On June 20, 2018, the FAA released a final rule that, among other things, expands options for satisfying the FAA’s commercial space transportation regulations. An applicant may, rather than satisfying an exact requirement or seeking a waiver, show that an alternative means of compliance satisfies a regulatory goal.
An applicant for a license to operate a launch site under 14 C.F.R. part 420, for the launch or reentry of a reusable launch vehicle under part 431,for the reentry of a reentry vehicle that isn’t a reusable launch vehicle, or an applicant for an experimental permit may now demonstrate an equivalent level of safety rather than complying with the exact terms of a regulatory requirement. Part 417, which governs the launch of expendable launch vehicles, already allows applicants to demonstrate that an alternative approach may provide an equivalent level of safety to that imposed by regulation. For human space flight, the FAA now permits a demonstration of equivalence for pilot qualifications.
As the FAA explained:
An equivalent level of safety provision allows an applicant to propose an alternative method to meet the safety intent of a current regulatory requirement, by providing a clear and convincing demonstration through technical rationale that the proposed alternative approach provides a level of safety equivalent to the requirement it would replace. An equivalent level of safety means an approximately equal level of safety as determined by qualitative or quantitative means. Prior to this rulemaking, the option to satisfy a commercial space transportation regulation by demonstrating an equivalent level of safety was limited to the launch license provisions for expendable launch vehicles in parts 415 and 417, and to some specific sections of other parts in chapter III….
The requirement that the demonstration be “clear and convincing” imposes a higher burden of proof than an applicant needs to meet for showing compliance with a regulation. There, an applicant need only show that it will comply by a preponderance of the evidence. When deviating from the requirements of a regulation, the technical showing of equivalence must be higher. It must be clear and convincing.