[Federal Register Volume 64, Number 76 (Wednesday, April 21, 1999)]
[Rules and Regulations]
[Pages 19586-19624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9639]
[[Page 19585]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Parts 401 et al.
Commercial Space Transportation Licensing Regulations; Final Rule
Federal Register / Vol. 64, No. 76 / Wednesday, April 21, 1999 /
Rules and Regulations
[[Page 19586]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 401, 411, 413, 415 and 417
[Docket No. 28851; Amdt. Nos. 401-01, 411-01, 413-01, 415-01 and 417-
01]
RIN 2120-AF99
Commercial Space Transportation Licensing Regulations
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
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SUMMARY: The Associate Administrator for Commercial Space
Transportation of the Federal Aviation Administration (FAA), Department
of Transportation (DOT) is amending the FAA's commercial space
transportation licensing regulations. The FAA amends its licensing
regulations in order to clarify its license application process
generally, and for launches from federal launch ranges, specifically.
The regulations are intended to provide applicants and licensees
greater specificity and clarity regarding the scope of a license, and
to codify and amend licensing requirements and criteria.
EFFECTIVE DATE: June 21, 1999. An application pending at the time of
the effective date must conform to any new requirements of this
rulemaking as of the effective date. All license terms and conditions,
and all safety requirements of this rulemaking also apply as of the
effective date.
FOR FURTHER INFORMATION CONTACT: J. Randall Repcheck, Licensing and
Safety Division (AST-200), Associate Administrator for Commercial Space
Transportation, Federal Aviation Administration, DOT, Room 331, 800
Independence Avenue SW., Washington, DC 20591; telephone (202) 267-
8379; or Laura Montgomery, Office of the Chief Counsel (AGC-250),
Federal Aviation Administration, 800 Independence Avenue SW.,
Washington, DC 20591; telephone (202) 267-3150.
SUPPLEMENTARY INFORMATION:
Availability of Final Rules
Any person may obtain a copy of this final rule by submitting a
request to the Federal Aviation Administration, Office of Rulemaking,
800 Independence Avenue, SW., Washington, DC 20591, or by calling (202)
267-9680. Communications must identify the amendment number or docket
number of this final rule. Persons interested in being placed on a
mailing list for future FAA notices of proposed rulemaking and final
rules should request a copy of Advisory Circular No. 11-2A, Notice of
Proposed Rulemaking Distribution System, which describes application
procedures.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339) or the Government Printing Office's electronic bulletin board
service (telephone 202-512-1661) or the FAA's Aviation Rulemaking
Advisory Committee Bulletin Board service (telephone: 800-322-2722 or
202-267-5948). Internet users may reach the FAA's web page at http://
www.faa.gov/avr/arm/nprm/nprm.htm or the Government Printing Office's
webpage at http://www.access.gpo.gov/nara/aces/aces140.html for access
to recently published rulemaking documents.
In order to enhance communications regarding commercial space
transportation with the public, the FAA developed an internet-based
information system, which provides the public with electronic access to
the FAA. The system provides on-line information to interested parties,
and allows applicants, through a secure portion of the system, to check
the status of applications and licenses. The system currently contains
a limited amount of information, but includes schedules of upcoming
commercial launches, the FAA's regulations, guidance documents, and
research studies. The address is: http://ast.faa.gov/.
Small Entity Inquiries
If you are a small entity and have a question, contact your local
FAA official. If you do not know how to contact your local FAA
official, you may contact Charlene Brown, Program Analyst Staff, Office
of Rulemaking, ARM-27, Federal Aviation Administration, 800
Independence Avenue SW., Washington, DC 20591, 1-888-551-1594. Internet
users can find additional information on SBREFA in the ``Quick Jump''
section of the FAA's web page at http://www.faa.gov and may send
electronic inquiries to the following Internet address: 9-AWA-
[email protected]
Introduction
By this rulemaking, the FAA clarifies license application
procedures and requirements. The FAA's revisions to its regulations
provide information regarding the scope of a launch license, the
criteria for obtaining a license for expendable launch vehicles (ELVs)
launching from federal launch ranges, and the underlying safety
rationale for the FAA's launch licensing regime. These regulations also
explain that the FAA will license the operation of a launch site or the
launch of a launch vehicle from a site that is not operated by a
federal launch range on a case by case basis.
History and Current Revisions
The Commercial Space Launch Act of 1984, as codified at 49 U.S.C.
Subtitle IX--Commercial Space Transportation, ch. 701, Commercial Space
Launch Activities, 49 U.S.C. 70101-70121 (the Act), authorizes the
Secretary of Transportation to oversee, license and regulate commercial
launch and reentry activities and the operation of launch and reentry
as carried out by U.S. citizens or within the United States. 49 U.S.C.
70104, 70105. The Act directs the Secretary to exercise this
responsibility consistent with public health and safety, safety of
property, and the national security and foreign policy interests of the
United States, 49 U.S.C. 70105, and to encourage, facilitate and
promote commercial space launches by the private sector, 49 U.S.C.
70103.
The FAA carries out the Secretary's responsibilities for licensing
and regulating launches and the operation of launch sites. Prior to
November 15, 1995, the Secretary's responsibilities were implemented by
the Office of Commercial Space Transportation (the Office), which was
located within the Office of the Secretary in the Department of
Transportation. Now, the Associate Administrator for Commercial Space
Transportation is part of DOT's Federal Aviation Administration. When
this administrative change was effected, the Secretary delegated the
statutory authority over the regulation of commercial space
transportation to the Administrator of the Federal Aviation
Administration, and the Administrator redelegated this authority to the
Associate Administrator.
On August 4, 1994, President Clinton announced a new National Space
Transportation Policy reaffirming the government's commitment to the
commercial space transportation industry and the critical role of the
Department of Transportation in encouraging and facilitating private
sector launch activities. In 1996, President Clinton signed a National
Space Policy, which recognized the Department of Transportation as the
lead federal agency for regulatory guidance regarding commercial space
transportation activities. The FAA's
[[Page 19587]]
rules, by offering greater specificity and certainty regarding
licensing requirements and the scope of a license, should assist the
launch industry in its business and operational planning. This will
facilitate the private sector's launch activities by increasing
certainty and by easing its regulatory burden.
Background on the FAA's Commercial Launch Licensing History and Process
The FAA licenses commercial launches and the commercial operation
of launch sites through 14 CFR Ch. III. In April 1988, when the then
Office of Commercial Space Transportation first issued final
regulations, no licensed launches had yet taken place. Accordingly, the
Office established a flexible regime intended to be responsive to an
emerging industry while at the same time ensuring public safety. The
Office noted that it would ``continue to evaluate and, when necessary,
reshape its program in response to growth, innovation and diversity in
this critically important industry.'' Commercial Space Transportation
Licensing Regulations, 53 FR 11004, 11006 (Apr. 4, 1988). Under the
1988 regulations the Office implemented a case-by-case approach for the
evaluation of launch license applications. All commercial launches at
the time took place from federal launch ranges.
In conjunction with information guidelines describing the Office's
application process, the Office's regulations reflected the intent of
Congress that the Office evaluate the policy aspects and safety of a
proposed launch. The Office followed a case-by-case approach to
performing these reviews, tailoring its information requests to the
specifics of a given launch proposal.
Later, the Office took further steps designed to simplify the
licensing process for launch operators with established safety records.
For example, before issuing its final rules in 1988, the Office issued
interim regulations, in which it had contemplated the possibility that
``one license could cover a specified series of launches where the same
safety resources [would] support identical or similar missions.''
Commercial Space Transportation Licensing Regulations; Interim Final
Rule and Request for Comments, 51 FR 6870, 6872 (Feb. 26, 1986). In
1991, the Office implemented this option by instituting a launch
operator license for similar launches carried out by a single licensee.
The launch operator license currently authorizes a licensee to conduct
any number of launches within defined parameters over the course of a
two year period. The FAA has continued to apply a case by case analysis
to licenses authorizing a single launch or to licenses authorizing a
set of specifically identified launches.
The FAA, in accordance with 49 U.S.C. 70112 and 14 CFR Ch. III,
part 440, imposes financial responsibility requirements on a licensee,
commensurate with the scope of its license, pursuant to which a
licensee is required either to purchase insurance to protect launch
participants in the event of claims by third parties and to protect
against damage to government property, or to otherwise demonstrate
financial responsibility. In the event that there were a launch
accident and third party claims arising out of that launch exceeded the
financial responsibility required by the FAA, the Act contains
procedures through which the government of the United States may pay
those excess claims up to a statutory ceiling. See 49 U.S.C. 70113. The
possible payment of excess claims by the government for damages related
to a particular launch is commonly referred to, albeit erroneously, as
``indemnification'' of the launch industry. The payment of excess
claims constitutes, in fact, only a provisional agreement by the
government of the United States subject to conditions, including
Congressional appropriation of funds.
Growth and Current Status of Launch Industry
The number of commercial space launches has steadily grown over the
years since the first licensed commercial launch in 1989. As of April
13, 1999, 110 licensed launches have taken place from five different
federal launch ranges, and from two non-federal launch sites. Launch
vehicles have included traditional orbital launch vehicles such as the
Atlas, Titan and Delta, as well as suborbital vehicles such as the
Starfire. New vehicles using traditional launch techniques include
Lockheed Martin's Athena I and II, EER's Conestoga, Orbital Sciences
Corporation's Taurus, and Boeing's Delta III. Unique vehicles such as
the Pegasus are also included in this count. New launch vehicles are
proposed every year. For example, the Pegasus air-launched rocket has
been developed since the passage of the Act. On the horizon are sea-
launched rockets, Lockheed Martin's Atlas III and Boeing's and Lockheed
Martin's evolved expendable launch vehicles. A number of companies are
proposing partially and fully reusable launch vehicles. Several
companies are participating in partnership with the National
Aeronautics and Space Administration (NASA) to develop X-33 and X-34
launch vehicles incorporating reusable and single-stage-to-orbit
technology, which could result in vehicles for commercial use.
Currently, commercial launches take place from federal launch
ranges operated by the Department of Defense and NASA. Launch operators
bring launch vehicles to federal ranges such as Cape Canaveral Air
Station, Vandenberg Air Force Base, White Sands Missile Range and
Wallops Flight Facility for launch. A launch operator obtains a number
of services from a federal range, including radar, tracking and
telemetry, flight termination and other launch services. Pursuant to an
agreement between a federal launch range and a launch operator, the
federal range has final authority over decisions regarding whether to
allow a launch to proceed. A federal range operates pursuant to its own
internal rules and procedures, and the launch operator must comply with
those rules and procedures in addition to the requirements of the FAA.
The U.S. commercial space transportation industry faces strong
international competition. Ariane, Europe's launch vehicle, continues
to be the market leader, with other competition coming from China,
Russia, and Ukraine. The U.S. industry still obtains a significant
percentage of launch contracts, and AST projects over seventy
commercial orbital launches within the next three years.
Additionally, U.S. participation in international ventures is
increasing. For example, International Launch Services (ILS), comprised
of Lockheed Martin Corporation, Khrunichev Enterprise and NPO Energia,
markets Russia's Proton rockets and the U.S. Atlas. Another
international partnership, Sea Launch Limited Partnership (Sea Launch),
involves Boeing Commercial Space Company, S.P. Korolev Rocket and Space
Corporation Energia, KB Yuzhnoye and PO Yuzhnoye Mashinostroitelny
Zavod, and Kvaerner Moss Technologies a.s., which are U.S., Russian,
Ukrainian and Norwegian companies, respectively. Sea Launch has
launched a commercial rocket from a modified oil rig located in the
Pacific Ocean. Orbital Sciences Corporation has conducted a launch
outside the United States and envisions more.
Current Revisions to Licensing Regulations
With six years of experience in regulating the commercial launch
industry, the DOT Office of Commercial Space Transportation initiated a
process for standardizing its licensing
[[Page 19588]]
regulations. Originally, when the Office first initiated its licensing
program, the Office did not possess standardized rules or requirements.
Accordingly, it evaluated each license application individually to
ensure that a proposed launch would 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.
Over the course of time, and with the input of licensees and federal
launch ranges, the FAA has evolved a standardized approach to licensing
launches from federal launch ranges. Accordingly, the FAA now
implements that approach through revisions to its regulations.
On October 13, 1994, in anticipation of issuing a notice of
proposed rulemaking, the Office of Commercial Space Transportation,
DOT, announced that it was holding a public meeting to obtain
industry's views to assist the Office in developing an NPRM that would
address specific requirements for launch and launch site operator
licenses. Notice of Public Meeting, 59 FR 52020 (1994). The Office
stated that it would streamline its launch licensing process by
standardizing requirements and by codifying certain information
requirements in its regulations. Id. The Office also advised the public
that it would promulgate rules concerning licensing the operation of a
launch site. Id. The FAA proposes to implement rules of general
applicability for operation of a launch site through an additional
notice of proposed rulemaking in order to foster certainty for this new
industry as well. Id. The public meeting took place on October 27, and
28, 1994, and was attended by representatives of the commercial launch
industry, payload companies, prospective commercial launch site
operators, interested government agencies, both state and federal, and
the public.
On March 19, 1997, the FAA released a notice of proposed rulemaking
proposing to amend its licensing requirements. Commercial Space
Transportation Licensing Regulations, Notice of Proposed Rulemaking
(NPRM), 62 FR 13216 (Mar. 19, 1997). In the NPRM, the FAA proposed to
narrow its definition of launch from ``gate to gate,'' which resulted
in the licensing of the launch related activities of a launch operator
at a federal launch range prior to the arrival of the launch vehicle,
to ``vehicle at the gate,'' which encompasses only the launch
operator's activities once its vehicle arrives. The NPRM proposed a
launch license application process developed through its case by case
license history, including the implementation of certain safety
proposals recommended by the National Transportation Safety Board. The
FAA also proposed to streamline and reorganize a variety of other
licensing provisions. The comment period closed May 19, 1997. At the
request of several launch operators, the FAA reopened the comment
period until August 4, 1997. The FAA received comments from a number of
interested parties, including launch operators, a payload provider, a
launch site operator and prospective reusable launch vehicle operators.
The Environmental Protection Agency commented on the FAA's
environmental procedures. The launch operators who filed comments
included Boeing Commercial Space Company, Lockheed Martin Corporation,
McDonnell Douglas Aerospace, and Orbital Sciences Corporation. Reusable
launch vehicle operators' views were represented by Kistler Aerospace
Corporation, Rotary Rocket Company, and Space Access. Hughes
Electronics, Spaceport Florida Authority, and the National
Transportation Safety Board also filed comments. The comments focused
on several major issues, with the proposed definition of launch
eliciting the most attention. Foreign ownership of a license applicant
also proved a topic of concern, as did issues surrounding the FAA's
proposed risk threshold and various safety requirements. In light of
the great variety of topics encompassed by this rulemaking, rather than
devoting a single section to all of the comments, the FAA addresses the
comments by subject matter throughout the preamble and section by
section analysis in the relevant context.
On October 28, 1998, the Commercial Space Act of 1998 was signed
into law. Among other things, it 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.'' P.L. 105-303 (1998), 49 U.S.C. 70102(3). The
change affects this rulemaking's definition of launch by both
confirming the more narrow application proposed in the NPRM and
expanding the scope of launch to encompass launch vehicle preparatory
activities occurring at any launch site in the United States, even when
those activities take place at a launch site from which flight of the
launch vehicle does not take place.
Launch License
The amendments to the FAA's launch licensing regulations address
the definition of ``launch,'' licensing requirements, including payload
determinations and policy reviews, and information required from an
applicant proposing to launch a vehicle employing established
technology and procedures from a federal launch range. The FAA here
changes its interpretation of the definition of ``launch'' and thus
changes the scope of a launch license. Additionally, in contrast to
what was originally proposed in the NPRM, which was to define with
particularity the beginning of launch for purposes of those taking
place from a federal launch range, the FAA will apply its proposed
definition of launch to a launch taking place at any launch site
located in the United States, whether that launch site is a federal
launch range or not. Through this rulemaking the FAA is formalizing its
practice of issuing two different types of launch licenses, a launch
operator license pursuant to which a licensee may conduct any launches
that fall within the broad parameters described in its license, and a
launch-specific license, which allows a licensee to conduct only those
launches enumerated in the license.
Scope of Launch License and Definition of ``Launch''
The Act requires a launch operator to obtain a license for the
launch of a launch vehicle. Accordingly, the definition of ``launch''
controls the scope of a launch license. Greater certainty regarding
this definition will allow a licensee to plan better regarding a number
of issues. Because the FAA's financial responsibility requirements and
eligibility for payment by the United States of excess claims for
liability for damages to third parties are coextensive with a licensed
launch, knowledge of the scope of a launch license allows a licensee to
manage its risks appropriately and to make its own provisions for
financial responsibility or insurance coverage in addition to that
required under the statute. Through this rulemaking, the FAA defines
launch to begin with the arrival of a launch vehicle at a federal
launch range or other U.S. launch site.1 Launch ends, for
purposes of ground operations, when the launch vehicle leaves the
ground, and, for purposes of flight, after the licensee's last exercise
of control over the vehicle. The NPRM had proposed to include within
the new definition ``[t]he term launch includes the flight of a launch
vehicle, and those hazardous pre-flight activities that are closely
[[Page 19589]]
proximate in time to flight and are unique to space flight.'' That
sentence is now omitted as superfluous in light of the application of
the launch license period to all U.S. launch sites, regardless of
whether the launch site is located on a federal launch range or not.
The concepts guided the creation of the definition for this rulemaking,
and will still guide the FAA in defining the beginning of launch
outside the United States.
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\1\ As discussed in greater detail in response to comments, the
FAA does not define launch to commence with the arrival of a payload
at a launch site.
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In its NPRM, the FAA considered three options to defining launch
and the scope of a launch license and, by necessary implication,
possible ``indemnification'' for government property and third party
damages arising out of a launch. The FAA noted that its approach of
licensing the activities of a launch operator within the gates of a
federal launch range, commonly referred to as ``gate to gate,'' had
been criticized as too broad. The criticism came from Congress through
non-binding report language; however, because Congress would ultimately
prove the source of funding for any possible ``indemnification,'' the
FAA was concerned that ``gate to gate'' might eventually mislead
industry into inappropriately relying on the government for money that
was not available. Congress might deny funding on the grounds that pre-
flight preparation did not constitute part of launch under 49 U.S.C.
Subtitle IX, ch. 701.2 Accordingly, the FAA considered two
approaches to narrowing its definition of launch. It considered, but
rejected, defining launch as commencing with ignition. Instead, it
proposed to define launch as commencing with the arrival of a launch
vehicle at a federal launch range from which flight would occur. The
FAA also proposed in its NPRM to clarify when launch ended. With
flight, launch ends when the last action over which a licensee has
direct control is performed. As proposed in the NPRM, ground operations
would no longer be deemed part of launch when an expendable launch
vehicle left the ground. With the changes to the definition brought
about by the Commercial Space Act of 1998, the FAA revises the
definition to include activities involved in the preparation of a
launch vehicle for launch, when those activities take place at a launch
site in the United States. The FAA now adopts those changes.
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\2\ Although originally prompted to revisit the scope of launch
out of concern for the availability of funding, the FAA's revision
derives from its interpretation of the Act as a whole.
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In reaching its final decision regarding its interpretation of
launch, the FAA considered a number of factors. The statutory
definition provided the first line of inquiry. The FAA also took into
account the commenters' desire for a consistent and broad
interpretation. Ease of administration played a role as well. In the
end, the change in the level of risk proved determinative as to where
in the course of preparation for flight the FAA would deem launch to
commence.
The FAA received comments on its proposed revisions. Boeing
Commercial Space Company (Boeing) voiced its concern with the FAA's
proposed definition of launch, opposing the inclusion of ground
operations out of concern for the precedent such a definition might
establish for launches conducted by Sea Launch, which proposes to
launch from the ocean, and in which Boeing participates as a partner.
Boeing believes that although some hazardous activities are part of
launch preparation, these activities do not ``in themselves constitute
uniquely hazardous events which should be covered in the scope of a
launch license. Such activities should [be] and are regulated by
existing hazardous material and operations regulations that are
applicable to industry at large.'' Boeing at 1. According to Boeing,
the purpose of the Act was to define the scope of launch ``so as to
cover those operations which directly placed the general public at
risk.'' Boeing at 1. Where more innovative launch technologies are
employed, such as that contemplated by Sea Launch, Boeing expects that
launch will be defined consistently with this purpose.
Hughes Electronics (Hughes) requested that the FAA clarify whether
a launch vehicle's payload is part of launch site activities in order
for Hughes to determine when the possible indemnification provisions of
the Act apply. Hughes proposed that indemnification provisions of the
FAA's rules be clarified to apply to a payload and its components, or
that a payload be included within the definition of launch vehicle.
Hughes asked, in essence, that the FAA define launch, for purposes of
including payload activities, to commence with the arrival of a payload
at the launch site. Launch would end, under Hughes' proposal, either
after a defined period of time or after such time as a launch vehicle
could cause a payload accident, whichever came later. Hughes did not
elaborate on the implementation of its proposals.
Kistler Aerospace Corporation (Kistler), concerned that the
proposed regulations governing expendable launch vehicles (ELVs) might
serve as a model for rules governing reusable launch vehicles (RLVs),
argued against including ground operations within a launch license.
Kistler recommended, instead, that, for a liquid-fueled vehicle, launch
be defined to commence with the fueling of a vehicle. In support of
this position Kistler first noted that defining launch as commencing
with the arrival of a launch vehicle at a federal launch range, may not
or should not apply to the launch of an RLV, pointing out that although
an ``RLV may ``arrive'' at the launch range initially, it thereafter
returns directly and repeatedly to the launch range. Clearly, however,
the RLV is not constantly in a ``launch'' state.'' Kistler at 7.
Kistler also argued against the FAA position that pre-flight activities
constitute uniquely hazardous activities. ``Many of these activities
are entirely routine industrial activity and pose no unique hazards.''
Kistler at 7. Kistler maintained that subjecting all these activities
to FAA review and prohibiting them without the issuance of a license
would constitute an unnecessary and costly regulatory burden. Moreover,
if the FAA were to require a license for ground activities, Kistler and
its customers would have to sign cross-waivers with its contractor and
subcontractors, its customers and the contractors and subcontractors of
its customers. This, Kistler maintained, ``would distort the normal
commercial allocation of risk and legal remedies for fault and,
consequently, would increase insurance costs to the licensee.'' Kistler
at 7-8.
Kistler recommended, for a liquid fueled vehicle, that launch
commence with fueling. This is because fueling is closely proximate in
time to flight and may be directly attributable to space flight, unlike
other activities, which Kistler characterized as routine industrial
activities not directly attributable to space flight. Kistler at 8.
Kistler did not describe the other ``routine industrial'' activities.
Nor did it describe its basis for distinguishing between routine
industrial activities and those that are directly attributable to space
flight. Nonetheless, its point of view is interesting, indicating as it
does, that there is an insurance market for ground operations, and one
apparently affordable to a start up company such as Kistler.
Kistler also advised that it believes that an RLV launch ends with
the landing of the RLV, and would include any ``proximate
consequences'' of the landing. Kistler at 9. Kistler was silent with
respect to what it considers a proximate consequence. Kistler would not
include post-launch ground activities within the definition of launch.
[[Page 19590]]
Lockheed Martin also filed comments, which included correspondence
from Marsh & McLellan, an aviation underwriter. Lockheed Martin stated
that it ``views with serious reservations the Office's proposed
definition of ``launch'' that would narrow the scope of a license
issued by the Office and effectively standardize the treatment of all
launch systems from federal ranges, without regard for the[ir] unique
attributes * * *.'' Lockheed Martin at 1. Lockheed Martin supported the
FAA's proposal to dispense with gate to gate as a means of defining
launch, agreeing that it resulted in illogical exclusions. Lockheed
Martin at 3. It maintained, however, that ``vehicle at the gate''
achieves the same illogical exclusions of hazardous activities
depending on whether they take place before or after a vehicle's major
components arrive at a federal launch range. Lockheed Martin at 3.
Lockheed Martin also believes that the FAA's concerns regarding
congressional report language were groundless. Lockheed Martin at 3-4.
Lockheed Martin proposed that the FAA adopt an activity test to
determine what may be included within the scope of a launch license.
Lockheed Martin at 6. The FAA should ``address hazardous risks
associated with a particular launch campaign,'' presumably on a case-
by-case basis for each license it issues. Lockheed Martin at 6.
Lockheed Martin believed it would be instructive for the FAA, in
considering hazardous risks, to consider the Public Law 85-804
3 indemnification that the Department of Defense
contractually offers its contractors. Lockheed Martin at 5. It noted
that DoD contracts for Atlas, Titan and Delta launch services provide
government indemnification for ``unusually hazardous risks,'' which
include, in part, the burning, explosion or detonation of propellants,
liquid fueled rocket engines or solid fueled rocket motors, or launch
vehicles or their components during testing, transporting, launch
preparation or launch. Lockheed Martin at 5. ``Unusually hazardous
risks'' also include, according to Lockheed Martin's list, the toxic or
other unusually hazardous properties of propellants or inert gases,
their constituent ingredients, or their degradation products and the
flight or surface impact of launch vehicles or components or fragments
thereof. Lockheed Martin at 5.
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\3\ P.L. 85-804, 50 U.S.C.A. Secs. 1431-1435 (1991 and West
Supp. 1997), is effective only during a national emergency. 50
U.S.C. Sec. 1435. It does not define launch.
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The former McDonnell Douglas Aerospace filed draft comments with a
request for an extension of time. In its draft comments, McDonnell
Douglas asked that the FAA continue to employ gate to gate as the scope
of a launch license, with certain modifications. Specifically,
McDonnell Douglas sought to extend license coverage off of a federal
launch range, for activity that ``is consistent with standard
commercial space industry practice.'' McDonnell Douglas does not
elaborate on what it envisions as consistent with standard commercial
space industry practice. The main thrust of its argument appears to be
that it favors centralizing questions of liability and insurance within
the FAA and removing them as subjects of Air Force launch support
agreements.
Orbital Sciences Corporation (Orbital) opposed that portion of the
proposed definition of launch that confined a licensed launch to the
launch site from which flight would occur. According to Orbital, the
FAA's proposed approach was illogical because it meant that identical
activities might in some instances be licensed and in others not. Also,
the proposed approach would discriminate against modern launch vehicle
technologies, so that they would be ``penalized by the denial of
license coverage.'' Orbital at 2. Orbital, relying on 1997 report
language, also argued that the House Science Committee opposed the
FAA's narrowing of the definition of launch. See Civilian Space
Authorization Act, Fiscal Years 1998 and 1999, H.R. 1275, H. Rep. 65,
51, 105th Cong., 1st Sess. (Apr. 21, 1997).
Orbital proposed that the FAA adopt an activity test to determine
what activities might be included in the definition of launch. It
recommended that the FAA ``identify pre-launch activities generally
common to launch systems and cover them for all launch systems if they
are sufficiently hazardous and integral to a licensed launch,
regardless of where or when they occur.'' Orbital at 4. Orbital
provides a list of those of its pre-flight activities it considers
hazardous. Orbital, Attachment 2.
Space Access, which intends to operate a reusable launch vehicle,
also filed comments. Space Access' comments focused on the impact on
future developments, such as reusable launch vehicles, of the FAA's
proposed definition of launch. Space Access opposed defining launch to
encompass a vehicle's entire time at a launch site, and believes that
there is no way to consistently and fairly apply the FAA's proposed
definition of launch. Space Access noted that the FAA ``does not
regulate the development, testing, or transportation of solid rocket
boosters at a manufacturer's facility, even though this [is a]
significant hazardous activity, so it should not license nor should the
government offer to indemnify that activity just because it occurs on a
Federal Launch Range.'' Space Access at 6. Furthermore, defining a
vehicle's ``major components'' may ultimately prove a burdensome task
for the FAA. Space Access at 4. Space Access also questioned the FAA's
legal authority for its proposed definition, and does not believe that
the Act supports the ``gate to gate'' approach. In support of this,
Space Access pointed out that under the Act, as the NPRM also notes,
launch does not start with launch services.
After reviewing a number of conceptual approaches, Space Access
recommended that the FAA define launch to begin with ``an intentional
self propelled change in the state of equilibrium of the launch vehicle
and any payload toward Earth orbit or outer space [that] continues
until the launch vehicle and payload achieve[] a new state of
equilibrium or exit[]the Earth's dominant gravitational influence.''
Space Access at 5. By this, Space Access intended ``vertical or
horizontal takeoff.'' Id. For the end of launch, this would mean that
once a vehicle completes its propellant expulsion and no other changes
in equilibrium are planned, the launch process is over. Space Access at
5. A change in equilibrium to reach other places in earth orbit or
outer space would not be part of launch.
The Spaceport Florida Authority (SFA) supported the proposed
definition of launch as including those hazardous pre-flight activities
that are closely proximate in time to flight and are unique to space
flight. SFA at 1. SFA also supported the FAA's proposal to define the
beginning of launch as commencing with the arrival of a vehicle's major
components at a federal range. SFA opposed limiting the scope of a
licensed launch to those activities that occur at the federal launch
range from which flight would occur because this approach would result
in some of the current pre-flight activity of at least two launch
companies not being licensed. SFA at 2. SFA accordingly viewed this
approach as discriminatory. SFA also maintained that the proposal was
contrary to the statute, which requires consistency with public health
and safety. SFA pointed out that in some situations the FAA would
review certain pre-flight activities and in others it would not, thus
resulting in no FAA safety oversight and no possibility of
indemnification by the federal government. SFA at 2. On a separate
[[Page 19591]]
note, SFA stated its support for excluding the storage of solid rocket
motors from the definition of ``launch.'' SFA at 3. SFA notes that such
storage is not extremely hazardous and that commercial insurance for
storage is available at a reasonable premium.
The FAA considered three possible options in defining ``launch''
for purposes of developing proposed regulations. The FAA considered
codifying its ``gate to gate'' definition but was concerned that ``gate
to gate'' created a false impression that indemnification would be
available for all commercial activities taking place within the
confines of a federal range. The FAA also weighed the most narrow
approach, which would employ the ordinary definition of ``launch'' as
only those flight activities beginning at ``T minus zero (T-0),'' or
intentional first stage ignition; but the FAA initially determined in
its NPRM that this approach failed to provide regulatory oversight of
certain hazardous activities and that concerns regarding international
competition weighed against this formulation. In light of the 1998
change to the Act, the FAA must reject this narrow definition as
inconsistent with the new law. A less expansive approach than ``gate to
gate,'' one within the scope of the FAA's mandate, will include within
a launch license those activities that are part of a launch as
contemplated by the new directive to license activities involved in the
preparation of a launch vehicle for launch, when those activities take
place at a launch site in the United States. This satisfies the
requirements of the statutory change and the wishes of commenters such
as Orbital and the Spaceport Florida Authority. Under the approach the
FAA now adopts, because of the 1998 changes and because risks change
shortly after the launch vehicle or its components enter the gate of a
launch site, launch begins, for purposes of licensing, upon the arrival
of that vehicle to be prepared for flight at a U.S. launch site.
Vehicle at the Gate
By this rulemaking, the FAA will license as launch those
preparatory activities that may be considered part of a launch. As
noted in the NPRM, the FAA's licensing authority derives from the Act,
which states that a license is required ``to launch a launch vehicle.''
49 U.S.C. Sec. 70104(a). The word ``launch'' is commonly understood to
mean ignition, lift-off and flight of a launch vehicle, as well as,
perhaps only in popular parlance, certain immediately preliminary
activities such as countdown and other final steps necessary to
effectuate flight. The Act defines ``launch'' to mean ``to place or try
to place a launch vehicle or reentry vehicle 4 and any
payload from Earth-(A) in a suborbital trajectory; (B) in Earth orbit
in outer space; or (C) 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.'' 49 U.S.C. Sec. 70102(3).
---------------------------------------------------------------------------
\4\ The Commercial Space Act of 1998 also amends the definition
of launch to add ``reentry vehicle and any payload from Earth--.''
Because reentry will be the subject of a separate rulemaking it will
not be addressed here.
---------------------------------------------------------------------------
The recently enacted change to the definition of launch in the Act
establishes which pre-flight activities are part of a launch. There are
certain pre-flight activities so integral to the launch of a launch
vehicle that they should be considered part of the launch itself even
though they do not constitute flight. Additionally, there are hazards
associated with pre-flight activity that are proximate in time to
flight and unique to space flight. Because the changes to the Act
dictate that launch include preparation of a launch vehicle and payload
for flight, the FAA defines the commencement of launch as the moment at
which hazardous activities related to the assembly and ultimate flight
of the launch vehicle begin, which, for purposes of consistency and
clarity, the FAA deems to be when the major components of a licensee's
launch vehicle enter, for purposes of preparing for flight, the gate of
a U.S. launch site, whether situated on a federal launch range or not,
and regardless of whether flight occurs from there or not.
In its NPRM, the FAA determined that defining ``launch'' as the
arrival of the launch vehicle at the gate of a launch site accorded
with the proposals of a number of earlier commenters, who suggested
that the FAA define ``launch'' to begin when hazardous activities
start. The FAA is charged by statute with protecting the public, and a
definition that recognizes hazards will address concerns regarding
public health and safety. Only if an activity is so hazardous as to
pose a threat to third parties should regulatory oversight by the FAA
be exercised, and ``indemnification'' to recompense third parties be
available. Because shortly after vehicle components arrive, hazardous
activities related to the assembly and ultimate flight of the launch
vehicle begin, the arrival of the vehicle or its parts is a logical
point at which the FAA should ensure that a launch operator is
exercising safe practices and is financially responsible for any damage
it may cause. These hazardous activities include, but are not limited
to, fuel tank wet testing, ordnance installation, spin balancing and
the stacking of motors. They are hazardous because they expose third
parties and government property to risk of damage or loss. The FAA
believes that this test is well within the new licensing authority
conferred by the Congress' 1998 revision to the Act. Also it both
broadly incorporates the activity test advocated by commenters such as
Lockheed Martin and Orbital and accommodates the FAA's need for
simplicity in administration. A launch license will encompass hazardous
activities without requiring numerous decisions regarding individual
hazardous activities on a piecemeal basis.
Moreover, with the expansion of the definition as originally
proposed to encompass the ground operations of a launch operator at a
commercial launch site not situated on a federal launch range, the
advisability of this approach is further evident. The FAA believes that
a launch operator contracting with a licensed launch site operator
should be the licensee responsible for activities in preparation for
flight. To the extent that the government may hope to achieve seamless
safety and financial responsibility coverage, the FAA would rather look
to a launch operator, who has control and authority over its employees,
contractor and subcontractors, including any launch site operator
providing services as well as a location from which to launch, for
regulatory responsibility. Otherwise, the FAA might have to attempt to
apportion responsibility for ground operations between a launch
operator and a launch site operator and develop additional criteria for
doing so. In this regard, commenters such as Kistler and Space Access
should note that were a launch license for ground operations not
required a license to operate a launch site might be.
For purposes of ascertaining the start of launch, and particularly
with the 1998 addition to the definition of launch, the FAA reviewed
the hazardous activities associated with the launch of a launch vehicle
to determine when those hazardous activities started. The FAA's
experience shows that commercial launch vehicles share a number of
hazardous procedures, and that most of those procedures take place once
the vehicle is at a launch site in order to minimize hazardous
transport and exposure time. The DOT Office of Commercial Space
Transportation prepared a study in 1994, available in draft, titled
``Prelaunch Hazardous
[[Page 19592]]
Operations for the Delta, Atlas, Titan at Cape Canaveral Air Station,
Pegasus at Vandenberg Air Force Base, Conestoga at Wallops Flight
Facility and Black Brant at White Sands Missile Range.'' The study
analyzed similarities in the risk profiles for pre-flight processing of
these vehicles, and compared the pre-flight processing timelines for
the various vehicles. The results complement information available in a
DOT ``Hazard Analysis of Commercial Space Transportation,'' May 1988.
The amount of damage that a vehicle may cause varies from vehicle to
vehicle, depending upon such factors as the mass of the vehicle, the
number of stages, the presence and number of solid rocket motors, and
the type and quantity of propellants. The launch vehicles studied and
their pre-flight processing procedures are similar in that each has a
similar hazardous potential.
The study showed that even though pre-flight processing procedures
and the sequence of those procedures may vary among vehicles, the
vehicles studied share such pre-flight processing procedures as solid
rocket motor handling and processing, flight termination system or
separation ordnance installation and checkout, and fueling. These
activities occur at different times for different vehicles. The
likelihood of a mishap 5 resulting from these procedures is
similar for each vehicle. These procedures constitute hazardous
operations that have an identifiable or otherwise quantifiable
probability of occurrence (Po) of a mishap. The
probabilities that these operations will result in a mishap are
approximately Po=10-4 to 10-5 for
solid rocket motor handling and processing;
Po=10-5 for flight termination system or
separation ordnance installation and checkout, and
Po=10-3 to 10-6 for fueling. ``Eastern
Launch Site Safety Programs,'' Louis J. Ullian, Commercial Space Risk
and Insurance Symposium, Cocoa Beach, Florida (Oct. 26, 1988). These
probabilities are relied upon by launch companies, federal agencies and
federal launch ranges for their analyses of hazardous operation risks,
and reflect the rigorous safety standards, analysis and review process
required at federal launch ranges for hazardous ground operations.
---------------------------------------------------------------------------
\5\ The term ``mishap'' means a launch accident, a launch
incident, failure to complete a launch as planned, or an unplanned
event or series of events resulting in a fatality or serious injury
(as defined in 49 CFR Sec. 830.2) or resulting in greater than
$25,000.00 worth of damage to a payload, a launch vehicle, a launch
support facility or government property located on the launch site.
---------------------------------------------------------------------------
The FAA considers these operations hazardous because their
processes may lead to identifiable mishaps and dangerous
consequences.6 Solid rocket motor handling and processing
may result in ignition of the propellant, either explosively or
otherwise. This may be caused by the unconstrained burning or explosion
of a major portion of the propellant if circumstances prevented proper
venting of the propellant. Casualties and property damage may result if
an installed igniter initiates and causes an engine or solid rocket
motor to become fully propulsive, as during flight. Casualties or
damage may result from fire, explosion or toxic fumes that may be a by-
product of combustion. These events may result in direct damage or
casualties as the consequence of blast and debris effects. These events
may also lead to secondary effects such as fires, explosions or
unintended motor stage flight that may be caused by the direct blast
and debris effects.
---------------------------------------------------------------------------
\6\ These findings are based on the DOT Office of Commercial
Space Transportation's 1994 review of launch vehicle manufacturers'
data, FAA commercial launch baseline assessments, past FAA maximum
probable loss determination analyses and Ullian's 1988 presentation
at the Commercial Space Risk and Insurance Symposium.
---------------------------------------------------------------------------
Flight termination system or separation ordnance installation and
checkout may result in lethal or damaging releases of energy. The
inadvertent ignition of installed or uninstalled ordnance, including
that of the flight termination system and explosive bolts installed on
various separation systems could result in explosion and debris.
Fueling may result in a range of consequences, including fires, either
pool fires or fireballs, or the release of vapor clouds, which may be
toxic or which may ignite. These events may occur because of leakage
during fueling or spills during an accident. If such a mishap involves
toxic propellants, toxic components of the fuels may be released into
the atmosphere or spilled on the ground. If a vehicle releases its
hazardous materials into the atmosphere, it could expose people at a
launch site or in the public at large to those hazards.
As a general rule, hazardous operations begin as soon as, or
shortly after, a launch vehicle's major systems arrive at a launch
site. The FAA relies on the new 1998 definition to employ a geographic
element in defining launch by using entry of a launch vehicle onto a
launch site in the United States as part of its definition of
``launch.'' This ensures consistency and clarity of interpretation.
Consistency is guaranteed by the fact that regardless of vehicle type,
each vehicle will receive the same regulatory coverage within the
United States. Although some commenters maintain that launch begins at
different points for different vehicles, because the FAA wishes to
treat launch operators in an equivalent fashion, the FAA will not
define ``launch'' on the basis of the launch vehicle. Moreover,
reliance on a geographic element provides clarity of interpretation
even for a launch operator of a new vehicle using different technology.
An applicant seeking a license for a new vehicle will know to plan for
license coverage at the time its vehicle enters a U.S. launch site.
Some commenters dispute this conclusion, arguing that defining a
launch to commence with a vehicle's arrival results in different
licensing treatment of different activities. The FAA recognizes this
dilemma. It believes, however, that a single test such as a vehicle's
arrival will avoid an administrative burden on both the FAA and its
licensees. Rather than creating an activity test, as recommended by
some, which would result in a series of tests, the FAA will face only
questions attendant to a single activity. Many of the questions that
will plague determining when a vehicle arrives at a federal launch
range'' launch vehicles show up in parts, a lot of them'would also
bedevil any particular hazardous activity related to the preparation of
any particular vehicle for flight. Additionally, the FAA considers it
outside of its statutory mandate to license pre-flight activities
located outside of a launch site in light of the new definition of
launch. That definition limits launch to activities taking place at a
U.S. launch site. In any event, that commercial operations exist
outside of federal launch ranges to manufacture and process vehicle
components and payloads indicates to the FAA that the hazards are not
so extreme as to stifle the development of facilities and services off
of a federal launch range. Additionally, as some of the comments
indicate, insurance does appear to be available.
Another aspect of the FAA's definition attempts to capture those
activities that constitute preparation for flight. For example, fueling
for liquid-fueled vehicles usually takes place not long before flight
to minimize the risks attendant to the exposure to a fueled vehicle,
and the FAA would consider that activity to be a component of launch
under the Act. On the other hand, the FAA does not intend a launch
license to encompass components stored at a launch site for a
considerable
[[Page 19593]]
period of time prior to flight. The FAA is aware that the definition of
launch may be construed to encompass motor storage as well. However, if
motors arrive at a launch site for purposes of storage rather than as
part of a launch campaign in preparation for flight, the FAA does not
consider that storage part of a launch. SFA's comments support this
interpretation.
Orbital questioned one element of the FAA's proposed definition.
Orbital disputed that part of the FAA's definition that included within
the definition of launch only those activities that take place at the
launch site from which flight will occur. Orbital's concern is
addressed in the 1998 amendment to the definition of launch. The
statutory revision expands launch to include preparatory activities
that ``take place at a launch site in the United States.'' 49 U.S.C.
70102(3) (emphasis added). This provision includes preparatory
activities at any U.S. launch site. The FAA notes that the revision
excludes preparatory activities outside of a U.S. launch site.
Hughes asked for clarification regarding the commencement of launch
with respect to payloads. Hughes suggested that launch be defined to
commence with the arrival of a payload. Under current conditions, a
payload tends to arrive after a launch vehicle, and its integration to
a launch vehicle has been included within the definition of launch. The
FAA does not consider payload processing absent launch vehicle
integration to constitute part of launch or part of a licensee's
licensed activities. Although the 1998 amendment appears to provide
that preparation of a payload for launch at a U.S. launch site is part
of launch, the revision does not require the definition of launch to
encompass payload processing at a launch site until the payload is
being integrated with a launch vehicle. The revision itself provides
for activities involved in the preparation of a launch vehicle or
payload for flight to ensure that launch may begin with a launch
vehicle's arrival alone at a launch site, regardless of the presence of
a payload. Read in the context of existing statutory provisions and
requirements, the revised definition does not encompass payload
activities that are not otherwise associated with a launch vehicle. The
original and still unchanged definition of launch means, in relevant
part, the launch of a launch vehicle and any payload. 49 U.S.C.
70102(3). Section 70104 further confirms the inadvisability of
commencing launch with the arrival of a payload. Section 70104 requires
a license for the launch of a launch vehicle, not for the launch of a
payload or for the launch of a launch vehicle and a payload. Moreover,
were launch to begin with the arrival of a payload it would constitute
unlicensed launch, and a payload operator is not required to obtain a
launch license in any event. Additionally, the launch operator, who is
the licensee, is not necessarily participating in the payload
processing until integration of the payload with the vehicle. For all
these reasons, the FAA will not change its definition.
``T Minus Zero (T-0)'' or Intentional First Stage Ignition
The FAA also considered defining ``launch'' as the word is
ordinarily understood. This would have limited the scope of a launch
license to activities commencing at intentional first stage ignition.
Were a launch license to cover only those activities, the launch
industry would no longer have been eligible for so-called
indemnification for damages arising out of any preparatory activities.
The regulatory burden, however, would be correspondingly less. Such a
licensee would not, for instance, be required to obtain a license as
early in the process as it must for gate to gate, nor would it be
required to provide the FAA as much information. Likewise, this
approach would have resulted in similar treatment of licensees
regardless of the type of vehicle employed or the timing or location of
hazardous activities. The FAA carefully weighed this approach,
especially in light of those comments advocating a more narrow
definition of launch. With the changes brought about by the 1998
revision to the Act, which expands the scope of launch, defining launch
as commencing with intentional first stage ignition is no longer an
option.
``Gate to Gate''
The FAA's practice of licensing ground operations associated with
the conduct of a launch, commonly referred to as ``gate to gate,'' was
to license all commercial, launch related activities by a launch
operator operating within the gates of a federal range. Through this
rulemaking the FAA abandons this approach. Under this view, a launch
operator's operations were licensed, even if ignition and flight were
not imminent and even if the launch vehicle itself was not present at
the range. The 1998 amendment to the definition of launch confirms the
FAA's intent to abandon this approach. A launch vehicle must be present
for preparatory activities to constitute part of launch.
The ``gate to gate'' approach constituted an attempt to treat
different launch vehicles similarly. Whether a launch vehicle undergoes
hazardous integration significantly in advance of flight, as the Delta
and Pegasus do, or closer in time as an Atlas does, a license covered
the same pre-launch activities: all launch related activities performed
by a launch operator within the gates of a federal range. Additionally,
``gate to gate'' licensing ensured that the FAA required launch
operators to demonstrate financial responsibility through the purchase
of insurance coverage or other appropriate measures for possible damage
arising out of commercial activities to government property. ``Gate to
gate'' licensing received support because of the belief that a launch
operator would be indemnified for damage to third parties caused by
pre-flight and post-flight ground operations.
The FAA does not define ``launch'' to encompass all pre-flight
activities by a launch operator at a launch site because not all
activities are part of the launch of a launch vehicle. A launch
operator may be present on the range, and engaged in preparatory
activities, but not be working on a launch vehicle or its component
parts in preparation for flight. A licensed launch operator may be
present at a federal range between launches. The FAA is aware of launch
operators who perform construction activities within the gates of a
federal range months or years prior to any anticipated flight of a
launch vehicle. At that point, the launch operator may or may not be
engaged in the type of hazardous activities warranting FAA oversight or
indemnification because construction activity, however hazardous, is
not part of the process of preparing the vehicle itself for flight.
In support of ``gate to gate'' licensing it has been suggested that
pre-launch licensing authority arises out of the Act's directive to
license ``operation of a launch site.'' See 49 U.S.C. 70104(a). In the
case of a launch taking place from a federal launch range, the launch
operator is not, in fact, operating a launch site. The site is operated
by the federal range. Moreover, it is the FAA's opinion that a person
requires a license to operate a launch site only if offering the site
to customers for their launch. Otherwise, activities related to
preparation for flight are part of a launch license rather than a
license to operate a launch site.
As noted in the NPRM, ``gate to gate'' evolved out of an industry
desire for broad license coverage, and this approach was the FAA's
official position with respect to the scope of its licenses. Other
government sectors, including NASA, have criticized this
[[Page 19594]]
approach as overly broad. Civilian Space Authorization Act, Fiscal
Years 1998 and 1999, H. Rep. 65, 51 105th Cong., 1st Sess. (Apr. 21,
1997). In 1995, House Science Committee Report No. 104-233,
accompanying H.R. 2043, the NASA Authorization Act for Fiscal Year
1996, noted that members of Congress view with concern this approach to
covering all licensee activities within the gates of a federal range,
and considered it too broad.7 Although recognizing that the
report language does not carry the force and effect of law, the FAA is
concerned that launch operators might be pursuing their pre-launch
activities in reliance on an indemnification that must be enacted by
Congress and that may or may not be available from Congress. This
prompted the FAA in its NPRM to revisit the issue of the scope of a
license and, thus, necessarily, of the definition of ``launch.''
---------------------------------------------------------------------------
\7\ In 1994, a House Space, Science and Technology Committee
Report expressed the same sentiments. The report accompanied H.R.
4489, the NASA Authorization Act for Fiscal Year 1995, a bill that
was not enacted into law.
---------------------------------------------------------------------------
Lockheed Martin questioned the FAA's concern over the possibility
that Congress would refuse to vote for indemnification for all of a
launch operator's activities at a federal launch range. As stated in
the NPRM, while the FAA recognizes that the report language of concern
does not have the effect of law, see, e.g., Public Employees Retirement
Systems of Ohio v. Betts, 492 U.S. 158, 168, 109 S. Ct. 2854, 2862
(1989), it nonetheless remains a fact that Congress does play a role in
deciding whether to provide ``coverage'' for damages in excess of the
FAA's financial responsibility requirements. In Betts, the Court noted
that it ``has observed on more than one occasion that the
interpretation given by one Congress (or a committee or Member thereof)
to an earlier statute is of little assistance in discerning the meaning
of that statute.'' Id. However, in this funding context, the FAA does
not believe that it behooves either the FAA or licensed launch
operators to ignore these warnings. That is the source of the FAA's
concern. Additionally, the fact that 1997 also produced report language
recommending a more narrow definition indicates to the FAA, as it
should to industry, that the better course is to rely on a definition
grounded in the Act rather than on fluctuating Congressional report
language.
End of Launch
The FAA notes that the end of launch may be expressed both in terms
of flight activity and ground operations. For purposes of flight, the
FAA will continue to define the end of a launch as the point after
payload separation when the last action occurs over which a licensee
has direct or indirect control over the launch vehicle. For a liquid-
fueled stage, that point may be when any remaining fuel is emptied from
the upper stage, the vehicle propellant and gas tanks are vented and
other stored energy is released. For solid rocket motors, that point
may arrive when the upper stage fuel is expended or the stage is inert,
and the payload is released. For purposes of ground operations, launch
no longer ends with the cessation of supporting ground operations but
when the vehicle leaves the surface.
With respect to flight, others apply different definitions to the
end of launch. The most recent House Committee Report, H.R. Rep. No.
347, 105th Cong., 1st Sess., 22 (1997), suggests that launch ends when
a payload is placed into orbit or in its planned trajectory in outer
space. The 45th Space Wing considers a launch complete when all
hazardous activities are secured and, for purposes of flight safety,
upon orbital insertion. NPRM, 62 FR at 13223. Orbital insertion takes
place when a launch vehicle achieves orbital velocity or when its
instantaneous impact point leaves the earth. In other words, orbital
insertion is achieved when a launch vehicle is moving horizontally to
the earth's surface sufficiently fast enough, given its altitude, to
counteract the effects of the earth's gravity. The FAA believes that
although defining launch to end at orbital insertion may make sense
from a federal range ``flight termination'' perspective, such a
definition would halt FAA oversight of certain aspects of launch too
soon for safety. For example, damage to other orbiting material may
still ensue as the result of activities subsequent to orbital
insertion. Absent a licensee taking appropriate measures, risk exists
of the possible collision of a launch vehicle or its components with
other objects in space. Additionally, dangerous orbital debris might be
generated. Accordingly, in the interests of safety, the FAA will retain
its current practice of defining the cessation of launch.
With respect to ground operations, the FAA now changes its current
practice of including post-flight ground operations for expendable
launch vehicles in a launch license and thus as part of launch.
Instead, ground operations are no longer part of launch once the
vehicle leaves the ground. The FAA considered several options as to
when ground operations were no longer considered part of a launch.
Under the chosen option, ground operations would not be considered part
of launch once the launch vehicle left the ground. Reentry activities
aside, it has not been the FAA's experience that post-flight activities
involve the same levels of public safety risk as pre-flight handling,
integration and fueling of a vehicle. The FAA reviewed another option.
Ground operations for launch could end with the end of launch in the
context of flight, namely, when the last action occurs over which a
licensee has direct or indirect control over the launch vehicle. This
alternative would have allowed for at least part of the post-flight
ground operations to be covered by the license. The end of launch for
purposes of flight is not, however, related to activities on the
ground. The FAA is concerned that attempting to create such a
connection would be arbitrary and might inappropriately influence a
licensee's post-flight ground operation procedures. The third option
the FAA considered was to define the end of ground operations for
launch as that point at which all personnel may resume operations at
the launch pad and related environs. This approach recognized that
hazardous operations do occur subsequent to ignition and lift off.
These operations include such activities as securing ground propellant
and pneumatic systems and inspecting the launch pad to verify that no
post-flight hazards exist. With this option, ground operations would no
longer have been part of launch when the launch pad and other launch
related facilities no longer endangered personnel. Because, however,
the hazards associated with ground operations subsequent to lift off
are not related to the preparation of the vehicle for flight, the FAA
defines the end of launch for purposes of ground operations as the
point at which the launch vehicle leaves the ground. This analysis
applies to expendable launch vehicles. For the time being, judgment is
reserved with respect to reusable launch vehicles.
Formalizing Launch and Launch Operator Licenses
This rulemaking, through section 415.3, codifies the FAA practice
of issuing two types of launch licenses, the launch-specific and the
launch operator, and amends the duration of a launch operator license
from two to five years. In order to enable the FAA to issue a license
for a single mission or for multiple missions, the FAA's licensing
structure provides for two types of launch licenses, the launch-
specific and the launch operator license. A launch specific license
authorizes a licensee to conduct a single launch, or a specified
[[Page 19595]]
number of identical launches, from a single launch site. The launch
vehicle for each authorized launch must be the same and launch
parameters must present no unique public safety issues or other issues
affecting U.S. national interests. The licensee's authorization to
conduct launches terminates upon completion of all launches authorized
by the license or the expiration date set forth in the license,
whichever comes first. A launch operator license authorizes a licensee
to conduct launches from a specified launch site, using the same family
of launch vehicles, carrying specified classes of payloads, within the
range of launch parameters defined by the license.
Initially, the FAA's launch operator license allowed a launch
operator to conduct launches authorized by its license for a period of
two years. Under the new section 415.3(b), a launch operator license
authorizes the conduct of launches for five years from the date of
issuance.
The option of issuing a launch operator license, as opposed to
requiring a launch-specific license for every launch, provides
advantages both to the licensee and to the FAA. Although the
application preparation for and review of a launch operator license
will be more extensive than for a launch specific license, use of this
class of license will ultimately result in cost reductions and
efficiency gains for licensees by reducing the number of applications
that a company with an active launch schedule must submit, and that the
FAA must review. The FAA's increase of the term of a launch operator
license from the current practice of two years to five years reflects
the FAA's experience with its licensees during the past few years.
During that time, the FAA has encountered very few serious safety
problems with launch operator licensees.
On the basis of this record, the FAA proposed in the NPRM that a
launch operator with a safe launch record should not be required to
apply for a new license every two years. The FAA will continue to
verify, through compliance monitoring, that a licensee is operating in
accordance with the terms and conditions of its license. In this
regard, the longer the license term, the more important the role
compliance monitoring plays in enabling the FAA to provide safety
oversight regarding how a licensee implements its procedures.
The FAA received comments regarding the duration of a launch
operator license. Several launch operators supported the proposed
increase from two to five years. Boeing at 1; Lockheed Martin at 7;
Orbital Sciences at 6; Rotary Rocket Company at 4-5 (while emphasizing
its need for a launch operator license for a reusable flight test
program); Space Access at 6. Kistler Aerospace Corporation requested
that the FAA consider issuing launch operator licenses of indefinite
duration. Kistler at 4. Kistler maintains that the choice of five years
is arbitrary and of little utility in regulating a licensee. Id.
Kistler notes that the proposed regulations vest the FAA with
continuing oversight powers, require a licensee to ensure the
continuing accuracy of its application representations and allow the
FAA to amend the terms and conditions of a license at any time. Id.
Kistler claims that renewing a license every five years poses an
unnecessary burden and creates an uncertainty that adversely affects a
licensee's ability to enter into contracts, attract capital and
otherwise make long term plans. Id.
Although the FAA appreciates the issues raised by Kistler, the FAA
will increase the duration of a launch operator license from two to
five years as originally proposed rather than creating a license of
indefinite duration. This is because an increase in duration from two
to five years already place greater reliance on the FAA's compliance
monitoring program. A license renewal application has the benefit of
compelling the FAA and a licensee to perform a comprehensive review of
a licensee's operations. Experience has shown that a renewal process
ensures that oversight is performed.
Space Access raises a separate issue, namely the question of how
the FAA will determine who is qualified for a launch operator license
as opposed to a launch-specific license. Space Access asks what
constitutes a safe launch record. To this, the FAA is able to respond
with some guidance culled from its past practices. The FAA licensed the
first launch of a Pegasus launch vehicle on a launch-specific basis. It
is currently contemplating a launch-specific license for Sea Launch's
proposed first launch from the Pacific Ocean. Other examples of launch-
specific licenses include the first launches of Lockheed Martin's LMLV-
1 and 2, EER's Conestoga launch and AMROC's hybrid launch vehicle
launch. To date, the FAA has not considered a new launch operator one
with a safe launch record. A new launch operator has no record.
Although a launch-specific license might be required for a new
vehicle, an established operator may apply for a launch operator
license after the first launch, but a newer entity may have a greater
showing to make. A first launch may be safe without being successful. A
first launch LMLV-1 failure that demonstrated that a safety system
worked led to a launch operator license for Lockheed Martin.
Historically, launch operators who received launch operator licenses
had already demonstrated some level of capability in conducting
launches, either by conducting launches for the government or with
other launch vehicles.
The FAA policy of considering an applicant for a launch operator
license after a safe launch conducted under a launch-specific license
has, to date, applied to launches from federal launch ranges. This
policy may not always be appropriate under other circumstances. The
complexity of the proposed operations, whether a vehicle is reusable
and the potential for endangering the public may also play a role in
whether the FAA decides a launch operator license is appropriate for
subsequent launches.
Space Access also asks whether an overall accident history of
approximately ten to fifteen percent is acceptable. The FAA has not
made a determination regarding an acceptable mishap rate at this point,
and is hesitant to prejudge the question. The answer may turn more on
the facts underlying a mishap rather than on a particular rate. The FAA
would also like to stress what it defines as a launch accident. By
definition, a launch accident is an unplanned event occurring during
the flight of a launch vehicle resulting in the known impact of a
launch vehicle, its payload or any component thereof outside designated
impact limit lines, or a fatality or serious injury to any person who
is not associated with the flight, or resulting in damage estimated to
exceed $25,000 to property not associated with the flight. This has
rarely, if ever, happened in the history of the U.S. space program.
Space Access appears to be referring to other mishaps such as mission
failures that are not launch accidents. An unsuccessful mission is not
necessarily an un-safe flight. In fact, a successful mission may not
even be a safe one, as recognized by the FAA's definition of ``launch
incident,'' which is an unplanned event occurring during the flight of
a launch vehicle, other than a launch accident, involving a malfunction
of a flight safety system or failure of the licensee's safety
organization, design or operations. Because the FAA is concerned with
public safety, a safe launch record is judged based on whether an
applicant's launches have placed the public at risk,
[[Page 19596]]
not whether the launches have placed payloads in space.
Space Access contends that any launch accident, incident or mishap
should result in a license amendment reflecting changes made to prevent
a reoccurrence. If circumstances warrant, this may prove a likely
result. Space Access also asks whether a launch operator accident that
is not covered by an FAA license, that is, perhaps, a government
launch, is considered part of a licensee's accident history, and
whether an accident would result in a license revocation. An un-
licensed launch resulting in a mission failure may certainly raise
safety concerns for future licensed launches, but need not necessarily
lead to license revocation. When a mishap occurred with McDonnell
Douglas' Delta vehicle in January 1997, during a government launch, the
FAA did not revoke, suspend or modify McDonnell Douglas' launch
operator license. This was because McDonnell Douglas' license specified
that it comply with the requirements of the federal launch range from
which it was authorized to launch, and the FAA knew that the Air Force
would not allow additional Delta launches to take place until the
problem was identified and resolved. Space Access' inquiry arises,
perhaps, out of contemplating launch activity that is not governed by
federal launch range oversight. To avoid prejudging a hypothetical
situation, the FAA will not address that situation until confronted
with it.
Relationship Between FAA and Federal Government Launch Ranges
The FAA's launch requirements as promulgated through part 415,
subpart C, of this rulemaking apply to launches as they currently take
place from Department of Defense (DOD) or NASA launch ranges. Public
meeting comments strongly supported avoidance of duplication of launch
safety oversight for launches that take place from a federal launch
range. The rules are consistent with that desire. Although the FAA
requires information and analyses not required by federal launch ranges
to ensure that all flight safety issues are addressed, and imposes
certain additional requirements derived from a National Transportation
Safety Board investigation, the FAA will not duplicate the safety
assessments performed by federal launch ranges.
Federal launch ranges manage the launch facilities from which the
great majority of commercial launches now take place. The federal
ranges act, in effect, both as landlords and as providers of launch
facilities and services. The ranges require compliance with their
safety rules as a condition of using their facilities and services.
Because different federal launch ranges confront different safety
issues, practices are not always standardized; the Air Force ranges
did, however, produce a joint set of documentation requirements and
procedures, ``Eastern and Western Range Requirements 127-1'' (Mar.
1995).8 In addition to providing for public safety, the
federal launch range procedures protect government property and launch
capability, and are designed, to some extent, to ensure mission
success.
---------------------------------------------------------------------------
\8\ The latest version of these requirements may be found at
http://www.pafb.af.mil/45SW/rangesafety/ewr97.htm. The Air Force up-
dates its requirements on an ongoing basis.
---------------------------------------------------------------------------
The FAA fully recognizes the comprehensive and responsible safety
oversight that DOD and NASA have exercised at their ranges for over
forty years. The FAA communicates on an ongoing basis with the federal
launch ranges regarding standards and launch activities. The FAA also
recognizes the scope of information that a launch operator employing
federal range services must submit for approval over a two to three
year period in order to conduct launch operations. Therefore, for
launches that take place from DOD or NASA launch ranges, the FAA's
regulatory program makes maximum use of information provided by an
applicant to the federal launch range and of federal launch range
analyses and approvals. This means that the FAA relies on the processes
of the federal launch range and does not duplicate those safety
analyses conducted by a federal launch range.
A federal launch range requires a launch operator to provide data
regarding its proposed launch. The range evaluates the data to
ascertain whether the launch operator will comply with range
requirements. The range also uses the data to prepare range support for
the mission. DOD ranges require that a launch operator apply for and
obtain specific mandatory approvals from the range in order to conduct
certain specified operations. For example, the Air Force's Eastern and
Western Range Requirements 127-1 require a launch operator to obtain
approvals for hazardous and safety critical procedures before the range
will allow those operations to proceed. In the event that a launch
operator's proposal does not fully comply with range requirements, a
range may issue a deviation or a waiver if the mission objectives of
the launch operator could not otherwise be achieved. A range may issue
a deviation to allow a launch even when a launch operator's designs or
proposed operations do not comply with range requirements. A range may
issue a waiver when it is discovered after production that hardware
does not satisfy range requirements or when it is discovered that
operations do not meet range requirements after operations have begun
at a federal range. A range will allow a deviation or grant a waiver
only under unique and compelling circumstances, or when the intent of
the range requirements is met.
The FAA's baseline assessments 9 of various federal
launch ranges found their safety services adequate. The FAA will not
require an applicant to demonstrate the adequacy of the range services
it proposes to employ if the applicable baseline assessment included
those services and if those services remain adequate. Certain showings
regarding the applicant's own capabilities are still required. The FAA
requires specific information regarding the interface between the
safety organizations of a federal launch range and of an applicant. In
the event that a service or procedure upon which an applicant proposed
to rely was not within the documented experience of the federal launch
range that the applicant proposed to utilize, the applicant would have
to demonstrate the safety of that particular aspect of its launch. This
is also true if a documented range safety service has changed
significantly or has experienced a recent failure. In those cases, the
burden of demonstrating safety shifts to the applicant.
---------------------------------------------------------------------------
\9\ ``Commercial Launch Baseline Assessment, NASA Goddard Space
Flight Center, Wallops Flight,'' DOT (Oct. 1989); ``Commercial
Launch Baseline Assessment, U.S. Air Force Western Space and Missile
Center,'' DOT (Jul. 1989); ``Commercial Launch Baseline Assessment,
U.S. Air Force Eastern Space and Missile Center,'' DOT (Sept. 1988).
---------------------------------------------------------------------------
The revisions also codify FAA guidelines containing National
Transportation Safety Board (NTSB) recommendations concerning launch
readiness and countdown procedures. The FAA's guidelines implement NTSB
recommendations made following an investigation of a commercial launch
anomaly occurring during a launch from a federal launch range. These
guidelines are designed to ensure that a launch licensee has clear
lines of authority and communication during launch, and has specific
procedures governing other safety aspects of its launch operations. The
NTSB filed comments to the docket stating that the regulations proposed
in the NPRM would, if implemented, satisfy the intent of the NTSB's
[[Page 19597]]
recommendations. Accordingly, the NTSB supports their adoption.
Discussion of Parts Affected by the Rule
Part 401--Organization and Definitions
Section 401.5 contains definitions of significant terms used in the
FAA's regulations. Proposed amendments include both changes to existing
definitions and the addition of new terms. Certain changes are intended
only to reflect changes resulting from the 1994 codification of the
Act. Others are editorial.
Deletions
The FAA proposes to remove the terms ``Director,'' ``launch
activity,'' ``licensee,'' ``mission,'' and ``safety operations.''
``Director'' no longer constitutes a title related to the FAA's
Associate Administrator for Commercial Space Transportation and is
therefore deleted. ``Launch activity'' refers to activities licensed by
the FAA. The term is overly broad and lacking in specificity.
``Licensee'' is also deleted as a term whose meaning is self-evident.
``Mission'' is no longer necessary because the FAA is modifying and
renaming the mission review contained in part 415, subpart C. ``Safety
operations'' does not appear in the regulations and the FAA has
therefore removed it.
Revisions
Some of the proposed revisions merely reflect the codification of
the Act. These include ``Act,'' ``launch,'' ``launch vehicle,''
``payload,'' and ``person.'' The FAA revises the term ``launch,''
however, not only to reflect the codification of Pub. L. 98-575 and the
Commercial Space Act of 1998, but to clarify that launch, for purposes
of licensing, includes the flight of a launch vehicle and preflight
activities commencing with the arrival of a launch vehicle at a U.S.
launch site as discussed earlier.
As noted in the NPRM, the FAA proposed to change the definition of
``launch vehicle'' to reflect the changes made to the Act when it was
codified in 1994. This rulemaking implements that change. Space Access
provides an interesting analysis of one of the constituent parts of a
launch concerning an element that the NPRM did not address in detail,
namely, that vehicle stages are part of launch. ``Space Access believes
anything that does not achieve orbit should be considered as part of
launch, just like multiple stage boosters are today.'' Space Access at
5. Space Access points out that if the FAA's intent is to cover the
hazardous elements of launch, ``the return of any boosters is
pertinent.'' Id. at 5-6. For these reasons, the FAA's proposed
definition of launch vehicle should clearly encompass ``all physically
connected parts used to propel or to otherwise place [a] launch vehicle
and any payload into an Earth orbit or otherwise in outer space.'' Id.
at 5. Space Access believes that its proposed definition would clearly
encompass first stage boosters that fall back to earth and a carrier
aircraft such as is used to launch a Pegasus. Id.
Under the Act, launch vehicle means ``(A) a vehicle built to
operate in, or place a payload in, outer space; and (B) a suborbital
rocket.'' 49 U.S.C. Sec. 70102(7). Congress chose this definition, and
the FAA designed the new regulatory definition to match the
congressional choice. Space Access fears that the definition could
imply that only the parts of a launch vehicle that reach outer space
are part of a launch vehicle, thus excluding both the carrier aircraft
for an air launch and any vehicle stages that fall back to earth. Space
Access at 5. The definition does not preclude the inclusion of carrier
aircraft or vehicle stages as part of the definition of launch vehicle.
The FAA agrees with Space Access that vehicle stages are included
within the definition of a launch vehicle. It should be noted that
because the definition includes a vehicle that either operates in or
places a payload in outer space, the definition includes the entire
vehicle necessary to accomplish that objective. This necessarily
includes the first and intermediate stages of a launch vehicle.
Therefore, the FAA will not change what it proposed as the new
definition of ``launch vehicle'' with the exception that it will change
``and'' to ``or'' to clarify that a suborbital rocket is also a launch
vehicle.
Additions
New terms include ``Associate Administrator,'' ``federal launch
range,'' ``hazardous materials,'' ``launch accident,'' ``launch
incident,'' ``launch operator,'' ``launch site,'' and ``mishap.''
Although the NPRM proposed ``Office,'' that term is no longer included.
``Associate Administrator'' reflects a change in title of the
person in charge of Commercial Space Transportation within the FAA and
arises out of the transfer of the Office of Commercial Space
Transportation from the Office of the Secretary, DOT, to the Federal
Aviation Administration. The term describes the FAA's Associate
Administrator for Commercial Space Transportation.
``Federal launch range'' means a launch site from which launches
take place that is owned and operated by the government of the United
States. Federal launch ranges include Cape Canaveral Air Station,
Vandenberg Air Force Base, White Sands Missile Range and Wallops Flight
Facility. In its comments, Kistler Aerospace Corporation recommended
that the FAA clarify that only these four facilities constitute federal
launch ranges. The FAA is not prepared to do this, but will reach a
separate accommodation. The FAA agrees that the definition of a federal
launch range should only encompass those federal launch facilities
where the government facilities, services and organization routinely
support launch activities. The four listed above, however, are not the
only current ones, and others could emerge in the future.
The FAA assumes that Kistler's interest in this topic arises out of
its proposed launch plans for the Nevada Test Site, which is not
currently a federal launch range. The Nevada Test Site should not, in
its current operational status, be considered a federal launch range
because the U.S. government does not routinely oversee the launch of
launch vehicles from the site. Although it is true that the U.S.
government has conducted launches from the site, this does not mean
that the Nevada Test Site is a federal launch range for purposes of
this rule because the activities that have occurred there are not
routine. No staff is dedicated to routinely supporting launch activity,
and the FAA is not aware of any permanent launch infrastructure at the
site. Nor is the Nevada Test Site a member of the Range Commander's
Council. Accordingly, the FAA here clarifies its definition by adding
``routinely.''
``Hazardous materials'' mean hazardous materials as defined in 49
CFR Sec. 172.101.
``Launch accident,'' ``launch incident,'' and ``mishap'' all
address related issues. The term ``mishap'' is a general term for all
unplanned events at a launch site or during a launch resulting in
injury, occupational illness, or damage to or loss of equipment or
property. Mishaps include but are not limited to launch accidents and
launch incidents. Launch accidents and launch incidents are types of
``mishaps.'' ``Launch accident'' and ``launch incident'' derive from
the FAA's current definition of ``accident'' and ``incident'' as the
terms appear in the FAA's accident investigation plan. Both terms
encompass unplanned events occurring during flight. ``Launch accident''
is
[[Page 19598]]
defined by the seriousness of the results, and ``launch incident''
focuses on the failure of a safety system or process that may or may
not have caused serious harm. Special reporting and investigation
requirements attach if a launch accident or incident occurs.
``Accident'' is also defined in a Memorandum of Understanding with the
National Transportation Safety Board (NTSB). A launch accident will
entail NTSB involvement. A ``launch incident'' may or may not involve
the NTSB, depending on the seriousness of the safety issues involved.
Other mishaps, such as a mission failure, have fewer reporting and
investigation requirements.
Orbital raised a concern regarding the reporting requirements for a
mishap. Orbital at 5. It noted that, if read literally, section 415.41
would require FAA notification every time a piece of the licensee's own
equipment was damaged. The FAA does not require this and now amends its
definition of mishap from that originally proposed in the NPRM to
include only a launch accident, a launch incident, failure to complete
a launch as planned, or an unplanned event resulting in fatal or
serious injury or greater than $25,000 damage to a payload, a launch
vehicle, a launch support facility, or government property located at
the launch site. The notification requirement has also been modified
for mishaps other than launch accidents and launch incidents. For a
mishap that is not a launch accident or launch incident, or one that
does not involve a fatality, a licensee must notify the FAA within 24
hours of the event. Such mishaps may involve insurance claims or may
uncover flaws in a licensee's safety procedures.
``Launch operator'' is defined as a person who launches or plans to
launch a launch vehicle and any payload.
The definition of ``launch site'' reflects changes resulting from
the codification of the Act and a subsequent revision. The definition
of ``launch site'' in the original Commercial Space Launch Act includes
``facilities located on a launch site which are necessary to conduct a
launch.'' 49 U.S.C. App. 2603(5) (emphasis added). As noted in the
NPRM, the codified definition of ``launch site'' merely included
``necessary facilities'' with no mention of their location. Now,
Congress has remedied that oversight, and the definition of ``launch
site'' means the location on Earth from which a launch takes place and
necessary facilities at that location. 49 U.S.C. 70102(6) (emphasis
added). The FAA correctly proposed to include only those facilities
located at the launch site. In order, however, to reflect accurately
the new language of the codified statute, the FAA's definition of
launch site will not, as proposed in the NPRM, include ``necessary
facilities located at the site,'' but ``necessary facilities at that
location.''
The FAA will not include the term Office in its definitions as
originally proposed in the NPRM. There is greater familiarity with the
term ``FAA'' and the agency believes that its use will result in less
confusion.
Part 411--Policy
The FAA deletes as unnecessary and reserves part 411, which
establishes the policies of the FAA for licensing commercial launch
activities. This part identified how the FAA addressed safety and
mission reviews, which, pursuant to this rulemaking, are addressed in
parts 413, 415 and 417.
Part 413--License Application Procedures
Part 413 continues to describe those license application procedures
applicable to all license applications. As explained by section 413.1,
which clarifies the former section of the same number, the procedures
apply to any application for a license to launch a launch vehicle or to
operate a launch site. These procedures should also be used by a
payload owner or operator requesting a payload review. More specific
requirements applicable to obtaining a launch license or a license to
operate a launch site are set forth in parts 415 and 417, respectively.
The majority of the revisions to this part are editorial or self-
explanatory. A few bear individual mention.
Section 413.3, which renumbers the former section 415.3 and amends
the provision by including operation of a launch site, identifies who
must obtain a license to launch a launch vehicle or to operate a launch
site. Any person proposing to launch a launch vehicle or to operate a
launch site within the United States must obtain a license authorizing
the launch or the operation of the launch site. 49 U.S.C.
Sec. 70104(a)(1). A U.S. citizen or entity proposing to launch outside
the United States or to operate a launch site outside of the United
States must obtain a license authorizing the launch or the operation of
the launch site. 49 U.S.C. Sec. 70104(a)(2). A foreign corporation,
partnership, joint venture, association or other foreign entity
controlled by a U.S. citizen and proposing to launch from, or to
operate a launch site within, international territory or waters must
obtain a license if the United States does not have an agreement with a
foreign nation providing that the foreign nation shall exercise
jurisdiction. 49 U.S.C. Sec. 70104(a)(3). A foreign corporation,
partnership, joint venture, association or other foreign entity
controlled by a U.S. citizen does not require an FAA license to launch
from foreign territory, unless that foreign nation has agreed that the
United States shall exercise jurisdiction over the launch. 49 U.S.C.
Sec. 70104(a)(4).
Section 413.5, which renumbers and amends the former section 413.3,
requires a prospective applicant to consult with the FAA prior to
submitting an application. Pre-application consultation is now
mandatory in order to allow both an applicant and the FAA the
opportunity to identify potential issues relevant to the FAA's
licensing determination. Pre-application consultation does not possess
a formal structure or timetable. Nor does it require personal meetings.
For many proposals consultations may be made by telephone, electronic
mail or other means.
Pre-application consultation is intended to provide an efficient
and effective process leading to the development of a substantially
complete application. It should also ensure that an applicant is aware
of the responsibilities of a licensee. Pre-application consultation
allows a prospective applicant to familiarize the FAA with its proposal
and the FAA to familiarize the prospective applicant with the licensing
process. It has been the FAA's experience that pre-application
consultation helps speed the overall licensing process by ensuring that
any unique safety issues are uncovered early. It also avoids
potentially wasted efforts by a prospective applicant in preparation of
an application. For new launch concepts, the pre-application process
allows a prospective applicant and the FAA's Commercial Space
Transportation Licensing and Safety Division to identify the most
efficient process for the applicant to demonstrate the safety of any
proposed launch. Experience shows that this often is best carried out
through a series of meetings, and other interchanges, each focusing on
different issues. The schedule and order of such discussions is nearly
always driven by a prospective applicant's concept, issues and
schedule. In all cases, the FAA encourages the proposed applicant to
submit, as part of the process, application material in draft, and the
FAA will review and provide feedback on the content.
Although the FAA will answer general questions regarding the
licensing process at any time, the pre-
[[Page 19599]]
application process is best begun when a prospective applicant is ready
to discuss specific application requirements or to begin preparation of
an application. At this time, the Licensing and Safety Division will
assign a primary staff engineer who will be responsible for working
with the prospective applicant. Typically, a second engineer is also
assigned to track the project and to be available should the primary
engineer not be available. Other support staff may also be assigned to
help in specialized areas such as environmental reviews.
Section 413.7, which renumbers and amends the former section 413.5,
contains a change in the name of the entity regulating commercial space
transportation. Effective November 15, 1995, the DOT Office of
Commercial Space Transportation became a part of the Federal Aviation
Administration, where it now operates as the FAA's seventh line of
business. With that move, the name was changed from the Office of
Commercial Space Transportation to that of the Associate Administrator
for Commercial Space Transportation. Section 413.7(a), which directs an
applicant where to file an application, reflects that change, as well
as the new address. Section 413.7(b)(2) requires an applicant to
provide the FAA with one or more points of contact to receive notices
from the FAA.
Section 413.9, which renumbers the former section 413.7, describes
how an applicant may request confidential treatment for trade secrets
or proprietary commercial or financial data. The treatment of
confidential information is governed by applicable law, including the
Freedom of Information Act.
Section 413.11, amending former section 413.9, describes the
process by which an application is accepted or rejected. Section
413.11(a) provides for an initial screening of an application in order
for the FAA to determine whether the application is sufficiently
complete to allow the FAA to initiate the required reviews. The Act
requires the FAA to complete its evaluation of an application within
180 days. The FAA determines when an application is sufficiently
complete for the 180 days review period to commence and how those 180
days will be measured. If the FAA receives an application that fails to
provide sufficient information for the FAA to commence a meaningful
review, then a review cannot be performed. The FAA returns applications
that are not substantially complete, noting the areas of deficiency.
Accordingly, the 180-day review period will start to run only upon
receipt of an acceptable application.
The FAA considered the option of not commencing any review of an
application and thus of not starting to count the 180-day statutory
time limit until the application was complete in order to ensure that
the FAA did not receive piecemeal applications. The FAA also considered
rejecting or denying an incomplete application, which would also
prevent the 180-day review period from commencing. Instead, the FAA
determined that if an applicant presented sufficient material to allow
at least some meaningful review to commence, the FAA would do so in the
interests of the applicant. Commencing the review of even an incomplete
application should allow for earlier identification of required
information not addressed, hasten the process and increase efficiency.
In order for the FAA to review an application, however, the
application must be sufficiently complete to allow review to commence.
Accordingly, under section 413.13, the FAA's acceptance of an
application does not constitute a determination that the application is
complete. That section now contains an additional provision that was
not explicit in the NPRM. The new provision clarifies that the FAA may
ask for additional information in the course of the licensing process.
It states that if, in addition to the information required by the
applicable parts of 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 activity,
an applicant shall submit the additional information required to show
compliance with this chapter. The FAA anticipates that there will be
situations where an applicant's proposal contemplates activities,
vehicle configurations or technologies not envisioned in the course of
this rulemaking. In that case, it is necessary for the regulations to
reflect clearly the FAA's authority to request additional information
prior to issuing a license.
Although review of an incomplete application may commence, section
413.13 requires an applicant to complete an incomplete application, and
section 413.15 allows for tolling in the event an applicant does not
submit the remaining material in sufficient time to avoid affecting the
evaluation process. Section 413.15, a new provision, tolls, or stops
the clock of, the review period of 180 days when an applicant fails to
provide information required for the FAA to complete its review.
Although the FAA will commence its application review once it receives
a substantially complete application, the fact that an application is
only substantially complete means that more information may be required
before the application is entirely complete. If an application does not
address requests for required information in sufficient detail, or if
the application contains inconsistencies, the FAA will advise the
applicant and provide a time by which the requested information must be
provided. Once the deadline has passed, and while the FAA waits for any
information necessary to complete its review, the 180-day time limit on
the FAA does not run. The FAA considered the option of denying a
license and returning the application for resubmission if the requested
information were not submitted within the time provided. Because of the
new submission of the application, a new 180-day review period would
commence. This course would provide the applicant a strong incentive to
respond to the FAA's information request in a timely fashion, and,
perhaps, result in the processing of only those applications where the
applicant possesses the actual capacity to respond. This would
discourage frivolous applications. The FAA determined, however, that
most applicants, provided with information regarding how soon the FAA
would require information necessary to complete a review, would respond
in the time allotted. Thus, so extreme an incentive would not be
required. However, it has been the FAA's experience that applicants do
not always respond in a timely fashion to requests from the FAA for
clarification or additional information. Accordingly, some incentive to
respond promptly is necessary, and in the event an applicant fails to
respond within the time provided, the FAA will toll the 180-day
statutory review period.
Both Orbital and Rotary Rocket objected to this provision. Oribital
at 5; Rotary Rocket at 5. Neither, however, proposed a different
solution for addressing the problem of an applicant not supplying
requested information in a timely fashion. For the reasons discussed
above, the FAA adopts the tolling provision.
Section 413.17, which renumbers and amends former section 413.19,
describes an applicant's responsibility for the continuing accuracy and
completeness of the information contained in the applicant's license
application. Orbital objects to requiring that an applicant update its
application any time it is no longer accurate and complete in all
respects, and recommends retaining the
[[Page 19600]]
language of former section 413.19. Orbital at 6. The FAA agrees that it
need not be advised of any and all changes, and will therefore
incorporate a materiality standard. An applicant should note, however,
that the FAA considers a great majority of the information required for
an application to be material. Otherwise, the FAA would not require
that information. An applicant must advise the FAA in a timely manner
of any proposed material change in any representation contained in its
application, including, without being limited to, its launch plans or
operations, launch procedures, classes of payloads, orbital
destinations, safety requirements, the type of launch vehicle, flight
path, launch site, and launch point, or any safety related system,
policy, procedure, requirement, criteria or standard, related to
commercial space launch or launch site operation activities, that may
affect public health and safety, the safety of property, including
government property, or hazards to the environment. Because the FAA
proposes to rely upon federal launch ranges for launches from those
sites, an applicant must also notify the FAA in a timely manner in the
event the applicant applies to the federal range for a waiver to, or
deviates from the federal range's safety requirements or procedures.
Changes to an application may lengthen the time that the FAA
requires to complete its reviews in support of a license determination.
The FAA will reserve to itself the right to toll the 180-day review
period in the event that any amendment to an application so radically
changes the applicant's proposal that the change, in effect,
constitutes a new application. The FAA's experience, however, has been
that most amendments, while important, have a relatively minor impact
on the processing time, particularly if those amendments are submitted
in a timely manner.
Section 413.19 addresses issuance of a license.
Section 413.21 contains the procedures employed by the FAA when it
denies an applicant a license, and describes the recourse available to
that applicant. An applicant may attempt to correct the deficiencies
that resulted in the denial of its application and request
reconsideration of its application, or it may request a hearing to show
why the application should not be denied.
Section 413.23 allows a licensee to apply for renewal of an
expiring license. A licensee seeking authorization to conduct
activities that are substantially different from those authorized under
the expiring license is not eligible for renewal of the license and
must apply for a new license.
Part 415--Launch License
Part 415 establishes requirements applicable to obtaining a license
to launch a launch vehicle and establishes post-licensing requirements.
The provisions of this part apply to prospective and licensed launch
operators and to prospective payload owners and operators, and should
be read in conjunction with the general application requirements of
part 413. This part replaces and amends the former part 415. A flow
chart of the launch license application process is provided in Figure
1.
Subpart A describes the scope and types of launch licenses,
required approvals or determinations, and procedures governing issuance
or transfer of a launch license. Like the former section 415.1, the new
section 415.1 explains that part 415 prescribes requirements for
obtaining a launch license and adds that it prescribes post-licensing
requirements. Section 415.3, a new provision arising out of this
rulemaking, addresses the types of launch licenses issued, as discussed
previously.
Sections 415.5 and 415.7 identify the approvals and determinations
required to qualify for a launch license. These sections require a
license applicant to obtain policy and safety approvals from the FAA.
Section 415.7 constitutes an administrative change, although the FAA
has conducted payload reviews in the past. This provision requires an
applicant to obtain a payload determination unless the payload is
otherwise exempt from FAA consideration. The owner or operator of the
proposed payload may also apply for a payload determination. Only a
launch license applicant may apply for safety and policy approvals,
and, as with former section 415.5, may apply for either approval
separately and in advance of submitting a complete license application.
An applicant applying for a separate approval should note, however,
that some of the information described as required for one approval may
be necessary for a different approval. In order to avoid duplication,
the FAA is requesting only once material that is relevant to more than
one review. For example the information required by section 415.25 is
germane to an FAA safety review although it is also pertinent to a
policy review.
In addition to the approvals and determinations that the FAA
requires of an applicant for a launch license, an applicant should bear
in mind that the National Environmental Policy Act (NEPA) requires the
FAA, prior to considering a license application, to perform
environmental reviews of major federal actions such as issuing a launch
license. Accordingly, if a proposed launch vehicle is not otherwise
already encompassed by a 1986 Programmatic Environmental Assessment of
Commercial Expendable Launch Vehicle Programs, then NEPA may direct the
FAA to perform an additional environmental review. No other approvals
or determinations are required from the FAA in order for an applicant
to obtain a license for launch of a launch vehicle.
This subpart also contains new provisions for issuance and transfer
of a launch license. Once an applicant has obtained all required
approvals, the FAA will issue a launch license under section 415.9.
Section 415.11, a new provision, allows the FAA to modify a launch
license at any time by modifying or adding terms and conditions to the
license to ensure compliance with the Act and regulations. Although
standard license terms and conditions, contained in subpart E, apply to
all licensees, it is the experience of the FAA that a particular
licensee's launch may present unique circumstances which apply only to
that licensee. In that event, the FAA may issue or modify a license
with terms and conditions not identified in subpart E to protect public
health and safety, safety of property, U.S. national security and
foreign policy interests, or international obligations of the United
States. A licensee may also initiate license modification.\10\
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\10\ Should a licensee wish to protest an FAA modification of
its license, it is entitled to a hearing pursuant to section
406.1(a)(3) of part 406. In the event safety requires that
additional terms and conditions be applied to all licensees, the FAA
would revise subpart E by rulemaking to implement any such
standardized terms. As provided in part 415, a licensee may request
modification of its license to reflect changes in its proposed
launches.
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Under section 415.13, a new provision, only the FAA may transfer a
license, and only upon application by the transferee. The prospective
transferee must satisfy all requirements for obtaining a license as
specified in parts 413 and 415.
Subpart B describes the requirements for a policy review. To date a
policy review has been known as a mission review under former sections
415.21-415.25. Because the FAA now separates a payload determination
from any mission review, it is changing the name of the review to
policy review to more accurately identify its purpose. Under sections
415.21 and 415.23, a policy
[[Page 19601]]
review addresses whether some aspect of a proposed launch presents any
issues affecting U.S. national security or foreign policy interests or
is inconsistent with international obligations of the United States.
Specific launch safety issues will be addressed only in a safety review
although the FAA will address payload safety issues in the course of a
payload determination. Only a launch license applicant may request a
policy approval. An applicant must provide the information required by
subpart B so that the FAA may review those aspects of an applicant's
launch proposal that are not related to safety. The FAA coordinates
this review with other government agencies, including the Departments
of Defense, State, and Commerce, the National Aeronautics and Space
Administration and the Federal Communications Commission. Space Access
questioned the inclusion of NASA in the policy review. Space Access at
12. Space Access states that NASA does not determine U.S. national
security, foreign policy or questions of international obligations. Id.
The FAA's experience has been that NASA, as the primary civilian
government launch operator, often offers insights of value with respect
to issues of concern. The FAA plans to continue to consult with NASA
for a number of reasons. NASA has a long history of launching
expendable launch vehicles, and currently operates the Space Shuttle.
NASA also operates a federal launch range . NASA procures launch
services from the private sector for a wide range of satellites and
space probes. Also, NASA has programs and assets that it may wish to
bring to the FAA's attention in the context of a particular launch.
Accordingly, NASA will remain one of the agencies regularly consulted
regarding any launch license application.
An applicant may choose to submit an application for policy review
separately from its license application, or, as do most applicants, it
may submit a complete license application. The FAA will allow separate
submission of a request for a policy review because of the possibility
that an applicant might be uncertain about policy issues surrounding
its proposal, and might wish to allay concerns over reactions to any
proposed launch. An applicant might then request only a policy review
prior to undertaking the additional effort necessary to prepare a
complete license application. Past experience indicates that the FAA
accomplishes these reviews relatively quickly in comparison with a
safety review.
Section 415.25, a new provision, describes the information an
applicant must provide to obtain a policy approval. As described in the
NPRM, the information required reflects current FAA information
requests. The FAA requires this information in order to inform it and
other agencies of what is being launched, by whom, for what purpose,
and where a vehicle and its payload are going. The State Department,
for example, may identify overflight issues regarding particular
countries.
Accordingly, the FAA requires that an applicant supply sufficient
information to describe a proposed launch vehicle and its mission. The
information requested by paragraph 415.25(b) is required in the event
there are any policy issues surrounding the launch vehicle itself. The
FAA requires a brief description of the launch vehicle, including the
propellants used and the vehicle's major systems, such as its
structural, pneumatic, propulsion, electrical or avionics systems.
Policy questions may arise, for example, over the use of nuclear power,
or the Department of Defense may have concerns over the allocation of
resources to a commercial launch if a sole source manufacturer is
involved.
The information requested by paragraph 415.25(c)(2), that an
applicant identify any foreign ownership interests of 10% or more means
that an applicant must identify any foreign owner possessing a ten
percent or greater interest in a license applicant. This provision is
intended to provide the FAA and the Departments of State and Defense
the identities of foreign interests involved in a licensed launch. The
Departments of State and Defense have interests in foreign involvement
in the U.S. launch industry, including, for example, issues surrounding
technology transfer and national security. The FAA believes that a ten
percent ownership interest is sufficiently high for a foreign owner to
be able to influence a prospective licensee. The FAA is aware that a
publicly traded corporation will not always know the identity of each
of its smaller shareholders. However, such an applicant should be aware
of any shareholders possessing that significant an interest in the
corporation. Reporting requirements of the Securities and Exchange
Commission and the Department of Defense are often triggered by an
ownership interest of ten percent or even less, and the FAA believes
that this constitutes a reasonable threshold.
Through the comment process, Kistler Aerospace Corporation and
Lockheed Martin Corporation requested that the FAA not require an
applicant to identify its foreign ownership interests. Kistler at 10;
Lockheed Martin at 7. Kistler recommended that the FAA require,
instead, a statement from the applicant that it is in compliance with
all federal requirements governing foreign ownership in certain
sensitive industries under 50 U.S.C. Secs. 1701 et seq. and 31 CFR Part
800. Kistler notes that the Treasury Department examines and passes
upon foreign involvement in sensitive industries such as the launch
industry. Thus, according to Kistler, the FAA's information
requirements concerning foreign ownership would be duplicative.
Lockheed Martin maintains that the FAA offers an insufficient
explanation regarding the purposes of obtaining the information.
The statutory and regulatory provisions upon which Kistler relies
for its argument do address certain elements of foreign ownership, but
address a more narrow area of concern than identified in the Act. The
provisions of 50 U.S.C. ch. 35--International Emergency Economic
Powers, Secs. 1701-1706, apply to the President's exercise of authority
in a national emergency. The FAA, on the other hand, may apply the
information on a more routine basis, and for its own purposes. For
example, the FAA has occasion, as with Sea Launch, to determine whether
a U.S. citizen controls a license applicant for purposes of
ascertaining whether the launch operator requires a license. Nor do the
regulations Kistler cites address all forms of foreign ownership. On
its face, part 800 only applies to mergers, acquisitions and takeovers
by foreign persons. 31 CFR Part 800. There are transactions that are
not acquisitions under part 800. See 31 CFR Sec. 800.302 and examples
provided. In light of the fact that not all foreign ownership receives
scrutiny under part 800, the FAA finds that its information
requirements concerning foreign ownership will not duplicate those of
the Treasury. The FAA also takes note of the fact that part 800 does
not alter or affect any other reviews. Accordingly, because the FAA
itself may require the information regarding foreign ownership in order
to determine whether a U.S. citizen exercises control over an
applicant, because the Departments of State and Defense have interests
in foreign ownership issues, and because the Treasury regulations do
not address all forms of foreign ownership, the FAA adopts paragraph
415.25(c)(2) as proposed.
Section 415.25(d)(2) requires an applicant to identify proposed
vehicle flight profiles. Space Access maintains
[[Page 19602]]
that compliance may be difficult when planning large numbers of
launches. To date, it has been the experience of the FAA that
compliance is possible. An applicant may satisfy this requirement by
providing a range of proposed flight azimuths, trajectories, ground
tracks, and instantaneous impact points. Launch frequency should not
affect an accurately identified range of flight profiles. In any event,
this same information is also used by the FAA in its safety review and
is critical to assessing public risk.
Section 415.25(d)(3) requires information regarding the sequence of
major launch events during flight. In this regard, the FAA expects to
be informed of events such as approximate engine burn times of all
stages, stage separation events, pitch and yaw maneuvers and engine
cutoff. An applicant may provide this information through a text
explanation or through diagrams and charts.
Section 415.25(d)(4) requests a description of the range of nominal
impact areas for all spent motors and other discarded mission hardware.
The area identified for each impacting component shall include that
area within three standard deviations of the nominal impact point, a
calculation otherwise known as a 3-sigma footprint.
Section 415.27 contains procedures employed by the FAA when it
denies an applicant a policy approval and describes the recourse
available to that applicant. If an applicant fails to obtain a policy
approval, the applicant may attempt to correct the deficiencies which
resulted in the denial and request reconsideration of the denial, or,
upon denial of a license, it may request a hearing. The final version
of this provision differs slightly from what the NPRM proposed. The
NPRM stated that an applicant who was denied a policy approval could
reapply. In order to avoid confusion, the provision now permits an
applicant to request the FAA's reconsideration of its denial. This
makes clear that the FAA need only reconsider an issue once rather than
an unlimited number of times. The particular issue in controversy may
serve as one of the reasons for requesting a hearing before an
administrative law judge after denial of a license.
BILLING CODE 4910-13-P
[[Page 19603]]
[GRAPHIC] [TIFF OMITTED] TR21AP99.000
BILLING CODE 4910-13-C
[[Page 19604]]
Subpart C addresses the FAA's safety evaluation process for license
applications for launch from a federal launch range. This subpart is
new and replaces the former subpart B--Safety Review, 14 CFR 415.11-
415.17. Because of the history and safety record of the federal launch
ranges, and because the FAA's baseline assessments provide a written
record of the federal launch range's experience relevant to commercial
space transportation, the FAA accepts that a federal launch range will
perform its safety role. Accordingly, the FAA's information
requirements are directed more toward an applicant's own safety
capabilities and its integration with a federal launch range's safety
organization. The FAA requires information regarding an applicant's
safety organization, vehicle design and operational safety practices.
This subpart includes standards regarding acceptable flight risk and
requires an applicant to submit procedures and plans that demonstrate
that it will satisfy certain other safety requirements if it obtains a
license.
The FAA recognizes that federal launch ranges provide a number of
safety services for launch operators, and that these sites have an
historically good record of safety. Section 415.31 explains that the
FAA will issue a license to an applicant proposing to launch from a
federal launch range if the applicant satisfies the requirements of
subpart C and has contracted with the federal launch range for the
range to provide launch services and property, as long as the safety
related launch services and proposed use of property are within the
experience of the federal launch range. All other safety services and
property associated with an applicant's proposal are evaluated on an
individual, case by case basis.
The FAA has assessed the four federal launch ranges which provide
launch services and facilities. The federal ranges assessed include
Cape Canaveral Air Station, Vandenberg Air Force Base, Wallops Flight
Facility and White Sands Missile Range. The FAA does not duplicate
federal launch range analyses or routinely review those analyses during
the launch safety review conducted by the FAA. Instead, the FAA relies
on its knowledge of the range processes as documented in the FAA's
baseline assessments. The FAA's assessments provide a basis for the
FAA's reliance on the adequacy of the services provided by each of the
federal launch ranges. Some safety issues, however, may not be
adequately addressed by a federal launch range. The failure of federal
launch range safety systems or procedures may, for example, affect the
FAA's ability to rely on a federal launch range. The FAA may ascertain
this during the course of a pre-application consultation or once an
applicant submits its application, or through its communications
regarding launch activities with the federal ranges. The FAA may then
require the applicant to demonstrate safety with respect to those
specific areas of concern on an individual or case by case basis. In
addition to requiring a showing of safety from the applicant, the FAA
will also work with the federal launch range to address the issue, and
will update the FAA's baseline assessment as appropriate.
The FAA also makes maximum use of the information an applicant must
provide a federal launch range. The applicant, to save paperwork, may
submit to the FAA either entire, or appropriate sections of, documents
it prepares and submits to a federal launch range that are relevant to
the applicant's launch application. It has been the FAA's experience
that because information requested by federal launch ranges provides
greater detail than the FAA requires, the FAA's requirements may be
satisfied by this material.
Section 415.33 requires an applicant to document its safety
organization. An applicant must possess a functioning safety
organization because an applicant cannot ensure safety without someone
designated as responsible for safety issues. The FAA will evaluate
whether the structure, lines of communication, and approval authority
an applicant establishes will enable the applicant to identify and
address safety issues and to ensure compliance with the requirements of
range safety and the FAA's regulations. How a federal launch range's
safety services are integrated with the licensee is also relevant. The
FAA expects that for launches from federal launch ranges an applicant
will structure its safety organization to ensure compliance with
federal launch range requirements, such as, for example, Eastern and
Western Range Regulation 127-1 for Air Force launch ranges. The FAA
believes that charts are the most efficient way to depict much of the
required information, and encourages applicants to include one or more,
as appropriate, organizational charts that will delineate the lines of
communication and the internal decision making process. The lines of
communication must depict the lines of communication within the
applicant's organizational structure, and between the applicant and any
federal launch range providing launch services. In providing this
information, the applicant should include those services of the federal
launch range upon which the applicant proposes to rely, and those of
any other organization providing flight safety services. The
applicant's description must include interfaces with the federal launch
range and should explain how the safety policies and procedures of all
segments of the safety organization identified above will be
implemented.
Section 415.33(b) requires an applicant to have a safety official
possessing authority to examine launch safety operations and to monitor
independently personnel compliance with safety policies and procedures.
In order to keep safety concerns separate from mission goals, the
person responsible for safety should have the ability to perform
independently of those parts of the applicant's organization
responsible for mission assurance, and should also have the authority
to report directly to the licensee's personnel in charge of licensed
launches. The safety official should be identified by name, title or
position, and by qualifications.
Orbital suggests that a safety official should not be required to
report to someone who has a vested interest in the outcome of the
launch. Orbital at 7. According to Orbital, such a person might be in a
position to exert undue influence or pressure on the safety official.
Id. When it proposed this requirement, the FAA intended just the
opposite. The FAA intended that the safety official have authority to
report directly to the person in charge of licensed launches in order
to ensure that safety decisions were made at appropriately elevated
levels, rather than becoming low priority issues buried in the lower
levels of an organization. As noted in the NPRM, the FAA intends the
reporting to ensure that the person responsible for the licensed launch
ensure that all of a safety official's concerns are addressed prior to
launch. Accordingly, because both the safety official and the person
responsible for licensed launch possess safety obligations, no conflict
of interest should exist. The FAA also believes that this decision
reflects a reality within industry, namely, that the person in charge
of mission success may well make final decisions regarding safety. The
regulations impose safety obligations on that individual as well.
Space Access also questioned this provision, querying the value of
an applicant identifying the qualifications of a safety official's
position. Space Access believes that this could result in an applicant
identifying the qualifications of the position even though the
individual performing the
[[Page 19605]]
job is not qualified. In order to clarify the FAA's intent, section
415.33(b) now states that an applicant shall identify the safety
official by name, title, and qualifications. An applicant must show
that there is a relationship between the individual's experience and
responsibilities. The FAA agrees with Space Access that a safety
official's experience be provided. The FAA will not at this time impose
requirements governing the particulars of a person's education and
years of experience. Instead, it will rely on the performance standard
articulated in 415.33(b).
Although risk is inherent in the launch of a launch vehicle,
section 415.35, which is promulgated through this rulemaking,
establishes limits on how much risk the FAA will allow for a licensed
launch. The FAA has clarified this section from that originally
proposed in the NPRM to better describe the FAA's expected casualty
(Ec) measure of risk by deleting ``the probability of
occurrence'' and including mention of suborbital launch vehicles. The
FAA is also classifying the scope of the hazards addressed. An
Ec measure reflects risk from debris, not from toxic
releases or blast overpressure, which the federal launch ranges handle
through other means. Additionally, the proposed term ``collective
risk'' in the second sentence is now deleted to state more specifically
that an applicant's proposed launch shall not exceed an expected
average number of 30 casualties in one million launches. This phrasing
still describes collective risk, but with more precision. With these
clarifying editorial changes, the FAA now adopts its measure of
acceptable risk of Ec 30 x 10-6 per
launch.
The FAA received comments regarding its proposed risk threshold.
Boeing supported the FAA's proposal. Boeing at 1. Space Access argued
that the Ec was insufficiently strict, and should be
compared to involuntary rather than voluntary risk. Space Access
recommended an individual risk threshold of Ec 1
x 10-7. Space Access at 11. The FAA anticipates that a
better explanation of what Ec measures and the differences
between individual and collective risk will respond to Space Access'
arguments against an Ec of 30 x 10-6. In short,
when expressed in terms of individual risk, the FAA's collective risk
measure satisfies the concerns voiced by Space Access. Space Access
also maintains that a comparison to voluntary risk is inappropriate and
that involuntary risk provides the better measure. The FAA, however,
like the Air Force, defines background risk as the risk voluntarily
accepted in the course of day to day activities, and finds that
voluntary risk provides an acceptable basis of comparison for
determining acceptable risk. Moreover, even when compared to
involuntary risk, as Space Access recommends, if the FAA's collective
risk measure is described in terms of its individual risk counterpart,
the measure compares favorably.
Section 415.35(a) requires that acceptable flight risk through
orbital insertion for an orbital launch vehicle, and through impact for
a suborbital launch vehicle, be measured in terms of collective risk.
Pursuant to section 415.35(a), the collective risk associated with
debris from an applicant's proposed launch, measured by casualty
expectancy, shall not exceed 0.00003 (30 x 10-6)
casualties per launch. Ec represents the FAA's measure of
the collective risk to the population exposed to the launch of a launch
vehicle. The measure represents the expected average number of
casualties for a specific launch mission. In other words, if there were
thousands of the same mission conducted and all the casualties were
added up and the sum divided by the number of missions, the answer and
the mission's expected casualty should statistically be the same. This
Ec value defines acceptable collective risk.11
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\11\ The Ec value adopted originated with the Air
Force's stated measure of acceptable risk. ``Eastern and Western
Range 127-1 Range Safety Requirements,'' Sec. 1.4(d), 1-12 (Mar. 31,
1995). Space Access brought a number of risk levels to the FAA's
attention, requesting that the FAA reconcile the apparent
discrepancies between those risk levels, including the agency's own
past descriptions of risk levels, and the FAA's proposed risk
measure. A rulemaking is the appropriate mechanism for the FAA to
adopt new standards. Thus, although the FAA now adopts a standard
different than those its earlier reviews described, this rulemaking
provides the forum for doing so. The conflicts Space Access
identifies stem, in relevant part, from the fact that the risk
figures Space Access cites pre-date the Eastern and Western Ranges'
publication of an acceptable risk threshold of Ec
30 x 10-6. For example, although it is true
that DOT's ``Hazard Analysis of Commercial Space Transportation''
(1988) (``DOT Hazard Analysis'') states that the Department of
Defense (DOD) ranges do not have published standards for acceptable
levels of public risk, DOD's Eastern and Western Ranges have since
published the risk criteria on which the FAA now bases its own
measure. Likewise, ``Financial Responsibility for Reentry Vehicle
Operations,'' DOT, 27 (May 1995) describes general background risk
as 1 x 10-6 per year. Prior to 1990, a collective risk
of Ec 1 x 10-6 was thought to be
the typical safety level at the DOD ranges. However, studies using
the most up to date models for predicting risk, undertaken to
support the effort by the Eastern and Western Ranges to adopt a
common standard showed that this was not always the case. The Air
Force eventually published an Ec 30 x
10-6 in 1995 instead. Again, the ``Commercial Launch
Baseline Assessment for US Air Force Western Space and Missile
Center'' DOT, 79, Sec. D.7.e (Jul. 1989) states that Ec
should lie between 1.9 x 10-7 and 4.6 x
10-7. The referenced passage was a relatively simple
calculation of risk in the launch area for a representative launch,
and provides an example of the risks rather than a worst case limit.
This estimate today proves low with the availability of more
accurate data.
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Collective risk is estimated prior to launch, and constitutes the
sum total launch related risk to that part of the public exposed to the
hazards of a launch. The public includes everyone except launch
personnel. Government personnel who are not essential to a launch are
defined as the public for purposes of measuring acceptable risk.
The FAA's standard derives from launch risk guidance employed by
the Air Force at its Eastern Range, Cape Canaveral Air Station, and its
Western Range, Vandenberg Air Force Base, to define acceptable risk.
The FAA adopts this standard because the FAA believes that commercial
launches should not expose the public to risk greater than normal
background risk, which the FAA defined in its NPRM as those risks
voluntarily accepted in the course of normal day-to-day activities. The
FAA is using the Air Force standard because it reflects the standard
already in place for the majority of commercial U.S. launches, and for
the majority of government launches of vehicles of a comparable size.
No casualties arising out of a government or commercial launch have
occurred to the public under this standard. It is the FAA's
understanding that although the Air Force published this figure in
1995, it did so because it found that this figure best represented
historical launch risk levels.
The FAA is aware that the Air Force implements this standard as
``acceptable launch risk without high management (Range Commander)
review.'' ``Eastern and Western Range 127-1 Range Safety
Requirements,'' Sec. 1.4.1, 1-12. This means that based on national
need and the approval of a range or wing commander the Air Force may
allow a launch with a predicted expected casualty risk of greater than
30 x 10-6. Id. As mentioned in the NPRM, the FAA
recognizes that many commercial launches carry government payloads, and
that there may be a national need to launch a critical national payload
with a predicted launch risk of greater than 30 x 10-6. An
applicant proposing to launch a government payload, where the launch
would not meet the FAA's risk requirement, would have to request a
waiver from the FAA and show that national need warranted waiver of
this standard. The FAA would work with any government payload owner or
operator to resolve such an issue. The FAA establishes this standard,
however, for all commercial launches, so that the
[[Page 19606]]
general public will not be exposed to a higher than normal risk from a
commercial activity.
The FAA also recognizes that the federal launch ranges may perform
separate Ec analyses for three different hazard categories,
including debris, toxic releases and blast overpressure. When the FAA
relies on a federal launch range's Ec analysis to determine
whether the FAA Ec requirement is met, the FAA is interested
only in the debris analysis performed by a range, and this provision
makes that clear. For toxic releases and blast overpressure, the
federal launch ranges implement specific safety requirements designed
to keep toxic releases and the effects of blast from reaching the
public. For example, if more than a given number of parts per million
of a toxic release would reach people, a launch will be delayed until
conditions improve. Likewise, if atmospheric effects threaten to carry
overpressure impact to persons outside the federal launch site, a
launch will be delayed. Because these measures achieve safety, the FAA
will rely on them rather than implementing an Ec analysis
requirement for toxic releases and blast overpressure.
Space Access raised the question of whether an Ec of 30
x 10-6 meant that if an accident occurred and 100,000
people were exposed then 3 deaths would occur. Space Access at 8. The
FAA wishes to take advantage of this opportunity to clarify the
concepts involved. Ec is the expected average number of
casualties per launch of a launch vehicle. The consequence measured is
casualties, which includes serious injury as well as deaths, and the
measure is per event, namely, launch. Space Access based its question
on the assumption that 30 x 10-6 is ``3 per 100,000''
persons. That Ec is a measure of casualties rather than
deaths aside, expected casualty is measured for each event, which, in
this case is a single launch. Although Space Access is, of course,
correct that an Ec of 30 x 10-6 is equivalent
to 3 per 100,000, the 100,000 refers not to exposed persons, but to the
number of launches that would have to be conducted before one would
expect statistically that total number of casualties. One would have to
launch 100,000 times to statistically reach 3 casualties.
Space Access sought clarification on the differences between
individual and collective risk. In contrast to the more familiar
measure of risk, namely, individual risk, which describes the
probability of serious injury or death to a single person, the launch
industry's common measure of risk is collective risk. Collective risk
constitutes the sum total launch related risk, that is, the probability
of injury or death to that part of the public exposed to a launch.
Collective risk is analogous to an estimate of the average number of
people hit by lightning each year, while individual annual risk would
be an individual's likelihood of being hit by lightning in any given
year. Collective risk may be expressed in terms of individual risk if
certain factors associated with any given launch are taken into
account. Also, individual risk may be--and will be, in most instances--
less than collective risk, depending on the size of the population
exposed. For example, a collective risk of Ec of 30 x
10-6 for a defined population of one hundred thousand people
exposed to a particular launch results (assuming the risk is spread
equally throughout the defined population) in a probability of injury
or death to any one individual exposed of 3 x 10-10 (three
per ten billion).
In its comments, Space Access argued for a stricter standard on the
basis of what it understood to be other measures of risk. Space Access
analyzed the FAA's proposed measure in terms of two categories:
background risk, which may be further categorized as a combination of
voluntary and involuntary risk, and other launch risk thresholds.
Contrary to the contentions of Space Access, the FAA finds that the
comparison to voluntary risks is appropriate. Even, however, when
compared to involuntary risk, if the risks of launch are expressed in
terms of individual risk, launch risk usually compares favorably. In
fact, it is possible to have an unacceptably high expected casualty
value while still having an extremely low individual risk level.
Space Access inquired whether the proposed standard appropriately
reflects risk levels voluntarily accepted by the public in normal daily
activity. Voluntary risk provides an appropriate comparison. The FAA
defines background risk in the context of its statutory mandate to
regulate and facilitate the commercial launch industry. Congress has
chosen to accept the risk of launch in order to reap the benefits
attendant to the activity. Recognizing that this country has decided to
accept these risks, the FAA believes, as the federal launch ranges do
(see ``Eastern and Western Range 127-1 Range Safety Requirements'',
Sec. 1.4(d), 1-12), that it is appropriate to compare launch risks to
other measures of voluntary risk. A recent study proves helpful for
making that comparison. See Acceptable Risk Criteria for Launches from
National Ranges: Rationale, Rep. No. 97/350-2.1-01, ACTA, for the
Department of the Air Force, 30th and 45th Space Wings (Sept. 1997)
12. ACTA estimated the average annual accidental fatality
probability for any individual, which is defined as all accidental
causes of death. ACTA estimated the fatality probability by adding the
estimated annual individual fatality probability from accidents outside
the home and the reported annual individual fatality probability from
accidents in the home. This excludes risk of disease. ACTA estimated a
total risk of 2 x 10-4. Id. at 18. The FAA's measure of
acceptable risk for casualties may be as much as four orders of
magnitude lower than this accident death risk. The comparison may only
be made, of course, by translating the FAA's collective risk measure
into individual risk and by employing the same time scale for both. If
the comparison is made on an annual basis, and the example of an
exposed population of 100,000 persons continues to be employed, then
individual risk for a launch is, as mentioned earlier, 3 x
10-10. Assuming 100 launches per year, then the individual
annual risk results in a figure of 3 x 10-8, which is four
orders of magnitude lower than the risks, both voluntary and
involuntary, of day to day activity.
---------------------------------------------------------------------------
\12\ ACTA prepared this study in support of Range Commander's
Council Standard 321-97, which articulates federal launch range
policies and criteria for protection of personnel, aircraft, ships,
and spacecraft.
---------------------------------------------------------------------------
Space Access also makes the point that the FAA would have to assign
a maximum number of launches per launch site if the agency intends
acceptable risk to remain below background risk. In the NPRM, the FAA
acknowledged that its standard is based on present launch rates, and it
still finds that this threshold is appropriate for the scope and
frequency of launch operations planned over the next several years.
Even if launch rates increase by an order of magnitude, individual
annual risk will still compare favorably with other voluntary and
involuntary risks. An exponential rise in launch rates may require a
reassessment, although the FAA does not foresee an exponential increase
in launch rates in the near term.
Space Access also suggests that other launch risk standards provide
the proper measure of acceptable risk. Space Access notes that the 1988
DOT Hazard Analysis states that ``acceptable risk criteria'' for NASA's
Wallops Flight Facility (WFF) is Ec 1 x
10-7. Space Access at 10. As noted in its NPRM the FAA
recognizes that WFF does not use an expected casualty standard of
Ec 30
[[Page 19607]]
x 10-6. Although at the time of the publication of DOT's
Hazard Analysis WFF may have reported Ec 1 x
10-7, since that time, NASA has stated that WFF uses an
Ec of less than or equal to 1 x 10-6. ``Range
Safety Manual for Goddard Space Flight Center (GSFC)/Wallops Flight
Facility,'' 24 (Jun. 23, 1993); Beyma, ``Flight Safety Range Safety
Officer Training Manual, NASA/Wallops Flight Facility,'' 2 (Sept.
1993). The FAA must choose one standard. The level of safety at the
Eastern and Western Ranges, represented by the collective risk standard
of Ec 30 x 10-6 has resulted in no
harm to the public. The vast majority of U.S. commercial launches take
place from CCAS and VAFB. The FAA therefore finds that this accepted
standard is appropriate for all licensed launches.
Space Access also maintains that in order to adopt an Ec
standard of Ec 30 x 10-6, the FAA
would have to obtain NASA's acceptance. This is not in fact the case.
NASA and the FAA have different roles. Commercial launches are
regulated by the FAA, not NASA. As the operator of a launch site, NASA
is free to require a different measure of acceptable risk than that
required by the FAA. Any FAA licensed commercial launch, regardless of
where it takes place, must, however, at least meet FAA standards, even
were a particular federal launch range to impose less stringent
requirements. In this case, the more stringent NASA standard with which
a user of WFF would have to comply does not conflict with the FAA
standard.
Paragraph 415.35(b), which the NPRM proposed as paragraph
415.35(c), requires an applicant to submit an analysis that identifies
the hazards and assesses the risks for flight under nominal and non-
nominal conditions.13 This requirement has been modified to
clarify that the risk assessment serves the purpose of demonstrating
compliance with paragraphs 415.35(a). A federal launch range will
sometimes perform a quantitative analysis for flight until orbital
insertion, or for a suborbital mission until impact. A range may
determine that an analysis of previously approved missions applies or
may serve as a basis for a comparative analysis. If an applicant's
previously submitted application contains a risk assessment, the
applicant need not submit additional analyses for similar launches. In
such cases, a comparative analysis may be supplied.
---------------------------------------------------------------------------
\13\ This section is renumbered in order to accommodate the move
of the NPRM's proposed paragraph 415.35(b) into section 415.39,
which addresses safety at the end of launch.
---------------------------------------------------------------------------
As an alternative to relying on federal launch range procedures, an
applicant may perform its own quantitative risk analysis. Pursuant to
section 415.35(b), although an applicant may submit a federal launch
range risk analysis, the applicant bears the burden of demonstrating
that predicted risk does not exceed an expected casualty of 30 x
10-6. To assist applicants, the FAA has documented the range safety
process for each of the federal launch ranges. A launch hazard event
tree, such as the one described in the DOT Hazard Analysis of
Commercial Space Transportation, page 10-29, provides an acceptable
method for identifying hazards and assessing risks.
Section 415.35(c), which was proposed in the NPRM as section
415.37(a), ensures that an applicant identify the design of its launch
vehicle. In its application, an applicant shall identify and describe
its launch vehicle's design, including its structure and the vehicle's
hazardous and safety-critical systems, and provide drawings and
schematics for each system identified. Because federal launch ranges
require an applicant to provide a detailed description of the
applicant's launch vehicle and its systems, including drawings and
schematics, an applicant may satisfy the requirements of this paragraph
by providing the FAA with a copy of all or appropriate portions of the
documentation provided to a federal launch range. The FAA will not use
the data to duplicate the federal launch range's design approval
process, but to document the characteristics of the launch vehicle
being licensed and upon which the hazard identification and risk
assessment are based.
Section 415.35(d) requires that an applicant's launch vehicle be
operated in a manner that meets the criteria of paragraph 415.35(a). To
that end, an applicant must describe the launch operations and
procedures that the applicant will employ to mitigate risks for flight.
The applicant should eliminate or control by design and operations all
identified hazards to the levels specified in paragraph (a). Typical
hazard controls for flight until orbital insertion used at current
federal launch ranges include flight termination systems, and, for
suborbital launches, azimuth and elevation adjustments based on a wind
weighting analysis. Other hazard controls may involve modifying a
vehicle trajectory to avoid high risk areas, and delaying launch until
more favorable conditions exist. An applicant for a license to launch
from a federal launch range may rely on the methods used by federal
launch ranges to identify hazard controls and to ensure that the hazard
controls will be effective.
Section 415.37(a), which was originally proposed as section
415.37(c), implements the FAA's current flight readiness guidelines. As
noted in the NPRM, the requirements arise out of recommendations from a
National Transportation Safety Board (NTSB) investigation 14
of an anomaly that occurred during a commercial launch from a federal
launch range. Requirements intended to ensure the readiness of a launch
team include designation of an individual responsible for flight
readiness, launch readiness reviews, rules and abort procedures and,
countdown checklists, dress rehearsals procedures, and procedures for
crew rest.
---------------------------------------------------------------------------
\14\ ``Special Investigation Report, Commercial Space Launch
Incident, Launch Procedure Anomaly, Orbital Sciences Corporation
Pegasus/SCD-1 80 Nautical Miles East of Cape Canaveral, Florida,''
NTSB (Feb. 9, 1993).
---------------------------------------------------------------------------
The FAA recognizes that there are many reviews conducted of a
launch system from its initial design up to flight. However, in section
415.37(a)(1), the FAA places special emphasis on a flight readiness
review, or its equivalent. A review is typically conducted not more
than one or two days prior to scheduled flight. In most cases a flight
readiness review is standard practice at federal launch ranges, but the
FAA considers the review, and the topics required in this section, to
be so important that the applicant must, in its application, commit to
a meeting and identify the topics to be addressed. This review must
ensure that all system and personnel readiness problems are identified
and are associated with a plan to resolve them, that all systems needed
for flight have been checked out and are ready, and that each
participant is cognizant of his or her role on the day of flight. If
this review reveals unresolved issues, the licensee will be able to
assess its ability to resolve those issues before the intended launch
time or to delay the flight, as appropriate.
Section 415.37(a)(2) requires an applicant to possess procedures
that ensure mission constraints, rules and abort procedures are
contained in a single document approved by licensee flight safety and
federal launch range personnel.
Section 415.37(a)(3) requires an applicant to employ procedures
that ensure that all launch countdown checklists are current and
consistent. Past inconsistencies in critical countdown checklists and
procedures have raised serious safety concerns. The FAA recognizes that
it may be
[[Page 19608]]
impractical for all launch participants to have identical checklists
due to differences in the roles of launch participants. The applicant
should, however, have some process, such as a master countdown manual,
to ensure the currency and consistency of all participants' checklists
during countdown to flight. This will ensure that confusion and
uncertainties on launch day are minimized, that flight safety critical
procedures are completed successfully, and that those individuals with
launch decision authority know what is going on and are able to make
sound decisions.
Section 415.37(a)(4) requires an applicant to have procedures for
the conduct of dress rehearsals. As demonstrated in the past, poor
performance at a dress rehearsal may indicate a lack of readiness of
individuals or systems responsible for safety. An applicant's
procedures should include criteria for determining when dress
rehearsals are not necessary. A number of launch companies, for
example, have been conducting routine launches of the same vehicle for
many years. The FAA recognizes that although dress rehearsals may not
be necessary in every case, they may be critical to those launch
companies that are new to a launch site, to those that have significant
changes in personnel, or to those launching a new launch vehicle.
Even those launch operators that routinely conduct launches
typically have certain criteria and procedures in place to verify that
a launch team is ready for launch, especially if a considerable period
of time has elapsed since the last launch took place. In this regard,
Space Access recommends that the FAA impose a currency requirement of
45 days. Space Access at 11. The FAA will take the recommendation into
account in future rulemakings, but for the time being declines to
impose a currency requirement of 45 days. The need for dress rehearsals
is driven by issues specific to particular vehicles, including the
number of personnel required to launch the vehicle, the complexity of
their tasks, and the amount of communication required among team
members to launch safely.
For those situations where dress rehearsals are necessary, the
dress rehearsal should simulate both nominal and non-nominal
conditions, induced not only by the launch vehicle or payload, but by
the range safety system as well. Anomalies introduced during the
rehearsal should exercise and prove the abilities of all launch
participants, including federal launch range personnel, to recognize an
event that compels a launch hold, delay or flight termination decision.
In the NPRM, the FAA noted its interest in views as to any need for
future standards relating to rehearsals and the criteria for deciding,
based on performance during the rehearsal, that it is acceptable to
proceed with the launch. In response, Space Access suggested that no
discrepancies be permitted for a nominal profile, and only minor
discrepancies be permitted for failure profiles, if the discrepancies
involve non-critical actions. Space Access at 11. The FAA agrees, and
will interpret section 415.37(a)(4)(i) according to Space Access'
recommendation.
Section 415.37(a)(5) responds to another NTSB recommendation, and
requires that an applicant ensure that its flight safety personnel
adhere to federal launch range crew rest rules. Experience has shown
that launch crew rest criteria for all those involved in supporting
launch operations are extremely important and can have a significant
impact on public health and safety. Federal launch ranges typically
have such requirements. Based on current knowledge and the demonstrated
safety history of the federal ranges, the FAA would consider adequate
adherence to these requirements. Other rest criteria proposed by an
applicant may be acceptable if the applicant requests a waiver of the
FAA's rules and demonstrates that the criteria would be adequate.
Section 415.37(b) and (c), originally proposed as a separate
section, 415.39, require an applicant to submit a communications plan
that ensures that licensee and federal launch range personnel receive
safety-critical information during countdown and flight. The NTSB,
after its investigation of a launch anomaly, concluded that effective
communications are critical to the conduct of a safe flight. Everyone
involved in a launch needs to know not only what channel has been
assigned for particular communications, but also the proper protocol
for communicating on that channel. The FAA recognizes that a number of
different individuals typically have input and decision authority with
respect to the readiness of various launch and safety systems. Past
experience has shown that serious mishaps could result if these
relationships are not clearly defined and understood by all parties.
These relationships must therefore be identified by the applicant.
Identifying persons with authority to make ``hold'' and ``go/no-go''
decisions is critical to ensuring that on launch day, everyone knows
who can call a ``hold'' and, more importantly, who has the authority to
authorize the resumption of the countdown or a recycle procedure, and
under what specific conditions. This will help eliminate confusion and
cross-talk that could cause a miscommunication leading to an unsafe
condition. In addition, the FAA requires that everyone who has a
decision-making role, or who, by action or inaction can either prevent
or allow a launch to take place, be on the same predetermined channel
during countdown and flight.
Under section 415.39, which was included in the NPRM as paragraph
415.35(b), an applicant must demonstrate that for any proposed launch
that for all launch vehicle stages or components that reach earth orbit
that there will be no unintended physical contact of the vehicle or its
components with its payload after payload separation. The applicant's
proposal must also ensure that debris generation will not result from
the conversion of energy sources into energy that fragments the vehicle
or its components. In addition, although not specifically proposed in
the NPRM, the FAA now adds paragraph (c) to specify required measures
that prevent the conversion of energy sources into energy that
fragments a vehicle or its components, unless other measures are
approved in the course of the licensing process. The FAA discussed the
new measures in the NPRM.
Those involved in commercial, defense and scientific uses of space
have been voicing a growing space safety concern due to the increasing
number of objects being placed in orbit, which increases the potential
for collisions between objects in space. Collisions in turn create
additional objects, increasing the potential for harm or damage. The
operation of launch vehicles in space affects and is affected by
hazards associated with space debris. Accordingly, the requirements of
this section serve to mitigate hazards associated with space debris.
Federal launch ranges perform a collision avoidance analysis, or
conjunction on launch assessment, commonly referred to as a COLA, prior
to launch only to ensure that manned or potentially manned spacecraft
will not be affected through orbital insertion. The FAA has elected to
adopt only selected debris mitigation practices that are of almost
universal applicability. It has not, for example, opted for requiring
collision avoidance measures or post-mission disposal, or for
specifying a minimum lifetime on orbit.
Orbital noted in its comments that preventing unplanned contact is
a primary goal of each launch because it ``represents sound technical,
[[Page 19609]]
operational, safety and financial business practice,'' rendering a
regulation prohibiting such contact unnecessary. Orbital at 10. Orbital
recommends that the prohibition on unintended contact be deleted or
modified so that rather than ensuring there be no contact, such contact
be prevented ``to the fullest extent feasible.'' Id. For the reasons
stated in the NPRM the FAA now implements this requirement. In light of
the fact that preventing unplanned contact is already a primary goal of
a launch operator, the FAA does not consider the requirement unduly
burdensome. At the time of the NPRM, the FAA intended that the original
requirement constitute a performance standard that could be implemented
in any manner that achieved the goal, thus avoiding an overly intrusive
degree of regulation.
Orbital's recommendation that a licensee ensure against unplanned
contact ``to the fullest extent feasible'' cannot be adopted because it
only adds ambiguity to what is required. Ensuring against an event is a
clear requirement. It means that the event must not occur. Ensuring
against that event to the fullest extent feasible raises questions
regarding whether something need not be done if it is technically not
feasible, too expensive or for some other reason. The FAA does not
discern a reason for making such distinctions that outweigh the safety
benefits of requiring a licensee to prevent unplanned contact.
Orbital also maintains that it is impossible to ensure that debris
generation will not result from the conversion of energy sources into
energy that fragments the vehicle as required by paragraph (b).
Although Orbital is correct that it is impossible to ensure with utter
certainty that energy will not fragment the vehicle, or, indeed that
any given event could be prevented with utter certainty, there are
practices that have been shown to prevent this occurrence. As noted in
the NPRM, the FAA is aware of a number of standard industry practices
designed to prevent or reduce this on-orbit risk. These practices
include depleting residual fuels and leaving fuel lines valves open,
venting pressurized systems, and leaving batteries in a permanent
discharge state. These practices are routine. The NPRM intended to
require that these practices be employed for all commercial launches,
rather than ignored for reasons of cost or otherwise. The FAA recently
uncovered ambiguity in the proposed requirements. Therefore, the FAA
now clarifies the requirement by specifying that a licensee must remove
stored energy by depleting residual fuels and leaving fuel line valves
open, venting pressurized systems, leaving batteries in a permanent
discharge state, and removing any remaining sources of stored energy,
or other equivalent procedures. The practices enumerated in paragraph
(c) should satisfy the requirement in paragraph (b).
A number of standard industry practices reduce potential on-orbit
risks arising out of flight following orbital insertion. A launch
operator may maneuver its launch vehicle orbital stage after payload
separation to minimize the likelihood that the orbital stage will
recontact the payload. This avoids the consequences of either a
malfunctioning payload or orbital debris. In order to reduce the
possibility of future explosions that could create orbital debris, a
launch operator must render liquid fueled orbital stages as inert as
possible by expelling all propellants and pressurants and protecting
batteries from spontaneous explosion. A launch operator may keep stage-
to-stage separation devices and other potential debris sources captive
to a stage with lanyards or other means. Also, a launch operator may
choose launch times to geosynchronous transfer orbit designed to align
the final orbit of the orbital stage so as to lower the perigee of the
stage more quickly than other orbits.
Section 415.41 requires an applicant to submit an accident
investigation plan. The accident investigation plan must comply with
the reporting requirements identified in section 415.41(b), and must
contain procedures for responding to a launch accident, incident or
other mishap. As noted in the discussion of the definition of
``mishap,'' the proposed rules have been modified to require
notification of mishaps only above a threshold severity level.
Section 415.43 contains the procedures employed by the FAA when it
denies an applicant a safety approval and describes the recourse
available to that applicant. If an applicant fails to obtain a safety
approval, the applicant may attempt to correct the deficiencies which
resulted in the denial and request reconsideration of the denial, or,
upon denial of a license, it may request a hearing. The final version
of this provision differs slightly from what the NPRM proposed. The
NPRM stated that an applicant who was denied a safety approval could
reapply. In order to avoid confusion, the provision now permits an
applicant to request the FAA's reconsideration of its denial. This
makes clear that the FAA need only reconsider an issue once rather than
an unlimited number of times.
Under subpart D, the FAA conducts a payload review and
determination pursuant to 49 U.S.C. Sec. 70104(c). The Act provides
that the Secretary of Transportation may prevent the launch of a
particular payload if the Secretary determines that the payload's
launch would jeopardize the public health and safety, safety of
property, or national security or foreign policy interests, or
international obligations of the United States. Subpart D explains when
a payload review and determination are required and the elements of
that review. Addition of this subpart constitutes a change from the
FAA's current practice because the payload review will no longer be
performed as part of the policy review. This subpart allows either a
launch license applicant or a payload owner or operator to apply for a
payload determination separately from a launch license application, as
was also provided under the former section 415.23 of a mission review.
A launch license applicant's decision to seek a payload determination
separately from a license application might be based on uncertainty
with respect to payload issues and a desire to gain a payload
determination before undertaking the additional effort required to
prepare a complete launch license application.
Although a payload determination is required for a license, it is
not necessarily a requirement imposed on a license applicant. An
applicant need not itself apply for a payload determination if a
determination has otherwise been issued to a payload owner or operator.
In addition to the fact that many payloads are exempt from FAA
consideration, an applicant may incorporate by reference a payload
determination issued earlier to the applicant or to a payload owner or
operator. Alternatively, an applicant may reference a separate
application submitted by another launch license applicant for a payload
determination and request that the FAA incorporate its earlier
determination.
The FAA does not believe that this flexible approach affects the
statutory requirement that the FAA complete its license application
review within 180 days. Submission of a request for a payload
determination does not constitute the filing of a complete application,
and a license application is not complete without a request for a
payload determination. The FAA stated in its NPRM that it was
considering issuing conditional licenses on those occasions when a
request for a payload determination had yet to be completed. This would
mean that a license would be issued subject to or conditional upon
[[Page 19610]]
issuance of a payload determination. The FAA once issued a conditional
license to an applicant who proposed to launch a reentry vehicle as its
payload. The reentry vehicle was still under development, but the FAA
issued a launch license conditioned upon eventual submission of all
required payload information and a final determination by the FAA
regarding the payload. The FAA has decided, however, that with these
rules it will not adopt such a course. A license will be issued only
for a complete application.
The FAA also addresses payload safety issues because payload safety
is not otherwise part of the safety evaluation of a launch. Payload
issues considered during the review include, but are not limited to,
safety issues associated with the launch of the payload and its
intended operation and design, the payload owner(s), and the payload
function. For example, a past payload issue included the nature of the
cargo. In that case the payload cargo consisted of cremains, which are
human remains reduced to small pellets. A safety issue addressed was
whether the pellets would be dispersed while in orbit.
Section 415.51 describes the scope of an FAA payload review,
clarifying part of the former section 415.21. Pursuant to proposed
section 415.53, the FAA will not review payloads owned and operated by
the government of the United States or those that are subject to the
regulation of the Federal Communications Commission or the Department
of Commerce, National Oceanic and Atmospheric Administration.
As explained in the NPRM, new section 415.55 allows the FAA to make
a determination regarding a proposed class of payloads, including, for
example, communications, remote sensing or navigation satellites. When
an applicant requests an operator license to conduct unspecified but
similar launches over a period of five years, the applicant will not
always be able to identify specifically each payload to be launched.
The applicant must describe the class or classes of payloads proposed
for launch under the license and general characteristics of those
payloads. In these cases, the licensee must later provide additional
descriptive information regarding the specific payload prior to flight
as described in section 415.79(a). That section refers a licensee to
the information requirements of section 415.59, which specify the
information required for a payload review.
The FAA must take this opportunity to clarify an issue raised by
the comments of Kistler Aerospace Corporation. Kistler expressed
concern that the launch reporting requirement under section 415.79
amounted to an additional payload review by the FAA for each payload
within the class encompassed by a launch operator license. Kistler at
5-6. In point of fact, the information submitted sixty days prior to
launch would not trigger additional policy and safety reviews. It would
merely identify the characteristics of what is being launched for
compliance monitoring purposes. Kistler recommends that a licensee
whose class of payload has been approved and is proposing to launch a
payload within that approved class merely submit a copy of a launch
manifest ``describing the payload, the payload owner, pertinent details
about the launch, etc.'' Kistler at 6. By requiring the information
described in section 415.59, the FAA intends just that.
Section 415.57 provides procedures an applicant must follow to
obtain a payload determination. The FAA coordinates a payload review
with other government agencies such as the Departments of Defense,
State, and Commerce, the National Aeronautics and Space Administration
and the Federal Communications Commission.
The information requested under section 415.59 for a payload review
is required to identify and address possible safety and policy issues
related to the payload, and to conduct any necessary interagency
review. In most instances, the information submitted may be brief, but
in cases which present potential unique safety concerns considerable
detail may be necessary regarding the physical characteristics,
functional description and operations of the payload.
Section 415.61(a), which reflects certain requirements of former
section 415.21, explains that the FAA will issue a payload
determination unless policy or safety considerations prevent launch of
the payload. Section 415.61(b) contains the procedures employed to deny
an applicant a payload determination and describes the recourse
available to that applicant. If an applicant fails to obtain a payload
determination, the applicant may attempt to correct the deficiencies
which resulted in a denial and request reconsideration of the denial,
or, upon denial of a license, it may request a hearing. The final
version of this provision differs slightly from what the NPRM proposed.
The NPRM stated that an applicant who was denied a payload
determination could reapply. In order to avoid confusion, the provision
now permits an applicant to request the FAA's reconsideration of its
denial. This makes clear that the FAA need only reconsider an issue
once rather than an unlimited number of times.
Section 415.63 addresses incorporation of a payload determination
into subsequent license reviews. It also explains that any change in
information provided to the FAA must be reported in accordance with
applicable rules.
Subpart E addresses post-licensing requirements, including license
terms and conditions. This subpart describes a licensee's public safety
responsibilities under section 415.71.
Section 415.73 describes the circumstances that require a licensee
to apply for a modification to its license. This section modifies and
builds upon the former section 413.19. That provision required an
applicant or a licensee to notify the FAA whenever the information that
formed the basis for any approval, determination or license action was
no longer substantially accurate and complete in all significant
respects, or whenever there has been a substantial change as to any
matter of decisional significance. The FAA has required licensees to
report material changes in order for the FAA to determine their
significance. In the NPRM, the FAA proposed requiring that it be
notified of all changes regardless of materiality, but now adopts a
materiality standard in response to comments. A launch licensee must
ensure the continuing accuracy of representations contained in its
application for the term of its license, and must conduct its licensed
launches as it has represented that it will. This means that if any
information a licensee provides pursuant to part 415 will no longer be
accurate, a licensee must apply for a modification to its license in
advance of instituting the proposed change. For example, if a licensee
intends to alter its accident investigation plan, it must obtain
authorization in advance through a license modification to do so.
Orbital describes this requirement as overly broad and undefined.
Orbital at 9. Orbital recommends that the FAA incorporate a materiality
standard, so that an applicant or licensee would only notify the FAA of
any significant changes. Id. The FAA agrees in part. It does not wish
to be advised of any and all changes, only of those material to public
health and safety or safety of property. The FAA wishes to be advised
of any material changes so that it may determine whether to modify a
license.
[[Page 19611]]
The FAA also wishes to draw attention to an editorial change from
the provision as originally proposed. In its NPRM, the regulations
required a licensee to ``amend'' its application even after its license
was issued. Now, the same provisions require a license
``modification.'' This results in no substantive change. It does
clarify, however, that an application is part of any ensuing license
and that a licensee must obtain advance authorization from the FAA for
any material changes.
The remainder of subpart E contains license terms and conditions
applicable to all licensees. Section 415.75 requires a licensee to
enter into an agreement with the federal launch range from which it
proposes to launch. Orbital recommends that rather than require the
range agreement to remain in effect for the term of the license, that
the FAA require that it be in effect during the conduct of licensed
launches. Orbital at 9. The FAA sees no practical difference, but
agrees, and revises the regulation accordingly. A licensee should bear
in mind, however, that ``launch'' begins with the arrival of a vehicle
at the launch site. Accordingly, any agreement must be in place at the
time of the vehicle's arrival.
Section 415.77 requires a licensee to maintain those records that
pertain to activities carried out under a license issued by the FAA.
These records must be retained for at least three years after the
completion of all launches conducted under the license.
Section 415.79, as proposed in the NPRM, required a licensee to
report certain information before each launch. Because launch begins
with the arrival of a launch vehicle at the gate, this section is now
clarified to require reporting 60 days prior to flight. Section
415.79(b) regarding provision of the FAA's Launch Notification Form has
also been clarified from the FAA's original proposal. The FAA files the
Launch Notification Form with U.S. Space Command 15 days prior to
flight. Accordingly, the form is now due at noon, Eastern Standard
Time, 15 days prior to flight so that the FAA may provide the form to
U.S. Space Command in a timely manner. The Federal Aviation
Administration/ U.S. Space Command Launch Notification Form is provided
in this notice. See Appendix A. Section 415.79(c) is now modified from
what was proposed in the NPRM to add a requirement for immediate
notification of any mishap involving a fatality or serious injury.
Section 415.81, which replaces former section 415.10, contains
requirements for registration of space objects, including a new
provision that a licensee need not provide registration information
concerning objects owned and registered by the government of the United
States. The former version of this requirement provided that a licensee
need not provide registration information for objects it placed in
space that were owned by a foreign entity. The new provision contains
the same proviso. It has, however, come to the attention of the FAA
that this requires clarification. The Act requires that a foreign
entity controlled by a U.S. citizen which launches outside the
territory of any nation obtain an FAA license to launch. 49 U.S.C.
70104(a)(3). Applying these principles to an actual case, the FAA found
that Sea Launch, a Cayman Islands partnership, which intends to launch
from international waters, required a launch license on account of the
control Boeing Commercial Space Company, a U.S. company, exercised over
the partnership. 49 U.S.C. 70104(a)(3), 70102(1)(C); 14 CFR 401.5.
Because Sea Launch is a U.S. citizen for licensing purposes, the FAA
requires data pertinent to registration for Sea Launch's upper stage.
Section 415.83 requires a licensee to comply with financial
responsibility requirements as specified in a license or license order.
Section 415.85 explains that a licensee is required to cooperate
with the compliance monitoring responsibilities of the FAA.
Subpart F describes the FAA's safety review for a proposed launch
from a launch site not operated by a federal launch range. The FAA will
conduct a review on an individual, case by case basis until it issues
regulations of general applicability. The FAA will take this
opportunity to advise applicants to bear in mind that a case by case
review still must conform to existing standards and precedent. For
example, part of the reason that the FAA relies on federal launch range
safety reviews is because of the testing and reviews the ranges conduct
of a launch operator's flight safety system, which, in most cases,
contain a flight termination system. Accordingly, when a federal launch
range is not assessing the adequacy of a launch operator's flight
safety system, it is incumbent upon the FAA to do so.
Subpart G incorporates the FAA's environmental review requirements,
the former sections 415.31 and 415.33, which require the FAA to comply
with applicable environmental laws and regulations, and state that an
applicant must provide the FAA with the information required for doing
so. The renumbering of these provisions represents no substantive
change from the current regulations. In response to the NPRM relocation
proposal, the Environmental Protection Agency (EPA) commented that the
environmental review process for licensing commercial launch activities
should reference FAA Order 1050.1D. This change is incorporated here.
Additionally, the EPA requested that section 415.101 reference other
informal FAA guidance documents. The FAA notes that informal guidance
documents are available, and will confer with a license applicant
regarding the applicability of the guidance. The FAA also notes that
the NPRM text omitted the proposed section revisions. They are now
included in the regulatory text.
Part 417--License To Operate a Launch Site
Because the FAA is removing and reserving part 411, which contains
section 411.3 regarding the operation of a launch site, the FAA now
creates part 417 to govern licensing the operation of a launch site.
The FAA will license the operation of a launch site on an individual,
case by case basis until it issues regulations of general
applicability. Until then, an applicant for a license to operate a
launch site should refer to the FAA's draft guidelines and pre-
application consultation for assistance. This part also now contains
the requirements governing an environmental review for licensing the
operation of a launch site previously located in 14 CFR 415.31-33.
Paperwork Reduction Act
Section 441 of this rule contains information collection
requirements. In accordance with the Paperwork Reduction Act of 1995,
44 U.S.C. 3501 et seq., the information collection requirements
associated with this rule and titled, Commercial Space Transportation
Licensing Regulations, were submitted to the Office of Management and
Budget for review. The collection of information was approved and
assigned OMB control number 2120-0608. Information collected includes:
data to support both policy and payload reviews; evidence that supports
launch safety requirements, and submitted environmental impact
statement (EIS) materials. The required information will be used to
determine if applicant proposals for conducting commercial space
launches can be done in a safe manner as set forth in regulations and
in the licenses and the license orders issued by the FAA. Comments
received on the reporting requirements associated with this rule have
been discussed earlier in the preamble. Respondents are license
[[Page 19612]]
applicants and licensees. The estimated number of respondents on an
annual basis is six. The estimated annual burden is 2914 hours.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control number associated
with this collection of information is 2120-0608.
Regulatory Evaluation Summary
This section summarizes the full regulatory evaluation prepared by
the FAA that provides more detailed estimates of the economic
consequences of this regulatory action. This summary and the full
evaluation quantify, to the extent practicable, estimated costs to the
private sector, consumers, Federal, State and local governments, as
well as anticipated benefits. This evaluation was conducted in
accordance with Executive Order 12866, which directs that each Federal
agency can propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify the
costs. This document also includes an initial regulatory flexibility
determination, required by the Regulatory Flexibility Act of 1980, and
an international trade impact assessment, required by the Office of
Management and Budget. This rule is considered a significant regulatory
action under section 3 (f) of Executive Order 12866 and, therefore, was
reviewed by the Office of Management and Budget. The rule is considered
significant under Department of Transportation Policies and Procedures,
44 FR 11034 (Feb. 26, 1979). In addition, for the reasons stated under
the ``Trade Impact Statement'' and the `` Regulatory Flexibility
Determination,'' the FAA certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
Economic Impacts
The Federal Aviation Administration (FAA) is modifying its
commercial space licensing regulations to streamline its licensing
process while continuing to ensure safety and continuing to preserve
the flexibility required to address multiple launch technologies and
associated issues. With this rulemaking, the FAA is clarifying its
license application procedures, codifying its practice of issuing
launch-specific licenses and launch operator licenses, increasing the
duration of launch operator licenses from two years to five years, and
defining the launch period so that the scope of a launch license is
narrower than it has been under current practice.
This rulemaking is expected to result in quantifiable cost savings
compared to current practice because of the increased duration of the
launch operator license. Increasing the duration of the launch operator
license will decrease paperwork and administrative costs both to
government and to industry.
The cost savings to industry over ten years resulting from the
administrative and paperwork impacts are estimated to be $305,000,
undiscounted and $185,000, discounted. These savings are primarily due
to the fewer number of license renewal applications that are likely to
be submitted. The cost savings reflect primarily the fewer number of
hours necessary for both submitting the license applications to the FAA
and for complying with the financial responsibility requirements when
there are fewer licenses covering the same number of launches. No added
costs from the paperwork and administrative impacts are expected.
The FAA is expected to receive some cost savings, as well, because
of reduced paperwork and administrative costs that result from
processing and issuing fewer applications and licenses. Cost savings to
the FAA over ten years is estimated to be $424,000, undiscounted and
$256,000, discounted. The FAA is expected to incur no costs resulting
from the paperwork and administrative impacts. Over the ten-year time
horizon of this analysis, the total cost savings to both industry and
the FAA is expected to be approximately $729,000, undiscounted and
$441,000, discounted.
There are numerous non-quantifiable impacts associated with this
final rulemaking. The information coding requirements are expected to
increase clarity to both industry and government. Probably more
importantly, however, is the fact that firms will be better able to
plan future operations because this rulemaking extends the time period
of the launch operator license to five years.
The narrower scope of launch licenses under this rulemaking is
expected to slightly increase the launch operator's risk of having to
pay for any damages to third parties or government property. The
activities that will no longer be covered under the narrower scope of
the launch license are of low risk (such as ground activities prior to
the arrival of the hazardous components of the launch vehicle). The
higher burden of risk borne by the licensee should be considered low
and inconsequential.
There is also a slightly lower risk to the U.S. Treasury that it
will be called upon to indemnify for third-party damages under the
``indemnification'' provisions of the statute, because the launch phase
is now more limited. The change in risk to the U.S. Treasury is
expected to be minimal. This risk has not been quantified.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 establishes ``as a principle
of regulatory issuance that agencies shall endeavor, consistent with
the objective of the rule and of applicable statues, to fit regulatory
and informational requirements to the scale of the business,
organizations, and governmental jurisdictions subject to regulation.''
To achieve that principal, the Act requires agencies to solicit and
consider flexible regulatory proposals and to explain the rationale for
their actions. The Act covers a wide-range of small entities, including
small businesses, not-for-profit organizations and small governmental
jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis (RFA) as
described in the Act.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the 1980 act provides that
the head of the agency must so certify and an RFA is not required. The
certification must include a statement providing the factual basis for
this determination, and the reasoning should be clear.
The FAA conducted the required review of this final rulemaking and
determined that it would not have a significant economic impact on a
substantial number of small entities. Accordingly, pursuant to the
regulatory Flexibility Act, U.S.C. 605(b), the Federal Aviation
Administration certifies that this rule will not have a significant
economic impact on a substantial number of small entities.
Potentially Affected Entities
The Small Business Administration has defined small business
entities relating to space vehicles [SIC codes 3761, 3764, and 3769] as
entities comprising fewer than 1000 employees. The potentially affected
entities are Lockheed-Martin, Boeing, Orbital Sciences Corporation, Sea
Launch, Beal Aerospace Technologies and Universal Space Lines.
Lockheed-Martin, Boeing and Orbital Sciences Corporation all
[[Page 19613]]
have more than 1,000 employees and are therefore not small entities.
Sea Launch is a partnership of various entities that includes Boeing
and therefore would not be considered a small entity. Beal and
Universal Space Lines each have under 1,000 employees and can therefore
be considered small entities. According to an FAA forecast, Beal
Aerospace Technologies will be issued a launch operator license in 2000
and Universal Space Lines will be issued a launch operator license in
2002.
This final rulemaking will result in a cost savings to the launch
operator. It primarily results from renewing a license every five years
instead of two years. To calculate the annualized cost savings, the FAA
discounted the costs or cost savings for the appropriate year. The net
total cost savings for Beal Aerospace is $13,204 and the net total cost
savings for Universal Space Lines is $8,442. The net total cost savings
for the period 1999-2008 is then annualized by multiplying the net
total cost savings for each of the affected firms by the 10 year, 7
percent annualization factor (.142378). The FAA estimates that the
annualized cost savings for Beal Aerospace is $1,880 ($13,204 x
142378 = $1,880) and the annualized cost savings for Universal Space
Lines is $1,202 ($8,442 x 142378 = $1,202).
The FAA has little financial information to calculate whether the
projected cost savings represents a significant amount to these two
firms. However, according to the Beal Aerospace website, over 70 people
currently work for Beal Aerospace. They project that the firm will grow
to more than 200 people over the next ten years. Moreover, the same
source states that: ``Beal Aerospace is fully financed, up to $250M.''
The FAA concludes that the annualized cost savings of $1,880 does not
represent a significant amount for this firm. Even less information is
available on Universal Space Lines. However, one article quotes John
Grady, Universal's chief financial officer by stating that: ``Initially
the company will hire about 40 people--mostly in technological and
engineering positions. In three years, employment is expected to rise
to 100.'' The same article states that: ``The initial plan is to
manufacture low-cost, two-stage orbital launch vehicles capable of
launching 3,000-pound and greater satellite payloads.'' If 40 people
each hypothetically earned $50,000 annually, then the annual cost to
employ these individuals would be at least $2 million. Comparing the
hypothetical annual cost of employing these individuals against the net
cost savings of this final rulemaking, the FAA again concludes that the
annualized cost savings of $1,202 does not represent a significant
amount for this firm.
International Trade Impact Assessment
This final rulemaking will not constitute a barrier to
international trade. This rulemaking affects launch activities located
within the United States and launch activities abroad that have
substantial U.S. involvement. In fact, if the anticipated cost savings
result and are passed along to launch service customers in the form of
reduced prices, it is possible that the international competitiveness
of U.S. commercial launch services will be enhanced.
Federalism Implications
The regulations herein will not have substantial direct effects on
the states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule will not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (the UMRA),
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the Act is any
provision in a Federal agency regulation that will impose an
enforceable duty upon State, local, and tribal governments, in the
aggregate, of $100 million (adjusted annually for inflation) in any one
year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section
204(a), provides that before establishing any regulatory requirements
that might significantly or uniquely affect small governments, the
agency shall have developed a plan that, among other things, provides
for notice to potentially affected small governments, if any, and for a
meaningful and timely opportunity to provide input in the development
of regulatory proposals.
This final rule does not contain a Federal intergovernmental or
private sector mandate that exceeds $100 million a year. Therefore, the
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do
not apply.
List of Subjects
14 CFR Part 411
Space transportation and exploration.
14 CFR Part 413
Confidential business information, Space transportation and
exploration.
14 CFR Part 415
Aviation safety, Environmental protection, Space transportation and
exploration.
14 CFR Part 417
Environmental protections, Reporting and recordkeeping
requirements, Rockets, Space transportation and exploration.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends Chapter III of Title 14 of the Code of Federal
Regulations as follows:
SUBCHAPTER A--GENERAL
PART 401--ORGANIZATION AND DEFINITIONS
1. The authority citation for part 401 is revised to read as
follows:
Authority: 49 U.S.C. 70102.
2. Section 401.5 is revised to read as follows:
Sec. 401.5 Definitions.
As used in this chapter--
Act means 49 U.S.C. Subtitle IX, Commercial Space Transportation,
ch. 701--Commercial Space Launch Activities, 49 U.S.C. 70101-70121.
Amateur rocket activities means launch activities conducted at
private sites involving rockets powered by a motor or motors having a
total impulse of 200,000 pound-seconds or less and a total burning or
operating time of less than 15 seconds, and a rocket having a ballistic
coefficient--i.e., gross weight in pounds divided by frontal area of
rocket vehicle--less than 12 pounds per square inch.
Associate Administrator means the Associate Administrator for
Commercial Space Transportation, Federal Aviation
[[Page 19614]]
Administration, or any person designated by the Associate Administrator
to exercise the authority or discharge the responsibilities of the
Associate Administrator.
Federal launch range means a launch site, from which launches
routinely take place, that is owned and operated by the government of
the United States.
Hazardous materials means hazardous materials as defined in 49 CFR
172.101.
Launch means to place or try to place a launch vehicle or reentry
vehicle and any payload from Earth in a suborbital trajectory, in Earth
orbit in outer space, or otherwise in outer space, and includes
activities involved in the preparation of a launch vehicle for flight,
when those activities take place at a launch site in the United States.
The term launch includes the flight of a launch vehicle and pre-flight
ground operations beginning with the arrival of a launch vehicle or
payload at a U.S. launch site. Flight ends after the licensee's last
exercise of control over its launch vehicle.
Launch accident means an unplanned event occurring during the
flight of a launch vehicle resulting in the known impact of a launch
vehicle, its payload or any component thereof outside designated impact
limit lines; or a fatality or serious injury (as defined in 49 CFR
830.2) to any person who is not associated with the flight; or any
damage estimated to exceed $25,000 to property not associated with the
flight that is not located at the launch site or designated recovery
area.
Launch incident means an unplanned event occurring during the
flight of a launch vehicle, other than a launch accident, involving a
malfunction of a flight safety system or failure of the licensee's
safety organization, design or operations.
Launch operator means a person who conducts or who will conduct the
launch of a launch vehicle and any payload.
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.
Mishap means a launch accident, a launch incident, failure to
complete a launch as planned, or an unplanned event or series of events
resulting in a fatality or serious injury (as defined in 49 CFR 830.2)
or resulting in greater than $25,000 worth of damage to a payload, a
launch vehicle, a launch support facility or government property
located on the launch site.
Operation of a launch site means the conduct of approved safety
operations at a permanent site to support the launching of vehicles and
payloads.
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.
State and United States when used in a geographical sense, mean 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; and
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.
SUBCHAPTER C--LICENSING
PART 411--[REMOVED AND RESERVED]
3. Part 411 is removed and reserved.
4. Part 413 is revised to read as follows:
PART 413--LICENSE APPLICATION PROCEDURES.
Sec.
413.1 Scope.
413.3 Who must obtain a license.
413.5 Pre-application consultation.
413.7 Application.
413.9 Confidentiality.
413.11 Acceptance of an application.
413.13 Complete application.
413.15 Review period.
413.17 Continuing accuracy of application; supplemental
information; amendment.
413.19 Issuance of a license.
413.21 Denial of a license application.
413.23 License renewal.
Authority: 49 U.S.C. 70101-70121.
Sec. 413.1 Scope.
This part prescribes the procedures applicable to all applications
submitted under this chapter to conduct licensed activities. These
procedures apply to applications for issuance of a license, transfer of
an existing license and renewal of an existing license. More specific
requirements applicable to obtaining a launch license or a license to
operate a launch site are contained in parts 415 and 417 of this
chapter, respectively.
Sec. 413.3 Who must obtain a license.
(a) Any person must obtain a license to launch a launch vehicle
from the United States or a license to operate a launch site within the
United States.
(b) An individual who is a United States citizen or an entity
organized or existing under the laws of the United States or any state
must obtain a license to launch a launch vehicle outside of the United
States or a license to operate a launch site outside of the United
States.
(c) A foreign entity in which a United States citizen has a
controlling interest, as defined in section 401.5 of this chapter, must
obtain a launch license to launch a launch vehicle from or a license to
operate a launch site within--
(1) Any place that is both outside the United States and outside
the territory of any foreign nation, unless there is an agreement in
force between the United States and a foreign nation providing that
such foreign nation shall exercise jurisdiction over the launch or the
operation of the launch 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 shall exercise jurisdiction over the launch or the
operation of the launch site.
Sec. 413.5 Pre-application consultation.
A prospective applicant shall consult with the FAA before
submitting an application to discuss the application process and
potential issues relevant to the FAA's licensing decision. Early
consultation enables an applicant to identify potential licensing
issues at the planning stage when changes to a license application or
to proposed licensed activities are less likely to result in
significant delay or costs to the applicant.
Sec. 413.7 Application.
(a) Form. An application must be in writing, in English and filed
in
[[Page 19615]]
duplicate with the Federal Aviation Administration, Associate
Administrator for Commercial Space Transportation, AST-200, Room 331,
800 Independence Avenue, S.W., Washington, D.C. 20591. Attention:
Licensing and Safety Division, Application Review.
(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 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 authorized to act for the
corporation in licensing 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.
Sec. 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.
Sec. 413.11 Acceptance of an application.
The FAA will initially screen an application to determine whether
the application is sufficiently complete to enable the FAA to initiate
the reviews or evaluations required under any applicable part of this
chapter. After completion of the initial screening, the FAA notifies
the applicant, in writing, of one of the following:
(a) The application is accepted and the FAA will initiate the
reviews or evaluations required for a licensing determination under
this chapter; or
(b) The application is so incomplete or indefinite as to make
initiation of the reviews or evaluations required for a licensing
determination under this chapter inappropriate, and the application is
rejected. The 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
pending additional submissions by the applicant.
Sec. 413.13 Complete application.
Acceptance by the FAA of an application does not constitute a
determination that the application is complete. If, in addition to the
information required by the applicable parts of 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 activity, an applicant shall submit the additional
information required to show compliance with this chapter.
Sec. 413.15 Review period.
(a) 180-day review. Unless otherwise specified in this chapter, the
FAA reviews and makes a determination on a license application within
180 days of receipt of an accepted application.
(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 licensing determination, or
an issue exists that would affect a licensing determination, the FAA
notifies the applicant, in writing, and informs the applicant of any
information required to complete the application. If further review is
impracticable, the 180-day review period shall be tolled pending
receipt by the FAA of the requested information.
(c) 120-day notice. If the FAA has not made a licensing
determination within 120 days of receipt of an accepted application,
the FAA informs the applicant, in writing, of any outstanding
information needed to complete the reviews or evaluations required by
this chapter for a licensing determination, or of any pending issues
that would affect the licensing determination.
Sec. 413.17 Continuing accuracy of application; supplemental
information; amendment.
(a) An applicant is responsible for the continuing accuracy and
completeness of information furnished to the FAA as part of a pending
license application. If at any time information provided by an
applicant as part of a license application is no longer accurate and
complete in all material respects, the applicant shall submit a
statement furnishing the new or corrected information. As part of its
submission, the applicant shall recertify the accuracy and completeness
of the application in accordance with section 413.7. An applicant's
failure to comply with any of the requirements set forth in this
paragraph is a sufficient basis for denial of a license application.
(b) An applicant may amend or supplement a license application at
any time prior to issuance or transfer of a license.
(c) Willful false statements made in any application or document
relating to an application or license are punishable by fine and
imprisonment under section 1001 of Title 18, United States Code, and by
administrative sanctions in accordance with part 405 of this chapter.
Sec. 413.19 Issuance of a license.
After the FAA completes its reviews and makes the approvals and
determinations required by this chapter for a license, the FAA issues a
license to an applicant in accordance with this chapter.
Sec. 413.21 Denial of a license application.
(a) The FAA informs a license applicant, in writing, if its
application has been denied and states the reasons for denial.
(b) An applicant whose license application is denied may either:
(1) Attempt to correct any deficiencies identified by the FAA and
request reconsideration of the revised application. The FAA has 60 days
or the number of days remaining in the 180-day review period, whichever
is greater, within which to reconsider its licensing determination; or
(2) Request a hearing in accordance with part 406 of this chapter,
for the
[[Page 19616]]
purpose of showing why the application should not be denied.
(c) An applicant whose license 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.
Sec. 413.23 License renewal.
(a) Eligibility. A licensee may apply to renew its license by
submitting to the FAA a written application for renewal of the license
at least 90 days before the expiration date of the license.
(b) Application.
(1) A license renewal application shall 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 any
modification to that license.
(3) The applicant must describe any proposed changes in its conduct
of licensed activities and provide any additional clarifying
information required by the FAA.
(c) Review of application. The FAA conducts the reviews required
under this chapter for a license to determine whether the applicant's
license may be renewed for an additional term. The FAA may incorporate
by reference any findings that are part of the record for the expiring
license.
(d) Grant of license renewal. After completion by the FAA of the
reviews required by this chapter for a license and issuance of the
requisite approvals and determinations, the FAA issues an order
amending the expiration date of the license. 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 renewal. The FAA informs a licensee, in
writing, if the licensee's application for renewal has been denied and
states the reasons for denial. A licensee whose application for renewal
is denied may follow the procedures set forth in section 413.21 of this
part.
5. Part 415 is revised to read as follows:
PART 415--LAUNCH LICENSE
Subpart A--General
Sec.
415.1 Scope.
415.3 Types of launch licenses.
415.5 Policy and safety approvals.
415.7 Payload determination.
415.9 Issuance of a launch license.
415.11 Additional license terms and conditions.
415.13 Transfer of a launch license.
415.15 Rights not conferred by launch license.
415.16-415.20 [Reserved]
Subpart B--Policy Review and Approval
415.21 General.
415.23 Policy review.
415.25 Application requirements for policy review.
415.27 Denial of policy approval.
415.28-415.30 [Reserved]
Subpart C--Safety Review and Approval for Launch From a Federal Launch
Range
415.31 General.
415.33 Safety organization.
415.35 Acceptable flight risk.
415.37 Flight readiness and communications plan.
415.39 Safety at end of launch.
415.41 Accident investigation plan.
415.43 Denial of safety approval.
415.44-415.50 [Reserved]
Subpart D--Payload Review and Determination
415.51 General.
415.53 Payloads not subject to review.
415.55 Classes of payloads.
415.57 Payload review.
415.59 Information requirements for payload review.
415.61 Issuance of payload determination.
415.63 Incorporation of payload determination in license
application.
415.64-415.70 [Reserved]
Subpart E--Post-Licensing Requirements--Launch License Terms and
Conditions
415.71 Public safety responsibility.
415.73 Continuing accuracy of license application; application for
modification of license.
415.75 Agreement(s) with federal launch range.
415.77 Records.
415.79 Launch reporting requirements.
415.81 Registration of space objects.
415.83 Financial responsibility requirements.
415.85 Compliance monitoring.
415.86-415.90 [Reserved]
Subpart F--Safety Review and Approval for Launch From a Launch Site not
Operated by a Federal Launch Range
415.91 General.
415.93 Denial of safety approval.
415.94-415.100 [Reserved]
Subpart G--Environmental Review
415.101 General
415.103 Environmental information
Appendix A to Part 415--FAA/USSPACECOM Launch Notification Form
Authority: 49 U.S.C. 70101-70121.
Subpart A--General
Sec. 415.1 Scope.
This part prescribes requirements for obtaining a launch license
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.
Sec. 415.3 Types of launch licenses.
(a) Launch-specific license. A launch-specific license authorizes a
licensee to conduct one or more launches, having the same launch
parameters, of one type of launch vehicle from one launch site. The
license identifies, by name or mission, each launch authorized under
the license. A licensee's authorization to launch terminates upon
completion of all launches authorized by the license or the expiration
date stated in the license, whichever occurs first.
(b) Launch operator license. A launch operator license authorizes a
licensee to conduct launches from one launch site, within a range of
launch parameters, of launch vehicles from the same family of vehicles
transporting specified classes of payloads. A launch operator license
remains in effect for five years from the date of issuance.
Sec. 415.5 Policy and safety approvals.
To obtain a launch license, an applicant must obtain policy and
safety approvals from the FAA. Requirements for obtaining these
approvals are contained in subparts B, C and F of this part. Only a
launch license applicant may apply for the approvals, and may apply for
either approval separately and in advance of submitting a complete
license application, using the application procedures contained in part
413 of this subchapter.
Sec. 415.7 Payload determination.
A payload determination is required for a launch license unless the
proposed payload is exempt from payload review under Sec. 415.53 of
this part. The FAA conducts a payload review, as described in subpart D
of this part, to make the determination. Either a launch license
applicant or a payload owner or operator may request a review of its
proposed payload using the application procedures contained in part 413
of this subchapter. Upon receipt of an application, the FAA may conduct
a payload review independently of a launch license application.
Sec. 415.9 Issuance of a launch license.
(a) The FAA issues a launch license to an applicant who has
obtained all approvals and determinations required under this chapter
for a license.
(b) A launch license authorizes a licensee to conduct a launch or
launches in accordance with the representations contained in the
licensee's application, subject to the
[[Page 19617]]
licensee's compliance with terms and conditions contained in license
orders accompanying the license, including financial responsibility
requirements.
Sec. 415.11 Additional license terms and conditions.
The FAA may modify a launch license at any time by modifying or
adding license terms and conditions to ensure compliance with the Act
and regulations.
Sec. 415.13 Transfer of a launch license.
(a) Only the FAA may transfer a launch license.
(b) An applicant for transfer of a launch license shall submit a
license application in accordance with part 413 of this subchapter and
shall meet the requirements of part 415 of this subchapter. The FAA
will transfer a license to an applicant who has obtained all of the
approvals and determinations required under this chapter 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.
Sec. 415.15 Rights not conferred by launch license.
Issuance of a launch 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 range or related facilities, airspace, or outer space.
Secs. 415.16-415.20 [Reserved]
Subpart B--Policy Review and Approval
Sec. 415.21 General.
The FAA issues a policy approval to a license applicant unless the
FAA determines that a proposed launch would jeopardize U.S. national
security or foreign policy interests, or international obligations of
the United States. A policy approval is part of the licensing record on
which the FAA's licensing determination is based.
Sec. 415.23 Policy review.
(a) The FAA reviews a license application to determine whether it
presents any issues affecting 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 launch proposal.
(c) The FAA advises 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 revise its license
application.
Sec. 415.25 Application requirements for policy review.
In its launch license application, an applicant shall--
(a) Identify the model and configuration of any launch vehicle
proposed for launch by the applicant.
(b) Identify structural, pneumatic, propellant, propulsion,
electrical and avionics systems used in the launch vehicle and all
propellants.
(c) Identify 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.
(d) Identify proposed launch vehicle flight profile(s), including:
(1) Launch site;
(2) Flight azimuths, trajectories, and associated ground tracks and
instantaneous impact points;
(3) Sequence of planned events or maneuvers during flight;
(4) Range of nominal impact areas for all spent motors and other
discarded mission hardware, within three standard deviations of the
mean impact point (a 3-sigma footprint); and
(5) For each orbital mission, the range of intermediate and final
orbits of each vehicle upper stage, and their estimated orbital
lifetimes.
Sec. 415.27 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 respond to the reasons for
the determination and request reconsideration.
Secs. 415.28-415.30 [Reserved]
Subpart C--Safety Review and Approval for Launch From a Federal
Launch Range
Sec. 415.31 General.
(a) The FAA conducts a safety review to determine whether an
applicant is capable of launching a launch vehicle and its payload
without jeopardizing public health and safety and safety of property.
The FAA issues a safety approval to a license applicant proposing to
launch from a federal launch range if the applicant satisfies the
requirements of this subpart and has contracted with the federal launch
range for the provision of safety-related launch services and property,
as long as those launch services and the proposed use of launch
property are within the federal launch range's experience. The FAA
evaluates on an individual basis all other safety-related launch
services and property associated with an applicant's proposal. A safety
approval is part of the licensing record on which the FAA's licensing
determination is based.
(b) The FAA advises an applicant, in writing, of any issue raised
during a safety review that would impede issuance of a safety approval.
The applicant may respond, in writing, or revise its license
application.
Sec. 415.33 Safety organization.
(a) An applicant shall maintain a safety organization and document
it by identifying lines of communication and approval authority for all
launch safety decisions. Lines of communication, both within the
applicant's organization and between the applicant and any federal
launch range providing launch services, shall be employed to ensure
that personnel perform launch safety operations in accordance with
range safety requirements and with plans and procedures required by
this subpart. Approval authority shall be employed to ensure compliance
with range safety requirements and with plans and procedures required
by this subpart.
(b) Safety official. An applicant shall identify by name, title,
and qualifications, a qualified safety official authorized to examine
all aspects of the applicant's launch safety operations and to monitor
independently personnel compliance with the applicant's safety policies
and procedures. The safety official shall report directly to the person
responsible for an applicant's
[[Page 19618]]
licensed launches, who shall ensure that all of the safety official's
concerns are addressed prior to launch.
Sec. 415.35 Acceptable flight risk.
(a) Flight risk through orbital insertion or impact. Acceptable
flight risk through orbital insertion for an orbital launch vehicle,
and through impact for a suborbital launch vehicle, is measured in
terms of the expected average number of casualties (Ec) to
the collective members of the public exposed to debris hazards from any
one launch. To obtain safety approval, an applicant shall demonstrate
that the risk level associated with debris from an applicant's proposed
launch shall not exceed an expected average number of 0.00003
casualties per launch (Ec 30 x
10-6).
(b) Hazard identification and risk assessment. To demonstrate
compliance with this section, an applicant shall submit an analysis
that identifies hazards and assesses risks to public health and safety
and safety of property associated with nominal and non-nominal flight
under its launch proposal.
(c) A launch vehicle shall be designed to ensure that flight risks
meet the criteria set forth in this section. An applicant shall
identify and describe the following:
(1) Launch vehicle structure, including physical dimensions and
weight;
(2) Hazardous and safety critical systems, including propulsion
systems; and
(3) Drawings and schematics for each system identified under
paragraph (c)(2) of this section.
(d) A launch vehicle shall be operated in a manner that ensures
that flight risks meet the criteria set forth in this section. An
applicant shall identify all launch operations and procedures that must
be performed to ensure acceptable flight risks.
Sec. 415.37 Flight readiness and communications plan.
(a) Flight readiness requirements. An applicant shall designate an
individual responsible for flight readiness. The applicant shall submit
the following procedures for verifying readiness for safe flight:
(1) Launch readiness review procedures involving the applicant's
flight safety personnel and federal launch range personnel involved in
the launch. The procedures shall ensure a launch readiness review is
conducted during which the individual designated under paragraph (a) of
this section is provided with the following information to make a
judgement as to flight readiness:
(i) Flight-readiness of safety-related launch property and services
to be provided by a federal launch range;
(ii) Flight-readiness of launch vehicle and payload;
(iii) Flight-readiness of flight safety systems;
(iv) Mission rules and launch constraints;
(v) Abort, hold and recycle procedures;
(vi) Results of dress rehearsals and simulations conducted in
accordance with paragraph (a)(4) of this section;
(vii) Unresolved safety issues as of the launch readiness review
and plans for addressing and resolving them; and
(viii) Any additional safety information required by the individual
designated under paragraph (a) of this section to determine flight
readiness.
(2) Procedures that ensure mission constraints, rules and abort
procedures are listed and consolidated in a safety directive or
notebook approved by licensee flight safety and federal launch range
personnel;
(3) Procedures that ensure currency and consistency of licensee and
federal launch range countdown checklists;
(4) Dress rehearsal procedures that--
(i) Ensure crew readiness under nominal and non-nominal flight
conditions;
(ii) Contain criteria for determining whether to dispense with one
or more dress rehearsals; and
(iii) Verify currency and consistency of licensee and federal
launch range countdown checklists.
(5) Procedures for ensuring the licensee's flight safety personnel
adhere to federal launch range crew rest rules.
(b) Communications plan requirements. An applicant shall submit a
communications plan providing licensee and federal launch range
personnel communications procedures during countdown and flight.
Effective issuance and communication of safety-critical information
during countdown shall include hold/resume, go/no go and abort commands
by licensee and federal launch range personnel during countdown. The
communications plan shall describe the authority of licensee and
federal launch range personnel, by individual or position title, to
issue these commands. The communications plan shall also ensure that--
(1) Communication networks are assigned so that personnel
identified under paragraph (b) of this section have direct access to
real-time safety-critical information required for issuing hold/resume,
go/no go and abort decisions and commands;
(2) Personnel identified under paragraph (b) of this section
monitor common intercom channel(s) during countdown and flight; and
(3) A protocol is established for utilizing defined radio telephone
communications terminology.
(c) An applicant shall submit procedures that ensure that licensee
and federal launch range personnel receive a copy of the communications
plan required by paragraph (b) of this section, and that the federal
launch range concurs in the communications plan.
Sec. 415.39 Safety at end of launch.
To obtain safety approval, an applicant must demonstrate for any
proposed launch that for all launch vehicle stages or components that
reach earth orbit--
(a) There will be no unplanned physical contact between the vehicle
or its components and the payload after payload separation;
(b) Debris generation will 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
(c) Stored energy will be 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. Other equivalent procedures may be
approved in the course of the licensing process.
Sec. 415.41 Accident investigation plan.
(a) An applicant shall submit an accident investigation plan (AIP)
containing the applicant's procedures for reporting and responding to
launch accidents, launch incidents, or other mishaps, as defined in
Sec. 401.5 of this chapter. The AIP shall be signed by an individual
authorized to sign and certify the application in accordance with
Sec. 413.7(c) of this chapter, and the safety official designated under
Sec. 415.33(b) of this subpart.
(b) Reporting requirements. An AIP shall provide for--
(1) Immediate notification to the Federal Aviation Administration
(FAA) Washington Operations Center in case of a launch accident, a
launch incident or a mishap that involves a fatality or serious injury
(as defined in 49 CFR Sec. 830.2).
(2) Notification within 24 hours to the Associate Administrator for
Commercial Space Transportation or the Federal Aviation Administration
(FAA) Washington Operations Center in the event of a mishap, other than
those in
[[Page 19619]]
Sec. 415.41 (b) (1), that does not involve a fatality or serious injury
(as defined in 49 CFR 830.2).
(3) Submission of a written preliminary report to the FAA,
Associate Administrator for Commercial Space Transportation, in the
event of a launch accident or launch incident, as defined in Sec. 401.5
of this chapter, within five days of the event. The report shall
identify the event as either a launch accident or launch incident, and
shall include the following information:
(i) Date and time of occurrence;
(ii) Description of event;
(iii) Location of launch;
(iv) Launch vehicle;
(v) Any payload;
(vi) Vehicle impact points outside designated impact lines, if
applicable;
(vii) Number and general description of any injuries;
(viii) Property damage, if any, and an estimate of its value;
(ix) Identification of hazardous materials, as defined in
Sec. 401.5 of this chapter, involved in the event, whether on the
launch vehicle, payload, or on the ground;
(x) Action taken by any person to contain the consequences of the
event; and
(xi) Weather conditions at the time of the event.
(c) Response plan. An AIP shall contain procedures that--
(1) Ensure the consequences of a launch accident, launch incident
or other mishap are contained and minimized;
(2) Ensure data and physical evidence is preserved;
(3) Require the licensee to report to and cooperate with FAA and
National Transportation Safety Board (NTSB) investigations and
designate one or more points of contact for the FAA or NTSB; and
(4) Require the licensee to identify and adopt preventive measures
for avoiding recurrence of the event.
(d) Investigation plan. An AIP shall contain--
(1) Procedures for investigating the cause of a launch accident,
launch incident or other mishap;
(2) Procedures for reporting investigation results to the FAA; and
(3) Delineated responsibilities, including reporting
responsibilities for personnel assigned to conduct investigations and
for any one retained by the licensee to conduct or participate in
investigations.
Sec. 415.43 Denial of safety approval.
The FAA notifies an applicant, in writing, if it has denied safety
approval for a license application. The notice states the reasons for
the FAA's determination. The applicant may respond to the reasons for
the determination and request reconsideration.
Secs. 415.44-415.50 [Reserved]
Subpart D--Payload Review and Determination
Sec. 415.51 General.
The FAA reviews a payload proposed for launch to determine whether
a license applicant or payload owner or operator has obtained all
required licenses, authorization, and permits, unless the payload is
exempt from review under Sec. 415.53 of this subpart. If not otherwise
exempt, the FAA reviews a payload proposed for launch to determine
whether its launch would jeopardize public health and safety, safety of
property, U.S. national security or foreign policy interests, or
international obligations of the United States. A payload determination
is part of the licensing record on which the FAA's licensing
determination is based.
Sec. 415.53 Payloads not subject to review.
The FAA does not review payloads that are--
(a) Subject to regulation by the Federal Communications Commission
(FCC) or the Department of Commerce, National Oceanic and Atmospheric
Administration (NOAA); or
(b) Owned or operated by the U.S. Government.
Sec. 415.55 Classes of payloads.
The FAA may review and issue findings regarding a proposed class of
payload, e.g., communications, remote sensing or navigation. However,
each payload is subject to compliance monitoring by the FAA before
launch to determine whether its launch would jeopardize public health
and safety, safety of property, U.S. national security or foreign
policy interests, or international obligations of the United States.
The licensee is responsible for providing current information, in
accordance with Sec. 415.79(a), regarding a payload proposed for launch
not later than 60 days before a scheduled launch.
Sec. 415.57 Payload review.
(a) Timing. A payload review may be conducted as part of a license
application review or may be requested by a payload owner or operator
in advance of or apart from a license application.
(b) Interagency consultation. The FAA consults with other agencies
to determine whether launch of a proposed payload or payload class
would present any issues affecting public health and safety, safety of
property, U.S. national security or foreign policy interests, or
international obligations of the United States.
(1) The FAA consults with the Department of Defense to determine
whether launch of a proposed payload or payload class would present any
issues affecting U.S. national security.
(2) The FAA consults with the Department of State to determine
whether launch of a proposed payload or payload class would present 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 (b) of this section associated with
an applicant's launch proposal.
(c) The FAA advises 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 that payload or payload class. The
person requesting payload review may respond, in writing, or revise its
application.
Sec. 415.59 Information requirements for payload review.
(a) A person requesting review of a particular payload or payload
class shall identify the following:
(1) Payload name;
(2) Payload class;
(3) Physical dimensions and weight of the payload;
(4) Payload owner and operator, if different from the person
requesting payload review;
(5) Orbital parameters for parking, transfer and final orbits;
(6) Hazardous materials, as defined in Sec. 401.5 of this chapter,
and radioactive materials, and the amounts of each;
(7) Intended payload operations during the life of the payload; and
(8) Delivery point in flight at which the payload will no longer be
under the licensee's control.
(b) [Reserved]
Sec. 415.61 Issuance of payload determination.
(a) The FAA issues a favorable payload determination unless it
determines that launch of the proposed payload would jeopardize public
health and safety, safety of property, U.S. national security or
foreign policy interests, or international obligations of the United
States. The FAA advises any person who has requested a payload review
of its determination, in writing. The notice states the reasons for the
[[Page 19620]]
determination in the event of an unfavorable determination.
(b) Any person issued an unfavorable payload determination may
respond to the reasons for the determination and request
reconsideration.
Sec. 415.63 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 section
415.59 of this subpart must be reported in accordance with section
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.
Sec. 415.64-415.70 [Reserved]
Subpart E--Post-Licensing Requirements--Launch License Terms and
Conditions
Sec. 415.71 Public safety responsibility.
A launch licensee is responsible for ensuring the safe conduct of a
licensed launch and for ensuring that public safety and safety of
property are protected at all times during the conduct of a licensed
launch.
Sec. 415.73 Continuing accuracy of license application; application
for modification of license.
(a) A launch licensee is responsible for the continuing accuracy of
representations contained in its application for the entire term of the
license. A launch licensee must conduct a licensed launch and carry out
launch safety procedures in accordance with its application. A
licensee's failure to comply with the requirements of this paragraph is
sufficient basis for suspension or revocation of a license.
(b) After a launch license has been issued, a licensee must apply
to the FAA for modification of the license if:
(1) The launch licensee proposes to conduct a launch or carry out a
launch safety procedure or operation in a manner that is not authorized
by the license; or
(2) Any representation contained in the license application that is
material to public health and safety or safety of property would no
longer be accurate and complete or would not reflect the launch
licensee's procedures governing the actual conduct of a launch. A
change is material to public health and safety or safety of property if
it alters or affects the licensee's launch plans or procedures
submitted in accordance with subpart D of this part, class of payload,
orbital destination, type of launch vehicle, flight path, launch site,
launch point, or any safety system, policy, procedure, requirement,
criteria or standard.
(c) An application to modify a launch license shall be prepared and
submitted in accordance with part 413 of this chapter. The launch
licensee shall indicate any part of its license or license application
that would be changed or affected by a proposed modification.
(d) The FAA reviews approvals and determinations required by this
chapter to determine whether they remain valid in light of a proposed
modification. The FAA approves a modification that satisfies the
requirements set forth in this part.
(e) Upon approval of modification, the FAA issues either a written
approval to the launch 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.
Sec. 415.75 Agreement(s) with federal launch range.
Prior to conducting a licensed launch from a federal launch range,
a launch licensee or applicant shall enter into an agreement with a
federal launch range providing for access to and use of U.S. Government
property and services required to support a licensed launch from the
facility and for public safety related operations and support. The
agreement shall be in effect for the conduct of any licensed launch. A
launch licensee shall comply with any requirements of the agreement(s)
that may affect public safety and safety of property during the conduct
of a licensed launch, including flight safety procedures and
requirements.
Sec. 415.77 Records.
(a) A launch licensee shall maintain all records necessary to
verify that licensed launches are conducted in accordance with
representations contained in the licensee's application. A launch
licensee shall retain records for three years after completion of all
launches conducted under the license.
(b) In the event of a launch accident or launch incident, as
defined in Sec. 405.1 of this chapter, a launch licensee shall preserve
all records related to the event. Records shall be retained until
completion of any federal investigation and until the FAA advises the
licensee that the records need not be retained. The licensee shall make
available to federal officials for inspection and copying all records
required to be maintained under these regulations.
Sec. 415.79 Launch reporting requirements.
(a) Not later than 60 days before each flight conducted under a
launch operator license, a licensee shall provide the FAA the following
launch-specific information:
(1) Payload information contained in Sec. 415.59 of this part;
(2) Flight information, including the launch vehicle, planned
flight path, including staging and impact locations, and on-orbit
activity of the launch vehicle including payload delivery point(s); and
(3) Mission specific launch waivers, approved or pending, from a
federal launch range from which the launch will take place, that are
unique to the launch and may affect public safety.
(b) Not later than noon, EST, 15 days before each licensed flight a
licensee shall submit to the FAA a completed Federal Aviation
Administration/U.S. Space Command (FAA/USSPACECOM) Launch Notification
Form (OMB No. 2120-0608).
(c) A launch licensee shall report a launch accident, launch
incident, or a mishap that involves a fatality or serious injury (as
defined in 49 CFR 830.2) immediately to the Federal Aviation
Administration (FAA) Washington Operations Center and provide a written
preliminary report in the event of a launch accident or launch
incident, in accordance with the accident investigation plan (AIP)
submitted as part of its license application under Sec. 415.41 of this
part.
Sec. 415.81 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 shall provide 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:
(1) Any object owned and registered by the U.S. Government; and
(2) Any object owned by a foreign entity.
(b) For each object that must be registered in accordance with this
section, not later than thirty (30) days following the conduct of a
licensed launch, a licensee shall submit the following information:
(1) The international designator of the space object(s);
(2) Date and location of launch;
(3) General function of the space object; and
(4) Final orbital parameters, including:
(i) Nodal period;
[[Page 19621]]
(ii) Inclination;
(iii) Apogee; and
(iv) Perigee.
Sec. 415.83 Financial responsibility requirements.
A launch licensee shall comply with financial responsibility
requirements specified in a license or license order.
Sec. 415.85 Compliance monitoring.
A launch 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, or of the licensee's
contractors or subcontractors, associated with the conduct of a
licensed launch.
Sec. 415.86-415.90 [Reserved]
Subpart F---Safety Review and Approval for Launch From a Launch
Site Not Operated by a Federal Launch Range
Sec. 415.91 General.
The FAA evaluates on an individual basis the safety-related
elements of an applicant's proposal to launch a launch vehicle from a
launch site not operated by a federal launch range. The FAA issues a
safety approval to a license applicant proposing to launch from a
launch site not operated by a federal launch range when the FAA
determines that the launch demonstrates an equivalent level of safety
to that provided by a launch from a federal launch range as set forth
in subpart C of this part. A safety approval is part of the licensing
record on which the FAA's licensing determination is based.
Sec. 415.93 Denial of safety approval.
The FAA notifies an applicant, in writing, if it has denied safety
approval for a license application. The notice states the reasons for
the FAA's determination. The applicant may respond to the reasons for
the determination and request reconsideration.
Secs. 415.94-415.100 [Reserved]
Subpart G--Environmental Review
Sec. 415.101 General.
An applicant shall provide the FAA with information for the FAA to
analyze the environmental impacts associated with a proposed launch.
The information provided by an applicant must be sufficient to enable
the FAA to comply with the requirements of the National Environment
Policy Act, 42 U.S.C. 4321 et seq. (NEPA), the Council on Environmental
Quality Regulations for Implementing the Procedural Provisions of NEPA,
40 CFR parts 1500-1508, and the FAA's Procedures for Considering
Environmental Impacts, FAA Order 1050.1D.
Sec. 415.103 Environmental information.
An applicant shall submit environmental information concerning:
(a) A proposed launch site not covered by existing environmental
documentation;
(b) A proposed launch vehicle with characteristics falling
measurably outside the parameters of existing environmental
documentation;
(c) A proposed launch from an established launch site involving a
vehicle with characteristics falling measurably outside the parameters
of any existing environmental impact statement that applies to that
site;
(d) A proposed payload that may have significant environmental
impacts in the event of a mishap; and
(e) Other factors as determined by the FAA.
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Appendix A to Part 415--FAA/USSPACECOM Launch Notification Form
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6. Subchapter C of Chapter III, title 14, Code of Federal
Regulations, is amended by adding a new part 417 to read as follows:
PART 417--LICENSE TO OPERATE A LAUNCH SITE
Sec.
417.101 General.
417.103 Issuance of a license to operate a launch site.
417.105 Environmental.
417.107 Environmental information.
Authority: 49 U.S.C. 70101-70121.
Sec. 417.101 General.
The FAA evaluates on an individual basis an applicant's proposal to
operate a launch site.
Sec. 417.103 Issuance of a license to operate a launch site.
(a) The FAA issues a license to operate a launch site when it
determines that an applicant's operation of the launch site does 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) 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, subject to the licensee's compliance
with terms and condition contained in any license order accompanying
the license.
Sec. 417.105 Environmental.
An applicant shall provide the FAA with information for the FAA to
analyze the environmental impacts associated with proposed operation of
a launch site. The information provided by an applicant must be
sufficient to enable the FAA to comply with the requirements of the
National Environment Policy Act, 42 U.S.C. 4321 et seq. (NEPA), the
Council on Environmental Quality Regulations for Implementing the
Procedural Provisions of NEPA, 40 CFR Parts 1500-1508, and the FAA's
Procedures for Considering Environmental Impacts, FAA Order 1050.1D.
Sec. 417.107 Environmental information.
An applicant shall submit environmental information concerning:
(a) A proposed launch site not covered by existing environmental
documentation; and
(b) Other factors as determined by the FAA.
Issued in Washington, DC on April 13, 1999.
Patricia G. Smith,
Associate Administrator for Commercial Space Transportation.
[FR Doc. 99-9639 Filed 4-20-99; 8:45 am]
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