Safety Recommendation A-15-021

We note that, on June 20, 2018, you published a final rule, “Updates to Rulemaking and Waiver Procedures and Expansion of the Equivalent Level of Safety Option,” which allows applicants to demonstrate, during the application process, an alternative approach to addressing hazards associated with human error that is equivalent to the approach prescribed in Part 437. We believe the final rule satisfies the intent of Safety Recommendation A-15-21, which is classified CLOSED-- ACCEPTABLE ACTION.

-From Steve Dickson, Administrator: On June 20, 2018, the FAA published the Updates to Rulemaking and Waiver Procedures and Expansion of the Equivalent Level of Safety Option Final Rule (83 FR 28528). Effective August 20, 2018, this rule allows an applicant to demonstrate, during the application process, that an alternative approach to addressing hazards associated with human error is equivalent to the approach prescribed in part 437.

We note that, on June 1, 2016, you published a notice of proposed rulemaking (NPRM) titled, “Updates to Rulemaking and Waiver Procedures and Expansion of the Equivalent Level of Safety Option.” This NPRM addresses several issues, including findings of equivalent levels of safety. Pending issuance of a final rule based on this NPRM that addresses Safety Recommendation A-15-21, it remains classified OPEN—ACCEPTABLE RESPONSE.

-From Michael P. Huerta, Administrator: The FAA has made significant progress with regard to rulemaking activities that will extend our ability to make equivalent level of safety findings for Part 437, Experimental Permits. On June I, 20 16, the FAA published a notice for proposed rulemaking (NPRM) titled, Updates to Rulemaking and Waiver Procedures and Expansion of the Equivalent Level of Safety Option (81 FR 349 19). The comment period for this NPRM closed on August I, 2016. It is important to note that the NPRM extends well beyond equivalent level of safety findings. The FAA will review these comments and continue to execute this project in accordance with the FAA's rulemaking practices.

We acknowledge your point that the waiver issued to Scaled Composites in the SpaceShipTwo accident was a direct result of your inability to issue an equivalent level of safety finding under the provisions of Part 437. Unlike Parts 415 and 417 for launch licensing, Part 437 does not include the ability to incorporate an equivalent level of safety finding, necessitating a waiver. We note that you are engaged in rulemaking that will extend your ability to make equivalent level of safety findings in the commercial space flight industry. Pending completion of that rulemaking, Safety Recommendation A-15-21 is classified OPEN—ACCEPTABLE RESPONSE.

-From Michael P. Huerta, Administrator: The FAA may only issue waivers to the regulatory requirements for CST licenses and permits if the FAA determines that public safety is protected and that the waiver is in the public's interest. Within the Office of Commercial Space Transportation (AST), the Licensing and Evaluation Division and the Safety Inspection Division (SID) have defined new working arrangements to ensure that the contents (provisions or mitigations) of waivers are identified and transitioned as appropriate into respective safety inspection plans.

Also, to identify additional unknown issues, special conditions, or mitigations, the SID will query all AST divisions for any outstanding or specific items that may require monitoring or verification during its safety inspection pre-brief meeting, which is conducted prior to safety monitoring.

The SID has added a step to review and record such topics into the pre-existing pre-inspection checklist discussed during the meeting. This allows safety inspectors (Sis) to readily include applicable verifications into the safety inspection plan. These revised working arrangements will be described and added to the Safety Inspection Processes and Procedures document (P-008), and they will also be incorporated into our P-008 training course over the coming months.

It is important to note that the waiver issued to Scaled Composites for SpaceShipTwo was a direct result of the FAA's inability to issue an equivalent level of safety finding under the provisions of part 437. Scaled Composites applied the methods associated with transport airplane system safety certification to its experimental permit hazard analysis, and the FAA considered this analysis to be sufficiently rigorous to protect public safety. However, unlike parts 415 and 417 for launch licensing, part 43 7 does not include the ability to incorporate an equivalent level of safety finding.

This made a waiver necessary. The FAA is engaged in rulemaking that will extend its ability to make equivalent level of safety findings, which is a critical need due to the diverse range of products and concepts that are emerging in the commercial space flight industry.