04-18200. Commercial Space Transportation; Waiver of License Requirement for Scaled Composites' Pre-flight Preparatory Activities Conducted at a U.S. Launch Site

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Notice of waiver.

SUMMARY:

The FAA has determined to waive the requirement for Scaled Composites, LLC, to obtain a launch license for its pre-flight ground operations conducted at Mojave Airport. Scaled Composites is authorized to conduct Reusable Launch Vehicle (RLV) missions under License No. LRLS 04-067, issued by the FAA on April 1, 2004. The East Kern Airport District (EKAD) is authorized to operate a launch site at the Mojave Airport under License No. LSO 04-009, issued by the FAA on June 17, 2004. The FAA finds that waiving the requirement for Scaled Composites to obtain a launch license for its pre-flight ground operations conducted in preparation for flight is in the public interest and will not jeopardize public health and safety, safety of property, and national security and foreign policy interests of the United States.

FOR FURTHER INFORMATION CONTACT:

Ms. Carole Flores, Manager, Licensing and Safety Division, Office of the Associate Administrator for Commercial Space Transportation, Federal Aviation Administration, U.S. Department of Transportation, 800 Independence Avenue, SW., Washington, DC 20591, [phone].

SUPPLEMENTARY INFORMATION:

Background

The Federal Aviation Administration (FAA) licenses the launch of a launch vehicle, reentry of a reentry vehicle, and the operation of a launch or reentry site under authority granted to the Secretary of Transportation in the Commercial Space Launch Act of 1984, as amended (CSLA), codified in 49 U.S.C. Subtitle IX, chapter 701, and delegated to the FAA Administrator. Licensing authority under the CSLA is carried out by the Associate Administrator for Commercial Space Transportation.

On April 1, 2004, AST issued a mission-specific reusable launch vehicle (RLV) mission license to Scaled Composites, LLC (Scaled Composites). The license, LRLS 04-067, was issued in accordance with licensing requirements under 14 CFR part 431. The license authorizes Scaled Composites to conduct up to six manned suborbital RLV missions from and within controlled airspace near Mojave, California. It is valid for up to one year or until the authorized missions are completed, whichever occurs first. As of the date of this notice, Scaled Composites has conducted three RLV missions under the license using its SpaceShipOne launch vehicle.

SpaceShipOne is an air-launched, winged, hybrid rocket-powered, horizontal landing suborbital rocket. It is carried aloft using a carrier aircraft, known as the White Knight. The White Knight is operated solely under an Experimental Airworthiness Certificate (EAC). SpaceShipOne is operated under both a launch license and an EAC simultaneously.

SpaceShipOne and the White Knight are housed and prepared for flight at Mojave Airport. During a nominal mission, the White Knight takes off from a runway at Mojave Airport with SpaceShipOne under captive carriage. The White Knight flies to an altitude of about 50,000 feet, releases the SpaceShipOne launch vehicle, and then returns to the Mojave Airport. Upon release, SpaceShipOne glides for several seconds before its pilot ignites its rocket motor. SpaceShipOne flies to an altitude as high as 100 kilometers on a suborbital trajectory. Upon completion of its suborbital flight, SpaceShipOne lands back at Mojave Airport.

Under Scaled Composites' license, the launch begins upon rocket motor ignition of SpaceShipOne. By beginning the launch, and thus the license, at rocket motor ignition, captive carry operations and SpaceShipOne free flight prior to rocket motor ignition are not covered by the license.

AST's licensing authority derives from the CSLA, which states that a license is required “to launch a launch vehicle.” 49 U.S.C. 70104(a). Accordingly, the definition of “launch” controls the scope of a launch license. By statute, for a suborbital RLV, “launch” means to place or try to place a launch vehicle in a suborbital trajectory, and includes 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. 49 U.S.C. 70102(3). By regulation, licensed pre-flight activities begin with the arrival of a launch vehicle or payload at a U.S. launch site. 14 CFR 401.5.

On June 17, 2004, the FAA granted the East Kern Airport District (EKAD) a launch site operator license, LSO 04-009, authorizing EKAD to operate a launch site at the Mojave Airport. Because the Mojave Airport is now a licensed launch site, the statutory and regulatory definition of launch requires Scaled Composites' pre-flight ground operations to be authorized by a launch license, unless waived by the FAA.

Waiver Criteria

The CSLA allows the FAA to waive the requirement to obtain a license for an individual license applicant if the Administrator decides that the waiver is in the public interest and will not jeopardize public health and safety, safety of property, and national security and foreign policy interests of the United States. 49 U.S.C. 70105(b)(3).

For reasons described below, the FAA has waived the requirement for Scaled Composites to obtain a launch license for its pre-flight preparatory ground operations at the Mojave Airport.

In deciding whether or not to waive the requirement to obtain a license for pre-flight ground operations, the FAA must analyze whether the waiver: (1) Is in the public interest; (2) will not jeopardize public health and safety or safety of property; and (3) will not jeopardize national security and foreign policy interests of the United States.

For the first two items, the FAA utilizes a four-prong test, discussed below. For the last item, the FAA looks at any aspects of the proposal that may have national security or foreign policy implications.

Four-Prong Test

The four-prong test used by the FAA was originally espoused by the House Science Committee in 1995, as guidance to the FAA to assist it in defining a “launch” for purposes of exercising licensing jurisdiction under the CSLA. H.R. Rep. No. 233, 104th Cong., 1st Sess., at 60 (1995). The guidance acknowledged that there are pre-flight activities that may properly be regulated as part of a “launch,” because they:

1. Are closely proximate in time to ignition or lift-off,

2. Entail critical steps preparatory to initiating flight,

3. Are unique to space launch, and

4. Are inherently so hazardous as to warrant AST's regulatory oversight under 49 U.S.C. chapter 701.

This test, as modified by the House Science Committee in 1997, was used as the basis for a statutory change in the definition of the term “launch” in the Commercial Space Act of 1998. Public Law 105-303, 112 Stat. 2843 (1998), 49 U.S.C. 70102(3). In that Act, Congress revised the definition of launch to include 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.”

Although the four-prong test is not a statutory or regulatory requirement, the FAA believes that it provides a rational approach to determining whether licensing of pre-flight activity may be waived, consistent with the CSLA, as it provided the rationale for including preparatory activities in the “launch” definition enacted by Congress in 1998.

The test is particularly useful for suborbital RLVs. As noted above, under the Commercial Space Transportation regulations, the term launch includes pre-flight ground operations beginning with the arrival of a launch vehicle or payload at a U.S. launch site for purposes of preparing for flight. The 1999 final rule that first promulgated that definition explained that in drawing a bright line, that is, beginning with the arrival of a launch vehicle or payload at a U.S. launch site for purposes of preparing for flight, the FAA reviewed common launch practices for the range of vehicles then subject to licensing (all expendable launch vehicles) and noted that the vehicles studied share similar pre-flight processing operations with a similar likelihood of mishap. As a general rule, those hazardous operations begin shortly after arrival of the launch vehicle at a U.S. launch site. 64 FR 19592. The RLV mission licensing regulations issued in 2000, utilized a comparable bright line for determining when a license is required; however, in doing so, the agency noted that it was doing so for consistency and in the belief that processing hazards for RLVs would be comparable to those associated with expendable launch vehicle processing activities. 65 FR at 56679. However, since that rulemaking, a number of new vehicles have been proposed for licensing that do not use conventional expendable launch vehicle technology, such as hybrid RLVs.

Applying the four prong test, if pre-flight operations do not qualify for licensing under the four-prong test, a waiver may be in the public interest because the CSLA advises the agency to streamline licensing and regulate only to the extent necessary to safeguard U.S. interests, including public safety, a key outcome of the four-prong test. There should not be any public safety or safety of property concerns if licensing authority is waived because hazards are addressed in applying the four-prong test.

The Four-Prong Test Applied To SpaceShipOne Pre-flight Ground Operations

Certain SpaceShipOne pre-flight preparatory activities conducted at Mojave Airport meet the first three prongs of the four-prong test. That is, certain pre-flight ground operations are closely proximate in time to ignition or lift-off, entail critical steps preparatory to initiating flight, and are unique to space launch. For example, the preparation of the rocket motor and reaction control systems for flight would meet these criteria.

However, no pre-flight ground operations conducted by Scaled Composites in preparing SpaceShipOne for flight meet the fourth prong of the four-prong test. That is, no pre-flight ground operation is inherently so hazardous as to warrant AST's regulatory oversight under 49 U.S.C. Chapter 701.

SpaceShipOne pre-flight ground operations pose negligible risk to the public due to the vehicle's small size and selected propellants. The SpaceShipOne main propulsion system is a hybrid rocket motor that uses non-toxic, storable propellants—nitrous oxide (N₂ O) as the oxidizer and Hydroxyl Terminated Polybutadiene (HTPB) as the fuel. The motor is not explosive and is extremely difficult to ignite accidentally. SpaceShipOne's other propulsion system, its reaction control system, uses only dry air.

SpaceShipOne presents no solid rocket motor handling or processing risks such as fire, explosion, debris, or unintended motor stage flight. Nor does it present any liquid propellant hazards such as toxicity or vapor cloud explosions. Although high-pressure gas and other industrial hazards may exist, those hazards have limited reach, and should not extend to the public at Mojave Airport.

National Security and Foreign Policy Implications of SpaceShipOne Pre-flight Ground Operations

The FAA evaluation conducted in support of Scaled Composites' license (LRLS 04-067) concluded that there are no issues relating to U.S. national security or foreign policy interests that would require the FAA to prevent launches of SpaceShipOne. Pre-flight ground operations conducted at the Mojave Airport have no effects outside of the airport facilities that are used by Scaled Composites. Thus, there are no national security or foreign policy issues associated with pre-flight preparatory ground operations.

Summary and Conclusion

A waiver is in the public interest because it accomplishes the goals of the CSLA and avoids unnecessary regulation. The waiver will not jeopardize public health and safety or safety of property because pre-flight preparatory activities for SpaceShipOne conducted at the Mojave Airport are benign to the public. A waiver will not jeopardize national security and foreign policy interests of the United States.

For the foregoing reasons, the FAA has waived the requirement for Scaled Composites to obtain a launch license covering SpaceShipOne pre-flight preparatory activities conducted at the Mojave Airport.

Issued in Washington, DC, on August 2, 2004.

Patricia Grace Smith,

Associate Administrator for Commercial Space Transportation.