations contained in the licensee's application, with terms and conditions contained in any license order accompanying the license, and subject to the licensee's compliance with 51 U.S.C. Subtitle V, chapter 509 and this chapter.

(b) A license to operate a launch site authorizes a licensee to offer its launch site to a launch operator for each launch point for the type and any weight class of launch vehicle identified in the license application and upon which the licensing determination is based.

(c) Issuance of a license to operate a launch site does not relieve a licensee of its obligation to comply with any other laws or regulations; nor does it confer any proprietary, property, or exclusive right in the use of airspace or outer space.

[Doc. No. FAA-1999-5833, 65 FR 62861, Oct. 19, 2000, as amended by Amdt. 420-5, 77 FR 20533, Apr. 5, 2012]

§ 420.43 Duration.

A license to operate a launch site remains in effect for five years from the date of issuance unless surrendered, suspended, or revoked before the expiration of the term and is renewable upon application by the licensee.

§ 420.45 Transfer of a license to operate a launch site.

(a) Only the FAA may transfer a license to operate a launch site.

(b) The FAA will transfer a license to an applicant who has submitted an application in accordance with 14 CFR part 413, satisfied the requirements of § 420.15, and obtained each approval required by § 420.17 for a license.

(c) The FAA may incorporate by reference any findings made part of the record that supported a prior related licensing determination.

§ 420.47 License modification.

(a) Upon application or upon its own initiative, the FAA may modify a license to operate a launch site at any time by issuing a license order that adds, removes, or modifies a license term or condition to ensure compliance with the Act and the requirements of this chapter.

(b) After a license to operate a launch site has been issued, a licensee shall apply to the FAA for modification of its license if:

(1) The licensee proposes to operate the launch site in a manner that is not authorized by the license; or

(2) The licensee proposes to operate the launch site in a manner that would make any representation contained in the license application that is material to public health and safety or safety of property no longer accurate and complete.

(c) An application to modify a license shall be prepared and submitted in accordance with part 413 of this chapter. The licensee shall indicate any part of its license or license application that would be changed or affected by a proposed modification.

(d) The FAA approves a modification request that satisfies the requirements of this part.

(e) Upon approval of a license modification, the FAA issues either a written approval to the licensee or a license order modifying the license if a stated term or condition of the license is changed, added, or deleted. A written approval has the full force and effect of a license order and is part of the licensing record.

§ 420.49 Compliance monitoring.

A licensee shall allow access by and cooperate with federal officers or employees or other individuals authorized by the FAA to observe any activities of the licensee, its customers, its contractors, or subcontractors, associated with licensed operation of the licensee's launch site.

§ 420.51 Responsibilities—general.

A licensee must operate its launch site in accordance with the representations in its application.

[Docket No. FAA-2019-0229, Amdt. 420-9, 85 FR 79716, Dec. 10, 2020]

§ 420.53 Control of public access.

(a) A licensee shall prevent unauthorized access to the launch site, and unauthorized, unescorted access to explosive hazard facilities or other hazard areas not otherwise controlled by a launch operator, through the use of security personnel, surveillance systems, physical barriers, or other means approved as part of the licensing process.

(b) A licensee shall notify anyone entering the launch site of safety rules and emergency and evacuation procedures prior to that person's entry unless that person has received a briefing on those rules and procedures within the previous year.

(c) A licensee shall employ warning signals or alarms to notify any persons at the launch site of any emergency.

§ 420.55 Scheduling of launch site operations.

(a) A licensee shall develop and implement procedures to schedule operations to ensure that each operation carried out by a customer at the launch site does not create the potential for a mishap that could result in harm to the public because of the proximity of the operations, in time or place, to operations of any other customer. A customer includes any launch operator, and any contractor, subcontractor or customer of the launch site operator's customer at the launch site.

(b) A licensee shall provide its launch site scheduling requirements to each customer before the customer begins operations at the launch site.

§ 420.57 Notifications.

(a) A licensee shall notify each launch operator and any other customer of any limitations on the use of the launch site. A licensee shall also communicate limitations on the use of facilities provided to customers by the launch site operator.

(b) A licensee shall maintain its agreement, made in accordance with § 420.31(a), with the local U.S. Coast Guard district.

(c) A licensee shall maintain its agreement, made in accordance with § 420.31(b), with the FAA ATC office having jurisdiction over the airspace through which launches will take place.

(d) At least 2 days prior to flight of a launch vehicle, unless the Administrator agrees to a different time frame in accordance with § 404.15, the licensee must notify local officials and all owners of land adjacent to the launch site of the flight schedule.

[Docket No. FAA-1999-5833, 65 FR 62861, Oct. 19, 2000, as amended by Doc. No. FAA-2019-0229, Amdt. 420-9, 85 FR 79716, Dec. 10, 2020]

§ 420.59 Mishap plan.

(a) General. A licensee must report, respond to, and investigate any event that meets either paragraph (1) or (5) of the definition of “mishap” in § 401.7 of this chapter. A licensee must submit a mishap plan that meets the requirements of § 450.173(b) through (f).

(b) Launch mishaps. A launch site operator's mishap plan must also contain procedures for participating in an investigation of a launch mishap for launches launched from the launch site.

(c) Other agency procedures. Emergency response and investigation procedures developed in accordance with 29 CFR 1910.119 and 40 CFR part 68 will satisfy the requirements of § 450.173(d) and (e) to the extent that they include the elements required by § 450.173(d) and (e).

[Doc. No. FAA-2019-0229, Amdt. 420-9, 85 FR 79716, Dec. 10, 2020]

§ 420.61 Records.

(a) A licensee shall maintain all records, data, and other material needed to verify that its operations are conducted in accordance with representations contained in the licensee's application. A licensee shall retain records for three years.

(b) For any event that meets any of paragraph (1), (5), or (8) of the definition of “mishap” in § 401.7 of this chapter, a licensee must preserve all records related to the event. Records must be retained until completion of any Federal investigation and the FAA advises the licensee that the records need not be retained.

(c) A licensee shall make available to federal officials for inspection and copying all records required to be maintained under the regulations.

[Docket No. FAA-1999-5833, 65 FR 62861, Oct. 19, 2000, as amended by Doc. No. FAA-2019-0229, Amdt. 420-9, 85 FR 79717, Dec. 10, 2020]

§ 420.63 Explosive siting.

(a) Except as otherwise provided by paragraph (b) of this section, a licensee must ensure the configuration of the launch site follows its explosive site plan, and the licensee's explosive site plan complies with the requirements of §§ 420.65 through 420.70. The explosive site plan must include:

(1) A scaled map that shows the location of all explosive hazard facilities at the launch site and that shows actual and minimal allowable distances between each explosive hazard facility and all other explosive hazard facilities, each public traffic route, and each public area, including the launch site boundary;

(2) A list of the maximum quantity of energetic liquids, solid propellants and other explosives to be located at each explosive hazard facility, including explosive class and division;

(3) A description of each activity to be conducted at each explosive hazard facility; and

(4) An explosive site map using a scale sufficient to show whether distances and structural relationships satisfy the requirements of this part.

(b) A licensee operating a launch site located on a federal launch range does not have to comply with the requirements in §§ 420.65 through 420.70 if the licensee complies with the federal launch range's explosive safety requirements.

(c) For explosive siting issues not addressed by the requirements of §§ 420.65 through 420.70, a launch site operator must clearly and convincingly demonstrate a level of safety equivalent to that otherwise required by this part.

(d) A launch site operator may separate an explosive hazard facility from another explosive hazard facility, public area, or public traffic route by a distance different from one required by this part only if the launch site operator clearly and convincingly demonstrates a level of safety equivalent to that required by this part.

[Doc. No. FAA-2011-0105, 77 FR 55113, Sept. 7, 2012]

§ 420.65 Separation distance requirements for handling division 1.1 and 1.3 explosives.

(a) Quantity. For each explosive hazard facility, a launch site operator must determine the total quantity of division 1.1 and 1.3 explosives as follows:

(1) A launch site operator must determine the maximum total quantity of division 1.1 and 1.3 explosives by class and division, in accordance with 49 CFR part 173, Subpart C, to be located in each explosive hazard facility where division 1.1 and 1.3 explosives will be handled.

(2) When division 1.1 and 1.3 explosives are located in the same explosive hazard facility, the total quantity of explosive must be treated as division 1.1 for determining separation distances; or, a launch site operator may add the net explosive weight of the division 1.3 items to the net explosive weight of division 1.1 items to determine the total quantity of explosives.

(b) Separation of division 1.1 and 1.3 explosives and determination of distances. A launch site operator must separate each explosive hazard facility where division 1.1 and 1.3 explosives are handled from all other explosive hazard facilities, all public traffic routes, and each public area, including the launch site boundary, by a distance no less than that provided for each quantity and explosive division in appendix E of this part as follows:

(1) For division 1.1 explosives, the launch site operator must use tables E-1, E-2, and E-3 of appendix E of this part to determine the distance to each public area and public traffic route, and to determine each intraline distance.

(2) For division 1.3 explosives, the launch site operator must use table E-4 of appendix E of this part to determine the distance to each public area and public traffic route, and to determine each intraline distance.

(c) Separation distance by weight and table. A launch site operator must:

(1) Employ no less than the public area distance, calculated under paragraph (b) of this section, to separate an explosive hazard facility from each public area, including the launch site boundary.

(2) Employ no less than an intraline distance to separate an explosive hazard facility from all other explosive hazard facilities used by a single customer. For explosive hazard facilities used by different customers a launch site operator must use the greater public area distance to separate the facilities from each other.

(3) Separate each public area containing any member of the public in the open by a distance equal to −1133.9 + [389 *ln(NEW)], where the NEW is greater than 450 pounds and less than 501,500 pounds.

(d) NEW Quantities that Fall between Table Entries. A launch site operator must, when determining a separation distance for NEW quantities that fall between table entries, use the equation provided by tables E-1, E-3, or E-4 of appendix E of this part.

(e) Calculating Maximum Permissible NEW Given a Distance. A launch site operator must, when determining a permissible quantity of explosives, calculate maximum permissible NEW using the equation of tables E-1, E-3, or E-4 of appendix E of this part.

[Doc. No. FAA-2011-0105, 77 FR 55114, Sept. 7, 2012]

§ 420.66 Separation distance requirements for storage of hydrogen peroxide, hydrazine, and liquid hydrogen and any incompatible energetic liquids stored within an intraline distance.

(a) Separation of energetic liquids and determination of distances. A launch site operator must separate each explosive hazard facility from each other explosive hazard facility, each public area, and each public traffic route in accordance with the minimum separation distance determined under this section for each explosive hazard facility storing:

(1) Hydrogen peroxide in concentrations of greater than 91 percent;

(2) Hydrazine;

(3) Liquid hydrogen; or

(4) Any energetic liquid that is:

(i) Incompatible with any of the energetic liquids of paragraph (a)(1) through (3) of this section; and

(ii) Stored within an intraline distance of any of them.

(b) Quantity. For each explosive hazard facility, a launch site operator must determine the total quantity of all energetic liquids in paragraph (a)(1) through (4) of this section as follows:

(1) The quantity of energetic liquid in a tank, drum, cylinder, or other container is the net weight in pounds of the energetic liquid in the container. The determination of quantity must include any energetic liquid in associated piping to any point where positive means exist for:

(i) Interrupting the flow through the pipe, or

(ii) Interrupting a reaction in the pipe in the event of a mishap.

(2) A launch site operator must convert the quantity of each energetic liquid from gallons to pounds using the conversion factors provided in table E-6 of appendix E of this part and the following equation:

Pounds of energetic liquid = gallons × density of energetic liquid (pounds per gallon).

(3) Where two or more containers of compatible energetic liquids are stored in the same explosive hazard facility, the total quantity of energetic liquids is the total quantity of energetic liquids in all containers, unless:

(i) The containers are each separated from each other by the distance required by paragraph (c) of this section; or

(ii) The containers are subdivided by intervening barriers that prevent mixing, such as diking.

(4) Where two or more containers of incompatible energetic liquids are stored within an intraline distance of each other, paragraph (d) of this section applies.

(c) Determination of separation distances for compatible energetic liquids. A launch site operator must determine separation distances for compatible energetic liquids as follows:

(1) To determine each intraline, public area, and public traffic route distance, a launch site operator must use the following tables in appendix E of this part:

(i) Table E-7 for hydrogen peroxide in concentrations of greater than 91 percent; and

(ii) Table E-8 for hydrazine and liquid hydrogen.

(2) For liquid hydrogen and hydrazine, a launch site operator must use the “intraline distance to compatible energetic liquids” for the energetic liquid that requires the greater distance under table E-8 of appendix E of this part as the minimum separation distance between compatible energetic liquids.

(d) Determination of separation distances for incompatible energetic liquids. If incompatible energetic liquids are stored within an intraline distance of each other, a launch site operator must determine the explosive equivalent in pounds of the combined liquids as provided by paragraph (d)(2) of this section unless intervening barriers prevent mixing.

(1) If intervening barriers prevent mixing, a launch site operator must separate the incompatible energetic liquids by no less than the intraline distance that tables E-7 and E-8 of appendix E of this part apply to compatible energetic liquids using the quantity or energetic liquid requiring the greater separation distance.

(2) A launch site operator must use the formulas provided in table E-5 of appendix E of this part, to determine the explosive equivalent in pounds of the combined incompatible energetic liquids. A launch site operator must then use the explosive equivalent in pounds requiring the greatest separation distance to determine the minimum separation distance between each explosive hazard facility and all other explosive hazard facilities and each public area and public traffic route as required by tables E-1, E-2 and E-3 of appendix E of this part.

[Doc. No. FAA-2011-0105, 77 FR 55114, Sept. 7, 2012]

§ 420.67 Separation distance requirements for handling incompatible energetic liquids that are co-located.

(a) Separation of energetic liquids and determination of distances. Where incompatible energetic liquids are co-located in a launch or reentry vehicle tank or other vessel, a launch site operator must separate each explosive hazard facility from each other explosive hazard facility, each public area, and each public traffic route in accordance with the minimum separation distance determined under this section for each explosive hazard facility.

(b) Quantity. For each explosive hazard facility, a launch site operator must determine the total quantity of all energetic liquids as follows:

(1) The quantity of energetic liquid in a launch or reentry vehicle tank is the net weight in pounds of the energetic liquid. The determination of quantity must include any energetic liquid in associated piping to any point where positive means exist for:

(i) Interrupting the flow through the pipe; or

(ii) Interrupting a reaction in the pipe in the event of a mishap.

(2) A launch site operator must convert each energetic liquid's quantity from gallons to pounds using the conversion factors provided by table E-6 of appendix E of this part and the following equation:

Pounds of energetic liquid = gallons × density of energetic liquid (pounds per gallon).

(c) Determination of separation distances for incompatible energetic liquids. A launch site operator must determine separation distances for incompatible energetic liquids as follows:

(1) A launch site operator must use the formulas provided in table E-5 of appendix E of this part, to determine the explosive equivalent in pounds of the combined incompatible energetic liquids; and

(2) A launch site operator must then use the explosive equivalent in pounds to determine the minimum separation distance between each explosive hazard facility and all other explosive hazard facilities and each public area and public traffic route as required by tables E-1, E-2 and E-3 of appendix E of this part. Where two explosive hazard facilities contain different quantities, the launch site operator must use the quantity of liquid propellant requiring the greatest separation distance to determine the minimum separation distance between the two explosive hazard facilities.

(d) Separation distance by weight and table. For each explosive hazard facility, a launch site operator must:

(1) For an explosive equivalent weight from one pound through and including 450 pounds, determine the distance to any public area and public traffic route following table E-1 of appendix E of this part;

(2) For explosive equivalent weight greater than 450 pounds, determine the distance to any public area and public traffic route following table E-2 of appendix E of this part;

(3) Separate each public area containing any member of the public in the open by a distance equal to −1133.9 + [389 *ln(NEW)], where the NEW is greater than 450 pounds and less than 501,500 pounds;

(4) Separate each explosive hazard facility from all other explosive hazard facilities of a single customer using the intraline distance provided by table E-3 of appendix E of this part; and

(5) For explosive hazard facilities used by different customers, use the greater public area distance to separate the facilities from each other.

[Doc. No. FAA-2011-0105, 77 FR 55115, Sept. 7, 2012]

§ 420.69 Separation distance requirements for co-location of division 1.1 and 1.3 explosives with liquid propellants.

(a) Separation of energetic liquids and explosives and determination of distances. A launch site operator must separate each explosive hazard facility from each other explosive hazard facility, each public traffic route, and each public area in accordance with the minimum separation distance determined under this section for each explosive hazard facility where division 1.1 and 1.3 explosives are co-located with liquid propellants. A launch site operator must determine each minimum separation distance from an explosive hazard facility where division 1.1 and 1.3 explosives and liquid propellants are to be located together, to each other explosive hazard facility, public traffic route, and public area as described in paragraphs (b) through (e) of this section.

(b) Liquid propellants and division 1.1 explosives located together. For liquid propellants and division 1.1 explosives located together, a launch site operator must:

(1) Determine the explosive equivalent weight of the liquid propellants by following § 420.67(c);

(2) Add the explosive equivalent weight of the liquid propellants and the net explosive weight of division 1.1 explosives to determine the combined net explosive weight;

(3) Use the combined net explosive weight to determine the distance to each public area, public traffic route, and each other explosive hazard facility by following tables E-1, E-2, and E-3 of appendix E of this part; and

(4) Separate each public area containing any member of the public in the open by a distance equal to −1133.9 + [389 *ln(NEW)], where the net explosive weight is greater than 450 pounds and less than 501,500 pounds.

(c) Liquid propellants and division 1.3 explosives located together. For liquid propellants and division 1.3 explosives located together, a launch site operator must separate each explosive hazard facility from each other explosive hazard facility, public area, and public traffic route using either of the following two methods:

(1) Method 1. (i) Determine the explosive equivalent weight of the liquid propellants by following § 420.67(c);

(ii) Add to the explosive equivalent weight of the liquid propellants, the net explosive weight of each division 1.3 explosive, treating division 1.3 explosives as division 1.1 explosives;

(iii) Use the combined net explosive weight to determine the minimum separation distance to each public area, public traffic route, and each other explosive hazard facility by following tables E-1, E-2, and E-3 of appendix E of this part; and

(iv) Separate each public area containing any member of the public in the open by a distance equal to −1133.9 + [389 *ln(NEW)], where the net explosive weight is greater than 450 pounds and less than 501,500 pounds.

(2) Method 2. (i) Determine the explosive equivalent weight of each liquid propellant by following § 420.67(c);

(ii) Add to the explosive equivalent weight of the liquid propellants, the net explosive weight of each division 1.3 explosive to determine the combined net explosive weight;

(iii) Use the combined net explosive weight to determine the minimum separation distance to each public area, public traffic route, and each other explosive hazard facility by following tables E-1, E-2, and E-3 of appendix E of this part; and

(iv) Separate each public area containing any member of the public in the open by a distance equal to −1133.9 + [389 *ln(NEW)], where the net explosive weight is greater than 450 pounds and less than 501,500 pounds.

(d) Liquid propellants and division 1.1 and 1.3 explosives located together. For liquid propellants and division 1.1 and 1.3 explosives located together, a launch site operator must:

(1) Determine the explosive equivalent weight of the liquid propellants by following § 420.67(c);

(2) Determine the total explosive quantity of each division 1.1 and 1.3 explosive by following § 420.65(a)(2);

(3) Add the explosive equivalent weight of the liquid propellants to the total explosive quantity of division 1.1 and 1.3 explosives together to determine the combined net explosive weight;

(4) Use the combined net explosive weight to determine the distance to each public area, public traffic route, and each other explosive hazard facility by following tables E-1, E-2, and E-3 of appendix E of this part; and

(5) Separate each public area containing any member of the public in the open by a distance equal to −1133.9 + [389 *ln(NEW)], where the net explosive weight is greater than 450 pounds and less than 501,500 pounds

(e) Use of maximum credible event analysis. If a launch site operator does not want to employ paragraphs (b), (c), or (d) of this section, the launch site operator must analyze the maximum credible event (MCE) or the worst case explosion expected to occur. If the MCE shows there will be no simultaneous explosion reaction of the liquid propellant tanks and the solid propellant motors, the minimum distance between the explosive hazard facility and all other explosive hazard facilities and public areas must be based on the MCE.

[Doc. No. FAA-2011-0105, 77 FR 55115, Sept. 7, 2012]

§ 420.70 Separation distance measurement requirements.

(a) This section applies to all measurements of distances performed under §§ 420.63 through 420.69.

(b) A launch site operator must measure each separation distance along straight lines. For large intervening topographical features such as hills, the launch site operator must measure over or around the feature, whichever is the shorter.

(c) A launch site operator must measure each minimum separation distance from the closest hazard source, such as a container, building, segment, or positive cut-off point in piping, in an explosive hazard facility. When measuring, a launch site operator must:

(1) For a public traffic route distance, measure from the nearest side of the public traffic route to the closest point of the hazard source; and

(2) For an intraline distance, measure from the nearest point of one hazard source to the nearest point of the next hazard source. The minimum separation distance must be the distance for the quantity of energetic liquids or net explosive weight that requires the greater distance.

[Doc. No. FAA-2011-0105, 77 FR 55116, Sept. 7, 2012]

§ 420.71 Lightning protection.

(a) Lightning protection. A licensee shall ensure that the public is not exposed to hazards due to the initiation of explosives by lightning.

(1) Elements of a lighting protection system. Unless an explosive hazard facility meets the conditions of paragraph (a)(3) of this section, all explosive hazard facilities shall have a lightning protection system to ensure explosives are not initiated by lightning. A lightning protection system shall meet the requirements of this paragraph and include the following:

(i) Air terminal. An air terminal to intentionally attract a lightning strike.

(ii) Down conductor. A low impedance path connecting an air terminal to an earth electrode system.

(iii) Earth electrode system. An earth electrode system to dissipate the current from a lightning strike to ground.

(2) Bonding and surge protection. A lightning protection system must meet the requirements of this paragraph and include the following:

(i) Bonding. All metallic bodies shall be bonded to ensure that voltage potentials due to lightning are equal everywhere in the explosive hazard facility. Any fence within six feet of a lightning protection system shall have a bond across each gate and other discontinuations and shall be bonded to the lightning protection system. Railroad tracks that run within six feet of the lightning protection system shall be bonded to the lightning protection system.

(ii) Surge protection. A lightning protection system shall include surge protection to reduce transient voltages due to lightning to a harmless level for all metallic power, communication, and instrumentation lines entering an explosive hazard facility.

(3) Circumstances where no lightning protection system is required. No lightning protection system is required for an explosive hazard facility when a lightning warning system is available to permit termination of operations and withdrawal of the public to public area distance prior to an electrical storm, or for an explosive hazard facility containing explosives that cannot be initiated by lightning. If no lightning protection system is required, a licensee must ensure the withdrawal of the public to a public area distance prior to an electrical storm.

(4) Testing and inspection. Lightning protection systems shall be visually inspected semiannually and shall be tested once each year for electrical continuity and adequacy of grounding. A licensee shall maintain at the explosive hazard facility a record of results obtained from the tests, including any action taken to correct deficiencies noted.

(b) Electrical power lines. A licensee shall ensure that electric power lines at its launch site meet the following requirements:

(1) Electric power lines shall be no closer to an explosive hazard facility than the length of the lines between the poles or towers that support the lines unless an effective means is provided to ensure that energized lines cannot, on breaking, come in contact with the explosive hazard facility.

(2) Towers or poles supporting electrical distribution lines that carry between 15 and 69 KV, and unmanned electrical substations shall be no closer to an explosive hazard facility than the public area distance for that explosive hazard facility.

(3) Towers or poles supporting electrical transmission lines that carry 69 KV or more, shall be no closer to an explosive hazard facility than the public area distance for that explosive hazard facility.

§ 433.1 General.

The FAA evaluates on an individual basis an applicant's proposal to operate a reentry site.

§ 433.3 Issuance of a license to operate a reentry site.

(a) The FAA issues a license to operate a reentry site when it determines that an applicant's operation of the reentry site does not jeopardize public health and safety, the safety of property, U.S. national security or foreign policy interests, or international obligations of the United States.

(b) A license to operate a reentry site authorizes a licensee to operate a reentry site in accordance with the representations contained in the licensee's application, subject to the licensee's compliance with terms and conditions contained in any license order accompanying the license.

§ 433.5 Operational restrictions on a reentry site.

A license to operate a reentry site authorizes the licensee to offer use of the site to support reentry of a reentry vehicle for which the three-sigma footprint of the vehicle upon reentry is wholly contained within the site.

§ 433.7 Environmental.

(a) General. The FAA is responsible for complying with the procedures and policies of the National Environmental Policy Act (NEPA) and other applicable environmental laws, regulations, and Executive Orders prior to issuing a reentry site license. An applicant must provide the FAA with information needed to comply with such requirements. The FAA will consider and document the potential environmental effects associated with issuing a license for a reentry site.

(b) Environmental impact statement or environmental assessment. When directed by the FAA, an applicant must—

(1) Prepare an Environmental Assessment with FAA oversight;

(2) Assume financial responsibility for preparation of an Environmental Impact Statement by an FAA-selected and -managed consultant contractor; or

(3) Submit information to support a written re-evaluation of a previously submitted Environmental Assessment or Environmental Impact Statement.

(c) Categorical exclusion. The FAA may determine that a categorical exclusion is appropriate upon receipt of supporting information from an applicant.

(d) Environmental information. An application must include an approved FAA Environmental Assessment, Environmental Impact Statement, categorical exclusion determination, or written re-evaluation covering all planned licensed activities in compliance with NEPA and the Council on Environmental Quality Regulations for Implementing the Procedural Provisions of NEPA.

[Doc. No. FAA-2019-0229, Amdt. 433-3, 85 FR 79717, Dec. 10, 2020]

§ 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.

[Doc. No. FAA-2016-6761, Amdt. No. 437-2, 83 FR 28535, June 20, 2018]

§ 437.3 Definitions.

Envelope expansion means any portion of a flight where planned operations will subject a reusable suborbital vehicle to the effects of altitude, velocity, acceleration, or burn duration that exceed a level or duration successfully verified during an earlier flight.

Exclusion area means an area, within an operating area, that a reusable suborbital vehicle's instantaneous impact point may not traverse.

Operating area means a three-dimensional region where permitted flights may take place.

Permitted vehicle means a reusable suborbital rocket or a reusable launch vehicle that will be launched into a suborbital trajectory or reentered that is operated by a launch or reentry operator under an experimental permit.

Reentry impact point means the location of a reusable suborbital vehicle's instantaneous impact point during its unpowered exoatmospheric suborbital flight.

[Doc. No. FAA-2023-1656, Amdt. No. 437- 4, 89 FR 76726, Sept. 19, 2024]

§ 437.5 Eligibility for an experimental permit.

The FAA will issue an experimental permit to a person to launch or reenter a reusable suborbital vehicle only for—

(a) Research and development to test design concepts, equipment, or operating techniques;

(b) A showing of compliance with requirements for obtaining a license under this subchapter; or

(c) Crew training for a launch or reentry using the design of the reusable suborbital vehicle for which the permit would be issued.

[Doc. No. FAA-2023-1656, Amdt. No. 437- 4, 89 FR 76726, Sept. 19, 2024]

§ 437.7 Scope of an experimental permit.

An experimental permit authorizes launch or reentry of a reusable suborbital vehicle. The authorization includes pre- and post-flight ground operations as defined in this section.

(a) A pre-flight ground operation includes each operation that—

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

(2) Meets the following criteria:

(i) Is closely proximate in time to flight,

(ii) Entails critical steps preparatory to initiating flight,

(iii) Is unique to space launch, and

(iv) Is inherently so hazardous as to warrant the FAA's regulatory oversight.

(b) A post-flight ground operation includes each operation necessary to return the reusable suborbital vehicle to a safe condition after it lands or impacts.

[Doc. No. FAA-2006-24197, Amdt. No. 437-0, 72 FR 17019, Apr. 6, 2007, as amended by Amdt. No. 437-4, 89 FR 76726, Sept. 19, 2024]

§ 437.9 Issuance of an experimental permit.

The FAA issues an experimental permit authorizing an unlimited number of launches or reentries for a reusable suborbital vehicle design for the uses described in § 437.5.

[Doc. No. FAA-2023-1656; Amdt. No. 437-4, 89 FR 76726, Sept. 19, 2024]

§ 437.11 Duration of an experimental permit.

An experimental permit lasts for one year from the date it is issued. A permittee may apply to renew a permit yearly under part 413 of this subchapter.

§ 437.13 Additional experimental permit terms and conditions.

The FAA may modify an experimental permit at any time by modifying or adding permit terms and conditions to ensure compliance with 51 U.S.C. Subtitle V, chapter 509.

[Doc. No. FAA-2012-0232, 77 FR 20533, Apr. 5, 2012]

§ 437.15 Transfer of an experimental permit.

An experimental permit is not transferable.

§ 437.17 Rights not conferred by an experimental permit.

Issuance of an experimental permit does not relieve a permittee of its obligation to comply with any requirement of law that applies to its activities.

§ 437.21 General.

To obtain an experimental permit an applicant must make the demonstrations and provide the information required by this section.

(a) This subpart. An applicant must provide a program description, a flight test plan, and operational safety documentation as required by this subpart.

(b) Other regulations—(1) Environmental—(i) General. The FAA is responsible for complying with the procedures and policies of the National Environmental Policy Act (NEPA) and other applicable environmental laws, regulations, and Executive Orders to consider and document the potential environmental effects associated with proposed reusable suborbital vehicle launches or reentries. An applicant must provide the FAA with information needed to comply with such requirements. The FAA will consider and document the potential environmental effects associated with proposed reusable suborbital vehicle launches or reentries.

(ii) Environmental Impact Statement or Environmental Assessment. When directed by the FAA, an applicant must—

(A) Prepare an Environmental Assessment with FAA oversight;

(B) Assume financial responsibility for preparation of an Environmental Impact Statement by an FAA-selected and -managed consultant contractor; or

(C) Submit information to support a written re-evaluation of a previously submitted Environmental Assessment or Environmental Impact Statement.

(iii) Categorical exclusion. The FAA may determine that a categorical exclusion determination is appropriate upon receipt of supporting information from an applicant.

(iv) Information requirements. An application must include an approved FAA Environmental Assessment, Environmental Impact Statement, categorical exclusion determination, or written re-evaluation covering all planned permitted activities in compliance with NEPA and the Council on Environmental Quality Regulations for Implementing the Procedural Provisions of NEPA.

(2) Financial responsibility. An applicant must provide the information required by part 3 of appendix A of part 440 for the FAA to conduct a maximum probable loss analysis.

(3) Human space flight. An applicant proposing to conduct a permitted operation with a space flight participant, crew, or government astronaut on board a reusable suborbital vehicle must demonstrate compliance with §§ 460.5, 460.7, 460.11, 460.13, 460.15, 460.17, 460.51, 460.53, 460.59, 460.61, and 460.67 of this subchapter.

(c) Use of a safety element approval. If an applicant proposes to use any reusable suborbital vehicle, safety system, process, service, or personnel for which the FAA has issued a safety element approval under part 414 of this chapter, the FAA will not reevaluate that safety element to the extent its use is within its approved scope. As part of the application process, the FAA will evaluate the integration of that safety element into vehicle systems or operations.

(d) Inspection before issuing a permit. Before the FAA issues an experimental permit, an applicant must make each reusable suborbital vehicle planned to be flown available to the FAA for inspection. The FAA will determine whether each reusable suborbital vehicle is built as represented in the application.

(e) Other requirements. The FAA may require additional analyses, information, or agreements if necessary to protect public health and safety, safety of property, and national security and foreign policy interests of the United States.

[Docket No. FAA-2006-24197, 72 FR 17019, Apr. 6, 2007, as amended by Doc. No. FAA-2019-0229, Amdt. 437-3, 85 FR 79718, Dec. 10, 2020; Doc. No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76727, Sept. 19, 2024]

§ 437.23 Program description.

(a) An applicant must provide—

(1) Dimensioned three-view drawings or photographs of the reusable suborbital vehicle; and

(2) Gross liftoff weight and thrust profile of the reusable suborbital vehicle.

(b) An applicant must describe—

(1) All reusable suborbital vehicle systems, including any structural, flight control, thermal, pneumatic, hydraulic, propulsion, electrical, environmental control, software and computing systems, avionics, and guidance systems used in the reusable suborbital vehicle;

(2) The types and quantities of all propellants used in the reusable suborbital vehicle;

(3) The types and quantities of any hazardous materials used in the reusable suborbital vehicle;

(4) The purpose for which a reusable suborbital vehicle is to be flown; and

(5) Each payload or payload class planned to be flown.

(c) An applicant must identify any foreign ownership of the applicant as follows:

(1) For a sole proprietorship or partnership, identify all foreign ownership,

(2) For a corporation, identify any foreign ownership interests of 10% or more, and

(3) For a joint venture, association, or other entity, identify any participating foreign entities.

[Doc. No. FAA-2006-24197, Amdt. No. 437-0, 72 FR 17019, Apr. 6, 2007, as amended by Doc. No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76727, Sept. 19, 2024]

§ 437.25 Flight test plan.

An applicant must—

(a) Describe any flight test program, including estimated number of flights and key flight-safety events.

(b) Identify and describe the geographic coordinates of the boundaries of one or more proposed operating areas where it plans to perform its flights and that satisfy § 437.57(b) of subpart C. The FAA may designate one or more exclusion areas in accordance with § 437.57(c) of subpart C.

(c) For each operating area, provide the planned maximum altitude of the reusable suborbital vehicle.

[Doc. No. FAA-2006-24197, Amdt. No. 437-0, 72 FR 17019, Apr. 6, 2007, as amended by Doc. No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76727, Sept. 19, 2024]

§ 437.27 Pre-flight and post-flight operations.

An applicant must demonstrate how it will meet the requirements of § 437.53(a) and (b) to establish a safety clear zone and verify that the public is outside that zone before and during any hazardous operation.

§ 437.29 Hazard analysis.

(a) An applicant must perform a hazard analysis that complies with § 437.55(a).

(b) An applicant must provide to the FAA all the results of each step of the hazard analysis required by paragraph (a) of this section.

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

(a) An applicant must identify, describe, and provide verification evidence of the methods and systems used to meet the requirement of § 437.57(a) to contain its reusable suborbital vehicle's instantaneous impact point within an operating area and outside any exclusion area. The description must include, at a minimum—

(1) Proof of physical limits on the ability of the reusable suborbital vehicle to leave the operating area; or

(2) Abort procedures and other safety measures derived from a system safety engineering process.

(b) An applicant must identify, describe, and provide verification evidence of the methods and systems used to meet the requirements of § 437.59 to conduct any key flight-safety event so that the reusable suborbital vehicle's instantaneous impact point, including its expected dispersions, is over unpopulated or sparsely populated areas, and to conduct each reusable suborbital vehicle flight so that the reentry impact point does not loiter over a populated area.

[Docket No. FAA-2006-24197, 72 FR 17019, Apr. 6, 2007, as amended by Docket No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76727, Sept. 19, 2024]

§ 437.33 Landing and impact locations.

An applicant must demonstrate that each location for nominal landing or any contingency abort landing of the reusable suborbital vehicle, and each location for any nominal or contingency impact or landing of a component of that reusable suborbital vehicle, satisfies § 437.61.

[Docket No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76727, Sept. 19, 2024

§ 437.35 Agreements.

An applicant must enter into the agreements required by § 437.63, and provide a copy to the FAA.

§ 437.37 Tracking.

An applicant must identify and describe each method or system used to meet the tracking requirements of § 437.67.

§ 437.39 Flight rules.

An applicant must provide flight rules as required by § 437.71.

§ 437.41 Mishap plan.

An applicant must submit a mishap plan that meets the requirements of § 450.173 of this chapter.

[Docket No. FAA-2019-0229, Amdt. 437-3, 85 FR 79718, Dec. 10, 2020]

§ 437.51 Rest rules for vehicle safety operations personnel.

A permittee must ensure that all vehicle safety operations personnel adhere to the work and rest standards in this section during permitted activities.

(a) No vehicle safety operations personnel may work more than:

(1) 12 consecutive hours,

(2) 60 hours in the 7 days preceding a permitted activity, or

(3) 14 consecutive work days.

(b) All vehicle safety operations personnel must have at least 8 hours of rest after 12 hours of work.

(c) All vehicle safety operations personnel must receive a minimum 48-hour rest period after 5 consecutive days of 12-hour shifts.

§ 437.53 Pre-flight and post-flight operations.

A permittee must protect the public from adverse effects of hazardous operations and systems in preparing a reusable suborbital vehicle for flight at a launch site in the United States and returning the reusable suborbital vehicle and any support equipment to a safe condition after flight. At a minimum, a permittee must—

(a) Establish a safety clear zone that will contain the adverse effects of each operation involving a hazard; and

(b) Verify that the public is outside of the safety clear zone before and during any hazardous operation.

[Doc. No. FAA-2006-24197, Amdt. No. 437-0, 72 FR 17019, Apr. 6, 2007, as amended by Doc. No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76727, Sept. 19, 2024]

§ 437.55 Hazard analysis.

(a) A permittee must identify and characterize each of the hazards and assess the risk to public health and safety and the safety of property resulting from each permitted flight. This hazard analysis must—

(1) Identify and describe hazards, including but not limited to each of those that result from—

(i) Component, subsystem, or system failures or faults;

(ii) Software errors;

(iii) Environmental conditions;

(iv) Human errors;

(v) Design inadequacies; or

(vi) Procedural deficiencies.

(2) Determine the likelihood of occurrence and consequence for each hazard before risk elimination or mitigation.

(3) Ensure that the likelihood and consequence of each hazard meet the following criteria through risk elimination and mitigation measures:

(i) The likelihood of any hazardous condition that may cause death or serious injury to the public must be extremely remote.

(ii) The likelihood of any hazardous condition that may cause major property damage to the public, major safety-critical system damage or reduced capability, a significant reduction in safety margins, or a significant increase in crew workload must be remote.

(4) Identify and describe the risk elimination and mitigation measures required to satisfy paragraph (a)(3) of this section. The measures must include one or more of the following:

(i) Designing for minimum risk,

(ii) Incorporating safety devices,

(iii) Providing warning devices, or

(iv) Implementing procedures and training.

(5) Demonstrate that the risk elimination and mitigation measures achieve the risk levels of paragraph (a)(3)(i) of this section through validation and verification. Verification includes:

(i) Test data,

(ii) Inspection results, or

(iii) Analysis.

(b) A permittee must carry out the risk elimination and mitigation measures derived from its hazard analysis.

(c) A permittee must ensure the continued accuracy and validity of its hazard analysis throughout the term of its permit.

§ 437.57 Operating area containment.

(a) During each permitted flight, a permittee must contain its reusable suborbital vehicle's instantaneous impact point within an operating area determined in accordance with paragraph (b) of this section and outside any exclusion area defined by the FAA in accordance with paragraph (c) of this section.

(b) An operating area—

(1) Must be large enough to contain each planned trajectory and all expected vehicle dispersions;

(2) Must contain enough unpopulated or sparsely populated area to perform key flight-safety events as required by § 437.59;

(3) May not contain or be adjacent to a densely populated area or large concentrations of members of the public; and

(4) May not contain or be adjacent to significant automobile traffic, railway traffic, or waterborne vessel traffic.

(c) The FAA may prohibit a reusable suborbital vehicle's instantaneous impact point from traversing certain areas within an operating area by designating one or more areas as exclusion areas, if necessary to protect public health and safety, safety of property, or foreign policy or national security interests of the United States. An exclusion area may be confined to a specific phase of flight.

[Doc. No. FAA-2006-24197, Amdt. No. 437-0, 72 FR 17019, Apr. 6, 2007, as amended by Doc. No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76727, Sept. 19, 2024]

§ 437.59 Key flight-safety event limitations.

(a) A permittee must conduct any key flight-safety event so that the reusable suborbital vehicle's instantaneous impact point, including its expected dispersion, is over an unpopulated or sparsely populated area. At a minimum, a key flight-safety event includes:

(1) Ignition of any primary rocket engine,

(2) Any staging event, or

(3) Any envelope expansion.

(b) A permittee must conduct each reusable suborbital vehicle flight so that the reentry impact point does not loiter over a populated area.

[Doc. No. FAA-2006-24197, Amdt. No. 437-0, 72 FR 17019, Apr. 6, 2007, as amended by Doc. No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76727, Sept. 19, 2024]

§ 437.61 Landing and impact locations.

For a nominal or any contingency abort landing of a reusable suborbital vehicle, or for any nominal or contingency impact or landing of a component of that reusable suborbital vehicle, a permittee must use a location that—

(a) Is big enough to contain an impact, including debris dispersion upon impact; and

(b) At the time of landing or impact, does not contain any members of the public.

[Doc. No. FAA-2006-24197, Amdt. No. 437-0, 72 FR 17019, Apr. 6, 2007, as amended by Doc. No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76727, Sept. 19, 2024]

§ 437.63 Agreements with other entities involved in a launch or reentry.

A permittee must comply with the agreements required by this section.

(a) A permittee must have an agreement in writing with a Federal launch range operator, a licensed launch site operator, or any other party that provides access to or use of property and services required to support the safe launch or reentry under a permit.

(b) Unless otherwise addressed in agreements with a licensed launch site operator or a Federal launch range, a permittee must have an agreement in writing with the following:

(1) For overflight of navigable water, a written agreement between the applicant and the local United States Coast Guard district to establish procedures for issuing a Notice to Mariners before a permitted flight, and

(2) A written agreement between the applicant and responsible Air Traffic Control authority having jurisdiction over the airspace through which a permitted launch or reentry is to take place, for measures necessary to ensure the safety of aircraft. The agreement must, at a minimum, demonstrate satisfaction of §§ 437.69(a) and 437.71(d).

§ 437.65 Collision avoidance analysis.

For a permitted flight with a planned maximum altitude greater than 150 kilometers, a permittee must obtain a collision avoidance analysis in accordance with § 450.169 of this chapter.

[Docket No. FAA-2019-0229, Amdt. 437-3, 85 FR 79718, Dec. 10, 2020]

§ 437.67 Tracking a reusable suborbital rocket.

A permittee must—

(a) During permitted flight, measure in real time the position and velocity of its reusable suborbital rocket; and

(b) Provide position and velocity data to the FAA for post-flight use.

§ 437.69 Communications.

(a) A permittee must be in communication with Air Traffic Control during all phases of flight.

(b) A permittee must record communications affecting the safety of the flight.

§ 437.71 Flight rules.

(a) Before initiating flight, a permittee must confirm that all systems and operations necessary to ensure that safety measures derived from §§ 437.55, 437.57, 437.59, 437.61, 437.63, 437.65, 437.67, and 437.69 are within acceptable limits.

(b) During all phases of flight, a permittee must—

(1) Follow flight rules that ensure compliance with §§ 437.55, 437.57, 437.59, and 437.61; and

(2) Abort the flight if it would endanger the public.

(c) A permittee may not operate a reusable suborbital vehicle in a careless or reckless manner that would endanger any member of the public during any phase of flight.

(d) A permittee may not operate a reusable suborbital vehicle in areas designated in a Notice to Airmen under 14 CFR 91.137, 91.138, 91.141, or 91.145, unless authorized by:

(1) Air Traffic Control; or

(2) A Flight Standards Certificate of Waiver or Authorization.

(e) For any phase of flight where a permittee operates a reusable suborbital vehicle like an aircraft in the National Airspace System, a permittee must comply with the provisions of 14 CFR part 91 specified in an experimental permit issued under this part.

[Docket No. FAA-2006-24197, 72 FR 17019, Apr. 6, 2007, as amended by, Doc. No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76728, Sept. 19, 2024]

§ 437.73 Anomaly recording, reporting and implementation of corrective actions.

(a) A permittee must record each anomaly that affects a safety-critical system, subsystem, process, facility, or support equipment.

(b) A permittee must identify all root causes of each anomaly, and implement all corrective actions for each anomaly.

(c) A permittee must report to the FAA any anomaly of any system that is necessary for complying with §§ 437.55(a)(3), 437.57, and 437.59, and must report the corrective action for each reported anomaly.

(d) A permittee must implement each corrective action before the next flight.

§ 437.75 [Reserved]

§ 437.77 Additional safety requirements.

The FAA may impose additional safety requirements on an applicant or permittee proposing an activity with a hazard not otherwise addressed in this part. This may include a toxic hazard or the use of solid propellants. The FAA may also require the permittee to conduct additional analyses of the cause of any anomaly and corrective actions.

§ 437.81 Public safety responsibility.

A permittee must ensure that a launch or reentry conducted under an experimental permit is safe, and must protect public health and safety and the safety of property.

§ 437.83 Compliance with experimental permit.

A permittee must conduct any launch or reentry under an experimental permit in accordance with representations made in its permit application, with subparts C and D of this part, and with terms and conditions contained in the permit.

§ 437.85 Allowable design changes; modification of an experimental permit.

(a) The FAA will identify in the experimental permit the type of changes that the permittee may make to the reusable suborbital vehicle design without invalidating the permit.

(b) Except for design changes made under paragraph (a) of this section, a permittee must ask the FAA to modify the experimental permit if—

(1) It proposes to conduct permitted activities in a manner not authorized by the permit; or

(2) Any representation in its permit application that is material to public health and safety or the safety of property is no longer accurate or complete.

(c) A permittee must prepare an application to modify an experimental permit and submit it in accordance with part 413 of this subchapter. If requested during the application process, the FAA may approve an alternate method for requesting permit modifications. The permittee must indicate any part of its permit that would be changed or affected by a proposed modification.

(d) When a permittee proposes a modification, the FAA reviews the determinations made on the experimental permit to decide whether they remain valid.

(e) When the FAA approves a modification, it issues the permittee either a written approval or a permit order modifying the permit if a stated term or condition of the permit is changed, added, or deleted. An approval has the full force and effect of a permit order and is part of the permit record.

[Doc. No. FAA-2006-24197, Amdt. No. 437-0, 72 FR 17019, Apr. 6, 2007, as amended by Doc. No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76727, Sept. 19, 2024]

§ 437.87 Records.

(a) Except as required by paragraph (b) of this section, a permittee must maintain for 3 years all records, data, and other material necessary to verify that a permittee conducted its launch or reentry in accordance with its permit.

(b) For any event that meets any of paragraphs (1) through (3), (5), or (8) of the definition of “mishap” in § 401.7 of this chapter, a permittee must preserve all records related to the event. Records shall be retained until any Federal investigation is complete and the FAA advises the permittee that the records need not be retained.

(c) A permittee must make all records that it must maintain under this section available to Federal officials for inspection and copying.

[Docket No. FAA-2006-24197, 72 FR 17019, Apr. 6, 2007, as amended by Docket No. FAA-2019-0229, Amdt. 437-3, 85 FR 79718, Dec. 10, 2020]

§ 437.89 Pre-flight reporting.

(a) Not later than 30 days before each flight or series of flights conducted under an experimental permit, unless the Administrator agrees to a different time frame in accordance with § 404.15, a permittee must provide the FAA with the following information:

(1) Any payload to be flown, including any payload operations during the flight,

(2) When the flight or series of flights are planned,

(3) The operating area for each flight, and

(4) The planned maximum altitude for each flight.

(b) Not later than 15 days before each permitted flight planned to reach greater than 150 km altitude, unless the Administrator agrees to a different time frame in accordance with § 404.15, a permittee must provide the FAA its planned trajectory for a collision avoidance analysis.

[Docket No. FAA-2006-24197, 72 FR 17019, Apr. 6, 2007, as amended by Docket No. FAA-2019-0229, Amdt. 437-3, 85 FR 79718, Dec. 10, 2020]

§ 437.91 For-hire prohibition.

No permittee may carry any property or human being for compensation or hire on a reusable suborbital vehicle.

[Doc. No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76728, Sept. 19, 2024]

§ 437.93 Compliance monitoring.

A permittee must allow access by, and cooperate with, federal officers or employees or other individuals authorized by the FAA to observe any activities of the permittee, or of its contractors or subcontractors, associated with the conduct of permitted activities.

§ 437.95 Inspection of additional reusable suborbital vehicles.

A permittee may launch or reenter additional reusable suborbital vehicles of the same design under the permit after the FAA inspects each additional reusable suborbital vehicle.

[Doc. No. FAA-2023-1656, Amdt. No. 437-4, 89 FR 76728, Sept. 19, 2024]

§ 440.1 Scope of part.

This part establishes financial responsibility and allocation of risk requirements for any launch or reentry authorized by a license or permit issued under this subchapter.

§ 440.3 Definitions.

Except as otherwise provided in this section, any term used in this part and defined in 51 U.S.C. 50901-50923, or in § 401.7 of this chapter shall have the meaning contained therein.

Bodily injury means physical injury, sickness, disease, disability, shock, mental anguish, or mental injury sustained by any person, including death.

Contractors and subcontractors means those entities that are involved at any level, directly or indirectly, in licensed or permitted activities, and includes suppliers of property and services, and the component manufacturers of a launch vehicle, reentry vehicle, or payload.

Customer means.

(1) Any person:

(i) Who procures launch or reentry services from a licensee or permittee;

(ii) With rights in the payload (or any part of the payload) to be launched or reentered by the licensee or permittee, including a conditional sale, lease, assignment, or transfer of rights;

(iii) Who has placed property on board the payload for launch, reentry, or payload services; or

(iv) To whom the customer has transferred its rights to the launch or reentry services.

(2) A space flight participant, for the purposes of this part, is not a customer.

Federal range facility means a U.S. Government-owned installation at which a launch or reentry takes place.

Financial responsibility means capable of satisfying a liability obligation as required by 51 U.S.C Subtitle V, chapter 509.

First-tier customer means a customer as defined in this section, and who has a contractual relationship with a license or permit holder to obtain launch or reentry services.

Government personnel means employees of the United States, its agencies, and its contractors and subcontractors, involved in launch or reentry services for an activity authorized by an FAA license or permit. Employees of the United States include members of the Armed Forces of the United States.

Hazardous operations means activities, processes, and procedures that, because of the nature of the equipment, facilities, personnel, environment involved or function being performed, may result in bodily injury or property damage.

Liability means a legal obligation to pay a claim for bodily injury or property damage resulting from a licensed or permitted activity.

License means an authorization the FAA issues under this subchapter to launch or reenter a launch or reentry vehicle.

Licensed activity means the launch of a launch vehicle or the reentry of a reentry vehicle conducted under a license the FAA issues.

Maximum probable loss (MPL) means the greatest dollar amount of loss for bodily injury or property damage that is reasonably expected to result from a licensed or permitted activity;

(1) Losses to third parties, excluding Government personnel and other launch or reentry participants' employees involved in licensed or permitted activities and neighboring operations personnel, that are reasonably expected to result from a licensed or permitted activity are those that have a probability of occurrence of no less than one in ten million.

(2) Losses to Government property and Government personnel, excluding government astronauts, involved in licensed or permitted activities and neighboring operations personnel that are reasonably expected to result from licensed or permitted activities are those that have a probability of occurrence of no less than one in one hundred thousand.

Part 440 customer means a customer as defined in this section, other than a first-tier customer.

Permit means an authorization the FAA issues under this subchapter for the launch or reentry of a reusable suborbital vehicle.

Permitted activity means the launch or reentry of a reusable suborbital vehicle conducted under a permit issued by the FAA.

Property damage means partial or total destruction, impairment, or loss of tangible property, real or personal.

Regulations mean the Commercial Space Transportation Licensing Regulations codified at 14 CFR Ch. III.

Third party means—

(1) Any person other than:

(i) The United States, any of its agencies, and its contractors and subcontractors involved in launch or reentry services for a licensed or permitted activity;

(ii) A licensee, permittee, and its contractors and subcontractors involved in launch or reentry services for a licensed or permitted activity;

(iii) A customer and its contractors and subcontractors involved in launch or reentry services for a licensed or permitted activity;

(iv) A member of a crew;

(v) A space flight participant; and

(vi) A government astronaut.

(2) Government personnel, as defined in this section and excluding government astronauts, are third parties.

United States means the United States Government, including each of its agencies.

[Doc. No. FAA-2005-23449, 71 FR 75632, Dec. 15, 2006, as amended by Amdt. 440-3, 77 FR 20533, Apr. 5, 2012; Doc. No. FAA-2014-1012, Amdt. 440-4, 81 FR 55122, Aug. 18, 2016; Docket No. FAA-2019-0229, Amdt. 437-3, 85 FR 79718, Dec. 10, 2020; Doc. No. FAA-2023-1656, Amdt. No. 440-7, 89 FR 76728, Sept. 19, 2024]

§ 440.5 General.

(a) No person may commence or conduct any launch or reentry activity that requires a license or permit unless that person has demonstrated compliance with the requirements of this part.

(b) The FAA will prescribe the amount of financial responsibility a licensee or permittee must obtain and any adjustments of the amount in a license or permit order issued concurrent with or subsequent to the issuance of a license or a permit.

(c) Demonstration of financial responsibility under this part shall not relieve a licensee of ultimate responsibility for liability, loss, or damage sustained by the United States resulting from a licensed activity, except to the extent that:

(1) Liability, loss, or damage sustained by the United States results from willful misconduct of the United States or its agents;

(2) Any covered claim of a third party for bodily injury or property damage arising out of any particular licensed activity exceeds the amount of financial responsibility required under § 440.9(c) of this part and does not exceed $1,500,000,000 (as adjusted for inflation occurring after January 1, 1989) above such amount, and are payable pursuant to 51 U.S.C. 50915 and § 440.19 of this part. A claim of an employee of any entity listed in paragraphs (1)(ii) through (1)(iii) in the Third party definition in § 440.3 of this part for bodily injury or property damage is not a covered claim;

(3) A covered claim for property loss or damage exceeds the amount of financial responsibility required under § 440.9(e) of this part and does not result from willful misconduct of the licensee; or

(4) The licensee has no liability for covered claims by third parties for bodily injury or property damage arising out of any particular launch or reentry that exceeds $1,500,000,000 (as adjusted for inflation) above the amount of financial responsibility required under § 440.9(c).

(d) Demonstration of financial responsibility under this part does not relieve a permittee of ultimate responsibility for liability, loss, or damage sustained by the United States resulting from a permitted activity, except to the extent that:

(1) Liability, loss, or damage sustained by the United States results from willful misconduct of the United States or its agents; or

(2) A covered claim for property loss or damage to the United States exceeds the amount of financial responsibility required under § 440.9(e) and does not result from willful misconduct of the permittee.

(e) A licensee's or permittee's failure to comply with any requirement of this part may result in suspension or revocation of a license or permit, and subject the licensee or permittee to civil penalties as provided in part 405 of this chapter.

[Doc. No. FAA-2005-23449, 71 FR 75632, Dec. 15, 2006, as amended by Amdt. 440-3, 77 FR 20533, Apr. 5, 2012]

§ 440.7 Determination of maximum probable loss.

(a) The FAA will determine the maximum probable loss (MPL) from covered claims by a third party for bodily injury or property damage, and the United States, its agencies, and its contractors and subcontractors for covered property damage or loss, resulting from a permitted or licensed activity. The maximum probable loss determination forms the basis for financial responsibility requirements issued in a license or permit order.

(b) The FAA issues its determination of maximum probable loss no later than ninety days after a licensee or permittee has requested a determination and submitted all information required by the FAA to make the determination. The FAA will consult with Federal agencies that are involved in, or whose personnel or property are exposed to risk of damage or loss as a result of, a licensed or permitted activity before issuing a license or permit order prescribing financial responsibility requirements, and shall notify the licensee, or permittee, if interagency consultation may delay issuance of the MPL determination.

(c) Appendix A of this part contains information requirements for obtaining a maximum probable loss determination. Any person requesting a determination of maximum probable loss must submit the information required by Appendix A, unless the FAA has waived a requirement. In lieu of submitting required information, a person requesting a maximum probable loss determination may designate and certify certain information previously submitted for a prior determination as complete, valid, and equally applicable to its current request. The requester is responsible for the continuing accuracy and completeness of information submitted under this part and must promptly report any changes in writing.

(d) The FAA will amend a determination of maximum probable loss required under this section at any time prior to completion of licensed or permitted activities as warranted by supplementary information provided to or obtained by the FAA after the MPL determination is issued. Any change in financial responsibility requirements as a result of an amended MPL determination shall be set forth in a license or permit order.

(e) The FAA may make a determination of maximum probable loss at any time other than as set forth in paragraph (b) of this section upon request by any person.

§ 440.9 Insurance requirements for licensed or permitted activities.

(a) As a condition of each license or permit, a licensee or permittee must comply with all insurance requirements of this section and of a license or permit issued by the FAA, or otherwise demonstrate the required amount of financial responsibility.

(b) A licensee or permittee must obtain and maintain in effect a policy or policies of liability insurance, in an amount determined by the FAA under paragraph (c) of this section, that protects the following persons as additional insureds to the extent of their respective potential liabilities against covered claims by a third party for bodily injury or property damage resulting from a licensed or permitted activity:

(1) The licensee or permittee, its customer, and their respective contractors and subcontractors, and the employees of each, involved in a licensed or permitted activity;

(2) The United States, its agencies, and its contractors and subcontractors involved in a licensed or permitted activity;

(3) Government personnel; and

(4) Space flight participants. This paragraph (b)(4) shall cease to be effective on September 30, 2025, unless public law modifies the limitation in section 50914 of Title 51 of the U.S. Code.

(c) The FAA will prescribe for each licensee or permittee the amount of insurance required to compensate the total of covered third-party claims for bodily injury or property damage resulting from a licensed or permitted activity in connection with any particular launch or reentry. A covered third-party claim includes a claim by the United States, its agencies, and its contractors and subcontractors for damage or loss to property other than property for which insurance is required under paragraph (d) of this section. The amount of insurance required is based upon the FAA's determination of maximum probable loss; however, it will not exceed the lesser of:

(1) $500 million; or

(2) The maximum liability insurance available on the world market at a reasonable cost, as determined by the FAA.

(d) The licensee or permittee must obtain and maintain in effect a policy or policies of insurance, in an amount determined by the FAA under paragraph (e) of this section, that covers claims by the United States, its agencies, and its contractors and subcontractors involved in a licensed or permitted activity for property damage or loss resulting from a licensed or permitted activity. Property covered by this insurance must include all property owned, leased, or occupied by, or within the care, custody, or control of, the United States and its agencies, and its contractors and subcontractors involved in a licensed or permitted activity, at a Federal range facility. Insurance must protect the United States and its agencies, and its contractors and subcontractors involved in a licensed or permitted activity.

(e) The FAA will prescribe for each licensee or permittee the amount of insurance required to compensate claims for property damage under paragraph (d) of this section resulting from a licensed or permitted activity in connection with any particular launch or reentry. The amount of insurance is based upon a determination of maximum probable loss; however, it will not exceed the lesser of:

(1) $100 million; or

(2) The maximum available on the world market at a reasonable cost, as determined by the FAA.

(f) In lieu of a policy of insurance, a licensee or permittee may demonstrate financial responsibility in another manner meeting the terms and conditions for insurance of this part. The licensee or permittee must describe in detail the method proposed for demonstrating financial responsibility and how it ensures that the licensee or permittee is able to cover claims as required under this part.

[Docket No. FAA-2005-23449, 71 FR 75632, Dec. 15, 2006, as amended by Doc. No. FAA-2023-1656, Amdt. No. 440-7, 89 FR 76728, Sept. 19, 2024]

§ 440.11 Duration of coverage for licensed launch, including suborbital launch, or permitted activities; modifications.

(a) Insurance coverage required under § 440.9, or other form of financial responsibility, shall attach when a licensed launch or permitted activity starts, and remain in full force and effect as follows:

(1) Until completion of licensed launch or permitted activities at a launch or reentry site; and

(2) For orbital launch, until the later of—

(i) Thirty days following payload separation, or attempted payload separation in the event of a payload separation anomaly; or

(ii) Thirty days from ignition of the launch vehicle.

(3) For a suborbital launch, until the later of—

(i) Motor impact and payload recovery; or

(ii) The FAA's determination that risk to third parties and Government property as a result of licensed launch or permitted activities is sufficiently small that financial responsibility is no longer necessary. That determination is made through the risk analysis conducted before the launch to determine MPL and specified in a license or permit order.

(b) Financial responsibility required under this part may not be replaced, canceled, changed, withdrawn, or in any way modified to reduce the limits of liability or the extent of coverage, nor expire by its own terms, prior to the time specified in a license or permit order, unless the FAA is notified at least 30 days in advance and expressly approves the modification.

§ 440.12 Duration of coverage for licensed reentry; modifications.

(a) For reentry, insurance coverage required under § 440.9, or other form of financial responsibility, shall attach upon commencement of licensed reentry, and remain in full force and effect as follows:

(1) For ground operations, until completion of licensed reentry at the reentry site; and

(2) For other licensed reentry activities, 30 days from initiation of reentry flight; however, in the event of an abort that results in the reentry vehicle remaining on orbit, insurance shall remain in place until the FAA's determination that risk to third parties and Government property as a result of licensed reentry is sufficiently small that financial responsibility is no longer necessary, as determined by the FAA through the risk analysis conducted to determine MPL and specified in a license order.

(b) Financial responsibility required under this part may not be replaced, canceled, changed, withdrawn, or in any way modified to reduce the limits of liability or the extent of coverage, nor expire by its own terms, prior to the time specified in a license order, unless the FAA is notified at least 30 days in advance and expressly approves the modification.

§ 440.13 Standard conditions of insurance coverage.

(a) Insurance obtained under § 440.9 must comply with each of the following terms and conditions of coverage:

(1) Bankruptcy or insolvency of an insured, including any additional insured, shall not relieve an insurer of any of its obligations under any policy.

(2) Policy limits shall apply separately to each occurrence and, for each occurrence to the total of claims arising out of a licensed or permitted activity in connection with any particular launch or reentry.

(3) Except as provided in this section, each policy must pay claims from the first dollar of loss, without regard to any deductible, to the limits of the policy. A licensee or permittee may obtain a policy containing a deductible amount if the amount of the deductible is placed in an escrow account or otherwise demonstrated to be unobligated, unencumbered funds of the licensee or permittee, available to compensate claims at any time claims may arise.

(4) No policy may be invalidated by any action or inaction of the licensee or permittee or any additional insured, even by nonpayment by the licensee or permittee of the policy premium, and each policy must insure the licensee or permittee and each additional insured regardless of any breach or violation of any warranties, declarations, or conditions contained in the policies by the licensee or permittee or any additional insured (other than a breach or violation by the licensee, permittee or an additional insured, and then only as against that licensee, permittee or additional insured).

(5) Each exclusion from coverage must be specified.

(6) Insurance shall be primary without right of contribution from any other insurance that is carried by the licensee or permittee or any additional insured.

(7) Each policy must expressly provide that all of its provisions, except the policy limits, operate in the same manner as if there were a separate policy with and covering the licensee or permittee and each additional insured.

(8) Each policy must be placed with an insurer of recognized reputation and responsibility that either:

(i) Is licensed to do business in any State, territory, possession of the United States, or the District of Columbia; or

(ii) Includes in each of its policies or insurance obtained under this part a contract clause in which the insurer agrees to submit to the jurisdiction of a court of competent jurisdiction within the United States and designates an authorized agent within the United States for service of legal process on the insurer.

(9) Except as to claims resulting from the willful misconduct of the United States or any of its agents, the insurer shall waive any and all rights of subrogation against each of the parties protected by required insurance.

(b) [Reserved]

§ 440.15 Demonstration of compliance.

(a) A licensee or permittee must submit to the FAA evidence of financial responsibility and compliance with allocation of risk requirements under this part, as follows, unless a license or permit order specifies otherwise due to the proximity of the intended date for commencement of licensed or permitted activities:

(1) All reciprocal waiver of claims agreements required under § 440.17(c) must be submitted at least 30 days before the start of any licensed or permitted activity involving a customer, crew member, or space flight participant; unless the Administrator agrees to a different time frame in accordance with § 404.15;

(2) Evidence of insurance must be submitted at least 30 days before commencement of any licensed launch or permitted activity, and for licensed reentry no less than 30 days before commencement of launch activities involving the reentry licensee, unless the Administrator agrees to a different time frame in accordance with § 404.15;

(3) Evidence of financial responsibility in a form other than insurance, as provided under § 440.9(f) must be submitted at least 60 days before commencement of a licensed or permitted activity, unless the Administrator agrees to a different time frame in accordance with § 404.15; and

(4) Evidence of renewal of insurance or other form of financial responsibility must be submitted at least 30 days in advance of its expiration date, unless the Administrator agrees to a different time frame in accordance with § 404.15.

(b) Upon a complete demonstration of compliance with financial responsibility and allocation of risk requirements under this part, the requirements of this part shall preempt each and any provision in any agreement between the licensee or permittee and an agency of the United States governing access to or use of United States launch or reentry property or launch or reentry services for a licensed or permitted activity which addresses financial responsibility, allocation of risk and related matters covered by 51 U.S.C. 50914, 50915.

(c) A licensee or permittee must demonstrate compliance as follows:

(1) The licensee or permittee must provide proof of the existence of the insurance required by § 440.9 by:

(i) Certifying to the FAA that it has obtained insurance in compliance with the requirements of this part and any applicable license or permit order;

(ii) Filing with the FAA one or more certificates of insurance evidencing insurance coverage by one or more insurers under a currently effective and properly endorsed policy or policies of insurance, applicable to a licensed or permitted activity, on terms and conditions and in amounts prescribed under this part, and specifying policy exclusions;

(iii) In the event of any policy exclusions or limitations of coverage that may be considered usual under § 440.19(c), or for purposes of implementing the Government's waiver of claims for property damage under 51 U.S.C. 50914(b), certifying that insurance covering the excluded risks is not commercially available at reasonable cost; and

(iv) Submitting to the FAA, for signature by the Department on behalf of the United States Government, the waiver of claims and assumption of responsibility agreement required by § 440.17(c), executed by the licensee or permittee and its customer.

(v) Submitting to the FAA, for signature by the Department on behalf of the United States Government, an agreement to waive claims and assume responsibility required by § 440.17(e), executed by each space flight participant.

(vi) Submitting to the FAA, for signature by the Department on behalf of the United States Government, an agreement to waive claims and assume responsibility required by § 440.17(f), executed by each member of the crew.

(2) Any certification required by this section must be signed by a duly authorized officer of the licensee or permittee.

(d) Each certificate of insurance required by paragraph (c)(1)(ii) of this section must be signed by the insurer issuing the policy and accompanied by an opinion of the insurance broker that the insurance obtained by the licensee or permittee complies with all the requirements for insurance of this part and any applicable license or permit order.

(e) The licensee or permittee must maintain, and make available for inspection by the FAA upon request, all required policies of insurance and other documents necessary to demonstrate compliance with this part.

(f) In the event the licensee or permittee demonstrates financial responsibility using means other than insurance, as provided under § 440.9(f), the licensee or permittee must provide proof that it has met the requirements of this part and of a FAA issued license or permit order.

[Doc. No. FAA-2005-23449, 71 FR 75632, Dec. 15, 2006, as amended by Amdt. 440-3, 77 FR 20533, Apr. 5, 2012; Docket No. FAA-2019-0229, Amdt. 440-5, 85 FR 79718, Dec. 10, 2020]

§ 440.17 Reciprocal waiver of claims requirements.

(a) As a condition of each license or permit, the licensee or permittee must comply with the reciprocal waiver of claims requirements of this section.

(b) The licensee or permittee and each of its contractors and subcontractors, each customer, and each customer's contractors and subcontractors, must enter into a reciprocal waiver of claims agreement under which each party waives and releases claims against all the other parties to the waiver and against any other customer, and agrees to assume financial responsibility for property damage it sustains and for bodily injury or property damage sustained by its own employees, and to hold harmless and indemnify each other from bodily injury or property damage sustained by its employees, resulting from a licensed or permitted activity, regardless of fault.

(1) The licensee or permittee must extend the reciprocal waiver of claims requirements to each of its contractors and subcontractors involved in launch or reentry services, and each of its first-tier customers.

(2) Any first-tier customer must extend the reciprocal waiver of claims requirements to each of its contractors and subcontractors involved in launch or reentry services, and each of its customers.

(3) Any part 440 customer must extend the reciprocal waiver of claims requirements to each of its contractors and subcontractors involved in launch or reentry services, and each of its customers.

(c) For each licensed or permitted activity in which the United States, or its contractors and subcontractors, is involved or where property insurance is required under § 440.9(d), the Federal Aviation Administration of the Department of Transportation, the licensee or permittee, and each first-tier customer must enter into a reciprocal waiver of claims agreement. The reciprocal waiver of claims must be in a form acceptable to the Administrator, such as those contained in advisory circular AC 440.17-1, and must provide that:

(1) Each party to the reciprocal waiver of claims, including the United States but only to the extent provided in legislation:

(i) Waives and releases claims it may have against each other party to the reciprocal waiver of claims, any customer, and against their respective contractors and subcontractors, for property damage it sustains and for bodily injury or property damage sustained by its own employees, resulting from licensed or permitted activities, regardless of fault;

(ii) Assumes responsibility for property damage it sustains and for bodily injury or property damage sustained by its own employees, resulting from licensed or permitted activities, regardless of fault. A licensee or permittee and each first-tier customer shall each hold harmless and indemnify each other, the United States, any other customer, and the contractors and subcontractors of each for bodily injury or property damage sustained by its own employees, resulting from licensed or permitted activities, regardless of fault; and

(iii) Extends the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, to its contractors and subcontractors involved in launch and reentry services, and, for each customer, to its contractors and subcontractors involved in launch and reentry services, and customers, by requiring them to waive and release all claims as follows:

(A) For each contractor and subcontractor of the licensee or permittee, all claims against any customer, the United States, and each of their respective contractors and subcontractors, and to agree to be responsible for property damage they sustain and to be responsible, hold harmless and indemnify any customer, the United States, and each of their respective contractors and subcontractors, for bodily injury or property damage sustained by their own employees, resulting from licensed activities, regardless of fault;

(B) For each contractor and subcontractor of any customer, all claims against the licensee or permittee, any other customer, the United States, and each of their respective contractors and subcontractors, and to agree to be responsible for property damage they sustain and to be responsible, hold harmless and indemnify the licensee or permittee, any other customer, the United States, and each of their respective contractors and subcontractors, for bodily injury or property damage sustained by their own employees, resulting from licensed activities, regardless of fault;

(C) For each contractor and subcontractor of the United States, all claims against the licensee or permittee, any customer, and each of their respective contractors and subcontractors, and to agree to be responsible for property damage they sustain and to be responsible, hold harmless and indemnify the licensee or permittee, any other customer, the United States, and each of their respective contractors and subcontractors, for bodily injury or property damage sustained by their own employees, resulting from licensed activities, regardless of fault to the extent that claims they would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(c) and (e);

(D) For each part 440 customer, all claims against the licensee or permittee, any other customer, the United States, and each of their respective contractors and subcontractors; and to agree to be responsible for property damage they sustain and to be responsible, hold harmless and indemnify the licensee or permittee, any other customer, the United States, and each of their respective contractors and subcontractors, for bodily injury or property damage sustained by their own employees, resulting from licensed activities, regardless of fault; and

(2) For the following parties—

(i) The licensee or permittee must hold harmless and indemnify each first-tier customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them from and against liability, loss or damage arising out of claims that any of licensee's or permittee's contractors and subcontractors may have for property damage sustained by them and for bodily injury or property damage sustained by their employees, resulting from licensed or permitted activities and arising out of the indemnifying party's failure to implement properly the waiver requirement. The requirement of paragraph (c)(2)(i) of this section to hold harmless and indemnify the United States and its servants, agents, subsidiaries, employees and assignees, or any of them, does not apply when:

(A) Claims result from willful misconduct of the United States or its agents;

(B) Claims for property damage sustained by the United States or its contractors and subcontractors exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(e);

(C) For licensed activity, claims by a third party for bodily injury or property damage exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(c), and do not exceed $1,500,000,000 (as adjusted for inflation after January 1, 1989) above such amount, and are payable pursuant to the provisions of 51 U.S.C. 50915 and § 440.19; or

(D) The licensee has no liability for claims exceeding $1,500,000,000 (as adjusted for inflation after January 1, 1989) above the amount of insurance or demonstration of financial responsibility required under § 440.9(c).

(ii) Each first-tier customer must hold harmless and indemnify the licensee or permittee and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that any of each first-tier customer's customers, contractors, or subcontractors, may have for property damage sustained by them and for bodily injury or property damage sustained by their employees, resulting from licensed or permitted activities and arising out of the indemnifying party's failure to implement properly the waiver requirement.

(iii) The Federal Aviation Administration of the Department of Transportation on behalf of the United States, but only to the extent provided in legislation, must hold harmless and indemnify the licensee or permittee, each first-tier customer, any part 440 customer, and their respective directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that contractors and subcontractors of the United States may have for property damage sustained by them and for bodily injury or property damage sustained by their employees, resulting from licensed or permitted activities and arising out of the indemnifying party's failure to implement properly the waiver requirement to the extent that claims they would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(c) and (e).

(d) For each licensed or permitted activity in which the United States or its contractors and subcontractors are involved, the Federal Aviation Administration of the Department of Transportation and each space flight participant must enter into or have in place a reciprocal waiver of claims agreement. The reciprocal waiver of claims must be in a form acceptable to the Administrator, such as those contained in advisory circular AC 440.17-1.

(1) The reciprocal waiver of claims must provide that each space flight participant:

(i) Waive and release claims he or she may have against the United States, and against each of its contractors and subcontractors, for bodily injury or property damage sustained by the space flight participant, resulting from licensed or permitted activities, regardless of fault;

(ii) Assume responsibility for bodily injury or property damage, sustained by the space flight participant, resulting from licensed or permitted activities, regardless of fault;

(iii) Hold harmless the United States, and its contractors and subcontractors, for bodily injury or property damage, sustained by the space flight participant, resulting from licensed or permitted activities, regardless of fault; and

(iv) Hold harmless and indemnify the United States and its servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss, or damage arising out of claims brought by anyone for property damage or bodily injury sustained by the space flight participant, resulting from licensed or permitted activities.

(2) The reciprocal waiver of claims must provide that the United States:

(i) Waive and release claims it may have against the space flight participant for property damage it sustains, and for bodily injury or property damage sustained by its own employees, resulting from licensed or permitted activities, regardless of fault;

(ii) Assume responsibility for property damage it sustains, and for bodily injury or property damage sustained by its own employees, resulting from licensed activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(c) and (e), respectively;

(iii) Assume responsibility for property damage it sustains, resulting from permitted activities, regardless of fault, to the extent that claims it would otherwise have for such damage exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(e);

(iv) Extend the requirements of the waiver and release of claims, and the assumption of responsibility to its contractors and subcontractors by requiring them to waive and release all claims they may have against the space flight participant, and to agree to be responsible, for any property damage they sustain and for any bodily injury or property damage sustained by their own employees, resulting from licensed activities, regardless of fault; and

(v) Extend the requirements of the waiver and release of claims, and the assumption of responsibility to its contractors and subcontractors by requiring them to waive and release all claims they may have against the space flight participant, and to agree to be responsible, for any property damage they sustain, resulting from permitted activities, regardless of fault.

(e) For each licensed or permitted activity in which the United States or its contractors and subcontractors is involved, the Federal Aviation Administration of the Department of Transportation and each crew member must enter into or have in place a reciprocal waiver of claims agreement. The reciprocal waiver of claims must in a form acceptable to the Administrator, such as those contained in advisory circular AC 440.17-1.

(1) The reciprocal waiver of claims must provide that each crew member:

(i) Waive and release claims he or she may have against the United States, and against each of its contractors and subcontractors, for bodily injury or property damage sustained by the crew member, resulting from licensed or permitted activities, regardless of fault;

(ii) Assume responsibility for bodily injury or property damage, sustained by the crew member, resulting from licensed or permitted activities, regardless of fault;

(iii) Hold harmless the United States, and its contractors and subcontractors, for bodily injury or property damage, sustained by the crew member, resulting from licensed or permitted activities, regardless of fault; and

(iv) Hold harmless and indemnify the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss, or damage arising out of claims brought by anyone for property damage or bodily injury sustained by the crew member, resulting from licensed or permitted activities.

(2) The reciprocal waiver of claims must provide that the United States:

(i) Waive and release claims it may have against the crew member for property damage it sustains, and for bodily injury, including death, or property damage sustained by its own employees, resulting from licensed or permitted activities, regardless of fault;

(ii) Assume responsibility for property damage it sustains, and for bodily injury or property damage sustained by its own employees, resulting from licensed activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(c) and (e), respectively;

(iii) Assume responsibility for property damage it sustains, resulting from permitted activities, regardless of fault, to the extent that claims it would otherwise have for such damage exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(e);

(iv) Extend the requirements of the waiver and release of claims, and the assumption of responsibility to its contractors and subcontractors by requiring them to waive and release all claims they may have against the crew member and to agree to be responsible, for any property damage they sustain and for any bodily injury or property damage sustained by their own employees, resulting from licensed activities, regardless of fault; and

(v) Extend the requirements of the waiver and release of claims, and the assumption of responsibility to its contractors and subcontractors by requiring them to waive and release all claims they may have against the crew member and to agree to be responsible, for any property damage they sustain, resulting from permitted activities, regardless of fault.

(f) The licensee or permittee and each space flight participant must enter into a reciprocal waiver of claims agreement under which each party waives and releases claims against the other party to the waiver, and agrees to assume financial responsibility for property damage it sustains and for bodily injury or property damage, and to hold harmless and indemnify each other from bodily injury or property damage, resulting from a licensed or permitted activity, regardless of fault. This paragraph (f) shall cease to be effective as of September 30, 2025, unless public law modifies the limitation in section 50914 of Title 51 of the U.S. Code.

(g) Any waiver, release, assumption of responsibility or agreement to hold harmless and indemnify pursuant to this section does not apply to claims for bodily injury or property damage resulting from willful misconduct of any of the parties to the reciprocal waiver of claims, the contractors and subcontractors of any of the parties to the reciprocal waiver of claims, and in the case of licensee or permittee and customers and the contractors and subcontractors of each of them, the directors, officers, agents and employees of any of the foregoing, and in the case of the United States, its agents.

[Doc. No. FAA-2005-23449, 71 FR 75632, Dec. 15, 2006, as amended by Amdt. 440-2, 76 FR 8630, Feb. 15, 2011; Doc. No. FAA-2014-1012, Amdt. 440-4, 81 FR 55122, Aug. 18, 2016; Doc. No. FAA-2023-1656, Amdt. 440-7, 89 FR 76728, Sept. 19, 2024]

§ 440.19 United States payment of excess third-party liability claims.

(a) The United States pays successful covered claims (including reasonable expenses of litigation or settlement) of a third party against a licensee, a customer, and the contractors and subcontractors of the licensee and the customer, and the employees of each involved in licensed activities, and the contractors and subcontractors of the United States and its agencies, and their employees, involved in licensed activities to the extent provided in an appropriation law or other legislative authority providing for payment of claims in accordance with 51 U.S.C. 50915, and to the extent the total amount of such covered claims arising out of any particular launch or reentry:

(1) Exceeds the amount of insurance required under § 440.9(b); and

(2) Is not more than $1,500,000,000 (as adjusted for inflation occurring after January 1, 1989) above that amount.

(b) Payment by the United States under paragraph (a) of this section shall not be made for any part of such claims for which bodily injury or property damage results from willful misconduct by the party seeking payment.

(c) The United States shall provide for payment of claims by third parties for bodily injury or property damage that are payable under 49 U.S.C. 70113 and not covered by required insurance under § 440.9(b), without regard to the limitation under paragraph (a)(1) of this section, because of an insurance policy exclusion that is usual. A policy exclusion is considered usual only if insurance covering the excluded risk is not commercially available at reasonable rates. The licensee must submit a certification in accordance with § 440.15(c)(1)(iii) of this part for the United States to cover the claims.

(d) Upon the expiration of the policy period prescribed in accordance with § 440.11(a), the United States shall provide for payment of claims that are payable under 51 U.S.C. 50915 from the first dollar of loss up to $1,500,000,000 (as adjusted for inflation occurring after January 1, 1989).

(e) Payment by the United States of excess third-party claims under 51 U.S.C. 50915 shall be subject to:

(1) Prompt notice by the licensee to the FAA that the total amount of claims arising out of licensed activities exceeds, or is likely to exceed, the required amount of financial responsibility. For each claim, the notice must specify the nature, cause, and amount of the claim or lawsuit associated with the claim, and the party or parties who may otherwise be liable for payment of the claim;

(2) Participation or assistance in the defense of the claim or lawsuit by the United States, at its election;

(3) Approval by the FAA of any settlement, or part of a settlement, to be paid by the United States; and

(4) Approval by Congress of a compensation plan prepared by the FAA and submitted by the President.

(f) The FAA will:

(1) Prepare a compensation plan outlining the total amount of claims and meeting the requirements set forth in 51 U.S.C. 50915;

(2) Recommend sources of funds to pay the claims; and

(3) Propose legislation as required to implement the plan.

(g) The FAA may withhold payment of a claim if it finds that the amount is unreasonable, unless it is the final order of a court that has jurisdiction over the matter.

[Doc. No. FAA-2005-23449, 71 FR 75632, Dec. 15, 2006, as amended by Amdt. 440-3, 77 FR 20534, Apr. 5, 2012; Amdt. 440-6, 87 FR 75849, Dec. 9, 2022]

§ 450.1 Applicability.

This part prescribes requirements for obtaining and maintaining a license to launch, reenter, or both launch and reenter, a launch or reentry vehicle.

§ 450.3 Scope of a vehicle operator license.

(a) General. A vehicle operator license authorizes a licensee to conduct one or more launches or reentries using the same vehicle or family of vehicles. A vehicle operator license identifies the scope of authorization as defined in paragraphs (b) and (c) of this section or as agreed to by the Administrator.

(b) Scope of launch. A vehicle operator license authorizes launch, which includes the flight of a launch vehicle and pre- and post-flight ground operations as follows:

(1) Launch begins when hazardous pre-flight operations commence at a U.S. launch site that may pose a threat to the public. Hazardous pre-flight operations that may pose a threat to the public include pressurizing or loading of propellants into the vehicle, operations involving a fueled launch vehicle, the transfer of energy necessary to initiate flight, or any hazardous activity preparing the vehicle for flight. Hazardous pre-flight operations do not include the period between the end of the previous launch and launch vehicle reuse, when the vehicle is in a safe and dormant state.

(2) At a non-U.S. launch site, launch begins at ignition or at the first movement that initiates flight, whichever occurs earlier.

(3) Launch ends when any of the following events occur:

(i) For an orbital launch of a vehicle without a reentry of the vehicle, launch ends after the licensee's last exercise of control over its vehicle on orbit, after vehicle component impact or landing on Earth, after activities necessary to return the vehicle or component to a safe condition on the ground after impact or landing, or after activities necessary to return the site to a safe condition, whichever occurs latest;

(ii) For an orbital launch of a vehicle with a reentry of the vehicle, launch ends after deployment of all payloads, upon completion of the vehicle's first steady-state orbit if there is no payload deployment, after vehicle component impact or landing on Earth, after activities necessary to return the vehicle or component to a safe condition on the ground after impact or landing, or after activities necessary to return the site to a safe condition, whichever occurs latest;

(iii) For a suborbital launch that includes a reentry, launch ends after reaching apogee;

(iv) For a suborbital launch that does not include a reentry, launch ends after vehicle or vehicle component impact or landing on Earth, after activities necessary to return the vehicle or vehicle component to a safe condition on the ground after impact or landing, or after activities necessary to return the site to a safe condition, whichever occurs latest.

(c) Scope of reentry. A vehicle operator license authorizes reentry. Reentry includes activities conducted in Earth orbit or outer space to determine reentry readiness and that are critical to ensuring public health and safety and the safety of property during reentry flight. Reentry also includes activities necessary to return the reentry vehicle, or vehicle component, to a safe condition on the ground after impact or landing.

(d) Application requirements. An applicant must identify pre- and post-flight ground operations at a U.S. launch site sufficient for the Administrator to determine the scope of activities authorized under the license.

§ 450.5 Issuance of a vehicle operator license.

(a) The FAA issues a vehicle operator license to an applicant who has obtained all approvals and determinations required under this part for a license.

(b) A vehicle operator license authorizes a licensee to conduct launches or reentries, in accordance with the representations contained in the licensee's application, with subparts C and D of this part, and subject to the licensee's compliance with terms and conditions contained in license orders accompanying the license, including financial responsibility requirements.

§ 450.7 Duration of a vehicle operator license.

A vehicle operator license is valid for the period of time determined by the Administrator as necessary to conduct the licensed activity but may not exceed 5 years from the issuance date.

§ 450.9 Additional license terms and conditions.

The FAA may modify a vehicle operator license at any time by modifying or adding license terms and conditions to ensure compliance with the Act and regulations.

§ 450.11 Transfer of a vehicle operator license.

(a) Only the FAA may transfer a vehicle operator license.

(b) Either the holder of a vehicle operator license or the prospective transferee may request a vehicle operator license transfer.

(c) Both the holder and prospective transferee must agree to the transfer.

(d) An applicant for transfer of a vehicle operator license must submit a license application in accordance with part 413 of this chapter and must meet the requirements of part 450 of this chapter.

(e) The FAA will transfer a license to an applicant that has obtained all of the approvals and determinations required under this part for a license. In conducting its reviews and issuing approvals and determinations, the FAA may incorporate by reference any findings made part of the record to support the initial licensing determination. The FAA may modify a license to reflect any changes necessary as a result of a license transfer.

(f) The FAA will provide written notice of its determination to the person requesting the vehicle operator license transfer.

§ 450.13 Rights not conferred by a vehicle operator license.

Issuance of a vehicle operator license does not relieve a licensee of its obligation to comply with all applicable requirements of law or regulation that may apply to its activities, nor does issuance confer any proprietary, property, or exclusive right in the use of any Federal launch or reentry site or related facilities, airspace, or outer space.

§ 450.31 General.

(a) To obtain a vehicle operator license, an applicant must—

(1) Submit a license application in accordance with the procedures in part 413 of this chapter;

(2) Obtain a policy approval from the Administrator in accordance with § 450.41;

(3) Obtain a favorable payload determination from the Administrator in accordance with § 450.43, if applicable;

(4) Obtain a safety approval from the Administrator in accordance with § 450.45;

(5) Satisfy the environmental review requirements of § 450.47; and

(6) Provide the information required by appendix A of part 440 for the Administrator to conduct a maximum probable loss analysis for the applicable licensed operation.

(b) An applicant may apply for the approvals and determinations in paragraphs (a)(2) through (6) of this section separately or all together in one complete application, using the application procedures contained in part 413 of this chapter.

(c) An applicant may also apply for a safety approval in an incremental manner, in accordance with § 450.33.

(d) An applicant may reference materials previously provided as part of a license application in order to meet the application requirements of this part.

§ 450.33 Incremental review and determinations.

An applicant may submit its application for a safety review in modules using an incremental approach approved by the Administrator.

(a) An applicant must identify to the Administrator, prior to submitting an application, whether it will submit a modular application for any approval or determination.

(b) An applicant using an incremental approach must have the approach approved by the Administrator prior to submitting an application. In reviewing a proposed approach, the Administrator will consider the following:

(1) Whether the modules can be reviewed independently; and

(2) Whether the modules will be submitted in a workable chronological order.

(c) The Administrator may make incremental determinations as part of this review process.

§ 450.35 Means of compliance.

(a) Prior to application acceptance, a means of compliance must be accepted by the Administrator for the following:

(1) Section 450.115(b)(1) regarding flight safety analyses;

(2) Section 450.139(e)(1) regarding toxic hazards for flight;

(3) Section 450.145(b) regarding highly-reliable flight safety system;

(4) Section 450.163(a)(1) regarding lightning hazard mitigation; and

(5) Section 450.187(e)(1) regarding toxic hazards mitigation for ground operations.

(b) A person requesting acceptance of a proposed means of compliance outside a license application must submit the proposed means of compliance to the FAA in a form and manner acceptable to the Administrator.

§ 450.37 Equivalent level of safety.

(a) An applicant must demonstrate compliance with each requirement of this part, unless the applicant clearly and convincingly demonstrates that an alternative approach provides an equivalent level of safety to the requirement of this part.

(b) Paragraph (a) of this section does not apply to § 450.101(a), (b), (c)(1) and (3), (d), (e)(1), and (g).

§ 450.39 Use of safety element approval.

If an applicant proposes to use any vehicle, safety system, process, service, or personnel for which the FAA has issued a safety element approval under part 414 of this chapter, the FAA will not reevaluate that safety element during a license application evaluation to the extent its use is within its approved scope.

§ 450.41 Policy review and approval.

(a) General. The FAA issues a policy approval to an applicant unless the FAA determines that a proposed launch or reentry would jeopardize U.S. national security or foreign policy interests, or international obligations of the United States.

(b) Interagency consultation. (1) The FAA consults with the Department of Defense to determine whether a license application presents any issues affecting U.S. national security.

(2) The FAA consults with the Department of State to determine whether a license application presents any issues affecting U.S. foreign policy interests or international obligations.

(3) The FAA consults with other Federal agencies, including the National Aeronautics and Space Administration, authorized to address issues identified under paragraph (a) of this section, associated with an applicant's proposal.

(c) Issues during policy review. The FAA will advise an applicant, in writing, of any issue raised during a policy review that would impede issuance of a policy approval. The applicant may respond, in writing, or amend its license application as required by § 413.17 of this chapter.

(d) Denial of policy approval. The FAA notifies an applicant, in writing, if it has denied policy approval for a license application. The notice states the reasons for the FAA's determination. The applicant may seek further review of the determination in accordance with § 413.21 of this chapter.

(e) Application requirements for policy review. In its license application, an applicant must—

(1) Identify the model, type, and configuration of any vehicle proposed for launch or reentry by the applicant;

(2) Describe the vehicle by characteristics that include individual stages, their dimensions, type and amounts of all propellants, and maximum thrust;

(3) Identify foreign ownership of the applicant as follows:

(i) For a sole proprietorship or partnership, identify all foreign ownership;

(ii) For a corporation, identify any foreign ownership interests of 10 percent or more; and

(iii) For a joint venture, association, or other entity, identify any participating foreign entities; and

(4) Identify the proposed vehicle flight profile, including:

(i) Launch or reentry site, including any contingency abort locations;

(ii) Flight azimuths, trajectories, and associated ground tracks and instantaneous impact points for the duration of the licensed activity, including any contingency abort profiles;

(iii) Sequence of planned events or maneuvers during flight;

(iv) Normal impact or landing areas for all mission hardware; and

(v) For each orbital mission, the range of intermediate and final orbits of each vehicle upper stage and their estimated orbital lifetimes.

§ 450.43 Payload review and determination.

(a) General. If applicable, the FAA issues a favorable payload determination for a launch or reentry to a license applicant or payload owner or operator if—

(1) The applicant, payload owner, or payload operator has obtained all required licenses, authorizations, and permits; and

(2) Its launch or reentry would not jeopardize public health and safety, safety of property, U.S. national security or foreign policy interests, or international obligations of the United States.

(b) Relationship to other executive agencies. The FAA does not make a determination under paragraph (a)(2) of this section for—

(1) Those aspects of payloads that are subject to regulation by the Federal Communications Commission or the Department of Commerce; or

(2) Payloads owned or operated by the U.S. Government.

(c) Classes of payloads. The FAA may review and issue findings regarding a proposed class of payload, including communications, remote sensing, or navigation. However, prior to a launch or reentry, each payload is subject to verification by the FAA that its launch or reentry would not jeopardize public health and safety, safety of property, U.S. national security or foreign policy interests, or international obligations of the United States.

(d) Payload owner or payload operator may apply. In addition to a launch or reentry operator, a payload owner or payload operator may request a payload review and determination.

(e) Interagency consultation. The FAA consults with other agencies as follows:

(1) The Department of Defense to determine whether launch or reentry of a proposed payload or payload class would present any issues affecting U.S. national security;

(2) The Department of State to determine whether launch or reentry of a proposed payload or payload class would present any issues affecting U.S. foreign policy interests or international obligations; or

(3) Other Federal agencies, including the National Aeronautics and Space Administration, authorized to address issues of public health and safety, safety of property, U.S. national security or foreign policy interests, or international obligations of the United States, associated with the launch or reentry of a proposed payload or payload class.

(f) Issues during payload review. The FAA will advise a person requesting a payload determination, in writing, of any issue raised during a payload review that would impede issuance of a license to launch or reenter that payload or payload class. The person requesting payload review may respond, in writing, or amend its application as required by § 413.17 of this chapter.

(g) Denial of a payload determination. The FAA notifies an applicant, in writing, if it has denied a favorable payload determination. The notice states the reasons for the FAA's determination. The applicant may seek further review of the determination in accordance with § 413.21 of this chapter.

(h) Incorporation of payload determination in license application. A favorable payload determination issued for a payload or class of payload may be included by a license applicant as part of its application. However, any change in information provided under paragraph (i) of this section must be reported in accordance with § 413.17 of this chapter. The FAA determines whether a favorable payload determination remains valid in light of reported changes and may conduct an additional payload review.

(i) Application requirements. A person requesting review of a particular payload or payload class must identify the following:

(1) For launch of a payload:

(i) Payload name or class of payload, and function;

(ii) Description, including physical dimensions, weight, composition, and any hosted payloads;

(iii) Payload owner and payload operator, if different from the person requesting payload review and determination;

(iv) Any foreign ownership of the payload or payload operator, as specified in § 450.41(e)(3);

(v) Hazardous materials as defined in § 401.7 of this chapter, radioactive materials, and the amounts of each;

(vi) Explosive potential of payload materials, alone and in combination with other materials found on the payload;

(vii) For orbital launches, parameters for parking, transfer and final orbits, and approximate transit times to final orbit;

(viii) Delivery point in flight at which the payload will no longer be under the licensee's control;

(ix) Intended operations during the lifetime of the payload, including anticipated life span and any planned disposal;

(x) Any encryption associated with data storage on the payload and transmissions to or from the payload; and

(xi) Any other information necessary to make a determination based on public health and safety, safety of property, U.S. national security or foreign policy interests, or international obligations of the United States.

(2) For reentry of a payload:

(i) Payload name or class of payload, and function;

(ii) Physical characteristics, dimensions, and weight of the payload;

(iii) Payload owner and payload operator, if different from the person requesting the payload review and determination;

(iv) Type, amount, and container of hazardous materials and radioactive materials in the payload;

(v) Explosive potential of payload materials, alone and in combination with other materials found on the payload or reentry vehicle during reentry; and

(vi) Designated reentry site.

§ 450.45 Safety review and approval.

(a) General. The FAA issues a safety approval to an applicant if it determines that an applicant can conduct launch or reentry without jeopardizing public health and safety and safety of property. A license applicant must satisfy the application requirements in this section and subpart C of this part.

(b) Services or property provided by a Federal launch or reentry site. The FAA will accept any safety-related launch or reentry service or property provided by a Federal launch or reentry site or other Federal entity by contract, as long as the FAA determines that the launch or reentry services or property provided satisfy this part.

(c) Issues during safety review. The FAA will advise an applicant, in writing, of any issues raised during a safety review that would impede issuance of a safety approval. The applicant may respond, in writing, or amend its license application as required by § 413.17 of this chapter.

(d) Denial of a safety approval. The FAA notifies an applicant, in writing, if it has denied a safety approval for a license application. The notice states the reasons for the FAA's determination. The applicant may seek further review of the determination in accordance with § 413.21 of this chapter.

(e) Application requirements. An applicant must submit the information required in the “Application requirements” paragraphs in individual sections in subpart C of this part, as well as the following:

(1) General. An application must—

(i) Contain a glossary of unique terms and acronyms used in alphabetical order;

(ii) Contain a listing of all referenced material;

(iii) Use equations and mathematical relationships derived from or referenced to a recognized standard or text, and define all algebraic parameters;

(iv) Include the units of all numerical values provided; and

(v) Include a legend or key that identifies all symbols used for any schematic diagrams.

(2) Site description. An applicant must identify the proposed launch or reentry site, including contingency abort locations, and submit the following:

(i) Boundaries of the site;

(ii) Launch or landing point locations, including latitude and longitude;

(iii) Identity of any site operator; and

(iv) Identity of any facilities at the site that will be used for pre- or post-flight ground operations.

(3) Vehicle description. An applicant must submit the following:

(i) A written description of the vehicle or family of vehicles, including structural, thermal, pneumatic, propulsion, electrical, and avionics and guidance systems used in each vehicle, and all propellants. The description must include a table specifying the type and quantities of all hazardous materials on each vehicle and must include propellants, explosives, and toxic materials; and

(ii) A drawing of each vehicle that identifies:

(A) Each stage, including strap-on motors;

(B) Physical dimensions and weight;

(C) Location of all safety-critical systems;

(D) Location of all major vehicle control systems, propulsion systems, pressure vessels, and any other hardware that contains potential hazardous energy or hazardous material; and

(E) For an unguided suborbital launch vehicle, the location of the vehicle's center of pressure in relation to its center of gravity for the entire flight profile.

(4) Mission schedule. An applicant must submit a generic launch or reentry processing schedule that identifies any readiness activities, such as reviews and rehearsals, and each safety-critical pre-flight operation to be conducted. The mission schedule must also identify day of flight activities.

(5) Human space flight. For a proposed launch or reentry with a space flight participant, crew, or government astronaut on board a vehicle, an applicant must demonstrate compliance with §§ 460.5, 460.7, 460.11, 460.13, 460.15, 460.17, 460.51, 460.53, 460.59, 460.61, and 460.67 of this chapter.

(6) Radionuclides. The FAA will evaluate the launch or reentry of any radionuclide on a case-by-case basis, and issue an approval if the FAA finds that the launch or reentry is consistent with public health and safety, safety of property, and national security and foreign policy interests of the United States. For any radionuclide on a launch or reentry vehicle, an applicant must—

(i) Identify the type and quantity;

(ii) Include a reference list of all documentation addressing the safety of its intended use; and

(iii) Describe all approvals by the Nuclear Regulatory Commission for pre-flight ground operations.

(7) Additional material. The FAA may also request—

(i) Any information incorporated by reference in the license application; and

(ii) Additional products that allow the FAA to conduct an independent safety analysis.

[Docket No. FAA-2019-0229, Amdt. 450-2, 85 FR 79719, Dec. 10, 2020; 85 FR 79739, Dec. 10, 2020, as amended by Doc. No. FAA-2023-1656, Amdt. No. 450-3, 89 FR 76729, Sept. 19, 2024]

§ 450.47 Environmental review.

(a) General. The FAA is responsible for complying with the procedures and policies of the National Environmental Policy Act (NEPA) and other applicable environmental laws, regulations, and Executive Orders prior to issuing a launch or reentry license. An applicant must provide the FAA with information needed to comply with such requirements. The FAA will consider and document the potential environmental effects associated with issuing a launch or reentry license consistent with paragraph (b) of this section.

(b) Environmental Impact Statement or Environmental Assessment. When directed by the FAA, an applicant must—

(1) Prepare an Environmental Assessment with FAA oversight;

(2) Assume financial responsibility for preparation of an Environmental Impact Statement by an FAA-selected and -managed consultant contractor; or

(3) Submit information to support a written re-evaluation of a previously submitted Environmental Assessment or Environmental Impact Statement.

(c) Categorical exclusion. The FAA may determine that a categorical exclusion is appropriate upon receipt of supporting information from an applicant.

(d) Application requirements. An application must include an approved FAA Environmental Assessment, Environmental Impact Statement, categorical exclusion determination, or written re-evaluation, which should address compliance with any other applicable environmental laws, regulations, and Executive Orders covering all planned licensed activities in compliance with NEPA and the Council on Environmental Quality Regulations for Implementing the Procedural Provisions of NEPA.

§ 450.101 Safety criteria.

(a) Launch risk criteria. For any launch, an operator may initiate the flight of a launch vehicle only if all risks to the public satisfy the criteria in this paragraph (a). For an orbital launch, the criteria in this paragraph apply from liftoff through orbital insertion. For a suborbital launch, or a suborbital launch and reentry, the criteria in this paragraph apply from liftoff through final impact or landing.

(1) Collective risk. The collective risk, measured as expected number of casualties (EC), consists of risk posed by impacting inert and explosive debris, toxic release, and far field blast overpressure. Public risk due to any other hazard associated with the proposed flight of a launch vehicle will be determined by the Administrator on a case-by-case basis.

(i) The risk to all members of the public, excluding persons in aircraft and neighboring operations personnel, must not exceed an expected number of 1 × 10− 4 casualties.

(ii) The risk to all neighboring operations personnel must not exceed an expected number of 2 × 10− 4 casualties.

(2) Individual risk. The individual risk, measured as probability of casualty (PC), consists of risk posed by impacting inert and explosive debris, toxic release, and far field blast overpressure. The FAA will determine whether to approve public risk due to any other hazard associated with the proposed flight of a launch vehicle on a case-by-case basis.

(i) The risk to any individual member of the public, excluding neighboring operations personnel, must not exceed a probability of casualty of 1 × 10− 6 per launch.

(ii) The risk to any individual neighboring operations personnel must not exceed a probability of casualty of 1 × 10− 5 per launch.

(3) Aircraft risk. A launch operator must establish any aircraft hazard areas necessary to ensure the probability of impact with debris capable of causing a casualty for aircraft does not exceed 1 × 10− 6.

(4) Risk to critical assets. (i) The risk to critical assets, measured as the probability of loss of functionality, must not exceed the following probabilities:

(A) For each critical asset, except for a critical payload, 1 × 10− 3 ; and

(B) For each critical payload, 1 × 10− 4.

(ii) The Administrator will consult with relevant Federal agencies, and each agency will identify, for purposes of this part, any critical assets that the agency owns or otherwise depends on. For purposes of this part, the Administrator will accept any identification by the Secretary of Defense that an asset is critical to national security.

(iii) The Administrator or Federal site operator will notify the licensee of any risk to critical assets above the risk criteria in paragraph (a)(4)(i) of this section.

(iv) The Administrator may determine, in consultation with relevant Federal agencies, that a more stringent probability is necessary to protect the national interests of the United States.

(v) The risk criteria in paragraph (a)(4)(i) of this section do not apply to property, facilities, or infrastructure supporting the launch that are within the public area distance, as defined in part 420, appendix E, tables E1 and E2 or associated formulae, of the vehicle's launch point.

(b) Reentry risk criteria. For any reentry, an operator may initiate the deorbit of a vehicle only if all risks to the public satisfy the criteria in this paragraph (b). The following criteria apply to each reentry, other than a suborbital reentry, from the final health check prior to initiating deorbit through final impact or landing:

(1) Collective risk. The collective risk, measured as expected number of casualties (EC), consists of risk posed by impacting inert and explosive debris, toxic release, and far field blast overpressure. Public risk due to any other hazard associated with the proposed deorbit of a reentry vehicle will be determined by the Administrator on a case-by-case basis.

(i) The risk to all members of the public, excluding persons in aircraft and neighboring operations personnel, must not exceed an expected number of 1 × 10− 4 casualties.

(ii) The risk to all neighboring operations personnel must not exceed an expected number of 2 × 10− 4 casualties.

(2) Individual risk. The individual risk, measured as probability of casualty (PC), consists of risk posed by impacting inert and explosive debris, toxic release, and far field blast overpressure. Public risk due to any other hazard associated with the proposed flight of a launch vehicle will be determined on a case-by-case basis.

(i) The risk to any individual member of the public, excluding neighboring operations personnel, must not exceed a probability of casualty of 1 × 10− 6 per reentry.

(ii) The risk to any individual neighboring operations personnel must not exceed a probability of casualty of 1 × 10− 5 per reentry.

(3) Aircraft risk. A reentry operator must establish any aircraft hazard areas necessary to ensure the probability of impact with debris capable of causing a casualty for aircraft does not exceed 1 × 10− 6.

(4) Risk to critical assets. (i) The risk to critical assets, measured as the probability of loss of functionality, must not exceed the following probabilities:

(A) For each critical asset, except for a critical payload, 1 × 10− 3 ; and

(B) For each critical payload, 1 × 10− 4.

(ii) The Administrator will consult with relevant Federal agencies, and each agency will identify, for purposes of this part, any critical assets that the agency owns or otherwise depends on. For purposes of this part, the Administrator will accept any identification by the Secretary of Defense that an asset is critical to national security.

(iii) The Administrator or Federal site operator will notify the licensee of any risk to critical assets above the risk criteria in paragraph (b)(4)(i) of this section.

(iv) The Administrator may determine, in consultation with relevant Federal agencies, that a more stringent probability is necessary to protect the national interests of the United States.

(c) High consequence event protection. An operator must protect against a high consequence event in uncontrolled areas for each phase of flight by:

(1) Using flight abort as a hazard control strategy in accordance with the requirements of § 450.108;

(2) Ensuring the consequence of any reasonably foreseeable failure mode, in any significant period of flight, is no greater than 1 × 10− 3 conditional expected casualties; or

(3) Establishing the launch or reentry vehicle has sufficient demonstrated reliability as agreed to by the Administrator based on conditional expected casualties criteria during that phase of flight.

(d) Disposal safety criteria. A launch operator must ensure that any disposal meets the criteria of paragraphs (b)(1) through (3) of this section, or targets a broad ocean area.

(e) Protection of people and property on orbit. (1) A launch or reentry operator must prevent the collision between a launch or reentry vehicle stage or component and people or property on orbit, in accordance with the requirements in § 450.169(a).

(2) For any launch vehicle stage or component that reaches Earth orbit, a launch operator must prevent the creation of debris through the conversion of energy sources into energy that fragments the stage or component, in accordance with the requirements in § 450.171.

(f) Notification of planned impacts. For any launch, reentry, or disposal, an operator must 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.

(g) Validity of the analysis. For any analysis used to demonstrate compliance with this section, an operator must use accurate data and scientific principles and the analysis must be statistically valid. The method must produce results consistent with or more conservative than the results available from previous mishaps, tests, or other valid benchmarks, such as higher-fidelity methods.

System Safety Program

§ 450.103 System safety program.

An operator must implement and document a system safety program throughout the lifecycle of a launch or reentry system that includes the following:

(a) Safety organization. An operator must maintain a safety organization that has clearly defined lines of communication and approval authority for all public safety decisions. At a minimum, the safety organization must have the following positions:

(1) Mission director. For each launch or reentry, an operator must designate a position responsible for the safe conduct of all licensed activities and authorized to provide final approval to proceed with licensed activities. This position is referred to as the mission director in this part.

(2) Safety official. For each launch or reentry, an operator must designate a position with direct access to the mission director who is—

(i) Responsible for communicating potential safety and noncompliance issues to the mission director; and

(ii) Authorized to examine all aspects of the operator's ground and flight safety operations, and to independently monitor compliance with the operator's safety policies, safety procedures, and licensing requirements.

(3) Addressing safety official concerns. The mission director must ensure that all of the safety official's concerns are addressed.

(b) Hazard management. For hazard management:

(1) An operator must implement methods to assess the system to ensure the validity of the hazard control strategy determination and any flight hazard or flight safety analysis throughout the lifecycle of the launch or reentry system;

(2) An operator must implement methods for communicating and implementing any updates throughout the organization; and

(3) Additionally, an operator required to conduct a flight hazard analysis must implement a process for tracking hazards, risks, mitigation measures, and verification activities.

(c) Configuration management and control. An operator must—

(1) Employ a process that tracks configurations of all safety-critical systems and documentation related to the operation;

(2) Ensure the use of correct and appropriate versions of systems and documentation tracked in paragraph (c)(1) of this section; and

(3) Document the configurations and versions identified in paragraph (c)(2) of this section for each licensed activity.

(d) Post-flight data review. An operator must employ a process for evaluating post-flight data to—

(1) Ensure consistency between the assumptions used for the hazard control strategy determination, any flight hazard or flight safety analyses, and associated mitigation and hazard control measures;

(2) Resolve any inconsistencies identified in paragraph (d)(1) of this section prior to the next flight of the vehicle;

(3) Identify any anomaly that may impact any flight hazard analysis, flight safety analysis, or safety-critical system, or is otherwise material to public safety; and

(4) Address any anomaly identified in paragraph (d)(3) of this section prior to the next flight as necessary to ensure public safety, including updates to any flight hazard analysis, flight safety analysis, or safety-critical system.

(e) Application requirements. An applicant must submit in its application the following:

(1) A description of the applicant's safety organization as required by paragraph (a) of this section, identifying the applicant's lines of communication and approval authority, both internally and externally, for all public safety decisions and the provision of public safety services; and

(2) A summary of the processes and products identified in the system safety program requirements in paragraphs (b), (c), and (d) of this section.

Hazard Control Strategies

§ 450.107 Hazard control strategies.

(a) General. To meet the safety criteria of § 450.101(a), (b), or (c) for the flight, or any phase of flight, of a launch or reentry vehicle, an operator must use one or more of the hazard control strategies identified in § 450.108 through § 450.111.

(b) Hazard control strategy determination. For each phase of flight during a launch or reentry, an operator must use a functional hazard analysis to determine a hazard control strategy or strategies that account for—

(1) All functional failures associated with reasonably foreseeable hazardous events that have the capability to create a hazard to the public;

(2) Safety-critical systems; and

(3) A timeline of all safety-critical events.

(c) Flight hazard analysis. An operator must conduct a flight hazard analysis in accordance with § 450.109 of this part for the flight, or phase of flight, of a launch or reentry vehicle if the public safety hazards cannot be mitigated adequately to meet the public risk criteria of § 450.101(a), (b), and (c) using physical containment, wind weighting, or flight abort.

(d) Application requirements. An applicant must submit in its application—

(1) The results of the hazard control strategy determination, including—

(i) All functional failures identified under paragraph (b)(1) of this section;

(ii) The identification of all safety-critical systems; and

(iii) A timeline of all safety-critical events.

(2) A description of its hazard control strategy or strategies for each phase of flight.

§ 450.108 Flight abort.

(a) Applicability. This section applies to the use of flight abort as a hazard control strategy for the flight, or phase of flight, of a launch or reentry vehicle to meet the safety criteria of § 450.101.

(b) Flight safety system. An operator must use a flight safety system that:

(1) Meets the requirements of § 450.145 if the consequence of any reasonably foreseeable failure mode in any significant period of flight is greater than 1 × 10− 2 conditional expected casualties in uncontrolled areas; or

(2) Meets the requirements of § 450.143 if the consequence of any reasonably foreseeable failure mode in any significant period of flight is between 1 × 10− 2 and 1 × 10− 3 conditional expected casualties for uncontrolled areas.

(c) Flight safety limits objectives. An operator must determine and use flight safety limits that define when an operator must initiate flight abort for each of the following—

(1) To ensure compliance with the safety criteria of § 450.101(a) and (b);

(2) To prevent continued flight from increasing risk in uncontrolled areas if the vehicle is unable to achieve a useful mission;

(3) To prevent the vehicle from entering a period of materially increased public exposure in uncontrolled areas, including before orbital insertion, if a critical vehicle parameter is outside its pre-established expected range or indicates an inability to complete flight within the limits of a useful mission;

(4) To prevent conditional expected casualties greater than 1 × 10− 2 in uncontrolled areas due to flight abort or due to flight outside the limits of a useful mission from any reasonably foreseeable off-trajectory failure mode in any significant period of flight; and

(5) To prevent the vehicle state from reaching identified conditions that are anticipated to compromise the capability of the flight safety system if further flight has the potential to violate a flight safety limit.

(6) In lieu of paragraphs (c)(2) and (4) of this section, to prevent debris capable of causing a casualty due to any hazard from affecting uncontrolled areas using a flight safety system that complies with § 450.145.

(d) Flight safety limits constraints. An operator must determine flight safety limits that—

(1) Account for temporal and geometric extents on the Earth's surface of any reasonably foreseeable vehicle hazards under all reasonably foreseeable conditions during normal and malfunctioning flight;

(2) Account for physics of hazard generation and transport including uncertainty;

(3) Account for the potential to lose valid data necessary to evaluate the flight abort rules;

(4) Account for the time delay, including uncertainties, between the violation of a flight abort rule and the time when the flight safety system is expected to activate;

(5) Account in individual, collective, and conditional risk evaluations both for proper functioning of the flight safety system and failure of the flight safety system;

(6) Are designed to avoid flight abort that results in increased collective risk to the public in uncontrolled areas, compared to continued flight; and

(7) Ensure that any trajectory within the limits of a useful mission that is permitted to fly without abort would meet the collective risk criteria of § 450.101(a)(1) or (b)(1) when analyzed as if it were the planned mission in accordance with § 450.213(b)(2).

(e) End of flight abort. A flight does not need to be aborted to protect against high consequence events in uncontrolled areas beginning immediately after critical vehicle parameters are validated, if the vehicle is able to achieve a useful mission and the following conditions are met for the remainder of flight:

(1) Flight abort would not materially decrease the risk from a high consequence event; and

(2) There are no key flight safety events.

(f) Flight abort rules. For each launch or reentry, an operator must establish and observe flight abort rules that govern the conduct of the launch or reentry as follows.

(1) Vehicle data required to evaluate flight abort rules must be available to the flight safety system under all reasonably foreseeable conditions during normal and malfunctioning flight.

(2) The flight safety system must abort flight:

(i) When valid, real-time data indicate the vehicle has violated any flight safety limit developed in accordance with this section;

(ii) When the vehicle state approaches identified conditions that are anticipated to compromise the capability of the flight safety system and further flight has the potential to violate a flight safety limit; and

(iii) In accordance with methods used to satisfy (d)(3) of this section, if tracking data is invalid and further flight has the potential to violate a flight safety limit.

(g) Application requirements. An applicant must submit in its application the following:

(1) A description of the methods used to demonstrate compliance with paragraph (c) of this section, including descriptions of how each analysis constraint in paragraph (d) of this section is satisfied in accordance with § 450.115.

(2) A description of how each flight safety limit and flight abort rule is evaluated and implemented during vehicle flight, including the quantitative criteria that will be used, a description of any critical parameters, and how the values required in paragraphs (c)(3) and (e) of this section are identified;

(3) A graphic depiction or series of depictions of flight safety limits for a representative mission together with the launch or landing point, all uncontrolled area boundaries, the nominal trajectory, extents of normal flight, and limits of a useful mission trajectories, with all trajectories in the same projection as each of the flight safety limits; and

(4) A description of the vehicle data that will be available to evaluate flight abort rules under all reasonably foreseeable conditions during normal and malfunctioning flight.

§ 450.109 Flight hazard analysis.

(a) Applicability. This section applies to the use of a flight hazard analysis as a hazard control strategy to derive hazard controls for the flight, or phase of flight, of a launch or reentry vehicle. Hazards associated with computing systems and software are further addressed in § 450.141.

(b) Analysis. A flight hazard analysis must identify, describe, and analyze all reasonably foreseeable hazards to public safety resulting from the flight of a launch or reentry vehicle. Each flight hazard analysis must—

(1) Identify all reasonably foreseeable hazards, and the corresponding failure mode for each hazard, associated with the launch or reentry system relevant to public safety, including those resulting from:

(i) Vehicle operation, including staging and release;

(ii) System, subsystem, and component failures or faults;

(iii) Software operations;

(iv) Environmental conditions;

(v) Human factors;

(vi) Design inadequacies;

(vii) Procedure deficiencies;

(viii) Functional and physical interfaces between subsystems, including any vehicle payload;

(ix) Reuse of components or systems; and

(x) Interactions of any of the above.

(2) Assess each hazard's likelihood and severity.

(3) Ensure that the likelihood of any hazardous condition that may cause death or serious injury to the public is extremely remote.

(4) Identify and describe the risk elimination and mitigation measures required to satisfy paragraph (b)(3) of this section.

(5) Document that the risk elimination and mitigation measures achieve the risk level of paragraph (b)(3) of this section through validation and verification. Verification includes:

(i) Analysis;

(ii) Test;

(iii) Demonstration; or

(iv) Inspection.

(c) New Hazards. An operator must establish and document the criteria and techniques for identifying new hazards throughout the lifecycle of the launch or reentry system.

(d) Completeness Prior to Flight. For every launch or reentry, the flight hazard analysis must be complete and all hazards must be mitigated to an acceptable level in accordance with paragraph (b)(3) of this section.

(e) Updates. An operator must continually update the flight hazard analysis throughout the lifecycle of the launch or reentry system.

(f) Application requirements. An applicant must submit in its application the following:

(1) Flight hazard analysis products of paragraphs (b)(1) through (5) of this section, including data that verifies the risk elimination and mitigation measures resulting from the applicant's flight hazard analyses required by paragraph (b)(5) of this section; and

(2) The criteria and techniques for identifying new hazards throughout the lifecycle of the launch or reentry system as required by paragraph (c) of this section.

§ 450.110 Physical containment.

(a) Applicability. This section applies to the use of physical containment as a hazard control strategy for the flight, or phase of flight, of a launch or reentry vehicle to meet the safety criteria of § 450.101(a), (b), and (c).

(b) Containment. To use physical containment as a hazard control strategy, an operator must—

(1) Develop the flight hazard area in accordance with § 450.133;

(2) Ensure that the launch vehicle does not have sufficient energy for any hazards associated with its flight to reach outside the flight hazard area;

(3) Ensure the hazard area is clear of the public and critical assets; and

(4) Apply other mitigation measures necessary to ensure no public or critical asset exposure to hazards, such as control of public access or wind placards.

(c) Application requirements. An applicant must submit in its application the following:

(1) A demonstration that the launch vehicle does not have sufficient energy for any hazards associated with its flight to reach outside the flight hazard area developed in accordance with § 450.133; and

(2) A description of the methods used to ensure that flight hazard areas are cleared of the public and critical assets.

§ 450.111 Wind weighting.

(a) Applicability. This section applies to the use of wind weighting as a hazard control strategy for the flight of an unguided suborbital launch vehicle to meet the safety criteria of § 450.101(a), (b), and (c).

(b) Wind weighting safety system. The flight of an unguided suborbital launch vehicle that uses a wind weighting safety system must meet the following:

(1) The launcher azimuth and elevation settings must be wind weighted to correct for the effects of wind conditions at the time of flight to provide impact locations that will ensure compliance with the safety criteria in § 450.101; and

(2) An operator must use launcher azimuth and elevation angle settings that ensures the rocket will not fly in an unintended direction accounting for uncertainties in vehicle and launcher design and manufacturing, and atmospheric uncertainties.

(c) Analysis. An operator must—

(1) Establish flight commit criteria and other flight safety rules that control the risk to the public from potential adverse effects resulting from normal and malfunctioning flight;

(2) Establish any wind constraints under which flight may occur; and

(3) Conduct a wind weighting analysis that establishes the launcher azimuth and elevation settings that correct for the windcocking and wind-drift effects on the unguided suborbital launch vehicle.

(d) Stability. An unguided suborbital launch vehicle, in all configurations, must be stable throughout each stage of powered flight.

(e) Application requirements. An applicant must submit in its application the following:

(1) A description of its wind weighting analysis methods, including its method and schedule of determining wind speed and wind direction for each altitude layer;

(2) A description of its wind weighting safety system including all equipment used to perform the wind weighting analysis; and

(3) A representative wind weighting analysis using actual or statistical winds for the launch area and samples of the output.

Flight Safety Analyses

§ 450.113 Flight safety analysis requirements—scope.

(a) An operator must perform and document a flight safety analysis for all phases of flight, except as specified in paragraph (b) of this section, as follows—

(1) For orbital launch, from liftoff through orbital insertion, and through all component impacts or landings;

(2) For suborbital launch, from liftoff through all component impacts or landings;

(3) For disposal, from the initiation of the deorbit through final impact; and

(4) For reentry, from the initiation of the deorbit through all component impacts or landing.

(b) An operator is not required to perform and document a flight safety analysis for a phase of flight if agreed to by the Administrator based on demonstrated reliability. An operator demonstrates reliability by using operational and flight history to show compliance with the risk criteria in § 450.101(a) and (b).

§ 450.115 Flight safety analysis methods.

(a) Scope of the analysis. An operator's flight safety analysis method must account for all reasonably foreseeable events and failures of safety-critical systems during nominal and non-nominal launch or reentry that could jeopardize public safety.

(b) Level of fidelity of the analysis. An operator's flight safety analysis method must have a level of fidelity sufficient to—

(1) Demonstrate that any risk to the public satisfies the safety criteria of § 450.101, including the use of mitigations, accounting for all known sources of uncertainty, using a means of compliance accepted by the Administrator; and

(2) Identify the dominant source of each type of public risk with a criterion in § 450.101(a) or (b) in terms of phase of flight, source of hazard (such as toxic exposure, inert, or explosive debris), and failure mode.

(c) Application requirements. An applicant must submit a description of the flight safety analysis methodology, including identification of:

(1) The scientific principles and statistical methods used;

(2) All assumptions and their justifications;

(3) The rationale for the level of fidelity;

(4) The evidence for validation and verification required by § 450.101(g);

(5) The extent to which the benchmark conditions are comparable to the foreseeable conditions of the intended operations; and

(6) The extent to which risk mitigations were accounted for in the analyses.

§ 450.117 Trajectory analysis for normal flight.

(a) General. A flight safety analysis must include a trajectory analysis that establishes, for any phase of flight within the scope as provided by § 450.113(a), the limits of a launch or reentry vehicle's normal flight as defined by the nominal trajectory, and the following sets of trajectories sufficient to characterize variability and uncertainty during normal flight:

(1) A set of trajectories to characterize variability. This set must describe how the intended trajectory could vary due to conditions known prior to initiation of flight; and

(2) A set of trajectories to characterize uncertainty. This set must describe how the actual trajectory could differ from the intended trajectory due to random uncertainties in all parameters with a significant influence on the vehicle's behavior throughout normal flight.

(b) Trajectory model. A final trajectory analysis must use a six-degree of freedom trajectory model to satisfy the requirements of paragraph (a) of this section.

(c) Atmospheric effects. A trajectory analysis must account for atmospheric conditions that have an effect on the trajectory, including atmospheric profiles that are no less severe than the worst conditions under which flight might be attempted, and for uncertainty in the atmospheric conditions.

(d) Application requirements. An applicant must submit the following:

(1) A description of the methods used to characterize the vehicle's flight behavior throughout normal flight, in accordance with § 450.115(c).

(2) The quantitative input data, including uncertainties, used to model the vehicle's normal flight in six degrees of freedom.

(3) The worst atmospheric conditions under which flight might be attempted, and a description of how the operator will evaluate the atmospheric conditions and uncertainty in the atmospheric conditions prior to initiating the operation;

(4) Representative normal flight trajectory analysis outputs, including the position velocity, and orientation for each second of flight for—

(i) The nominal trajectory;

(ii) A set of trajectories that characterize variability in the intended trajectory based on conditions known prior to initiation of flight; and

(iii) A set of trajectories that characterize how the actual trajectory could differ from the intended trajectory due to random uncertainties.

§ 450.119 Trajectory analysis for malfunction flight.

(a) General. A flight safety analysis must include a trajectory analysis that establishes—

(1) The vehicle's deviation capability in the event of a malfunction during flight,

(2) The trajectory dispersion resulting from reasonably foreseeable malfunctions, and

(3) For vehicles using flight abort as a hazard control strategy under § 450.108, trajectory data or parameters that describe the limits of a useful mission. The FAA does not consider the collection of data related to a failure to be a useful mission.

(b) Analysis constraints. A malfunction trajectory analysis must account for each cause of a malfunction flight, including software and hardware failures, for every period of normal flight. The analysis for each type of malfunction must have sufficient temporal and spatial resolution to establish flight safety limits, if any, and individual risk contours that are smooth and continuous. The analysis must account for—

(1) The relative probability of occurrence of each malfunction;

(2) The probability distribution of position and velocity of the vehicle when each malfunction trajectory will terminate due to vehicle breakup, ground impact, or orbital insertion along with the cause of termination and the state of the vehicle;

(3) The parameters with a significant influence on a vehicle's flight behavior from the time a malfunction begins to cause a flight deviation until the time each malfunction trajectory will terminate due to vehicle breakup, ground impact, or orbital insertion; and

(4) The potential for failure of the flight safety system, if any.

(c) Application requirements. An applicant must submit—

(1) A description of the methodology used to characterize the vehicle's flight behavior throughout malfunction flight, in accordance with § 450.115(c).

(2) A description of the methodology used to determine the limits of a useful mission, in accordance with § 450.115(c).

(3) A description of the input data used to characterize the vehicle's malfunction flight behavior, including:

(i) A list of each cause of malfunction flight considered;

(ii) A list of each type of malfunction flight for which malfunction flight behavior was characterized; and

(iii) A quantitative description of the parameters, including uncertainties, with a significant influence on the vehicle's malfunction behavior for each type of malfunction flight characterized.

(4) Representative malfunction flight trajectory analysis outputs, including the position and velocity as a function of flight time for—

(i) Each set of trajectories that characterizes a type of malfunction flight;

(ii) The probability of each set of trajectories that characterizes a type of malfunction flight; and

(iii) A set of trajectories that characterizes the limits of a useful mission as described in paragraph (a)(3) of this section.

§ 450.121 Debris analysis.

(a) General. A flight safety analysis must include an analysis characterizing the hazardous debris generated from normal and malfunctioning vehicle flight as a function of vehicle flight sequence.

(b) Vehicle impact and breakup analysis. A debris analysis must account for:

(1) Each reasonably foreseeable cause of vehicle breakup and intact impact,

(2) Vehicle structural characteristics and materials, and

(3) Energetic effects during break-up or at impact.

(c) Propagation of debris. A debris analysis must compute statistically valid debris impact probability distributions. The propagation of debris from each predicted breakup location to impact must account for—

(1) All foreseeable forces that can influence any debris impact location; and

(2) All foreseeable sources of impact dispersion, including, at a minimum:

(i) The uncertainties in atmospheric conditions;

(ii) Debris aerodynamic parameters, including uncertainties;

(iii) Pre-breakup position and velocity, including uncertainties; and

(iv) Breakup-imparted velocities, including uncertainties.

(d) Application requirements. An applicant must submit:

(1) A description of all scenarios that can lead to hazardous debris;

(2) A description of the methods used to perform the vehicle impact and breakup analysis, in accordance with § 450.115(c);

(3) A description of the methods used to compute debris impact distributions, in accordance with § 450.115(c);

(4) A description of the atmospheric data used as input to the debris analysis; and

(5) A quantitative description of the physical, aerodynamic, and harmful characteristics of hazardous debris.

§ 450.123 Population exposure analysis.

(a) General. A flight safety analysis must account for the distribution of people for the entire region where there is a significant probability of impact of hazardous debris.

(b) Constraints. The exposure analysis must—

(1) Characterize the distribution of people both geographically and temporally;

(2) Account for the distribution of people among structures and vehicle types;

(3) Use reliable, accurate, and timely source data; and

(4) Account for vulnerability of people to hazardous debris effects.

(c) Application requirements. An applicant must submit:

(1) A description of the methods used to develop the exposure input data in accordance with § 450.115(c), and

(2) Complete population exposure data, in tabular form.

§ 450.131 Probability of failure analysis.

(a) General. For each hazard and phase of flight, a flight safety analysis for a launch or reentry must account for vehicle failure probability. The probability of failure must be consistent for all hazards and phases of flight.

(1) For a vehicle or vehicle stage with fewer than two flights, the failure probability estimate must account for the outcome of all previous flights of vehicles developed and launched or reentered in similar circumstances.

(2) For a vehicle or vehicle stage with two or more flights, vehicle failure probability estimates must account for the outcomes of all previous flights of the vehicle or vehicle stage in a statistically valid manner. The outcomes of all previous flights of the vehicle or vehicle stage must account for data on any mishap and anomaly.

(b) Failure. For flight safety analysis purposes, a failure occurs when a vehicle does not complete any phase of normal flight or when any anomalous condition exhibits the potential for a stage or its debris to impact the Earth or reenter the atmosphere outside the normal trajectory envelope during the mission or any future mission of similar vehicle capability.

(c) Previous flight. For flight safety analysis purposes—

(1) The flight of a launch vehicle begins at a time in which a launch vehicle lifts off from the surface of the Earth; and

(2) The flight of a reentry vehicle or deorbiting upper stage begins at a time in which a vehicle attempts to initiate a reentry.

(d) Allocation. The vehicle failure probability estimate must be distributed across flight phases and failure modes. The distribution must be consistent with—

(1) The data available from all previous flights of vehicles developed and launched or reentered in similar circumstances; and

(2) Data from previous flights of vehicles, stages, or components developed and launched, reentered, flown, or tested by the subject vehicle developer or operator. Such data may include previous experience involving similar—

(i) Vehicle, stage, or component design characteristics;

(ii) Development and integration processes, including the extent of integrated system testing; and

(iii) Level of experience of the vehicle operation and development team members.

(e) Observed vs. conditional failure rate. Probability of failure allocation must account for significant differences in the observed failure rate and the conditional failure rate. A probability of failure analysis must use a constant conditional failure rate for each phase of flight, unless there is clear and convincing evidence of a different conditional failure rate for a particular vehicle, stage, or phase of flight.

(f) Application requirements. An applicant must submit:

(1) A description of the methods used in probability of failure analysis, in accordance with § 450.115(c); and

(2) A representative set of tabular data and graphs of the predicted failure rate and cumulative failure probability for each foreseeable failure mode.

§ 450.133 Flight hazard area analysis.

(a) General. A flight safety analysis must include a flight hazard area analysis that identifies any region of land, sea, or air that must be surveyed, publicized, controlled, or evacuated in order to control the risk to the public. The analysis must account for, at a minimum—

(1) The regions of land, sea, and air potentially exposed to hazardous debris generated during normal flight events and all reasonably foreseeable failure modes;

(2) Any hazard controls implemented to control risk from any hazard;

(3) The limits of a launch or reentry vehicle's normal flight, including—

(i) Atmospheric conditions that are no less severe than the worst atmospheric conditions under which flight might be attempted; and

(ii) Uncertainty in the atmospheric conditions;

(4) All hazardous debris;

(5) Sources of debris dispersion in accordance with § 450.121(c); and

(6) A probability of one for any planned debris hazards or planned impacts.

(b) Waterborne vessel hazard areas. The flight hazard area analysis for waterborne vessels must determine the areas and durations for regions of water—

(1) That are necessary to contain, with 97 percent probability of containment, all debris resulting from normal flight events capable of causing a casualty to persons on waterborne vessels;

(2) That are necessary to contain either where the probability of debris capable of causing a casualty impacting on or near a vessel would exceed 1 × 10− 5, accounting for all relevant hazards, or where the individual probability of casualty for any person on board a vessel would exceed the individual risk criteria in § 450.101(a)(2) or (b)(2); and

(3) Where reduced vessel traffic is necessary to meet the collective risk criteria in § 450.101(a)(1) or (b)(1).

(c) Land hazard areas. The flight hazard area analysis for land must determine the durations and areas regions of land—

(1) That are necessary to contain, with 97 percent probability of containment, all debris resulting from normal flight events capable of causing a casualty to any person on land;

(2) Where the individual probability of casualty for any person on land would exceed the individual risk criteria in § 450.101(a)(2) or (b)(2); and

(3) Where reduced population is necessary to meet the collective risk criteria in § 450.101(a)(1) or (b)(1).

(d) Airspace hazard volumes. The flight hazard area analysis for airspace must determine the durations and volumes for regions of air to be submitted to the FAA for approval—

(1) That are necessary to contain, with 97 percent probability of containment, all debris resulting from normal flight events capable of causing a casualty to persons on an aircraft; and

(2) Where the probability of impact on an aircraft would exceed the aircraft risk criterion in § 450.101(a)(3) or (b)(3).

(e) Application requirements. An applicant must submit:

(1) A description of the methodology to be used in the flight hazard area analysis in accordance with § 450.115(c), including:

(i) Classes of waterborne vessel and vulnerability criteria employed; and

(ii) Classes of aircraft and vulnerability criteria employed.

(2) Tabular data and graphs of the results of the flight hazard area analysis, including:

(i) Geographical coordinates of all hazard areas that are representative of those to be published, in accordance with § 450.161, prior to any proposed operation;

(ii) Representative 97 percent probability of containment contours for all debris resulting from normal flight events capable of causing a casualty for all locations specified in paragraph (a) of this section;

(iii) Representative individual probability of casualty contours for all locations specified in paragraph (a) of this section, including tabular data and graphs showing the hypothetical location of any member of the public that could be exposed to a probability of casualty of 1 × 10− 5 or greater for neighboring operations personnel, and 1 × 10− 6 or greater for other members of the public, given all foreseeable conditions within the flight commit criteria;

(iv) If applicable, representative 1 × 10− 5 and 1 × 10− 6 probability of impact contours for all debris capable of causing a casualty to persons on a waterborne vessel regardless of location; and

(v) Representative 1 × 10− 6 and 1 × 10− 7 probability of impact contours for all debris capable of causing a casualty to persons on an aircraft regardless of location.

§ 450.135 Debris risk analysis.

(a) General. A flight safety analysis must include a debris risk analysis that demonstrates compliance with safety criteria in § 450.101, either—

(1) Prior to the day of the operation, accounting for all foreseeable conditions within the flight commit criteria; or

(2) During the countdown using the best available input data, including flight commit criteria and flight abort rules.

(b) Casualty area and consequence analysis. A debris risk analysis must model the casualty area, and compute the predicted consequences of each reasonably foreseeable failure mode in any significant period of flight in terms of conditional expected casualties. The casualty area and consequence analysis must account for—

(1) All relevant debris fragment characteristics and the characteristics of a representative person exposed to any potential debris hazard;

(2) Statistically-valid debris impact probability distributions;

(3) Any impact or effects of hazardous debris; and

(4) The vulnerability of people to debris impact or effects, including:

(i) Effects of buildings, ground vehicles, waterborne vessel, and aircraft upon the vulnerability of any occupants;

(ii) Effect of atmospheric conditions on debris impact and effects;

(iii) Impact speed and angle, accounting for motion of impacted vehicles;

(iv) Uncertainty in input data, such as fragment impact parameters; and

(v) Uncertainty in modeling methodology.

(c) Application requirements. An applicant must submit:

(1) A description of the methods used to demonstrate compliance with the safety criteria in § 450.101, in accordance with § 450.115(c), including a description of how the operator will account for the conditions immediately prior to enabling the flight of a launch vehicle or the reentry of a reentry vehicle, such as the final trajectory, atmospheric conditions, and the exposure of people;

(2) A description of the atmospheric data used as input to the debris risk analysis;

(3) The effective unsheltered casualty area for all fragment classes, assuming a representative impact vector;

(4) The effective casualty area for all fragment classes for a representative type of building, ground vehicle, waterborne vessel, and aircraft, assuming a representative impact vector;

(5) Collective and individual debris risk analysis outputs under representative conditions and the worst foreseeable conditions, including:

(i) Total collective casualty expectation for the proposed operation;

(ii) A list of the collective risk contribution for at least the top ten population centers and all centers with collective risk exceeding 1 percent of the collective risk criteria in § 450.101(a)(1) or (b)(1);

(iii) A list of the maximum individual probability of casualty for the top ten population centers and all centers that exceed 10 percent of the individual risk criteria in § 450.101(a)(2) or (b)(2); and

(iv) A list of the conditional collective casualty expectation for each failure mode for each significant period of flight under representative conditions and the worst foreseeable conditions.

§ 450.137 Far-field overpressure blast effects analysis.

(a) General. A flight safety analysis must include a far-field overpressure blast effect analysis that demonstrates compliance with safety criteria in § 450.101, either—

(1) Prior to the day of the operation, accounting for all foreseeable conditions within the flight commit criteria; or

(2) During the countdown using the best available input data, including flight commit criteria and flight abort rules.

(b) Analysis constraints. The analysis must account for—

(1) The explosive capability of the vehicle and hazardous debris at impact and at altitude;

(2) The potential influence of meteorological conditions and terrain characteristics; and

(3) The potential for broken windows due to peak incident overpressures below 1.0 psi and related casualties based on the characteristics of exposed windows and the population's susceptibility to injury, with considerations including, at a minimum, shelter types, window types, and the time of day of the proposed operation.

(c) Application requirements. An applicant must submit a description of the far-field overpressure analysis, including all assumptions and justifications for the assumptions, analysis methods, input data, and results. At a minimum, the application must include:

(1) A description of the population centers, terrain, building types, and window characteristics used as input to the far-field overpressure analysis;

(2) A description of the methods used to compute the foreseeable explosive yield probability pairs, and the complete set of yield-probability pairs, used as input to the far-field overpressure analysis;

(3) A description of the methods used to compute peak incident overpressures as a function of distance from the explosion and prevailing meteorological conditions, including sample calculations for a representative range of the foreseeable meteorological conditions, yields, and population center locations;

(4) A description of the methods used to compute the probability of window breakage, including tabular data and graphs for the probability of breakage as a function of the peak incident overpressure for a representative range of window types, building types, and yields accounted for;

(5) A description of the methods used to compute the probability of casualty for a representative individual, including tabular data and graphs for the probability of casualty, as a function of location relative to the window and the peak incident overpressure for a representative range of window types, building types, and yields accounted for;

(6) Tabular data and graphs showing the hypothetical location of any member of the public that could be exposed to a probability of casualty of 1 × 10− 5 or greater for neighboring operations personnel, and 1 × 10− 6 or greater for other members of the public, given foreseeable conditions;

(7) The maximum expected casualties that could result from far-field overpressure hazards given foreseeable conditions; and

(8) A description of the meteorological measurements used as input to any real-time far-field overpressure analysis.

§ 450.139 Toxic hazards for flight.

(a) Applicability. (1) Except as specified in paragraph (a)(2), this section applies to any launch or reentry vehicle, including all vehicle components and payloads, that use toxic propellants or other toxic chemicals.

(2) No toxic release hazard analysis is required for kerosene-based fuels, unless the Administrator determines that an analysis is required to protect public safety.

(b) General. An operator must—

(1) Conduct a toxic release hazard analysis in accordance with paragraph (c) of this section;

(2) Manage the risk of casualties that could arise from the exposure to toxic release through one of the following means:

(i) Contain hazards caused by toxic release in accordance with paragraph (d) of this section; or

(ii) Perform a toxic risk assessment, in accordance with paragraph (e) of this section, that protects the public in compliance with the safety criteria of § 450.101, including toxic release hazards.

(3) Establish flight commit criteria based on the results of its toxic release hazard analysis and toxic containment or toxic risk assessment for any necessary evacuation of the public from any toxic hazard area.

(c) Toxic release hazard analysis. A toxic release hazard analysis must—

(1) Account for any toxic release that could occur during nominal or non-nominal flight;

(2) Include a worst-case release scenario analysis or a maximum-credible release scenario analysis for each process that involves a toxic propellant or other chemical;

(3) Determine if toxic release can occur based on an evaluation of the chemical compositions and quantities of propellants, other chemicals, vehicle materials, and projected combustion products, and the possible toxic release scenarios;

(4) Account for both normal combustion products and any unreacted propellants and phase change or chemical derivatives of released substances; and

(5) Account for any operational constraints and emergency procedures that provide protection from toxic release.

(d) Toxic containment. An operator using toxic containment must manage the risk of any casualty from the exposure to toxic release either by—

(1) Evacuating, or being prepared to evacuate, the public from any toxic hazard area in the event of a worst-case release or maximum-credible release scenario; or

(2) Employing meteorological constraints to limit an operation to times during which prevailing winds and other conditions ensure that any member of the public would not be exposed to toxic concentrations and durations greater than accepted toxic thresholds for acute casualty in the event of a worst-case release or maximum-credible release scenario.

(e) Toxic risk assessment. An operator using toxic risk assessment must establish flight commit criteria that demonstrate compliance with the safety criteria of § 450.101. A toxic risk assessment must—

(1) Account for airborne concentration and duration thresholds of toxic propellants or other chemicals. For any toxic propellant, other chemicals, or combustion product, an operator must use airborne toxic concentration and duration thresholds identified in a means of compliance accepted by the Administrator;

(2) Account for physical phenomena expected to influence any toxic concentration and duration in the area surrounding the potential release site;

(3) Determine a toxic hazard area for the launch or reentry, surrounding the potential release site for each toxic propellant or other chemical based on the amount and toxicity of the propellant or other chemical, the exposure duration, and the meteorological conditions involved;

(4) Account for all members of the public who may be exposed to the toxic release, including all members of the public on land and on any waterborne vessels, populated offshore structures, and aircraft that are not operated in direct support of the launch or reentry; and

(5) Account for any risk mitigation measures applied in the risk assessment.

(f) Application requirements. An applicant must submit:

(1) The identity of toxic propellant, chemical, or combustion products or derivatives in the possible toxic release;

(2) The applicant's selected airborne toxic concentration and duration thresholds;

(3) The meteorological conditions for the atmospheric transport and buoyant cloud rise of any toxic release from its source to downwind receptor locations;

(4) Characterization of the terrain, as input for modeling the atmospheric transport of a toxic release from its source to downwind receptor locations;

(5) The identity of the toxic dispersion model used, and any other input data;

(6) Representative results of an applicant's toxic dispersion modeling to predict concentrations and durations at selected downwind receptor locations, to determine the toxic hazard area for a released quantity of the toxic substance;

(7) A toxic release hazard analysis in accordance with paragraph (c) of this section:

(i) A description of the failure modes and associated relative probabilities for potential toxic release scenarios used in the risk evaluation; and

(ii) The methodology and representative results of an applicant's determination of the worst-case or maximum-credible quantity of any toxic release that might occur during the flight of a vehicle;

(8) In accordance with § 450.139(b)(2),

(i) A toxic containment in accordance with paragraph (d) of this section, identify the evacuation plans or meteorological constraints and associated launch commit criteria needed to ensure that the public will not be within a toxic hazard area in the event of a worst-case release or maximum-credible release scenario; or

(ii) A toxic risk assessment in accordance with paragraph (e) of this section:

(A) A demonstration that the safety criteria in § 450.101 will be met;

(B) The population characteristics in receptor locations that are identified by toxic dispersion modeling as toxic hazard areas;

(C) A description of any risk mitigations applied in the toxic risk assessment; and

(D) A description of the population exposure input data used in accordance with § 450.123.

Prescribed Hazard Controls for Safety-Critical Hardware and Computing Systems

§ 450.141 Computing systems.

(a) Identification of computing system safety items. An operator must identify:

(1) Any software or data that implements a capability that, by intended operation, unintended operation, or non-operation, can present a hazard to the public; and

(2) The level of criticality of each computing system safety item identified in paragraph (a)(1) of this section, commensurate with its degree of control over hazards to the public and the severity of those hazards.

(b) Safety requirements. An operator must develop safety requirements for each computing system safety item. In doing so, the operator must:

(1) Identify and evaluate safety requirements for each computing system safety item;

(2) Ensure the safety requirements are complete and correct;

(3) Implement each safety requirement; and

(4) Verify and validate the implementation of each safety requirement by using a method appropriate for the level of criticality of the computing system safety item. For each computing system safety item that is safety critical under § 401.7, verification and validation must include testing by a test team independent of the development division or organization.

(c) Development process. An operator must implement and document a development process for computing system safety items appropriate for the level of criticality of the computing system safety item. A development process must define:

(1) Responsibilities for each task associated with a computing system safety item;

(2) Processes for internal review and approval—including review that evaluates the implementation of all safety requirements—such that no person approves that person's own work;

(3) Processes to ensure development personnel are trained, qualified, and capable of performing their role;

(4) Processes that trace requirements to verification and validation evidence;

(5) Processes for configuration management that specify the content of each released version of a computing system safety item;

(6) Processes for testing that verify and validate all safety requirements to the extent required by paragraph (b)(4) of this section;

(7) Reuse policies that verify and validate the safety requirements for reused computing system safety items; and

(8) Third-party product use policies that verify and validate the safety requirements for any third-party product.

(d) Application requirements. An applicant must:

(1) Identify and describe all computing system safety items involved in the proposed operations;

(2) Provide the safety requirements for each computing system safety item;

(3) Provide documentation of the development processes that meets paragraph (c) of this section;

(4) Provide evidence of the execution of the appropriate development process for each computing system safety item; and

(5) Provide evidence of the implementation of each safety requirement.

§ 450.143 Safety-critical system design, test, and documentation.

(a) Applicability. This section applies to all safety-critical systems, except for—

(1) Highly reliable flight safety systems covered under § 450.145; or

(2) Safety-critical systems for which an operator demonstrates through its flight hazard analysis that the likelihood of any hazardous condition specifically associated with the system that may cause death or serious injury to the public is extremely remote, pursuant to § 450.109(b)(3).

(b) Design. An operator must design safety-critical systems such that no credible fault can lead to increased risk to the public beyond nominal safety-critical system operation.

(c) Qualification testing of design. An operator must functionally demonstrate the design of the vehicle's safety-critical systems at conditions beyond its predicted operating environments. The operator must select environmental test levels that ensure the design is sufficiently stressed to demonstrate that system performance is not degraded due to design tolerances, manufacturing variances, or uncertainties in the environment.

(d) Acceptance of hardware. An operator must—

(1) Functionally demonstrate any safety-critical system, while exposed to its predicted operating environments with margin, is free of defects, free of integration and workmanship errors, and ready for operational use; or

(2) Combine in-process controls and a quality assurance process to ensure functional capability of any safety-critical system during its service life.

(e) Lifecycle of safety-critical systems. (1) The predicted operating environments must be based on conditions predicted to be encountered in all phases of flight, recovery, and transportation.

(2) An operator must monitor the flight environments experienced by safety-critical system components to the extent necessary to—

(i) Validate the predicted operating environments; and

(ii) Assess the actual component life remaining or adjust any inspection period.

(f) Application requirements. An applicant must submit to the FAA the following as part of its application:

(1) A list and description of each safety-critical system;

(2) Drawings and schematics for each safety-critical system;

(3) A summary of the analysis to determine the predicted operating environments and duration to be applied to qualification and acceptance testing covering the service life of any safety-critical system;

(4) A description of any method used to validate the predicted operating environments;

(5) A description of any instrumentation or inspection processes to monitor aging of any safety-critical system;

(6) The criteria and procedures for disposal or refurbishment for service life extension of safety-critical system components; and

(7) A description of the standards used in all phases of the lifecycle of each safety-critical system.

§ 450.145 Highly reliable flight safety system.

(a) General. For each phase of flight for which an operator must implement flight abort to meet the requirement of § 450.108(b)(1), the operator must use a highly reliable flight safety system on the launch or reentry vehicle, vehicle component, or payload with a design reliability in accordance with this section.

(b) Reliability. A highly reliable flight safety system must, using a means of compliance accepted by the Administrator—

(1) Have a design reliability of 0.999 at 95 percent confidence and commensurate design, analysis, and testing for the portion of the flight safety system onboard the vehicle; and

(2) Have a design reliability of 0.999 at 95 percent confidence and commensurate design, analysis, and testing for the portion of the flight safety system not onboard the vehicle, if used.

(c) Monitoring. An operator must monitor the flight environments experienced by any flight safety system component to the extent necessary to—

(1) Validate the predicted operating environment; and

(2) Assess the actual component life remaining or adjust any inspection period.

(d) Application requirements. An applicant must submit the information identified below, for any highly reliable flight safety system:

(1) Flight safety system description. An applicant must describe the flight safety system and its operation in detail, including all components, component functions, and possible operational scenarios.

(2) Flight safety system diagram. An applicant must submit a diagram that identifies all flight safety system subsystems and shows the interconnection of all the elements of the flight safety system. The diagram must include any subsystems used to implement flight abort both on and off the vehicle, including any subsystems used to make the decision to abort flight.

(3) Flight safety system analyses. An applicant must submit any analyses and detailed analysis reports of all flight safety system subsystems necessary to calculate the reliability and confidence levels required by paragraph (a) of this section.

(4) Tracking validation procedures. An applicant must document and submit the procedures for validating the accuracy of any vehicle tracking data utilized by the flight safety system to make the decision to abort flight.

(5) Flight safety system test plans. An applicant must submit acceptance, qualification, and preflight test plans of any flight safety system, subsystems, and components. The test plans must include test procedures and test environments.

(6) Monitoring plan. An applicant must submit a description of any method used to validate the predicted operating environments.

Other Prescribed Hazard Controls

§ 450.147 Agreements.

(a) General. An operator must establish a written agreement with any entity that provides a service or property that meets a requirement in this part, including:

(1) Launch and reentry site use agreements. A Federal launch or reentry site operator, a licensed launch or reentry site operator, or any other person that provides services or access to or use of property required to support the safe launch or reentry under this part;

(2) Agreements for notices to mariners. Unless otherwise addressed in agreements with the site operator, for overflight of navigable water, the U.S. Coast Guard or other applicable maritime authority to establish procedures for the issuance of a Notice to Mariners prior to a launch or reentry and other measures necessary to protect public health and safety;

(3) Agreements for notices to airmen. Unless otherwise addressed in agreements with the site operator, the FAA Air Traffic Organization or other applicable air navigation authority to establish procedures for the issuance of a Notice to Airmen prior to a launch or reentry, for closing of air routes during the respective launch and reentry windows, and for other measures necessary to protect public health and safety; and

(4) Mishap response. Emergency response providers, including local government authorities, to satisfy the requirements of § 450.173.

(b) Roles and responsibilities. The agreements required in this section must clearly delineate the roles and responsibilities of each party to support the safe launch or reentry under this part.

(c) Effective date. The agreements required in this section must be in effect before a license can be issued, unless otherwise agreed to by the Administrator.

(d) Application requirements. An applicant must—

(1) Describe each agreement in this section; and

(2) Provide a copy of any agreement, or portion thereof, to the FAA upon request.

§ 450.149 Safety-critical personnel qualifications.

(a) General. An operator must ensure safety-critical personnel are trained, qualified, and capable of performing their safety-critical tasks, and that their training is current.

(b) Application requirements. An applicant must—

(1) Identify safety-critical tasks that require qualified personnel;

(2) Provide internal training and currency requirements, completion standards, or any other means of demonstrating compliance with the requirements of this section; and

(3) Describe the process for tracking training currency.

§ 450.151 Work shift and rest requirements.

(a) General. For any launch or reentry, an operator must document and implement rest requirements that ensure safety-critical personnel are physically and mentally capable of performing all assigned tasks.

(b) Work shifts and deviation approval process. An operator's rest requirements must address the following:

(1) Duration of each work shift and the process for extending this shift, including the maximum allowable length of any extension;

(2) Number of consecutive work shift days allowed before rest is required;

(3) Minimum rest period required—

(i) Between each work shift, including the period of rest required immediately before the flight countdown work shift; and

(ii) After the maximum number of work shift days allowed; and

(4) Approval process for any deviation from the rest requirements.

(c) Application requirement. An applicant must submit rest rules that demonstrate compliance with the requirements of this section.

§ 450.153 Radio frequency management.

(a) General. For any radio frequency used, an operator must—

(1) Ensure radio frequency interference does not adversely affect performance of any flight safety system or safety-critical system; and

(2) Coordinate use of radio frequencies with any site operator and any local and Federal authorities.

(b) Application requirements. An applicant must submit procedures or other means to demonstrate compliance with the radio frequency requirements of this section.

§ 450.155 Readiness.

(a) General. An operator must document and implement procedures to assess readiness to proceed with the flight of a launch or reentry vehicle. These procedures must address, at a minimum, the following:

(1) Readiness of vehicle and launch, reentry, or landing site, including any contingency abort location;

(2) Readiness of safety-critical personnel, systems, software, procedures, equipment, property, and services; and

(3) Readiness to implement the mishap plan required by § 450.173.

(b) Application requirements. An applicant must—

(1) Demonstrate compliance with the requirements of paragraph (a) of this section through procedures that may include a readiness meeting close in time to flight; and

(2) Describe the criteria for establishing readiness to proceed with the flight of a launch or reentry vehicle so that public safety is maintained.

§ 450.157 Communications.

(a) An operator must implement communication procedures during the countdown and flight of a launch or reentry vehicle that—

(1) Define the authority of personnel, by individual or position title, to issue “hold/resume,” “go/no go,” and abort commands;

(2) Assign communication networks so that personnel identified in paragraph (a)(1) of this section have direct access to real-time, safety-critical information required to issue “hold/resume,” “go/no go,” and any abort commands; and

(3) Implement a protocol for using defined radio telephone communications terminology.

(b) An operator must ensure the currency of the communication procedures, and that all personnel are working with the approved version of the communication procedures.

(c) An operator must record all safety-critical communications network channels that are used for voice, video, or data transmissions that support safety-critical systems during each countdown.

§ 450.159 Pre-flight procedures.

(a) An operator must implement pre-flight procedures that—

(1) Verify that each flight commit criterion is satisfied before flight is initiated; and

(2) Ensure the operator can return the vehicle to a safe state after a countdown abort or delay.

(b) An operator must ensure the currency of the pre-flight procedures, and that all personnel are working with the approved version of the pre-flight procedures.

§ 450.161 Control of hazard areas.

(a) General. The operator must publicize, survey, control, or evacuate each flight hazard area identified in accordance with § 450.133 prior to initiating flight of a launch vehicle or the reentry of a reentry vehicle to the extent necessary to ensure compliance with § 450.101.

(b) Verification. The launch or reentry operator must perform surveillance sufficient to verify or update the assumptions, input data, and results of the flight safety analyses.

(c) Publication. An operator must publicize warnings for each flight hazard area, except for regions of land, sea, or air under the control of the vehicle operator, site operator, or other controlling authority with which the operator has an agreement. If the operator relies on another entity to publicize these warnings, it must:

(1) Determine whether the warnings have been issued; and

(2) 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 sufficiently protects the public. This notification must provide sufficient information to enable FAA to issue warnings to U.S. aircraft.

(d) Application requirements. An applicant must submit—

(1) A description of how the applicant will provide for day-of-flight surveillance and control 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 § 450.165(b);

(2) A description of how the applicant will provide for any publication of flight hazard areas necessary to meet the requirements of this section; and

(3) A description of how the applicant will establish flight commit criteria based on the results of its toxic release hazard analysis, toxic containment, or toxic risk assessment for any necessary evacuation of the public from any toxic hazard area.

§ 450.163 Lightning hazard mitigation.

(a) Lightning hazard mitigation. An operator must—

(1) Establish flight commit criteria that mitigate the potential for a launch or reentry vehicle intercepting or initiating a direct lightning strike, or encountering a nearby discharge, using a means of compliance accepted by the Administrator; or

(2) Use a vehicle designed to protect safety-critical systems in the event of a direct lightning strike or nearby discharge.

(b) Application requirements. (1) An applicant electing to comply with paragraph (a)(1) of this section must submit flight commit criteria that mitigate the potential for a launch or reentry vehicle intercepting or initiating a direct lightning strike, or encountering a nearby lightning discharge.

(2) An applicant electing to comply with paragraph (a)(2) of this section must 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.

§ 450.165 Flight commit criteria.

(a) General. For each launch or reentry, an operator must establish and observe flight commit criteria that identify each condition necessary prior to flight to satisfy the requirements of § 450.101, and must include:

(1) Surveillance of any region of land, sea, or air in accordance with § 450.161;

(2) Monitoring of any meteorological condition necessary to—

(i) Be consistent with any safety analysis required by this part; and

(ii) If necessary in accordance with § 450.163, mitigate the potential for a launch or reentry vehicle intercepting a lightning strike, or encountering a nearby discharge;

(3) Implementation of any launch or reentry window closure in the launch or reentry window for the purpose of collision avoidance in accordance with § 450.169;

(4) Confirmation that any safety-critical system is ready for flight;

(5) Confirmation from the FAA that the risk to critical assets satisfies the requirements of § 450.101(a)(4) or (b)(4);

(6) For any reentry vehicle, except a suborbital vehicle, monitoring by the operator or an onboard system that the status of safety-critical systems is healthy before enabling reentry flight, to assure the vehicle can reenter safely to Earth; and

(7) Any other hazard controls derived from any safety analysis required by this part.

(b) Application requirements. An applicant must submit a list of all flight commit criteria.

§ 450.167 Tracking.

(a) General. During the flight of a launch or reentry vehicle, an operator must measure and record in real time the position and velocity of the vehicle. The system used to track the vehicle must provide data to predict the expected impact locations of all stages and components, and to obtain vehicle performance data for comparison with the pre-flight performance predictions.

(b) Application requirements. An applicant must identify and describe each method or system used to meet the tracking requirements of paragraph (a) of this section.

§ 450.169 Launch and reentry collision avoidance analysis requirements.

(a) Criteria. Except as provided in paragraph (d) of this section, for an orbital or suborbital launch or reentry, an operator must establish window closures needed to ensure that the launch or reentry vehicle, any jettisoned components, or payloads meet the following requirements with respect to orbiting objects, not including any object being launched or reentered.

(1) For inhabitable objects, one of three criteria below must be met:

(i) The probability of collision between the launching or reentering objects and any inhabitable object must not exceed 1 × 10− 6;

(ii) The launching or reentering objects must maintain an ellipsoidal separation distance of 200 km in-track and 50 km cross-track and radially from the inhabitable object; or

(iii) The launching or reentering objects must maintain a spherical separation distance of 200 km from the inhabitable object.

(2) For objects that are neither orbital debris nor inhabitable, one of the two criteria below must be met:

(i) The probability of collision between the launching or reentering objects and any object must not exceed 1 × 10− 5; or

(ii) The launching or reentering objects must maintain a spherical separation distance of 25 km from the object.

(3) For all other known orbital debris identified by the FAA or other Federal Government entity as large objects with radar cross section greater than 1 m 2 and medium objects with radar cross section 0.1 m 2 to 1 m 2:

(i) The probability of collision between the launching or reentering objects and any known orbital debris must not exceed 1 × 10− 5; or

(ii) The launching or reentering objects must maintain a spherical separation distance of 2.5 km.

(b) Screening time. A launch or reentry operator must ensure the requirements of paragraph (a) of this section are met as follows:

(1) Through the entire segment of flight of a suborbital launch vehicle above 150 km;

(2) For an orbital launch, during ascent from a minimum of 150 km to initial orbital insertion and for a minimum of 3 hours from liftoff;

(3) For reentry, during descent from initial reentry burn to 150 km altitude; and

(4) For disposal, during descent from initial disposal burn to 150 km altitude.

(c) Rendezvous. Planned rendezvous operations that occur within the screening time frame are not considered a violation of collision avoidance if the involved operators have pre-coordinated the rendezvous or close approach.

(d) Exception. A launch collision avoidance analysis is not required for any launched object if the maximum planned altitude by that object is less than 150 km.

(e) Analysis. Collision avoidance analysis must be obtained for each launch or reentry from a Federal entity identified by the FAA, or another entity agreed to by the Administrator.

(1) An operator must use the results of the collision avoidance analysis to establish flight commit criteria for collision avoidance; and

(2) The collision avoidance analysis must account for uncertainties associated with launch or reentry vehicle performance and timing, and ensure that each window closure incorporates all additional time periods associated with such uncertainties.

(f) Timing and information required. An operator must 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 this part, as follows:

(1) Except as specified in paragraphs (f)(1)(i) and (ii) of this section, an operator must file the input data with an entity identified in paragraph (e) of this section and the FAA at least 7 days before the first attempt at the flight of a launch vehicle or the reentry of a reentry vehicle.

(i) Operators that have never received a launch or reentry conjunction assessment from the entity identified in paragraph (e) of this section, must file the input data at least 15 days in advance.

(ii) The Administrator may agree to an alternative time frame in accordance with § 404.15;

(2) An operator must obtain a collision avoidance analysis performed by an entity identified in paragraph (e) of this section, no later than 3 hours before the beginning of a launch or reentry window; and

(3) If an operator needs an updated collision avoidance analysis due to a launch or reentry delay, the operator must file the request with the entity identified in paragraph (e) of this section and the FAA at least 12 hours prior to the beginning of the new launch or reentry window.

§ 450.171 Safety at end of launch.

(a) Orbital debris mitigation. An operator must ensure for any proposed launch that for all vehicle stages or components that reach Earth orbit—

(1) There is no unplanned physical contact between the vehicle or any of its components and the payload after payload separation;

(2) Debris generation does not result from the conversion of energy sources into energy that fragments the vehicle or its components. Energy sources include chemical, pressure, and kinetic energy; and

(3) For all vehicle stages or components that are left in orbit, stored energy is removed by depleting residual fuel and leaving all fuel line valves open, venting any pressurized system, leaving all batteries in a permanent discharge state, and removing any remaining source of stored energy.

(b) Application requirement. An applicant must demonstrate compliance with the requirements in paragraph (a) of this section.

§ 450.173 Mishap plan—reporting, response, and investigation requirements.

(a) General. An operator must report, respond to, and investigate mishaps, as defined in § 401.7 of this chapter, in accordance with paragraphs (b) through (g) of this section using a plan or other written means.

(b) Responsibilities. An operator must document—

(1) Responsibilities for personnel assigned to implement the requirements of this section;

(2) Reporting responsibilities for personnel assigned to conduct investigations and for anyone retained by the operator to conduct or participate in investigations; and

(3) Allocation of roles and responsibilities between the launch operator and any site operator for reporting, responding to, and investigating any mishap during ground activities at the site.

(c) Mishap reporting requirements. An operator must—

(1) Immediately notify the FAA Washington Operations Center in case of a mishap that involves a fatality or serious injury (as defined in 49 CFR 830.2);

(2) Notify within 24 hours the FAA Washington Operations Center in the case of a mishap that does not involve a fatality or serious injury (as defined in 49 CFR 830.2); and

(3) Submit a written preliminary report to the FAA Office of Commercial Space Transportation within five days of any mishap. The preliminary report must include the following information, as applicable:

(i) Date and time of the mishap;

(ii) Description of the mishap and sequence of events leading to the mishap, to the extent known;

(iii) Intended and actual location of the launch or reentry or other landing on Earth;

(iv) Hazardous debris impact points, including those outside a planned landing site or designated hazard area;

(v) Identification of the vehicle;

(vi) Identification of any payload;

(vii) Number and general description of any fatalities or injuries;

(viii) Description and estimated costs of any property damage;

(ix) Identification of hazardous materials, as defined in § 401.7 of this chapter, involved in the event, whether on the vehicle, any payload, or on the ground;

(x) Action taken by any person to contain the consequences of the event;

(xi) Weather conditions at the time of the event; and

(xii) Potential consequences for other similar vehicles, systems, or operations.

(d) Emergency response requirements. An operator must—

(1) Activate emergency response services to protect the public and property following a mishap as necessary including, but not limited to:

(i) Evacuating and rescuing members of the public, taking into account debris dispersion and toxic plumes; and

(ii) Extinguishing fires;

(2) Maintain existing hazard area surveillance and clearance as necessary to protect public safety;

(3) Contain and minimize the consequences of a mishap, including:

(i) Securing impact areas to ensure that no members of the public enter;

(ii) Safely disposing of hazardous materials; and

(iii) Controlling hazards at the site or impact areas.

(4) Preserve data and physical evidence; and

(5) Implement agreements with government authorities and emergency response services, as necessary, to satisfy the requirements of this section.

(e) Mishap investigation requirements. In the event of a mishap, an operator must—

(1) Investigate the root causes of the mishap; and

(2) Report investigation results to the FAA.

(f) Preventative measures. An operator must identify and implement preventive measures for avoiding recurrence of the mishap prior to the next flight, unless otherwise approved by the Administrator.

(g) Mishap records. An operator must maintain records associated with the mishap in accordance with § 450.219(b).

(h) Application requirements. An applicant must submit the plan or other written means required by this section.

§ 450.175 Test-induced damage.

(a) Applicability. This section applies to license applicants or operators seeking an optional test-induced damage exception.

(b) Coordination of potential test-induced damage. Test-induced damage is not a mishap if all of the following are true:

(1) A license applicant or operator coordinates potential test-induced damage with the FAA before the planned activity, and with sufficient time for the FAA to evaluate the operator's proposal during the application process or as a license modification;

(2) The test-induced damage did not result in any of the following:

(i) Serious injury or fatality (as defined in 49 CFR 830.2);

(ii) Damage to property not associated with the licensed activity; or

(iii) Hazardous debris leaving the pre-defined hazard area; and

(3) The test-induced damage falls within the scope of activities coordinated with the FAA in paragraph (b)(1) of this section.

(c) Application requirements. An applicant must submit the following information—

(1) Test objectives;

(2) Test limits;

(3) Expected outcomes;

(4) Potential risks, including the applicant's best understanding of the uncertainties in environments, test limits, or system performance;

(5) Applicable procedures;

(6) Expected time and duration of the test; and

(7) Additional information as required by the FAA to ensure protection of public health and safety, safety of property, and the national security and foreign policy interests of the United States.

§ 450.177 Unique safety policies, requirements, and practices.

(a) Unique hazards. An operator must review operations, system designs, analysis, and testing, and identify any unique hazards not otherwise addressed by this part. An operator must implement any unique safety policy, requirement, or practice needed to protect the public from the unique hazard.

(b) Unique requirements. The FAA may identify and impose a unique policy, requirement, or practice as needed to protect the public health and safety.

(c) Application requirements. An applicant must—

(1) Identify any unique safety policy, requirement, or practice necessary in accordance with paragraph (a) of this section, and demonstrate that each unique safety policy, requirement, or practice protects public health and safety.

(2) Demonstrate compliance with each unique safety policy, requirement, or practice imposed by the FAA in accordance with paragraph (b) of this section.

Ground Safety

§ 450.179 Ground safety—general.

(a) At a U.S. launch or reentry site, an operator must protect the public and property from adverse effects of hazardous operations and systems associated with—

(1) Preparing a launch vehicle for flight;

(2) Returning a launch or reentry vehicle to a safe condition after landing, or after an aborted launch attempt; and

(3) Returning a site to a safe condition.

(b) An operator is not required to comply with §§ 450.181 through 450.189 of this part if:

(1) The launch or reentry is being conducted from a Federal launch or reentry site;

(2) The operator has a written agreement with the Federal launch or reentry site for the provision of ground safety services and oversight; and

(3) The Administrator has determined that the Federal launch or reentry site's ground safety processes, requirements, and oversight are not inconsistent with the Secretary's statutory authority over commercial space activities.

(c) In making the determination required by paragraph (b)(3) of this section, the Administrator will consider the nature and frequency of launch and reentry activities conducted from the Federal launch or reentry site, coordination between the FAA and the Federal launch or reentry site safety personnel, and the Administrator's knowledge of the Federal launch or reentry site's requirements.

§ 450.181 Coordination with a site operator.

(a) General. For a launch or reentry conducted from or to a Federal launch or reentry site or a site licensed under part 420 or 433 of this chapter, an operator must coordinate with the site operator to—

(1) Ensure public access is controlled where and when necessary to protect public safety;

(2) Ensure launch or reentry operations are coordinated with other launch and reentry operators and other affected parties to prevent unsafe interference;

(3) Designate any ground hazard area that affects the operations of a launch or reentry site; and

(4) Ensure a prompt and effective response is undertaken in the event of a mishap that could impact the safety of the public and property.

(b) Licensed site operator. For a launch or reentry conducted from or to a site licensed under part 420 or 433 of this chapter, an operator must also coordinate with the site operator to establish roles and responsibilities for reporting, responding to, and investigating any mishap during ground activities at the site.

(c) Application requirement. An applicant must describe how it is coordinating with a Federal or licensed launch or reentry site operator in compliance with this section.

§ 450.183 Explosive site plan.

(a) Explosive siting requirements. For a launch or reentry conducted from or to a site exclusive to its own use, an operator must comply with the explosive siting requirements of §§ 420.63, 420.65, 420.66, 420.67, 420.69, and 420.70 of this chapter.

(b) Application requirement. An applicant must submit an explosive site plan in accordance with paragraph (a) of this section.

§ 450.185 Ground hazard analysis.

An operator must perform and document a ground hazard analysis, and continue to maintain it throughout the lifecycle of the launch or reentry system. The analysis must—

(a) Hazard identification. Identify system and operation hazards posed by the vehicle and ground hardware, including site and ground support equipment. Hazards identified must include the following:

(1) System hazards, including:

(i) Vehicle over-pressurization;

(ii) Sudden energy release, including ordnance actuation;

(iii) Ionizing and non-ionizing radiation;

(iv) Fire or deflagration;

(v) Radioactive materials;

(vi) Toxic release;

(vii) Cryogens;

(viii) Electrical discharge; and

(ix) Structural failure.

(2) Operation hazards, including:

(i) Propellant handling and loading;

(ii) Transporting of vehicle or vehicle components;

(iii) Vehicle testing; and

(iv) Vehicle or system activation.

(b) Hazard assessment. Assess each hazard's likelihood and severity.

(c) Risk acceptability criteria. Ensure that the risk associated with each hazard meets the following criteria:

(1) The likelihood of any hazardous condition that may cause death or serious injury to the public must be extremely remote; and

(2) The likelihood of any hazardous condition that may cause major damage to property not associated with the launch or reentry must be remote.

(d) Risk mitigation. Identify and describe the risk elimination and mitigation measures required to satisfy paragraph (c) of this section.

(e) Validation and verification. Document that the risk elimination and mitigation measures achieve the risk levels of paragraph (c) of this section through validation and verification. Verification includes:

(1) Analysis;

(2) Test;

(3) Demonstration; or

(4) Inspection.

(f) Application requirements. An applicant must submit—

(1) A description of the methodology used to perform the ground hazard analysis;

(2) A list of all systems and operations that may cause a hazard involving the vehicle or any payload; and

(3) The ground hazard analysis products of paragraphs (a) through (e) of this section, including data that verifies the risk elimination and mitigation measures.

§ 450.187 Toxic hazards mitigation for ground operations.

(a) Applicability. (1) Except as specified in paragraph (a)(2), this section applies to any launch or reentry vehicle, including all vehicle components and payloads, that use toxic propellants or other toxic chemicals.

(2) No toxic release hazard analysis is required for kerosene-based fuels, unless the Administrator determines that an analysis is required to protect public safety.

(b) General. An operator must—

(1) Conduct a toxic release hazard analysis in accordance with paragraph (c) of this section;

(2) Manage the risk of casualties that could arise from the exposure to toxic release through one of the following means:

(i) Contain hazards caused by toxic release in accordance with paragraph (d) of this section; or

(ii) Perform a toxic risk assessment, in accordance with paragraph (e) of this section, that demonstrates compliance with the risk criteria of § 450.185(c).

(3) Establish ground hazard controls based on the results of its toxic release hazard analysis and toxic containment or toxic risk assessment for any necessary evacuation of the public from any toxic hazard area.

(c) Toxic release hazard analysis. A toxic release hazard analysis must—

(1) Account for any toxic release that could occur during nominal or non-nominal launch or reentry ground operations;

(2) Include a worst-case release scenario analysis or a maximum-credible release scenario analysis for each process that involves a toxic propellant or other chemical;

(3) Determine if toxic release can occur based on an evaluation of the chemical compositions and quantities of propellants, other chemicals, vehicle materials, and projected combustion products, and the possible toxic release scenarios;

(4) Account for both normal combustion products and any unreacted propellants and phase change or chemical derivatives of released substances; and

(5) Account for any operational constraints and emergency procedures that provide protection from toxic release.

(d) Toxic containment. An operator using toxic containment must manage the risk of casualty from the exposure to toxic release either by—

(1) Evacuating, or being prepared to evacuate, the public from any toxic hazard area in the event of a worst-case release or maximum credible release scenario; or

(2) Employing meteorological constraints to limit a ground operation to times during which prevailing winds and other conditions ensure that the public would not be exposed to toxic concentrations and durations greater than accepted toxic thresholds for acute casualty in the event of a worst-case release or maximum credible release scenario.

(e) Toxic risk assessment. An operator using toxic risk assessment must manage the risk from any toxic release hazard and demonstrate compliance with the criteria in § 450.185(c). A toxic risk assessment must—

(1) Account for airborne concentration and duration thresholds of toxic propellants or other chemicals. For any toxic propellant, other chemicals, or combustion product, an operator must use airborne toxic concentration and duration thresholds identified in a means of compliance accepted by the Administrator;

(2) Account for physical phenomena expected to influence any toxic concentration and duration in the area surrounding the potential release site;

(3) Determine a toxic hazard area for each process surrounding the potential release site for each toxic propellant or other chemical based on the amount and toxicity of the propellant or other chemical, the exposure duration, and the meteorological conditions involved;

(4) Account for all members of the public that may be exposed to the toxic release; and

(5) Account for any risk mitigation measures applied in the risk assessment.

(f) Application requirements. An applicant must submit:

(1) The identity of the toxic propellant, chemical, or combustion products or derivatives in the possible toxic release;

(2) The applicant's selected airborne toxic concentration and duration thresholds;

(3) The meteorological conditions for the atmospheric transport and buoyant cloud rise of any toxic release from its source to downwind receptor locations;

(4) Characterization of the terrain, as input for modeling the atmospheric transport of a toxic release from its source to downwind receptor locations;

(5) The identity of the toxic dispersion model used, and any other input data;

(6) Representative results of an applicant's toxic dispersion modeling to predict concentrations and durations at selected downwind receptor locations, to determine the toxic hazard area for a released quantity of the toxic substance;

(7) For toxic release hazard analysis in accordance with paragraph (c) of this section:

(i) A description of the failure modes and associated relative probabilities for potential toxic release scenarios used in the risk evaluation; and

(ii) The methodology and representative results of an applicant's determination of the worst-case or maximum-credible quantity of any toxic release that might occur during ground operations;

(8) For toxic containment in accordance with paragraph (d) of this section, identify the evacuation plans or meteorological constraints and associated ground hazard controls needed to ensure that the public will not be within any toxic hazard area in the event of a worst-case release or maximum credible release scenario.

(9) For toxic risk assessment in accordance with paragraph (e) of this section:

(i) A demonstration that the risk criteria in § 450.185(c) will be met;

(ii) The population characteristics in receptor locations that are identified by toxic dispersion modeling as toxic hazard areas;

(iii) A description of any risk mitigation measures applied in the toxic risk assessment; and

(iv) A description of the population exposure input data used in accordance with § 450.123.

§ 450.189 Ground safety prescribed hazard controls.

(a) General. In addition to the hazard controls derived from an operator's ground hazard analysis and toxic hazard analysis, an operator must comply with paragraphs (b) through (e) of this section.

(b) Protection of public on the site. An operator must document a process for protecting members of the public who enter any area under the control of a launch or reentry operator, including:

(1) Procedures for identifying and tracking the public while on the site; and

(2) Methods the operator uses to protect the public from hazards in accordance with the ground hazard analysis and toxic hazard analysis.

(c) Countdown abort. Following a countdown abort or recycle operation, an operator must establish, maintain, and perform procedures for controlling hazards related to the vehicle and returning the vehicle, stages, or other flight hardware and site facilities to a safe condition. When a launch vehicle does not liftoff after a command to initiate flight was sent, an operator must—

(1) Ensure that the vehicle and any payload are in a safe configuration;

(2) Prohibit entry of the public into any identified hazard areas until the site is returned to a safe condition; and

(3) Maintain and verify that any flight safety system remains operational until verification that the launch vehicle does not represent a risk of inadvertent flight.

(d) Fire suppression. An operator must have reasonable precautions in place to report and control any fire caused by licensed activities.

(e) Emergency procedures. An operator must have general emergency procedures that apply to any emergencies not covered by the mishap plan of § 450.173 that may create a hazard to the public.

(f) Application requirement. An applicant must submit the process for protecting members of the public who enter any area under the control of a launch or reentry operator in accordance with paragraph (b) of this section.

§ 450.201 Responsibility for public safety and safety of property.

A licensee is responsible for ensuring public safety and safety of property during the conduct of a licensed launch or reentry.

§ 450.203 Compliance.

A licensee must conduct a licensed launch or reentry in accordance with representations made in its license application, the requirements of subparts C and D of this part, and the terms and conditions contained in the license. A licensee's failure to act in accordance with the representations made in the license application, the requirements of subparts C and D of this part, and the terms and conditions contained in the license, is sufficient basis for the revocation of a license or other appropriate enforcement action.

§ 450.205 Financial responsibility requirements.

A licensee must comply with financial responsibility requirements of part 440 of this chapter and as specified in a license or license order.

§ 450.207 Human spaceflight requirements.

A licensee conducting a launch or reentry with a human being on board the vehicle must comply with human spaceflight requirements of part 460 of this chapter as specified in a license or license order.

§ 450.209 Compliance monitoring.

(a) A licensee must allow access by, and cooperate with, Federal officers or employees or other individuals authorized by the FAA to observe any of its activities, or any of its contractors' or subcontractors' activities, associated with the conduct of a licensed launch or reentry.

(b) For each licensed launch or reentry, a licensee must provide the FAA with a console for monitoring the progress of the countdown and communication on all channels of the countdown communications network, unless the licensee has another acceptable means. A licensee must also provide the FAA with the capability to communicate with the mission director designated by § 450.103(a)(1).

§ 450.211 Continuing accuracy of license application; application for modification of license.

(a) A licensee is responsible for the continuing accuracy of representations contained in its application for the entire term of the license.

(b) After a license has been issued, a licensee must apply to the FAA for modification of the license if—

(1) The licensee proposes to conduct a launch or reentry in a manner not authorized by the license; or

(2) Any representation contained in the license application that is material to public health and safety or the safety of property is no longer accurate and complete or does not reflect the licensee's procedures governing the actual conduct of a launch or reentry. A change is material to public health and safety or the safety of property if it alters or affects—

(i) The class of payload;

(ii) The type of launch or reentry vehicle;

(iii) The type or quantity of hazardous material;

(iv) The flight trajectory;

(v) The launch site or reentry site or other landing site; or

(vi) Any system, policy, procedure, requirement, criteria, or standard that is safety critical.

(c) An application to modify a license must be prepared and submitted in accordance with part 413 of this chapter. If requested during the application process, the FAA may approve an alternate method for requesting license modifications. The licensee must indicate any part of its license or license application that would be changed or affected by a proposed modification.

(d) Upon approval of a modification, the FAA issues either a written approval to the licensee or a license order amending the license if a stated term or condition of the license is changed, added, or deleted. An approval has the full force and effect of a license order and is part of the licensing record.

§ 450.213 Pre-flight reporting.

(a) Reporting method. A licensee must send the information in this section as an email attachment to ASTOperations@faa.gov, or other method as agreed to by the Administrator in the license.

(b) Mission information. A licensee must submit to the FAA the following mission-specific information no less than 60 days before each mission conducted under the license, unless the Administrator agrees to a different time frame in accordance with § 404.15 in the license, except when the information was provided in the license application:

(1) Payload information in accordance with § 450.43(i); and

(2) 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.

(c) Flight abort and flight safety analysis products. A licensee must submit to the FAA updated flight abort and flight safety analysis products, using methodologies previously approved by the FAA, for each mission no less than 30 days before flight, unless the Administrator agrees to a different time frame in accordance with § 404.15 in the license.

(1) A licensee is not required to submit the flight abort and flight safety analysis products if—

(i) The analysis submitted in the license application satisfies all the requirements of this section; or

(ii) The licensee demonstrated during the application process that the analysis does not need to be updated to account for mission-specific factors.

(2) If a licensee is required to submit the flight abort and flight safety analysis products, the licensee—

(i) Must account for vehicle- and mission-specific input data;

(ii) Must account for potential variations in input data that may affect any analysis product within the final 30 days before flight;

(iii) Must submit the analysis products using the same format and organization used in its license application; and

(iv) May not change an analysis product within the final 30 days before flight unless the licensee has a process, approved in the license, for making a change in that period as part of the licensee's flight safety analysis process.

(d) Flight safety system test data. Any licensee that is required by § 450.101(c) to use a flight safety system to protect public safety must submit to the FAA, or provide the FAA access to, any test reports, in accordance with approved flight safety system test plans, no less than 30 days before flight, unless the Administrator agrees to a different time frame in accordance with § 404.15 in the license. These reports must include:

(1) A summary of the system, subsystem, and component-level test results, including all test failures and corrective actions implemented;

(2) A summary of test results demonstrating sufficient margin to predicted operating environments;

(3) A comparison matrix of the actual qualification and acceptance test levels used for each component in each test compared against the predicted flight levels for each environment, including any test tolerances allowed for each test; and

(4) A clear identification of any components qualified by similarity analysis or a combination of analysis and test.

(e) Collision avoidance analysis. A licensee must submit to a Federal entity identified by the FAA and to the FAA the collision avoidance information in appendix A to part 450 in accordance with § 450.169(f).

(f) Launch or reentry schedule. A licensee must file a launch or reentry schedule that identifies each review, rehearsal, and safety-critical operation. The schedule must be filed and updated in time to allow FAA personnel to participate in the reviews, rehearsals, and safety-critical operations.

§ 450.215 Post-flight reporting.

(a) A licensee must submit to the FAA the information in paragraph (b) of this section no later than 90 days after a launch or reentry, unless the Administrator agrees to a different time frame in accordance with § 404.15 of this chapter.

(b) A licensee must send the following information as an email attachment to ASTOperations@faa.gov, or other method as agreed to by the Administrator in the license:

(1) Any anomaly that occurred during countdown or flight that is material to public health and safety and the safety of property;

(2) Any corrective action implemented or to be implemented after the flight due to an anomaly or mishap;

(3) The number of humans on board the vehicle;

(4) The actual trajectory flown by the vehicle, if requested by the FAA; and

(5) For an unguided suborbital launch vehicle, the actual impact location of all impacting stages and impacting components, if requested by the FAA.

§ 450.217 Registration of space objects.

(a) To assist the U.S. Government in implementing Article IV of the 1975 Convention on Registration of Objects Launched into Outer Space, each licensee must submit to the FAA the information required by paragraph (b) of this section for all objects placed in space by a licensed launch, including a launch vehicle and any components, except any object owned and registered by the U.S. Government.

(b) For each object that must be registered in accordance with this section, no later than 30 days following the conduct of a licensed launch, a licensee must file the following information:

(1) The international designator of the space object;

(2) Date and location of launch;

(3) General function of the space object;

(4) Final orbital parameters, including:

(i) Nodal period;

(ii) Inclination;

(iii) Apogee;

(iv) Perigee; and

(5) Ownership, and country of ownership, of the space object.

(c) A licensee must notify the FAA when it removes an object that it has previously placed in space.

§ 450.219 Records.

(a) Except as specified in paragraph (b) of this section, a licensee must maintain for 3 years all records, data, and other material necessary to verify that a launch or reentry is conducted in accordance with representations contained in the licensee's application, the requirements of subparts C and D of this part, and the terms and conditions contained in the license.

(b) For an event that meets any of paragraph (1) through (5) or paragraph (8) of the definition of “mishap” in § 401.7 of this chapter, a licensee must preserve all records related to the event. Records must be retained until completion of any Federal investigation and the FAA advises the licensee that the records need not be retained. The licensee must make all records required to be maintained under the regulations available to Federal officials for inspection and copying.

§ 460.1 Scope.

This subpart establishes requirements for crew of a vehicle whose operator is licensed or permitted under this chapter.

§ 460.3 Applicability.

(a) This subpart applies to:

(1) An applicant for a license or permit under this chapter who proposes to have flight crew on board a vehicle or proposes to employ a remote operator of a vehicle with a human on board.

(2) An operator licensed or permitted under this chapter who has flight crew on board a vehicle or who employs a remote operator of a vehicle with a human on board.

(3) A crew member participating in an activity authorized under this chapter.

(b) Each member of the crew must comply with all requirements of the laws of the United States that apply to crew.

§ 460.5 Crew qualifications and training.

(a) Each crew member must—

(1) Complete training on how to carry out his or her role on board or on the ground so that the vehicle will not harm the public; and

(2) Train for his or her role in nominal and non-nominal conditions. The conditions must include—

(i) Abort scenarios; and

(ii) Emergency operations.

(b) Each member of a flight crew must demonstrate an ability to withstand the stresses of space flight, which may include high acceleration or deceleration, microgravity, and vibration, in sufficient condition to safely carry out his or her duties so that the vehicle will not harm the public.

(c) A pilot and a remote operator must—

(1) Possess and carry an FAA pilot certificate with an instrument rating.

(2) Possess aeronautical knowledge, experience, and skills necessary to pilot and control the launch or reentry vehicle that will operate in the National Airspace System (NAS). Aeronautical experience may include hours in flight, ratings, and training.

(3) Receive vehicle and mission-specific training for each phase of flight by using one or more of the following—

(i) A method or device that simulates the flight;

(ii) An aircraft whose characteristics are similar to the vehicle or that has similar phases of flight to the vehicle ;

(iii) Flight testing; or

(iv) An equivalent method of training approved by the FAA through the license or permit process.

(4) Train in procedures that direct the vehicle away from the public in the event the flight crew abandons the vehicle during flight; and

(5) Train for each mode of control or propulsion, including any transition between modes, such that the pilot or remote operator is able to control the vehicle.

(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.

(e) Each crew member with a safety-critical role must possess and carry an FAA second-class airman medical certificate issued in accordance with 14 CFR part 67, no more than 12 months prior to the month of launch and reentry.

[Docket No. FAA-2005-23449, 71 FR 75632, Dec. 15, 2006, as amended by Doc. No. FAA-2016-6761, Amdt. No. 460-2, 83 FR 28535, June 20, 2018]

§ 460.7 Operator training of crew.

(a) Implementation of training. An operator must train each member of its crew and define standards for successful completion in accordance with § 460.5.

(b) Training device fidelity. An operator must

(1) Ensure that any crew-training device used to meet the training requirements realistically represents the vehicle's configuration and mission, or

(2) Inform the crew member being trained of the differences between the two.

(c) Maintenance of training records. An operator must continually update the crew training to ensure that it incorporates lessons learned from training and operational missions. An operator must—

(1) Track each revision and update in writing; and

(2) Document the completed training for each crew member and maintain the documentation for each active crew member.

(d) Current qualifications and training. An operator must establish a recurrent training schedule and ensure that all crew qualifications and training required by § 460.5 are current before launch and reentry.

§ 460.9 Informing crew of risk.

An operator must inform in writing any individual serving as crew that the United States Government has not certified the launch vehicle and any reentry vehicle as safe for carrying flight crew or space flight participants. An operator must provide this information—

(a) Before entering into any contract or other arrangement to employ that individual; or

(b) For any crew member employed as of December 23, 2004, as early as possible and prior to any launch in which that individual will participate as crew.

§ 460.11 Environmental control and life support systems.

(a) An operator must provide atmospheric conditions adequate to sustain life and consciousness for all inhabited areas within a vehicle. The operator or flight crew must monitor and control the following atmospheric conditions in the inhabited areas or demonstrate through the license or permit process that an alternate means provides an equivalent level of safety—

(1) Composition of the atmosphere, which includes oxygen and carbon dioxide, and any revitalization;

(2) Pressure, temperature and humidity;

(3) Contaminants that include particulates and any harmful or hazardous concentrations of gases, or vapors; and

(4) Ventilation and circulation.

(b) An operator must provide an adequate redundant or secondary oxygen supply for the flight crew.

(c) An operator must

(1) Provide a redundant means of preventing cabin depressurization; or

(2) Prevent incapacitation of any of the flight crew in the event of loss of cabin pressure.

§ 460.13 Smoke detection and fire suppression.

An operator or crew must have the ability to detect smoke and suppress a cabin fire to prevent incapacitation of the flight crew.

§ 460.15 Human factors.

An operator must take the precautions necessary to account for human factors that can affect a crew's ability to perform safety-critical roles, including in the following safety critical areas—

(a) Design and layout of displays and controls;

(b) Mission planning, which includes analyzing tasks and allocating functions between humans and equipment;

(c) Restraint or stowage of all individuals and objects in a vehicle; and

(d) Vehicle operation, so that the vehicle will be operated in a manner that flight crew can withstand any physical stress factors, such as acceleration, vibration, and noise.

§ 460.17 Verification program.

An operator must successfully verify the integrated performance of a vehicle's hardware and any software in an operational flight environment before allowing any space flight participant on board during a flight. Verification must include flight testing.

§ 460.19 Crew waiver of claims against U.S. Government.

Each member of a flight crew and any remote operator must execute a reciprocal waiver of claims with the Federal Aviation Administration of the Department of Transportation in accordance with the requirements of part 440.

§§ 460.20-460.40 [Reserved]

§ 460.41 Scope.

This subpart establishes requirements for space flight participants on board a vehicle whose operator is licensed or permitted under this chapter.

§ 460.43 Applicability.

This subpart applies to:

(a) An applicant for a license or permit under this chapter who proposes to have a space flight participant on board a vehicle;

(b) An operator licensed or permitted under this chapter who has a space flight participant on board a vehicle; and

(c) A space flight participant in an activity authorized under this chapter.

§ 460.45 Operator informing space flight participant of risk.

(a) Before receiving compensation or making an agreement to fly a space flight participant, an operator must satisfy the requirements of this section. An operator must inform each space flight participant in writing about the risks of the launch and reentry, including the safety record of the launch or reentry vehicle type. An operator must present this information in a manner that can be readily understood by a space flight participant with no specialized education or training, and must disclose in writing—

(1) For each mission, each known hazard and risk that could result in a serious injury, death, disability, or total or partial loss of physical and mental function;

(2) That there are hazards that are not known; and

(3) That participation in space flight may result in death, serious injury, or total or partial loss of physical or mental function.

(b) An operator must inform each space flight participant that the United States Government has not certified the launch vehicle and any reentry vehicle as safe for carrying crew or space flight participants.

(c) An operator must inform each space flight participant of the safety record of all launch or reentry vehicles that have carried one or more persons on board, including both U.S. government and private sector vehicles. This information must include—

(1) The total number of people who have been on a suborbital or orbital space flight and the total number of people who have died or been seriously injured on these flights; and

(2) The total number of launches and reentries conducted with people on board and the number of catastrophic failures of those launches and reentries.

(d) An operator must describe the safety record of its vehicle to each space flight participant. The operator's safety record must cover any event that meets any of paragraph (1), (4), (5), or (8) of the definition of “mishap” in § 401.7 that occurred during and after vehicle verification performed in accordance with § 460.17, and include:

(1) The number of vehicle flights;

(2) The number of events that meet any of paragraph (1), (4), (5), or (8) of the definition of “mishap” in section § 401.7; and

(3) Whether any corrective actions were taken to resolve these mishaps.

(e) An operator must inform a space flight participant that he or she may request additional information regarding any accidents and human space flight incidents reported.

(f) Before flight, an operator must provide each space flight participant an opportunity to ask questions orally to acquire a better understanding of the hazards and risks of the mission, and each space flight participant must then provide consent in writing to participate in a launch or reentry. The consent must—

(1) Identify the specific launch vehicle the consent covers;

(2) State that the space flight participant understands the risk, and his or her presence on board the launch vehicle is voluntary; and

(3) Be signed and dated by the space flight participant.

[Docket No. FAA-2005-23449, 71 FR 75632, Dec. 15, 2006, as amended by Docket No. FAA-2019-0229, Amdt. 460-3, 85 FR 79739, 79740, Dec. 10, 2020]

§ 460.47 [Reserved]

§ 460.49 Space flight participant waiver of claims against U.S. Government.

Each space flight participant must execute a reciprocal waiver of claims with the Federal Aviation Administration of the Department of Transportation in accordance with the requirements of part 440 of this chapter.

§ 460.51 Space flight participant training.

An operator must train each space flight participant before flight on how to respond to emergency situations, including smoke, fire, loss of cabin pressure, and emergency exit.

§ 460.53 Security.

An operator must implement security requirements to prevent any space flight participant from jeopardizing the safety of the flight crew or the public. A space flight participant may not carry on board any explosives, firearms, knives, or other weapons.

§ 460.55 Scope.

This subpart establishes requirements for operators and applicants whose licensed or permitted operations involve government astronauts on board a vehicle.

§ 460.57 Applicability.

This subpart applies to:

(a) An applicant for a license or permit under this chapter who proposes to have a government astronaut with a safety-critical role on board a vehicle.

(b) An operator licensed or permitted under this chapter who has a government astronaut with a safety-critical role on board a vehicle.

§ 460.59 Training of government astronauts with a safety-critical role.

(a) An operator must ensure that each government astronaut with a safety-critical role is trained on—

(1) How to carry out their safety-critical role on board or on the ground so that the vehicle will not harm the public; and

(2) Their role in nominal and non-nominal conditions, including abort scenarios and emergency operations, to the extent that performance of their role could impact public safety.

(b) An operator must ensure any government astronaut who has the capability to control, in real time, a launch or reentry vehicle's flight path during a phase of flight capable of endangering the public:

(1) Receives vehicle and mission-specific training for each phase of flight capable of endangering the public and over which the government astronaut has the capability to control the vehicle by using one or more of the following:

(i) A method or device that simulates the flight;

(ii) An aircraft whose characteristics are similar to the vehicle or that has similar phases of flight to the vehicle;

(iii) Flight testing; or

(iv) An equivalent method of training approved by the FAA through the license process.

(2) Trains for each mode of control or propulsion, including any transition between modes, such that the government astronaut is able to control the vehicle.

(3) Possesses aeronautical knowledge, experience, and skills necessary to pilot and control the launch or reentry vehicle that will operate in the National Airspace System (NAS). Aeronautical experience may include hours in flight, ratings, and training.

(c) With respect to training device fidelity, an operator must:

(1) Ensure that any government astronaut training device used to meet the training requirements realistically represents the vehicle's configuration and mission; or,

(2) Inform the government astronaut being trained of the differences between the training device and the vehicle's configuration and mission.

(d) An operator must update the government astronaut training to ensure that the training incorporates lessons learned from training and operational missions including—

(1) Providing traceability to revisions or changes; and

(2) Documenting the completed training for each government astronaut and maintaining the documentation for each active government astronaut.

(e) An operator must establish a recurrent training schedule and ensure that all training of government astronauts performing safety-critical roles is current before launch or reentry.

(f) For licensed missions supporting U.S. Government contracts, operators may meet the training requirements of this section through U.S. Government's contractual requirements.

§ 460.61 Environmental control and life support systems.

(a) An operator must provide atmospheric conditions adequate to sustain life and consciousness for all inhabited areas within a vehicle that house a government astronaut. The operator must monitor and control the following atmospheric conditions in the inhabited areas or demonstrate through the license or permit process that an alternate means provides an equivalent level of safety—

(1) Composition of the atmosphere, which includes oxygen and carbon dioxide, and any revitalization;

(2) Pressure, temperature and humidity;

(3) Contaminants that include particulates and any harmful or hazardous concentrations of gases, or vapors; and

(4) Ventilation and circulation.

(b) An operator must provide an adequate redundant or secondary oxygen supply for any government astronaut with a safety-critical role.

(c) An operator must provide a redundant means of preventing cabin depressurization; or prevent incapacitation of any government astronaut with a safety-critical role in the event of loss of cabin pressure.

§ 460.63 Scope.

This subpart establishes requirements for operators and applicants whose licensed or permitted operations involve government astronauts on board a vehicle without a safety-critical role.

§ 460.65 Applicability.

This subpart applies to:

(a) An applicant for a license or permit under this chapter who proposes to have a government astronaut without a safety-critical role on board a vehicle.

(b) An operator licensed or permitted under this chapter who has a government astronaut without a safety-critical role on board a vehicle.

§ 460.67 Training of government astronauts without a safety-critical role.

An operator must ensure that each government astronaut without a safety-critical role is trained on how to respond to emergency situations, including smoke, fire, loss of cabin pressure, and emergency exit.

§ 1201.100 Creation and authority.

The National Aeronautics and Space Administration was established by the National Aeronautics and Space Act (51 U.S.C. 20111), as amended (hereafter called the “Act”).

[55 FR 37222, Sept. 10, 1990, as amended at 79 FR 18444, Apr. 2, 2014]

§ 1201.101 Purpose.

It is the purpose of the National Aeronautics and Space Administration to carry out aeronautical and space activities of the United States. Such activities shall be the responsibility of, and shall be directed by, the National Aeronautics and Space Administration, except that activities peculiar to or primarily associated with the development of weapons systems, military operations, or the defense of the United States shall be the responsibility of, and shall be directed by, the Department of Defense.

§ 1201.102 Functions.

In order to carry out the purpose of the Act, NASA is authorized to conduct research for the solution of problems of flight within and outside the Earth's atmosphere; to develop, construct, test, and operate aeronautical and space vehicles for research purposes; to operate a space transportation system including the space shuttle, upper stages, space program, space station, and related equipment; and to perform such other activities as may be required for the exploration of space. The term aeronautical and space vehicles means aircraft, missiles, satellites, and other space vehicles, together with related equipment, devices, components, and parts. It conducts activities required for the exploration of space with manned and unmanned vehicles and arranges for the most effective utilization of the scientific and engineering resources of the United States with other nations engaged in aeronautical and space activities for peaceful purposes.

§ 1201.103 Administration.

(a) NASA is headed by an Administrator, who is appointed from civilian life by the President by and with the advice and consent of the Senate. The Administrator is responsible, under the supervision and direction of the President, for exercising all powers and discharging all duties of NASA.

(b) The Deputy Administrator of NASA is also appointed by the President from civilian life by and with the advice and consent of the Senate. The Deputy Administrator acts with or for the Administrator within the full scope of the Administrator's responsibilities. In the Administrator's absence, the Deputy Administrator serves as Acting Administrator.

§ 1201.200 General.

NASA's basic organization consists of the Headquarters, nine field Centers, the Jet Propulsion Laboratory (a Federally Funded Research and Development Center), and several component installations which report to Center Directors. Responsibility for overall planning, coordination, and control of NASA programs is vested in NASA Headquarters located in Washington, DC. For additional information, visit http://www.nasa.gov/about/org_index.html.

[79 FR 18444, Apr. 2, 2014]

§ 1201.300 Boards and committees.

(a) NASA's Contract Adjustment Board (CAB) and Inventions and Contributions Board (ICB) were established as part of the permanent organization structure of NASA. Charters for both Boards are set forth in part 1209 of this chapter. Procedures for the CAB are set out in 48 CFR part 1850, and procedures for the ICB are set out in 14 CFR parts 1240 and 1245.

(b) The Armed Services Board of Contract Appeals (ASBCA) is a neutral, independent forum whose primary function is to hear and decide post-award contract disputes between government contractors and those entities with whom the ASBCA has entered into agreement to provide services (NASA is one of those entities). The ASBCA functions in accordance with the Contract Disputes Act (41 U.S.C. 7101-7109), its Charter, or other remedy-granting provisions. Information about the ASBCA can be obtained by mail at ASBCA, Skyline 6, Suite 700, 5109 Leesburg Pike, Falls Church, Virginia 22041-3208, by phone at 703-681-8500, or from the Web at www.asbca.mil.

[79 FR 18444, Apr. 2, 2014]

§ 1203.100 Legal basis.

(a) Executive Order 13526 (hereinafter referred to as “the Order”). The responsibilities and authority of the Administrator of NASA with respect to the original classification of official information or material requiring protection against unauthorized disclosure in the interest of national defense or foreign relations of the United States (hereinafter collectively termed “national security”), and the standards for such classification, are established by the “the Order” and the Information Security Oversight Office Directive No. 1, as amended (32 CFR part 2001, “Classified National Security Information”);

(b) E.O. 10865. Executive Order 10865 (24 FR 1583) requires the Administrator to prescribe by regulation such specific requirements, restrictions and other safeguards as the Administrator may consider necessary to protect:

(1) Releases of classified information to or within United States industry that relate to contracts with NASA; and

(2) Other releases of classified information to industry that NASA has responsibility for safeguarding.

(c) The National Aeronautics and Space Act. (1) The National Aeronautics and Space Act (51 U.S.C. 20113) (Hereafter referred to as, “The Space Act”), states:

The Administrator shall establish such security requirements, restrictions, and safeguards as he deems necessary in the interest of the national security * * *

(2) Section 303 of the Space Act states:

Information obtained or developed by the Administrator in the performance of his functions under this Act shall be made available for public inspection, except (i) information authorized or required by Federal statute to be withheld, and (ii) information classified to protect the national security: Provided, That nothing in this Act shall authorize the withholding of information by the Administrator from the duly authorized committees of the Congress.

[44 FR 34913, June 18, 1979, as amended at 48 FR 5889, Feb. 9, 1983; 64 FR 72535, Dec. 28, 1999; 78 FR 5117, Jan. 24, 2013]

§ 1203.101 Other applicable NASA regulations.

(a) Subpart H of this part, “Delegation of Authority to Make Determinations in Original Security Classification Matters.”

(b) Subpart I of this part, “NASA Information Security Program Committee.”

(c) NASA Procedural Requirements (NPR) 1600.2, NASA Classified National Security Information (CNSI).

[44 FR 34913, June 18, 1979, as amended at 78 FR 5117, Jan. 24, 2013]

§ 1203.200 Background and discussion.

(a) In establishing a civilian space program, the Congress required NASA to “provide for the widest practicable and appropriate dissemination of information concerning its activities and the results thereof,” and for the withholding from public inspection of that information that is classified to protect the national security.

(b) The Order was promulgated in recognition of the essential requirement for an informed public concerning the activities of its Government, as well as the need to protect certain national security information from unauthorized disclosure. It delegates to NASA certain responsibility for matters pertaining to national security and confers on the Administrator of NASA, or such responsible officers or employees as the Administrator may designate, the authority for original classification of official information or material which requires protection in the interest of national security. It also provides for:

(1) Basic classification, downgrading and declassification guidelines;

(2) The issuance of directives prescribing the procedures to be followed in safeguarding classified information or material;

(3) A monitoring system to ensure the effectiveness of the Order;

(4) Appropriate administrative sanctions against officers and employees of the United States Government who are found to be in violation of the Order or implementing directive; and

(5) Classification limitations and restrictions as discussed in §§ 1203.410 and 1203.411.

(c) The Order requires the timely identification and protection of that NASA information the disclosure of which would be contrary to the best interest of national security. Accordingly, the determination in each case must be based on a judgment as to whether disclosure of information could reasonably be expected to result in damage to the national security.

[44 FR 34913, June 18, 1979, as amended at 48 FR 5889, Feb. 9, 1983; 78 FR 5117, Jan. 24, 2013]

§ 1203.201 Information security objectives.

The objectives of the NASA Information Security Program are to:

(a) Ensure that information is classified only when a sound basis exists for such classification and only for such period as is necessary.

(b) Prevent both the unwarranted classification and the overclassification of NASA information.

(c) Ensure the greatest practicable uniformity within NASA in the classification of information.

(d) Ensure effective coordination and reasonable uniformity with other Government departments and agencies, particularly in areas where there is an exchange or sharing of information, techniques, hardware, software, or other technologies.

(e) Provide a timely and effective means for downgrading or declassifying information when the circumstances necessitating the original classification change or no longer exist.

[44 FR 34913, June 18, 1979, as amended at 78 FR 5117, Jan. 24, 2013]

§ 1203.202 Responsibilities.

(a) The Chairperson, NASA Information Security Program Committee (NISPC) (Subpart I of this part), who is the Assistant Administrator for Protective Services, or designee, is responsible for:

(1) Directing the NASA Information Security Program (NISP) in accordance with NASA policies and objectives and applicable laws and regulations.

(2) Ensuring effective compliance with and implementation of “the Order” and the Information Security Oversight Office Directive No. 1 relating to security classification matters.

(3) Reviewing, in consultation with the NASA Information Security Program Committee NISPC, questions, suggestions, appeals and compliance concerning the NISP and making determinations concerning them.

(4) Coordinating NASA security classification matters with NASA Centers and component facilities and other Government agencies.

(5) Ensuring Security Classification Guides for NASA are developed for NASA programs and projects.

(6) Developing, maintaining and recommending to the Administrator guidelines for the systematic review covering all classified information under NASA's jurisdiction.

(7) Reviewing and coordinating with appropriate offices all appeals of denials of requests for records under sections 552 and 552a of Title 5, United States Code (Freedom of Information and Privacy Acts) when the denials are based on the records' continued classification.

(8) Recommending to the Administrator appropriate administrative action to correct abuse or violations of any provision of the NISP, including notifications by warning letter, formal reprimand and to the extent permitted by law, suspension without pay and removal.

(b) All NASA employees are responsible for bringing to the attention of the Chairperson of the NISPC any information security problems in need of resolution, any areas of interest wherein information security guidance is lacking, and any other matters likely to impede achievement of the objectives prescribed in this section.

(c) Each NASA official to whom the authority for original classification is delegated shall be accountable for the propriety of each classification (see subpart H) and is responsible for:

(1) Ensuring that classification determinations are consistent with the policy and objectives prescribed above, and other applicable guidelines.

(2) Bringing to the attention of the Chairperson, NISPC, for resolution, any disagreement with classification determinations made by other NASA officials.

(3) Ensuring that information and material which no longer requires its present level of protection is promptly downgraded or declassified in accordance with applicable guidelines within a reasonable period.

(d) Other supervisors of NASA offices are responsible for:

(1) Ensuring that classified information or material prepared within their respective offices is appropriately marked.

(2) Ensuring that material proposed for public release is reviewed to redact classified information contained therein.

(e) Chiefs of Protective Services at NASA Centers are responsible for:

(1) Developing proposed Security Classification Guides and submitting the guide to the Office of Protective Services for review and approval.

(2) Ensuring that classified information or material prepared in their respective Center is appropriately marked.

(3) Ensuring that material proposed for public release is reviewed to redact classified information.

(4) Coordinating all security classification actions with the Center's Protective Services Office.

(f) The Director of the Office of Protective Services, NASA Headquarters, who serves as a member and Executive Secretary of the NISPC, is responsible for the NASA-wide coordination of security classification matters.

(g) The Information Security Program Manager, Office of Protective Services (OPS), is responsible for establishing procedures for the safeguarding of classified information or material (e.g., accountability, control, access, storage, transmission, and marking) and for ensuring that such procedures are systematically reviewed; and those which are duplicative or unnecessary are eliminated.

[44 FR 34913, June 18, 1979, as amended at 45 FR 3888, Jan. 21, 1980; 48 FR 5890, Feb. 9, 1983; 53 FR 41318, Oct. 21, 1988; 64 FR 72535, Dec. 28, 1999; 78 FR 5117, Jan. 24, 2013]

§ 1203.203 Degree of protection.

(a) General. Upon determination that information or material must be classified, the degree of protection commensurate with the sensitivity of the information must be determined. If there is reasonable doubt about the need to classify information, it shall be safeguarded as if it were classified pending a determination by an original classification authority, who shall make this determination within 30 days. If there is reasonable doubt about the appropriate level of classification, it shall be safeguarded at the higher level of classification pending a determination by an original classification authority, who shall make this determination within 30 days.

(b) Authorized categories of classification. The three categories of classification, as authorized and defined in “the Order,” are set out below. No other restrictive markings are authorized to be placed on NASA classified documents or materials except as expressly provided by statute or by NASA Directives.

(1) Top Secret. Top Secret is the designation applied to information or material, the unauthorized disclosure of which could reasonably be expected to cause exceptionally grave damage to the national security.

(2) Secret. Secret is the designation applied to information or material, the unauthorized disclosure of which could reasonably be expected to cause serious damage to the national security.

(3) Confidential. Confidential is the designation applied to that information or material for which the unauthorized disclosure could reasonably be expected to cause damage to the national security.

[44 FR 34913, June 18, 1979, as amended at 48 FR 5890, Feb. 9, 1983; 78 FR 5117, Jan. 24, 2013]

§ 1203.300 General.

In general, the types of NASA-generated information and material requiring protection in the interest of national security lie in the areas of applied research, technology or operations.

§ 1203.301 Identification of information requiring protection.

Classifiers shall identify the level of classification of each classified portion of a document (including subject and titles), and those portions that are not classified.

§ 1203.302 Compilation.

A compilation of items that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that meets the standards of classification under the Order; and is not otherwise revealed in the individual items of information. As used in the Order, compilations mean an aggregate of pre-existing unclassified items of information.

[78 FR 5118, Jan. 24, 2013]

§ 1203.303 Distribution controls.

NASA shall establish controls over the distribution of classified information to ensure that it is dispersed only to organizations or individuals eligible for access to such information and with a need-to-know the information.

[78 FR 5118, Jan. 24, 2013]

§ 1203.304 Internal effect.

The effect of security protection on program progess and cost and on other functional activities of NASA should be considered. Impeditive effects and added costs inherent in a security classification must be assessed and weighed against the detrimental effects on the national security interests which would result from failure to classify.

[44 FR 34913, June 18, 1979, as amended at 78 FR 5118, Jan. 24, 2013]

§ 1203.305 Restricted data.

Restricted Data or Formerly Restricted Data is so classified when originated or by operation of the law, as required by the Atomic Energy Act of 1954, as amended. Specific guidance for the classification of Restricted Data and Formerly Restricted Data is provided in “Classification Guides” published by the Department of Energy and or Department of Defense.

[44 FR 34913, June 18, 1979, as amended at 78 FR 5118, Jan. 24, 2013]

§ 1203.400 Specific classifying guidance.

Technological and operational information and material, and in some exceptional cases scientific information falling within any one or more of the following categories, must be classified if its unauthorized disclosure could reasonably be expected to cause some degree of damage to the national security. In cases where it is believed that a contrary course of action would better serve the national interests, the matter should be referred to the Chairperson, NISPC, for a determination. It is not intended that this list be exclusive; original classifiers are responsible for initially classifying any other type of information which, in their judgment, requires protection under § 1.4 of “the Order.”

(a) Military plans, weapons systems, or operations;

(b) Foreign government information;

(c) Intelligence activities (including covert activities), intelligence sources or methods, or cryptology;

(d) Foreign relations or foreign activities of the United States, including confidential sources;

(e) Scientific, technological, or economic matters relating to the national security;

(f) United States Government programs for safeguarding nuclear materials or facilities;

(g) Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or

(h) The development, production, or plans relating to the use of weapons of mass destruction.

[78 FR 5118, Jan. 24, 2013]

§ 1203.401 Effect of open publication.

Public disclosure, regardless of source or form, of information currently classified or being considered for classification does not preclude initial or continued classification. However, such disclosure requires an immediate reevaluation to determine whether the information has been compromised to the extent that downgrading or declassification is indicated. Similar consideration must be given to related items of information in all programs, projects, or items incorporating or pertaining to the compromised items of information. In these cases, if a release were made or authorized by an official Government source, classification of clearly identified items may no longer be warranted. Questions as to the propriety of continued classification should be referred to the Chairperson, NASA Information Security Program Committee.

§ 1203.402 Classifying material other than documentation.

Items of equipment or other physical objects may be classified only where classified information may be derived by visual observation of internal or external appearance, structure, operation, test, application or use. The overall classification assigned to equipment or objects shall be at least as high as the highest classification of any of the items of information which may be revealed by the equipment or objects, but may be higher if the classifying authority determines that the sum of classified or unclassified information warrants such higher classification. In every instance where classification of an item of equipment or object is determined to be warranted, such determination must be based on a finding that there is at least one aspect of the item or object which requires protection. If mere knowledge of the existence of the equipment or object would compromise or nullify the reason or justification for its classification, the fact of its existence should be classified.

§ 1203.403 [Reserved]

§ 1203.404 Handling of unprocessed data.

It is the usual practice to withhold the release of raw scientific data received from spacecraft until it can be calibrated, correlated and properly interpreted by the experimenter under the monitorship of the cognizant NASA office. During this process, the data are withheld through administrative measures, and it is not necessary to resort to security classification to prevent premature release. However, if at any time during the processing of raw data it becomes apparent that the results require protection under the criteria set forth in this subpart D, it is the responsibility of the cognizant NASA office to obtain the appropriate security classification.

§ 1203.405 Proprietary information.

Proprietary information made available to NASA is subject to examination for classification purposes under the criteria set forth in this subpart D. Where the information is in the form of a proposal and accepted by NASA for support, it should be categorized in accordance with the criteria of § 1203.400. If NASA does not support the proposal but believes that security classification would be appropriate under the criteria of § 1203.400 if it were under Government jurisdiction, the contractor should be advised of the reasons why safeguarding would be appropriate, unless security considerations preclude release of the explanation to the contractor. NASA should identify the Government department, agency or activity whose national security interests might be involved and the contractor should be instructed to protect the proposal as though classified pending further advisory classification opinion by the Government activity whose interests are involved. If such a Government activity cannot be identified, the contractor should be advised that the proposal is not under NASA jurisdiction for classification purposes, and that the information should be sent, under proper safeguards, to the Director, Information Security Oversight Office for a determination.

[44 FR 34913, June 18, 1979, as amended at 78 FR 5118, Jan. 24, 2013]

§ 1203.406 Additional classification factors.

In determining the appropriate classification category, the following additional factors should be considered:

(a) Uniformity within government activities. The effect classification will have on technological programs of other Government departments and agencies should be considered. Classification of official information must be reasonably uniform within the Government.

(b) Applicability of classification directives of other Government agencies. It is necessary to determine whether authoritative classification guidance exists elsewhere for the information under consideration which would make it necessary to assign a higher classification than that indicated by the applicable NASA guidance. The Office of Protective Services will coordinate with the Information Security Oversight Office (ISOO) Committee and the National Declassification Center to determine what classification guides are current.

[44 FR 34913, June 18, 1979, as amended at 78 FR 5118, Jan. 24, 2013]

§ 1203.407 Duration of classification.

(a) At the time of original classification, the original classification authority shall establish a specific date or event for declassification based on the duration of the national security sensitivity of the information. Upon reaching the date or event, the information shall be automatically declassified. Except for information that should clearly and demonstrably be expected to reveal the identity of a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction, the date or event shall not exceed the timeframe established in paragraph (b) of this section.

(b) If the original classification authority cannot determine an earlier specific date or event for declassification, information shall be marked for declassification 10 years from the date of the original decision, unless the original classification authority otherwise determines that the sensitivity of the information requires that it be marked for declassification for up to 25 years from the date of the original decision.

(c) An original classification authority may extend the duration of classification up to 25 years from the date of origin of the document, change the level of classification, or reclassify specific information only when the standards and procedures for classifying information under this Order are followed.

(d) No information may remain classified indefinitely. Information that is marked for an indefinite duration of classification under predecessor orders, for example, information marked as “Originating Agency's Determination Required,” or classified information that contains either incomplete or no declassification instructions, shall have appropriate declassification information applied in accordance with part 3 of this order.

[78 FR 5118, Jan. 24, 2013]

§ 1203.408 Assistance by Information Security Specialist in the Center Protective Services Office.

Center Security Classification Officers, as the Center point-of-contact, will assist Center personnel in:

(a) Interpreting security classification guides and classification assignments for the Center.

(b) Answering questions and considering suggestions concerning security classification matters.

(c) Ensuring a continuing review of classified information for the purpose of declassifying or downgrading in accordance with subpart E of this part.

(d) Reviewing and approving, as the representative of the contracting officer, the DD Form 254, Contract Security Classification Specification, issued to contractors by the Center.

(e) Forwarding all security classification guides to the Office of Protective Services, NASA Headquarters, for final approval.

[44 FR 34913, June 18, 1979, as amended at 78 FR 5118, Jan. 24, 2013]

§ 1203.409 Exceptional cases.

(a) In those cases where a person not authorized to classify information originates or develops information which is believed to require classification, that person must contact the Center's or installation's Information Security Officer in the Protective Services Office to arrange for proper review and safeguarding. Persons other than NASA employees should forward the information to the NASA Central Registry at 300 E Street SW., Washington, DC 20546, Attention: Office of Protective Services.

(b) Information in which NASA does not have primary interest shall be returned promptly, under appropriate safeguards, to the sender in accordance with § 1203.405.

(c) Material received from another agency for a NASA security classification determination shall be processed within 90 days. If a classification cannot be determined during that period, the material shall be sent, under appropriate safeguards, to the Director, Information Security Oversight Office, for a determination.

[44 FR 34913, June 18, 1979, as amended at 78 FR 5118, Jan. 24, 2013]

§ 1203.410 Limitations.

(a) In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:

(1) Conceal violations of law, inefficiency, or administrative error;

(2) Prevent embarrassment to a person, organization, or agency;

(3) Restrain competition; or

(4) Prevent or delay the release of information that does not require protection in the interest of the national security.

(b) Basic scientific research information not clearly related to the national security may not be classified.

(c) Information may not be reclassified after declassification after being released to the public under proper authority unless: The reclassification is based on a document-by-document review by NASA and a determination that reclassification is required to prevent at least significant damage to the national security and personally approved in writing by the Administrator, the Deputy Administrator, or the Assistant Administrator for Protective Services. All reclassification actions will be coordinated with the Information Security Oversight Office before final approval; the information may be reasonably recovered without bringing undue public attention to the information; the reclassification action is reported promptly to the Assistant to the President for National Security Affairs (the National Security Advisor) and the Director of the Information Security Oversight Office; and for documents in the physical and legal custody of the National Archives and Records Administration (National Archives) that have been available for public use, the Administrator, the Deputy Administrator, or the Assistant Administrator for Protective Services, after making the determinations required by this paragraph, shall notify the Archivist of the United States (hereafter, Archivist), who shall suspend public access pending approval of the reclassification action by the Director of the Information Security Oversight Office. Any such decision by the Director may be appealed by the agency head to the President through the National Security Advisor. Public access shall remain suspended pending a prompt decision on the appeal.

(d) Information that has not previously been disclosed to the public under proper authority may be classified or reclassified after an agency has received a request for it under the Freedom of Information Act (5 U.S.C. 552), the Presidential Records Act, 44 U.S.C. 2204(c)(1), the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions of section 3.5 of this Order only if such classification meets the requirements of this Order and is accomplished by document-by-document review with the personal participation or under the direction of the Administrator, the Deputy Administrator, or the Assistant Administrator for Protective Services. The requirements in this paragraph also apply to those situations in which information has been declassified in accordance with a specific date or event determined by an original classification authority in accordance with section 1.5 of this Order.

(e) Compilations of items of information that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that:

(1) Meets the standards for classification under this Order; and

(2) Is not otherwise revealed in the individual items of information.

[44 FR 34913, June 18, 1979, as amended at 48 FR 5890, Feb. 9, 1983; 78 FR 5119, Jan. 24, 2013]

§ 1203.411 Restrictions.

(a) Except as provided by directives issued by the President through the National Security Council, classified information originating in one agency may not be disseminated outside any other agency to which it has been made available without the consent of the originating agency. For purposes of this section, the Department of Defense shall be considered one agency.

(b) Classified information shall not be disseminated outside the Executive Branch except under conditions that ensure the information will be given protection equivalent to that afforded within the Executive Branch.

[48 FR 5890, Feb. 9, 1983]

§ 1203.412 Classification guides.

(a) General. A classification guide, based upon classification determinations made by appropriate program and classification authorities, shall be issued for each classified system, program or project. Classification guides shall:

(1) Identify the information elements to be protected, using categorization and subcategorization to the extent necessary to ensure that the information involved can be readily and uniformly identified.

(2) State which of the classification designations (i.e., Top Secret, Secret or Confidential) apply to the identified information elements.

(3) State the duration of each specified classification in terms of a period of time or future event. If the original classification authority cannot determine an earlier specific date or event for declassification, information shall be marked for declassification 10 years from the date of the original decision, unless the original classification authority otherwise determines that the sensitivity of the information requires it be marked for declassification for up to 25 years from the date of the original decision.

(4) Indicate specifically that the designations, time limits, markings and other requirements of “the Order” are to be applied to information classified pursuant to the guide.

(5) All security classification guides should be forwarded to the Office of Protective Services for review and final approval. The Office of Protective Services will maintain a list of all classification guides in current use.

(b) Review of classification guides. Classification guides shall be reviewed by the originator for currency and accuracy not less than once every five years. Changes shall be in strict conformance with the provisions of this part 1203 and shall be issued promptly. If no changes are made, the originator shall so annotate the record copy and show the date of the review.

[44 FR 34913, June 18, 1979, as amended at 48 FR 5891, Feb. 9, 1983; 78 FR 5119, Jan. 24, 2013]

§ 1203.500 Use of derivative classification.

(a) Persons who reproduce, extract, or summarize classified information, or who apply classification markings derived from source material or as directed by a classification guide, need not possess original classification authority.

(b) Persons who apply derivative classification markings shall:

(1) Be identified by name and position or by personal identifier, in a manner that is immediately apparent for each derivative classification action;

(2) Observe and respect original classification decisions; and

(3) Carry forward to any newly created documents the pertinent classification markings. For information derivatively classified based on multiple sources, the derivative classifier shall carry forward:

(i) The date or event for declassification that corresponds to the longest period of classification among the sources or the marking established pursuant to section 1.6(a)(4)(D) of the Order; and

(ii) A listing of the source materials.

(c) Derivative classifiers shall, whenever practicable, use a classified addendum when classified information constitutes a small portion of an otherwise unclassified document or prepare a product to allow for dissemination at the lowest level of classification possible or in unclassified form.

(d) Persons who apply derivative classification markings shall receive training in the proper application of the derivative classification principles of the Order, with an emphasis on avoiding over-classification, at least once every two years. Derivative classifiers who do not receive such training at least once every two years shall have their authority to apply derivative classification markings suspended until they have received such training. A waiver may be granted by the Administrator, the Deputy Administrator, or the Assistant Administrator for Protective Services if an individual is unable to receive such training due to unavoidable circumstances. Whenever a waiver is granted, the individual shall receive such training as soon as practicable.

[78 FR 5119, Jan. 24, 2013]

§ 1203.501 Applying derivative classification markings.

Persons who apply derivative classification markings shall:

(a) Observe and respect original classification decisions:

(b) Verify the information's current level of classification so far as practicable before applying the markings; and

(c) Carry forward to newly created documents any assigned authorized markings. The declassification date or event that provides the longest period of classification shall be used for documents classified on the basis of multiple sources.

[44 FR 34913, June 18, 1979, as amended at 48 FR 5891, Feb. 9, 1983]

§ 1203.600 Policy.

Information shall be declassified or downgraded as soon as national security considerations permit. NASA reviews of classified information shall be coordinated with other agencies that have a direct interest in the subject matter. Information that continues to meet the classification requirements prescribed by § 1203.400 despite the passage of time will continue to be protected in accordance with “the Order.”

[48 FR 5891, Feb. 9, 1983]

§ 1203.601 Responsibilities.

Authorized officials with Declassification Authority (DCA) may declassify or downgrade information that is subject to the final classification jurisdiction of NASA and shall take such action in accordance with the provisions of this subpart F.

[44 FR 34913, June 18, 1979, as amended at 78 FR 5120, Jan. 24, 2013]

§ 1203.602 Authorization.

Information shall be declassified or downgraded by an authorized DCA official. If that official is still serving in the same position, the originator's successor, a supervisory official of either, or officials delegated such authority in writing by the Administrator or the Chairperson, NISPC, may also make a decision to declassify or downgrade information.

[78 FR 5120, Jan. 24, 2013]

§ 1203.603 Systematic review for declassification:

(a) General. (1) NASA must establish and conduct a program for systematic declassification review of NASA-originated records of permanent historical value exempted from automatic declassification under section 3.3 of this Order. The NASA Office of Protective Services shall prioritize the review of such records in coordination with the Center Protective Service Offices.

(2) The Archivist shall conduct a systematic declassification review program for classified records:

(i) Accessioned into the National Archives;

(ii) Transferred to the Archivist pursuant to 44 U.S.C. 2203; and

(iii) For which the National Archives serves as the custodian for an agency or organization that has gone out of existence.

(3) The Chairperson, NISPC, shall designate experienced personnel to assist the Archivist in the systematic review of U.S. originated information and foreign information exempted from automated declassification. Such personnel shall:

(i) Provide guidance and assistance to the National Archives and Records Service in identifying and separating documents and specific categories of information within documents which are deemed to require continued classification; and

(ii) Develop reports of information or document categories so separated, with recommendations concerning continued classification.

(iii) Develop, in coordination with NASA organizational elements, guidelines for the systematic review for declassification of classified information under NASA's jurisdiction. The guidelines shall state specific limited categories of information which, because of their national security sensitivity, should not be declassified automatically, but should be reviewed to determine whether continued protection beyond 25 years is needed. These guidelines are authorized for use by the Archivist and the Director of the Information Security Oversight Office, with the approval of the Senior Agency Official, which is the Assistant Administrator, Office of Protective Services, for categories listed in section 3.3 of the Order. These guidelines shall be reviewed at least every five years and revised as necessary, unless an earlier review for revision is requested by the Archivist. Copies of the declassification guidelines promulgated by NASA will be provided to the Information Security Oversight Office, National Archives and Records Administration (NARA). All security classified records exempt from automatic declassification, whether held in storage areas under installation control or in Federal Records Centers, will be surveyed to identify those requiring scheduling for future disposition.

(A) Classified information or material over which NASA exercises exclusive or final original classification authority and which is to be declassified in accordance with the systematic review guidelines shall be so marked.

(B) Classified information or material over which NASA exercises exclusive or final original classification authority and which, in accordance with the systematic review guidelines is to be kept protected, shall be listed by category by the responsible custodian and referred to the Chairperson, NASA Information Security Program Committee. This listing shall:

(1) Identify the information or material involved.

(2) Recommend classification beyond 25 years to a specific event scheduled to happen or a specific period of time in accordance with the Order.

(3) The Administrator shall delegate to the Senior Agency Official the authority to determine which category shall be kept classified and the dates or event for declassification.

(4) Declassification by the Director of the Information Security Oversight Office (DISOO). If the Director determines that NASA information is classified in violation of the Order, the Director may require the information to be declassified. Any such decision by the Director may be appealed through the NASA ISPC to the National Security Council. The information shall remain classified pending a prompt decision on the appeal.

(b) [Reserved]

[78 FR 5120, Jan. 24, 2013]

§ 1203.604 Mandatory review for declassification.

(a) Information covered. Except as provided in paragraph (b) of this section, all information classified under the Order or predecessor orders shall be subject to a review for declassification by the originating agency if:

(1) The request for a review describes the document or material containing the information with sufficient specificity to enable the agency to locate it in a reasonably timely manner;

(2) The document or material containing the information responsive to the request is not contained within an operational file exempted from search and review, publication, and disclosure under 5 U.S.C. 552 in accordance with law; and

(3) The information is not the subject of pending litigation.

(b) Presidential papers. Information originated by the President or Vice President; the President's White House Staff, or the Vice President's Staff; committees, commissions, or boards appointed by the President; or other entities within the Executive Office of the President that solely advise and assist the President are exempted from the provisions of paragraph (a) of this section. However, the Archivist shall have the authority to review, downgrade, and declassify papers or records of former Presidents and Vice Presidents under the control of the Archivist pursuant to 44 U.S.C. 2107, 2111, 2111 note, or 2203. Procedures developed by the Archivist shall provide for consultation with agencies having primary subject matter interest and shall be consistent with the provisions of applicable laws or lawful agreements that pertain to the respective Presidential papers or records. Agencies with primary subject matter interest shall be notified promptly of the Archivist's decision. Any final decision by the Archivist may be appealed by the requester or an agency to the Panel. The information shall remain classified pending a decision on the appeal.

(c) Submission of requests for review. Requests for mandatory review of classified information shall be submitted in accordance with the following:

(1) Requests originating within NASA shall, in all cases, be submitted directly to the NASA Office of Protective Services.

(2) For the most expeditious action, requests from other Governmental agencies or from members of the public should be submitted directly to the NASA Office of Protective Services only. The requestor may submit the request to: National Aeronautics and Space Administration (NASA), Central Registry, 300 E Street SW., Washington DC 20546, Attention: Office of Protective Services/Information Security Program Manager. The phrase, “Mandatory Declassification Review,” must be stated in the request.

(d) Requirement for processing. (1) Requests which are submitted under the Freedom of Information Act cannot be processed under the MDR process.

(2) The request describes the document or material containing the information with sufficient specificity, such as accession numbers, box titles or numbers, date and title of document, in any combination, to enable NASA to locate it with a reasonable amount of effort, not to exceed 30 days. If more time is required, NASA will notify the requester. After review, the information or any portion thereof that no longer requires protection shall be declassified and released unless withholding is otherwise warranted under applicable law.

(e) Processing of requests. Requests that meet the requirements of paragraph (d)(2) of this section will be processed as follows:

(1) The NASA Office of Protective Services review upon receiving the initial request shall be completed within 365 days.

(2) Receipt of the request shall be acknowledged promptly. The NASA Office of Protective Services shall determine whether, under the declassification provisions of this part 1203, the requested information may be declassified and, if so, shall make such information available to the requestor, unless withholding is otherwise warranted under applicable law. If the information may not be released in whole or in part, the requestor shall be given a brief statement of the reasons for denial, a notice of the right to appeal the determination to the Chairperson, NASA Information Security Program Committee, National Aeronautics and Space Administration, Washington, DC 20546, and a notice that such an appeal must be filed within 60 days in order to be considered.

(3) All appeals of denials of requests for declassification shall be acted upon and determined finally within 120 working days after receipt, and the requester shall be advised that the appeal determination is final. If the requester is dissatisfied with NASA's appeal decision, the requester may initiate an appeal to the Interagency Security Classification Appeals Panel (ISCAP), within the Information Security Oversight Office. If continued classification is required under the provisions of this part 1203, the requester shall be notified of the reasons thereof.

(4) The declassification and release of foreign government information that is subjected to mandatory review under this section shall be determined only in accordance with § 1203.703.

(5) When the NASA Office of Protective Services receives any request for declassification of information in documents in its custody that was classified by another Government agency, it shall refer copies of the request and the requested documents to the originating agency for processing and may, after consultation with the originating agency, inform the requester of the referral.

(f) Neutral response. In response to a request for information under the Freedom of Information Act, the Privacy Act of 1974, or the mandatory review provisions of “the Order,” NASA shall refuse to confirm or deny the existence or non-existence of requested information whenever the fact of its existence or non-existence is itself classifiable under “the Order.”

(g) Declassification of transferred documents or material—(1) Material officially transferred. In the case of classified information or material transferred by or pursuant to statute or Executive Order to NASA in conjunction with a transfer of functions (not merely for storage purposes) for NASA's use and as part of its official files or property, as distinguished from transfers merely for purposes of storage, NASA shall be deemed to be the original classifying authority over such material for purposes of downgrading and declassification.

(2) Material not officially transferred. When NASA has in its possession classified information or material originated by an agency which has since ceased to exist and that information has not been officially transferred to another department or agency or when it is impossible for NASA to identify the originating agency and a review of the material indicates that it should be downgraded or declassified, NASA shall be deemed to be the originating agency for the purpose of declassifying or downgrading such material. NASA will consult with the Information Security Oversight Office to assist in final disposition of the information.

(3) Transfer for storage or retirement. (i) Insofar as practicable, classified documents shall be reviewed to determine whether or not they can be downgraded or declassified prior to being forwarded to records centers or to the National Archives for storage. Any downgrading or declassification determination shall be indicated on each document by appropriate markings.

(ii) Classified information transferred to the General Services Administration for accession into the Archives of the United States shall be downgraded or declassified by the Archivist of the United States in accordance with “the Order,” the directives of the Information Security Oversight Office, GSA, and NASA guidelines.

(h) Downgrading and declassification actions—(1) Notification of changes in classification or declassification. When classified material has been marked with specific dates or events for downgrading or declassification, it is not necessary to issue notices of such actions to any holders. However, when such actions are taken earlier than originally scheduled, or the duration of classification is shortened, the authority making such changes shall, to the extent practicable, ensure prompt notification to all addressees to whom the information or material was originally transmitted. The notification shall specify the marking action to be taken, the authority therefor, and the effective date. Upon receipt of notification, recipients shall effect the proper changes and shall notify addressees to whom they have transmitted the classified information or material.

(2) Posted notice. If prompt remarking of large quantities would be unduly burdensome, the custodian may attach declassification, downgrading, or upgrading notices to the storage unit in lieu of the remarking action otherwise required. Each notice shall indicate the change, the authority for the action, the date of the action, and the storage units to which it applies. Items withdrawn from such storage units shall be promptly remarked. However, when information subject to a posted downgrading or declassification notice is withdrawn from one storage unit solely for transfer to another, or a storage unit containing such information is transferred from one place to another, the transfer may be made without remarking if the notice is attached to or remains with each shipment.

(i) Foreign Relations Series. In order to permit the State Department editors of Foreign Relations of the United States to meet their mandated goal of publishing 20 years after the event, NASA shall assist these editors by facilitating access to appropriate classified materials in its custody and by expediting declassification review of items from its files selected for publication.

(ii) [Reserved]

[44 FR 34913, June 18, 1979, as amended at 45 FR 3888, Jan. 21, 1980; 48 FR 5892, Feb. 9, 1983; 53 FR 41318, Oct. 21, 1988; 78 FR 5120, Jan. 24, 2013]

§ 1203.800 Establishment.

Pursuant to Executive Order 13526, “Classified National Security Information,” and The Space Act, in accordance with U.S.C. Title 51, National and Commercial Space Program Sections 20132 and 20133, there is established a NASA Information Security Program Committee (as part of the permanent administrative structure of NASA). The NASA Assistant Administrator for Protective Services, or designee, shall be the Chairperson of the Committee. The Information Security Program Manager, NASA Office of Protective Services, is designated to act as the Committee Executive Secretary.

[78 FR 5121, Jan. 24, 2013]

§ 1203.801 Responsibilities.

(a) The Chairperson reports to the Administrator concerning the management and direction of the NASA Information Security Program as provided for in subpart B of this part. In this connection, the Chairperson is supported and advised by the Committee.

(b) The Committee shall act on all appeals from denials of declassification requests and on all suggestions and complaints with respect to administration of the NASA Information Security Program as provided for in subpart B of this part.

(c) The Executive Secretary of the Committee shall maintain all records produced by the Committee, its subcommittees, and its ad hoc panels.

(d) The Office of Protective Services will provide staff assistance and investigative and support services for the Committee.

[78 FR 5121, Jan. 24, 2013]

§ 1203.802 Membership.

The Committee membership will consist of the Chairperson, the Executive Secretary, and one person nominated by each of the following NASA officials:

(a) The Associate Administrators for:

(1) Aeronautics.

(2) Science Missions Directorate.

(3) Human Explorations and Operations.

(4) International and Interagency Relations.

(b) The Associate Administrator.

(c) The General Counsel.

(d) The Chief Information Officer.

(e) Other members may be designated upon specific request of the Chairperson.

[78 FR 5121, Jan. 24, 2013]

§ 1203.803 Ad hoc committees.

The Chairperson is authorized to establish such ad hoc panels or subcommittees as may be necessary in the conduct of the Committee's work.

[78 FR 5121, Jan. 24, 2013]

§ 1203.804 Meetings.

(a) Meetings will be held at the call of the Chairperson.

(b) Records produced by the Committee and the minutes of each meeting will be maintained by the Executive Secretary.

[78 FR 5121, Jan. 24, 2013]

§ 1203.900 Establishment.

Pursuant to Executive Order 13526, “Classified National Security Information,” and The Space Act, in accordance with U.S.C. Title 51, National and Commercial Space Program Sections 20132 and 20133, there is established a NASA Information Security Program Committee (as part of the permanent administrative structure of NASA. The NASA Assistant Administrator for Protective Services, or designee, shall be the Chairperson of the Committee. The Information Security Program Manager, NASA Office of Protective Services, is designated to act as the Committee Executive Secretary.

[78 FR 5122, Jan. 24, 2013]

§ 1203.901 Responsibilities.

(a) The Chairperson reports to the Administrator concerning the management and direction of the NASA Information Security Program as provided for in subpart B of this part. In this connection, the Chairperson is supported and advised by the Committee.

(b) The Committee shall act on all appeals from denials of declassification requests and on all suggestions and complaints with respect to administration of the NASA Information Security Program as provided for in subpart B of this part.

(c) The Executive Secretary of the Committee shall maintain all records produced by the Committee, its subcommittees, and its ad hoc panels.

(d) The Office of Protective Services, will provide staff assistance, and investigative and support services for the Committee.

[54 FR 6881, Feb. 15, 1989, as amended at 78 FR 5122, Jan. 24, 2013]

§ 1203.902 Membership.

The Committee will consist of the Chairperson and Executive Secretary. In addition, each of the following NASA officials will nominate one person to Committee membership:

(a) Associate Administrator for:

(1) Aero-Space Technology.

(2) Space Science.

(3) Space Flight.

(4) External Relations.

(5) Life and Microgravity Sciences and Applications.

(b) Associate Deputy Administrator.

(c) General Counsel.

Other members may be designated upon specific request of the Chairperson.

[54 FR 6881, Feb. 15, 1989, as amended at 64 FR 72535, Dec. 28, 1999]

§ 1203.903 Ad hoc committees.

The Chairperson is authorized to establish such ad hoc panels or subcommittees as may be necessary in the conduct of the Committee's work.

§ 1203.904 Meetings.

(a) Meetings will be held at the call of the Chairperson.

(b) Records produced by the Committee and the minutes of each meeting will be maintained by the Executive Secretary.

§ 1203.1000 General.

A SAP or SCI program shall be created within NASA only upon specific written approval of the Administrator and must be coordinated with the Assistant Administrator for Protective Services, or designee, to ensure required security protocols are implemented and maintained.

§ 1203.1001 Membership.

The Committee membership will consist of the Chairperson, the Executive Secretary, and one person nominated by each of the following NASA officials:

(a) The Associate Administrators for:

(1) Aeronautics.

(2) Science Missions Directorate.

(3) Human Explorations and Operations.

(4) International and Interagency Relations.

(b) The Associate Administrator.

(c) The General Counsel.

(d) The Chief Information Officer.

(e) Other members may be designated upon specific request of the Chairperson.

§ 1203.1002 Ad hoc committees.

The Chairperson is authorized to establish such ad hoc panels or subcommittees as may be necessary in the conduct of the Committee's work.

§ 1203.1003 Meetings.

(a) Meetings will be held at the call of the Chairperson.

(b) Records produced by the Committee and the minutes of each meeting will be maintained by the Executive Secretary.

§ 1203a.100 Purpose and scope.

(a) To insure the uninterrupted and successful accomplishment of the NASA mission, certain designated security areas may be established and maintained by NASA Centers and Component Facilities in order to provide appropriate and adequate protection for facilities, property, or classified/proprietary information and material in the possession of NASA or NASA contractors located at NASA Centers and Component Facilities.

(b) This part sets forth:

(1) The designation and maintenance of security areas,

(2) The responsibilities and procedures in connection therewith, and

(3) The penalties that may be enforced through court actions against unauthorized persons entering security areas.

[38 FR 8056, Mar. 28, 1973, as amended at 78 FR 5123, Jan. 24, 2013]

§ 1203a.101 Definitions.

For the purpose of this part, the following definitions apply:

(a) Security area. A physically defined area, established for the protection or security of facilities, property, or classfied/proprietary information and material in the possession of NASA or a NASA contractor located at a NASA Center or Component Facility, entry to which is subject to security measures, procedures, or controls. Security areas which may be established are:

(1) Controlled area. An area in which security measures are taken to safeguard and control access to property and hazardous materials or other sensitive material or to protect operations that are vital to the accomplishment of the mission assigned to a Center or Component Facility. The controlled area shall have a clearly defined perimeter, but permanent physical barriers are not required.

(2) Limited area. An area in which security measures are taken to safeguard or control access to classified material or unclassified property warranting special protection or property and hazardous materials or to protect operations that are vital to the accomplishment of the mission assigned to a Center or Component Facility. A Limited Area shall also have a clearly defined perimeter, but differs from a Controlled Area in that permanent physical barriers and access control devices, including walls and doors with locks or access devices, are emplaced to assist the occupants in keeping out unauthorized personnel. All facilities designated as NASA Critical Infrastructure or a key resource will be designated at a minimum as “Limited” areas.

(3) Exclusion area. An area that is a permanent facility dedicated solely to the safeguarding and use of Classified National Security Information. It is used when vaults are unsuitable or impractical and where entry to the area alone provides visible or audible access to classified material. To prevent unauthorized access to an exclusion area, visitors will be escorted or other internal restrictions implemented, as determined by the Center Security Office.

(b) Temporary security area. A designated interim security area, the need for which will not exceed 30 days from date of establishment. A temporary security area may also be established, pending approval of its establishment as a permanent security area.

(c) Permanent security area. A designated security area, the need for which will exceed 30 days from date of establishment.

[38 FR 8056, Mar. 28, 1973, as amended at 78 FR 5123, Jan. 24, 2013]

§ 1203a.102 Establishment, maintenance, and revocation of security areas.

(a) Establishment. (1) Directors of NASA Centers, including Component Facilities and Technical and Service Support Centers, and the Executive Director for Headquarters Operations at NASA Headquarters may establish, maintain, and protect such areas designated as Controlled, Limited, or Exclusion, depending upon their assessment of the potential for unauthorized persons either to:

(i) Obtain knowledge of classified information,

(ii) Damage or remove property, or to

(iii) Disrupt NASA or NASA contractor operations.

(2) The concurrence of the Assistant Administrator for Protective Services NASA Headquarters, shall be obtained prior to the establishment of a permanent security area.

(3)(i) At a minimum, the following information will be submitted to the Assistant Administrator for Protective Services 15 workdays prior to establishment of each permanent security area:

(a) The name and specific location of the NASA Center or Component Facility, or property to be protected.

(b) A statement that the property is owned by, or leased to, the United States for use by NASA or is the property of a NASA contractor located on a NASA Center or Component Facility.

(c) Designation desired: i.e., controlled, limited, or Exclusion.

(d) Specific purpose(s) for the establishment of a security area.

(ii) For those areas currently designated by the Center as “permanent security areas,” the information set forth in paragraph (d)(3)(i) of this section will be furnished to the Assistant Administrator for Protective Services , NASA Headquarters, within 30 workdays of the effective date of this part.

(b) Maintenance. The security measures which may be utilized to protect such areas will be determined by the requirements of individual situations. At a minimum, such security measures will:

(1) Provide for the posting of signs at entrances and at such intervals along the perimeter of the designated area as to provide reasonable notice to persons about to enter thereon. The Assistant Administrator for Protective Services, NASA Headquarters, upon request, may approve the use of signs that are now being used pursuant to a State statute.

(2) Regulate authorized personnel entry and movement within the area.

(3) Deny entry of unauthorized persons or property.

(4) Prevent unauthorized removal of classified information and material or property from a NASA Center or Component Facility.

(c) Revocation. Once the need for an established permanent security area no longer exists, the area will be returned immediately to normal controls and procedures or as soon as practicable. The Assistant Administrator for Protective Services will be informed of permanent security area revocations within 15 workdays.

[38 FR 8056, Mar. 28, 1973, as amended at 78 FR 5124, Jan. 24, 2013]

§ 1203a.103 Access to security areas.

(a) Only those NASA employees, NASA contractor employees, and visitors who have a need for such access and who meet the following criteria may enter a security area:

(1) Controlled area. Be authorized to enter the area alone or be escorted by or under the supervision of a NASA employee or NASA contractor employee who is authorized to enter the area.

(2) Limited area. Possess a security clearance equal to the level of the classified information or material held, discussed, or disseminated on site or is the holder of a positive national agency check if classified material or information is not involved. Personnel who do not meet the requirements for unescorted access may be escorted by a NASA employee or NASA contractor employee who meets the access requirements and has been authorized to enter the area.

(3) Exclusion area. Possess a security clearance equal to the classified information or material involved.

(b) The Center Directors, including Component Facilities and Technical and Service Support Centers, and the Executive Director for Headquarters Operations, NASA Headquarters, may rescind previously granted authorizations to enter a security area when an individual's access is no longer required, threatens the security of the property, or is disruptive of Government operations.

[38 FR 8056, Mar. 28, 1973, as amended at 78 FR 5124, Jan. 24, 2013]

§ 1203a.104 Violation of security areas.

(a) Removal of unauthorized persons. The Center Directors, including Component Facilities and Technical and Service Support Centers, and the Executive Director for Headquarters, NASA Headquarters may order the removal or eviction of any person whose presence in a designated security area is in violation of the provisions of this part or any regulation or order established pursuant to the provisions of this part.

(b) Criminal penalties for violation. Whoever willfully violates, attempts to violate, or conspires to violate any regulation or order establishing requirements or procedures for authorized entry into an area designated controlled, limited, or exclusion pursuant to the provisions of this part may be subject to prosecution under 18 U.S.C. 799 which provides penalties for a fine of not more than $5,000 or imprisonment for not more than 1 year, or both.

[38 FR 8056, Mar. 28, 1973, as amended at 78 FR 5124, Jan. 24, 2013]

§ 1203a.105 Implementation by field and component installations.

If a Director of a NASA Centers and Component Facilities, finds it necessary to issue supplemental instructions to any provision of this part, the instructions must first be published in the Federal Register. Therefore, the proposed supplemental instructions will be sent to the Assistant Administrator for Protective Services, NASA Headquarters, in accordance with NASA Policy Directive 1400.2, Publishing NASA Documents in the Federal Register and Responding to Regulatory Actions for processing.

[38 FR 8056, Mar. 28, 1973, as amended at 78 FR 5124, Jan. 24, 2013]

§ 1203b.100 Purpose.

This regulation implements 51 U.S.C. National and Commercial Space Programs, sections 20133 and 20134, by establishing guidelines for the exercise of arrest authority and for the exercise of physical force, including deadly force, in conjunction with such authority.

[57 FR 4926, Feb. 11, 1992, as amended at 78 FR 5124, Jan. 24, 2013]

§ 1203b.101 Scope.

This part applies to only those NASA and NASA contractor security force personnel who are authorized to exercise arrest authority in accordance with 51 U.S.C. 20134 and this regulation.

[57 FR 4926, Feb. 11, 1992, as amended at 78 FR 5124, Jan. 24, 2013]

§ 1203b.102 Definitions.

Accredited Course of Training. A course of instruction offered by the NASA Protective Services Training Academy, or an equivalent course of instruction offered by another Federal agency. See § 1203b.103(a)(1).

Arrest. An act, resulting in the restriction of a person's movement, other than a brief detention for purposes of questioning concerning a person's identity and requesting identification, accomplished by means of force or show of authority under circumstances that would lead a reasonable person to believe that he/she was not free to leave the presence of the officer.

Contractor. NASA contractors and subcontractors at all levels.

[57 FR 4926, Feb. 11, 1992, as amended at 78 FR 5125, Jan. 24, 2013]

§ 1203b.103 Arrest authority.

(a) NASA security force personnel may exercise arrest authority, provided that:

(1) They have graduated from an accredited training course (see § 1203b.102(a)); and

(2) They have been certified in writing by the Assistant Administrator for Protective Services, or designee, as specifically authorized to exercise arrest authority.

(b) The authority of NASA security force personnel to make a warrantless arrest is subject to the following conditions:

(1) The arresting officer must be guarding and protecting property owned or leased by, or under the control of, the United States under the administration and control of NASA or one of its contractors or subcontractors, at facilities owned by or contracted to NASA; and

(2) The person to be arrested has committed in the arresting officer's presence an offense against the United States Government, NASA, or a NASA contractor; or

(3) The arresting officer has reasonable grounds to believe that the person to be arrested has committed or is committing any felony cognizable under the laws of the United States.

(c) The Office of the General Counsel, NASA Headquarters, or the Center Chief Counsel's Office, as appropriate, shall provide guidance as to the applicability of these regulations.

[57 FR 4926, Feb. 11, 1992, as amended at 78 FR 5125, Jan. 24, 2013]

§ 1203b.104 Exercise of arrest authority—general guidelines.

(a) In making an arrest, the security force personnel should announce their authority and that the person is under arrest prior to taking the person into custody. If the circumstances are such that making such an announcement would be useless or dangerous to the security force personnel or others, the security force personnel may dispense with these announcements, but must subsequently identify themselves and their arrest authority to the arrested person(s) as soon as reasonably possible.

(b) The security force personnel at the time and place of arrest may search the arrested person and the area immediately surrounding the arrested person for weapons and criminal evidence. This is to protect the arresting officer and to prevent the destruction of evidence.

(c) Custody of the person arrested should be transferred to other Federal law enforcement personnel (e.g., United States Marshals or FBI agents) or to local law enforcement agency personnel, as appropriate, as soon as possible, in order to ensure the person is brought before a magistrate without unnecessary delay.

[57 FR 4926, Feb. 11, 1992, as amended at 78 FR 5125, Jan. 24, 2013]

§ 1203b.105 Use of non-deadly physical force when making an arrest.

When a security force personnel has the right to make an arrest, as discussed in § 1203b.103, the officer may use only that non-deadly physical force which is reasonable and necessary to apprehend and arrest the offender; to prevent the escape of the offender; or to defend himself/herself or a third person from what the security force officer reasonably believes to be the use or threat of imminent use of non-deadly physical force by the offender. Verbal abuse alone by the offender cannot be the basis under any circumstances for use of non-deadly physical force by a security force officer.