Commercial Space Transportation Licensing Regulations

SUMMARY: The Office of the Associate Administrator for Commercial Space

Transportation (the Office) of the Federal Aviation Administration,

Department of Transportation (DOT) is proposing to amend the licensing

regulations for launching commercial launch vehicles. The Office

proposes to amend its licensing regulations in order to clarify its

license application process for launch vehicles launching from federal

launch ranges. The proposed regulations are intended to provide

applicants and licensees greater specificity and clarity regarding the

scope of a license, and regarding licensing requirements and criteria.

DATES: Comments must be received on or before May 19, 1997.

ADDRESSES: An original and four copies of comments on this NPRM should

be addressed to: Federal Aviation Administration, Office of the Chief

Counsel, Attention: Rules Docket (AGC-200), Docket No. 28851, 800

Independence Avenue, SW., Washington, DC 20591. Comments may also be

sent electronically to the Rules Docket by using the following internet

address: [email protected]. Comments may be examined in the Rules

Docket in Room 915G on weekdays between 8:30 a.m. and 5:00 p.m., except

federal holidays.

FOR FURTHER INFORMATION CONTACT: J. Randall Repcheck, Licensing and

Safety Division, (AST-200), Associate Administrator for Commercial

Space Transportation, Federal Aviation Administration, DOT, Room 5402a,

400 Seventh Street, Washington, DC 20590; telephone (202) 366-2258; or

Laura Montgomery, Office of the Chief Counsel, (AGC-200), Federal

Aviation Administration, DOT, Room 10424, 400 Seventh Street,

Washington, DC 20590; telephone (202) 366-9305.

SUPPLEMENTARY INFORMATION: Availability of NPRM: Any person may

obtain a copy of this NPRM by submitting a request to the Federal

Aviation Administration, Office of Rulemaking, 800 Independence

Avenue SW., Washington, DC 20591, or by calling (202) 267-9677.

Communications must identify the notice number of this NPRM.

Persons interested in being placed on a mailing list for future FAA

NPRMs 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 Federal Register's electronic bulletin board service

(telephone 202-512-1661). Internet users may reach the FAA's web page

at http://www.faa.gov or the Federal Register's webpage at http://

www.access.gpo.gov/su_docs for access to recently published rulemaking

documents.

I. Introduction

By this Notice of Proposed Rulemaking (Notice or NPRM), the Office

proposes to clarify license application procedures and requirements for

conducting commercial space launches. This Notice provides information

regarding the scope of a launch license with respect to expendable

launch vehicles (ELVs) launching from federal launch ranges, the

criteria for obtaining a license, and the underlying safety rationale

for the Office's launch licensing regime.

II. Background

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. 70101-70119 (1994) (the Act), authorizes

the Secretary of Transportation to oversee, license and regulate

commercial launch activities and the operation of launch sites 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. The Office carries out the Secretary's

responsibilities for licensing launches and the operation of launch

sites, and for encouraging, facilitating and promoting commercial space

launches by the private sector. 49 U.S.C. Sec. 70103. Prior to November

15, 1995, the Secretary's responsibilities were implemented by the

Office of Commercial Space Transportation, 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 this authority 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. The Office's proposed 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.

A. Background on the Office's Commercial Launch Licensing

The Office licenses commercial launches and the commercial

operation of launch sites in accordance with 14 CFR Ch. III. In April

1988, when the Office first issued final rules, no commercial 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 (1988). Under the 1988 regulations the

Office implemented a case-by-case approach to evaluate 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-

[[Page 13217]]

case approach to performing these reviews, tailoring its information

requests to the specifics of a given launch proposal.

Since then, the Office has taken 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 (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 Office has continued to apply a case-by-case

analysis to licenses authorizing a single launch or to licenses

authorizing a set of specific launches.

The Office, in accordance with 49 U.S.C. 70112, imposes financial

responsibility requirements on a licensee, commensurate with the scope

of the 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 Office, 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.

In order to enhance the Office's communications with the public,

the Office developed an internet-based information system which

provides the public with electronic access to the Office. The system

provides on-line information to interested parties, and allows

applicants, through a secure portion of the system, to submit

applications and related documents electronically and 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 Office's regulations, guidance documents, and

research studies. The address is: http://www.dot.gov/faa/cst/.

B. Growth and Current Status of Launch Industry

The number of commercial space launches has increased over the

years since the first licensed commercial launch in 1989. As of

February 21, 1996, fifty-seven licensed launches have taken place from

five different federal launch ranges. 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 the Lockheed Martin Launch

Vehicle (LMLV1) and Conestoga. Unique vehicles such as the Pegasus are

also included in this count.

New concepts for 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, balloon-

launched rockets, and partially reusable single-stage-to-orbit

vehicles. McDonnell Douglas is developing the Delta III, the next in

the Delta family of launch vehicles. Several companies are

participating in partnership with the National Aeronautics and Space

Administration (NASA) to develop the DC-XA and X-33 launch vehicles

incorporating reusable and single-stage-to-orbit technology.

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 or

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 the federal range and the 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.

The U.S. commercial space transportation industry faces strong

international competition. Ariane, the European 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 approximately thirty

commercial launches are planned 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

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 plans to

launch commercial rockets from a modified oil rig located in the

Pacific Ocean.

C. Current Proposal to Revise Licensing Rules

With six years of experience in regulating the commercial launch

industry, the Office initiated a process for standardizing its

licensing regulations. Originally, when the Office first initiated its

licensing program, the Office did not possess standardized rules or

requirements. Accordingly, it evaluated each 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 Office has evolved a standardized approach to

licensing launches from federal launch ranges. Accordingly, the Office

now proposes to implement that approach through revisions to its

regulations.

On October 13, 1994, in anticipation of issuing a notice of

proposed rulemaking, the Office announced that it was holding a public

meeting to obtain industry's views to assist the Office in developing

an NPRM addressing 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

[[Page 13218]]

licensing the operation of a launch site. Id. Recently, the Office has

been advised of a number of proposals for commercial operation of a

launch site. The Office proposes to implement rules of general

applicability for launch site operation 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 and the public. Comments received at the meeting

and in subsequent written submissions to the docket proved informative

and helpful. Public meeting participants expressed views on a number of

topics, including the appropriate scope of a launch license and whether

Office oversight duplicates that of the federal ranges. Comments on the

nature of a safety review were directed for the most part to proposed

new vehicle systems such as reusable and single-stage-to-orbit

vehicles. Prospective launch site operators expressed their interest in

a flexible licensing program, and addressed some of the particulars of

risk management.

After the meeting, participants took advantage of the opportunity

to submit written comments. A total of thirteen written comments were

received from a broad spectrum of the aerospace industry, including

launch services providers such as Lockheed Martin, McDonnell Douglas

and Orbital Sciences, and from prospective site operators such as

Alaska Aerospace Development Corporation, Spaceport Florida Authority

and the Western Commercial Space Center. The topics focussed mainly on

integration of federal ranges into the licensing process, the scope of

launch and site licenses, and the relationship between site operators

and launch operators. The ideas expressed were consistent with those

voiced at the public meeting, including the desire for a flexible

regulatory regime, performance standards rather than design standards,

and a strong interest in avoiding overlapping or conflicting government

requirements.

D. Subsequent Changes to the Office's Rules

The Office's regulatory agenda includes other issues as well as the

launch licensing rule amendments proposed in this Notice. The first

phase of the Office's agenda addresses industry's two most pressing

needs: the Office's financial responsibility requirements, which are

addressed in a separate notice of proposed rulemaking, and

standardization of the Office's licensing requirements for launches

from federal launch ranges. This Notice proposes to codify the Office's

current launch licensing program, and to clarify how federally operated

launch site services and approval processes fit within the Office's

licensing regime.

Future efforts will address other issues. The Office is aware that

enterprises contemplating international ventures are interested in

determining when a license is required. For example, if a U.S. citizen

plans to launch from a foreign country, the Act requires that the U.S.

citizen obtain a license to do so. If a U.S. citizen is conducting the

launch in conjunction with a foreign entity, when does the involvement

of the U.S. citizen reach the point that the U.S. citizen should be

considered to be launching the launch vehicle? Must the U.S. launch

operator have the right to make the lift-off decision or have control

over the flight termination system before the Office considers the U.S.

company to be launching the launch vehicle? Must the U.S. company

participate in the manufacture or integration of the launch vehicle?

Must the U.S. company possess the ability to impose requirements on the

operator of the launch site? If the launch site operator is a foreign

government does that divest the U.S. citizen of control over its launch

to the extent that it cannot be said to be conducting the launch?

To date, the Office has not received concrete proposals on these

issues, but has instead dealt only with the paradigm situation of

launch from a federally owned and operated range. There, the launch

operator provides a launch vehicle, integrates the vehicle and payload,

and prepares for launch. Although the federal range has final authority

over whether flight may occur, the launch operator has the final

decision over whether to commit to flight. As the Office has

interpreted its responsibilities to date, this combination of

activities and responsibilities amounts to the launch of a launch

vehicle by the launch operator. Some or all of the activities which

provide a basis for this conclusion may be necessary for the Office to

make a determination that a launch operator is conducting a launch.

Which specific activities are considered necessary elements of the

conduct of a launch and which are not is a question the Office has yet

to confront in the context of foreign involvement.

The Office expects that the issue will arise not only in the

international context but also in the context of launches occurring

from commercial launch sites. The Office's initial view is that it does

not want to compel the formation of business ventures in particular

ways or distort business decisions by issuing rules regarding

hypothetical situations, and will make decisions only on the basis of

facts before it. The Office would, however, be interested in receiving

additional information or opinions on this issue.

The Office will also propose rules regarding licensing the

operation of a launch site not operated by a federal launch range. The

Office is conducting research on safety standards to govern the

operation of a launch site. It is also analyzing the question of who

requires a license to operate a launch site either at or near a federal

launch range or at a location not associated with federal operations.

The commercial launch industry has recently begun work on the

development of reusable components or launch vehicles, although none

are commercially available yet, and no applications to launch a

reusable launch vehicle have been filed. In anticipation of future

commercial development, and in order to develop standards in this area,

the Office has begun a research program to develop safety regulations

and standards. Until such safety standards and regulations are

developed, the Office recognizes that licensing of reusable launch

vehicles would be conducted on a case by case basis. The Office's

recent move to the FAA should provide access to helpful ``lessons

learned'' from regulation of aircraft. In the meantime, an applicant

for a license to launch a reusable launch vehicle may rely upon parts

413 and 415 to the extent applicable.

The Office will address other issues in future rulemakings as well.

The Office intends to update its administrative procedures and will

institute new rules regarding compliance monitoring, enforcement, and

investigation procedures. It also plans to update the amateur rocket

exemption. In the longer term, the Office is also actively pursuing,

through research and coordination with industry and other government

agencies, regulatory concepts for reusable and single-stage-to-orbit

vehicles.

III. Launch License

The proposed changes to the launch licensing regulations address

licensing requirements, including payload determinations and policy

reviews, and information required from applicants

[[Page 13219]]

proposing to launch vehicles employing established technology and

procedures from federal launch ranges. It is this segment of the

industry with which the Office has the greatest experience and which

has the most immediate need for greater specificity. The Office intends

at this time to formalize its practice of issuing two different types

of launch licenses, the launch operator license pursuant to which a

licensee may perform any launches that fall within broad parameters as

described in its license, and the launch-specific license, which allows

a licensee to conduct only those launches enumerated in the license.

The Office also intends to advise the industry of a proposed change in

the Office's interpretation of the definition of ``launch'' and thus of

the scope of a launch license.

A. 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''

reveals the scope of a launch license. Greater certainty regarding this

definition will allow licensees to plan better regarding a number of

issues. Because the Office'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 licensed

activities, knowledge of the scope of a 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.

The Office's licensing authority derives from the Act, which states

that a license is required ``to launch a launch vehicle.'' 49 U.S.C.

70104(a). The Act defines ``launch'' as ``to place or try to place a

launch vehicle and any payload--(A) in a suborbital trajectory; (B) in

Earth orbit in outer space; or (C) otherwise in outer space.'' 49

U.S.C. 70102(3). The word ``launch'' is commonly understood to mean

ignition, lift-off and flight of a launch vehicle, as well as, perhaps,

certain immediately preliminary activities such as countdown and other

final steps necessary to effectuate flight.

The Act does not provide for the licensing of all pre-launch

activities. That the Act addresses pre-launch activities without

mandating that they be licensed indicates that the statute did not

contemplate licensing all pre-launch ground operations. For example,

the Act discusses pre-launch activities in its definition of ``launch

services.'' See 49 U.S.C. 70102(5). ``Launch services'' mean ``(A)

activities involved in the preparation of a launch vehicle and payload

for launch; and (B) the conduct of a launch.'' Id. The Act does not

require, however, a license to provide launch services. The Act treats

as distinct activities the preparation of a launch vehicle for launch

and the conduct of a launch, but provides for the licensing of only the

latter of those activities. Likewise significant is that preparatory

activities described in the Act's ``launch services'' definition do not

also appear within the Act's definition of ``launch.''

The Office's current practice of licensing site operations

associated with the conduct of a launch, commonly referred to as ``gate

to gate,'' is to license all commercial, launch related activities by a

launch operator operating within the gates of a federal range. Under

this view, a launch operator's operations are licensed, even if

ignition and flight are not imminent and even if the launch vehicle

itself is not present at the range.

``Gate to gate'' evolved out of an industry desire for broad

license coverage. Launch licensees requested some pre-flight coverage,

and the question arose as to when that coverage began. The Commercial

Space Transportation Advisory Committee (COMSTAC), which is composed of

industry and public interest representatives, has historically advised

the Secretary of Transportation that pre-flight activities should be

eligible for indemnification because the risks could well exceed

available private insurance. As is evident from testimony by the

Director of the Office to Congress in March 1990, COMSTAC recommended

as early as April 1989, that a licensee's insurance requirements cover

third party claims from the time the licensee enters the federal range

to conduct authorized launch activities. In September 1992, COMSTAC

reaffirmed this view when it adopted the recommendation of its Risk

Management Working Group regarding the scope of a launch license. The

working group recommended that the Office's licensing authority

``applies without limitation to all operations conducted by a

commercial launch operator at a federal launch facility in connection

with a licensed launch, commencing with entry onto the facility'' and

the COMSTAC adopted this recommendation. COMSTAC Risk Management

Working Group Recommendation (adopted Sept. 19, 1992, Full Meeting

Transcript 83). In 1992, the Office reached an accommodation with the

Air Force that an Office license extended ``gate to gate.'' At that

time, the Air Force questioned whether the Office had licensing

authority ``gate to gate.'' The Air Force agreed to accommodate the

Office and industry by allowing the Office to evaluate a licensee's

financial responsibility requirements gate to gate.

This approach has been the Office's official position with respect

to the scope of its licenses. On March 6, 1990, in testimony to the

Subcommittee on Space Science and Applications, Stephanie Lee-Miller,

then Director of the Office, stated that the insurance requirements of

an Office license covered claims from the time a licensee entered a

federal range to perform authorized launch site operations.

Other government sectors, including NASA, have criticized this

approach as overly broad. 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.\1\ Although recognizing

that the report language does not carry the force and effect of law,

the Office 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 Office to revisit the issue of the scope of a license

and, thus, necessarily, of the definition of ``launch.'' Accordingly,

the Office hopes to reach a new and clear understanding of the meaning

of ``launch'' and thus of the scope of a launch license through public

discussion of these issues.

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\1\ 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.

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Specifically, the Office proposes to revise its current policy of

licensing all commercial activities within the gate and to license

only, as the Act mandates, the ``launch of a launch vehicle.'' Id. The

definition of ``launch'' must therefore be stated with specificity. The

Office has taken into account the views expressed at its public meeting

and in subsequent written comments favoring an expansive approach, and

proposes to define ``launch'' as broadly as possible while still

remaining within the confines of the Act.

At the public meeting, commenters' concern over the scope of a

license was often grounded in the availability of indemnification. The

then Martin Marietta advocated a very broad license

[[Page 13220]]

to allow indemnification to attach. Tr. II at 26.\2\ Orbital Sciences

Corporation (OSC) requested that government indemnification be provided

for preparatory activities as well as for flight. Comments of OSC at 5.

Likewise, the 45th Space Wing of the Air Force favored extending the

scope of a license to cover off-site payload processing in order for

indemnification to apply. Tr. II at 43-44. The Air Force Space Command

recommended that the Office license all commercial pre-launch

processing activity occurring on federal ranges in order for the Office

to impose its financial responsibility requirements. Tr. II at 36,

Comments of Air Force Space Command at 2, 4. This recommendation stems

from the Air Force's interest in minimizing any adverse impacts of a

commercial launch accident on national assets. Comments of Air Force

Space Command at 4.

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\2\ References to ``Tr.'' mean that the information cited is

contained in the transcript for October 27, 1994, the first day of

the Office's public meeting. References to ``Tr. II'' mean that the

information cited is contained in the transcript for October 28,

1994, the second day of the Office's public meeting. The transcripts

are available for public review and copying in Room PL 401, 7th

Street SW, Washington, DC 20590.

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Several commenters, including the 45th Space Wing of the Air Force,

Orbital Sciences Corporation and the Western Commercial Space Center

(WCSC)/California Spaceport Authority, suggested tying the license to

hazardous activities rather than to geographical location or proximity

in time to flight. Tr. II at 31, 43, 46, 53, Comments of OSC at 6,

Comments of WCSC, Inc. at 2. USAIG, an insurance company, thought the

point at which risks change the most appropriate means of definition.

Tr. 53, 65. OSC advocated the inclusion of specific activities, such as

integration, testing, fueling and mating of launch vehicles to carrier

aircraft, in a license because the risks of fire or explosion are just

as great for certain pre-ignition activities as they are subsequent to

ignition. Comments of OSC at 6. OSC also advocated that air and ground

launched vehicles be treated in an equivalent manner under the

definition of ``launch.'' Comments of OSC at 6. Although not defining

``launch'' in this fashion, OSC recommended that the Office license

commence with the arrival of motors at the launch site for ground

launched vehicles and aircraft roll forward on the runway for air-

launched vehicles. Comments of OSC at 1.

Other public meeting participants urged the adoption of a more

narrow definition of ``launch'' and thus of the scope of the license.

For example, Spaceport Florida Authority (Spaceport Florida), deeming

overly inclusive the licensing of any activity on a federal range,

suggested that ``a launch activity is the final assembly of a launch

vehicle with the intent to fly.'' Tr. II at 50. According to Spaceport

Florida, the storage and maintenance of ordnance, while hazardous, is

less dangerous than physical assembly of the launch vehicle. Tr. II at

50. Martin Marietta Commercial Launch Services, opined that each launch

vehicle possesses a significant launch event that begins its launch

process, and that for an Atlas rocket that event might be when the

booster is placed on the stand. Tr. II at 62.

Alaska Aerospace Development Corporation (AADC) warned that even as

industry received ``indemnification'' for a license with a broader

scope, so would industry receive more regulation, which might, in the

long run, prove more expensive than the benefits received from an

expansive license coverage. Tr. II at 64, AADC Comments at 1. Likewise,

Texas Rocket Company argued against licensing ``small sounding type

rockets'' or any vehicle ``which at its maximum calculated range will

not cross the launch range perimeter,'' thus exhibiting a lack of

interest in the benefits of indemnification. Texas Rocket Company

Comments at 1. Goddard Space Flight Center and Wallops Flight Facility

of NASA and California Spaceport Authority noted that if hazardous

activities occur outside of a federal range, other regulatory regimes

exist to ensure safety, and did not consider necessary a DOT license

extending beyond the boundaries of a federal range. Tr. II at 47, 53.

In 1995, the House Science Committee also expressed an opinion on

this issue, suggesting that ``launch'' could include ``activities that

precede flight that (i) are closely proximate in time to ignition or

lift-off, (ii) entail critical steps preparatory to initiating flight,

(iii) are unique to space launch, and (iv) are inherently so hazardous

as to warrant the Department's regulatory oversight under Chapter

701.'' NASA Authorization Act, FY 1996, H.R. Rep. No. 233, 104th Cong.,

1st Sess., at 60 (1995).

The Office considered three possible options in defining ``launch''

for purposes of developing proposed regulations. The Office considered

adopting its current ``gate to gate'' definition but was concerned that

``gate to gate'' created a false impression that indemnification would

be available for all commercial pre-launch activities taking place

within the confines of a federal range. The Office also weighed the

most narrow approach, which would employ the ordinary definition of

``launch'' as only those flight activities beginning at ``T minus 0 (T-

0),'' or intentional first stage ignition; but the Office concluded

that this approach failed to provide regulatory oversight of hazardous

activities and that policy reasons in the form of international

competition weighed against this formulation. A less expansive approach

than ``gate to gate,'' one within the scope of the Office's mandate,

would include within a license those activities that are part of a

launch as contemplated by the Act's directive to license the ``launch

of a launch vehicle.'' Under the approach the Office proposes in this

Notice, because risks change shortly after the launch vehicle or its

hazardous components enter the gate of a federal launch range, launch

would begin, for purposes of licensing, upon the arrival of that

vehicle at the federal launch range. The following discussion describes

each of these three options and summarizes their advantages and

disadvantages.

1. ``Gate to Gate''

Certain equities favor continuation of ``gate to gate'' as the

definition of ``launch.'' The ``gate to gate'' approach constitutes 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 covers 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 ensures that

the Office requires 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 also

receives support because of the view that a launch operator would be

indemnified for damage to third parties caused by pre-flight and post-

flight ground operations.

The Office will not define ``launch'' to encompass all pre-flight

activities by a launch operator on a federal range 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 Office is aware of

launch operators who perform

[[Page 13221]]

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 DOT 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). This

argument does not, however, accord with the Office's interpretation of

what it means to ``operate a launch site.'' Now that the Office is

preparing to license commercial operation of launch sites, it is

necessary to differentiate between safety and control issues. The party

in control of a site must be authorized by license to operate that

site. In the case of a launch taking place from a federal range, the

launch operator is not, in fact, operating a launch site. The site is

operated by the federal range, under whose rules the launch operator

operates and from which launch operators must obtain clearances and

approvals. Range personnel perform services, make decisions regarding

the activities of the launch operator and enforce the range's rules.

Control over the site rests with the federal range rather than with the

launch operator, and the launch operator does not operate the site.

In addition to exceeding the mandate of the statute, ``gate to

gate'' also results in contradictory treatment of similarly situated

persons. The situation of Astrotech Space Operations, L.P. (Astrotech),

a payload processing facility, highlights this problem because

Astrotech is located on a federal range, or ``within the gate,'' at

Vandenberg and ``outside the gate'' at Cape Canaveral. Astrotech's

licensee customers at Vandenberg may well believe they would be

indemnified were there an accident arising out of hazardous vehicle

integration activities in light of the fact that current license

coverage is so extensive. Yet Astrotech in Florida, which is not

located on a federal range, is unable to offer its customers comparable

benefits, even though it performs the same functions.

In sum, although there are benefits to ``gate to gate'' licensing,

because ``gate to gate'' appears to encompass activities outside of the

definition of ``launch,'' the Office proposes that a launch license for

launch of a launch vehicle will not commence when the launch operator

enters a federal range.

2. ``T Minus 0 (T-0)'' or Intentional First Stage Ignition

The Office also considered defining ``launch'' as the word is

ordinarily understood. This would limit 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 be eligible for so-called indemnification for damages

arising out of any preparatory activities. The regulatory burden,

however, would be correspondingly less. 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 Office

as much information. Likewise, this approach would result in similar

treatment of licensees regardless of the type of vehicle employed or

the timing or location of hazardous activities. The Office carefully

weighed this approach.

Statutory support for a narrow definition of ``launch'' and a

correspondingly limited scope for a launch license is strong. As

discussed previously, the Act does not provide for the licensing of all

activities related to launch. The statute distinguishes between the

conduct of a launch and preparation for a launch, characterizing the

combination as ``launch services,'' for which no license is intended.

See 49 U.S.C. 70102(5). ``Launch'' may be defined using the ordinary

meaning of the word. In fact, Arianespace provides an even later onset

for the commencement of indemnification, defining the commencement of

launch as the time at which cable clamps open and release the launch

vehicle.\3\ This takes place after intentional ignition by several

seconds. That launch starts at intentional ignition is supported by

industry practice and by comments made at the Office's public meeting

in October 1994.

---------------------------------------------------------------------------

\3\ Arianespace indemnification for third party liability takes

effect the day of the launch and continues for thirty-six months.

---------------------------------------------------------------------------

Public meeting participants displayed consensus on the definition

of ``launch.'' The Space Transportation Association (STA), which

includes a number of launch providers as members, recommended that the

Office's regulation of launches be limited to the transport elements of

a launch. Tr. 67, 108-09. STA observed that once a ``transportation

service has been completed, * * *, at that point the service has been

terminated and it's up to the user to complete whatever it has to do,''

noting that in other transportation industries other agencies deal with

the particularities of the cargo. Tr. 108-09. According to STA, only if

the payload itself were hazardous would there be a role for the Office.

Tr. 109. McDonnell Douglas thought that not all on-site operations

should be considered pre-launch. Tr. 115. McDonnell Douglas noted that

OSHA already regulates much of the ground activity. Tr. 116. With

respect to Orbital Science Corporation's Pegasus vehicle, NASA Wallops

stated that the takeoff of an airplane does not constitute the

beginning of a launch, and recommended that ``launch'' for such a

vehicle commence when the rocket is released. Tr. 141-42. Orbital

Sciences Corporation preferred a ``wheels up'' definition of launch not

only ``because of the indemnification that it provides but because

`wheels up' has been defined collectively as the stage zero of the

mission.'' Tr. 144. In written comments, OSC, in the context of

recommending that a license consist of two parts, suggested that launch

begin at ignition or aircraft roll forward. Comments of OSC at 1. In

short, there is not a great deal of variation regarding what ``launch''

is commonly understood to mean.

Despite this consensus, the Office proposes to define launch more

broadly, and, as the commenters suggested in the context of license

coverage, define ``launch'' in accordance with the point in time at

which risks change. Weighing the burden to industry of more regulatory

oversight against the benefits to it of indemnification and the benefit

to the public of enhanced public safety, the Office proposes to define

``launch'' more expansively than the ordinary definition of the word

would suggest. This would mean that the Office may license more than

simply the ignition, lift-off and flight portions of a launch.

``Launch'' would commence when vehicle components enter the federal

range. Were the Office to define ``launch'' only in terms of ignition

and flight, it would ignore the fact that it is shortly after the

arrival of the vehicle or its component parts that the risks to

government property and to the public increase. With the arrival of the

vehicle begin the inherently hazardous vehicle integration activities

such as fuel tank testing, fueling, solid rocket motor handling and

processing, and the installation of ordnance.

A strict construction of the Act would also ignore considerations

of international competition. The Act charges the Office with

encouraging, facilitating and promoting launches by the commercial

launch industry of the United States. 49 U.S.C. 70103(b)(1). The U.S.

launch industry competes internationally with European, Russian,

[[Page 13222]]

Ukrainian and Chinese launch vehicles. The European launch vehicle,

Ariane, which is the market leader, provides indemnification to its

payload customers commencing the day of launch and extending for

thirty-six months on orbit thereafter. It is commonly understood that

the French government would accept responsibility for the payment of

damages that may be awarded for damage caused by Arianespace launches.

For certain launches, the member states of the European Space Agency in

turn indemnify the French government, and Arianespace is obligated to

reimburse the French government for amounts up to 400 million French

francs per launch for any damages the French government is required to

pay. As the report of the Senate Committee on Commerce, Science and

Transportation noted, foreign government support of national launch

systems provides advantages to vehicles such as the European Ariane and

the Russian Proton. See S. Rep. No. 593, 100th Cong., 2d Sess. (1988).

Although the Act does not provide indemnification for on-orbit

activities of customers of U.S. launch vehicles, greater coverage of

preparatory activities would provide U.S. companies some measure of

competitiveness with respect to their foreign competitors. In the

interest of providing American launch companies competitive parity, the

Office proposes to define ``launch'' more broadly than the common

definition.

3. Vehicle at the Gate

The Office proposes to license as launch those preparatory

activities that may be considered part of a launch. The Act defines

``launch'' to mean ``to place or try to place a launch vehicle and any

payload--(A) in a suborbital trajectory; (B) in Earth orbit in outer

space; or (C) otherwise in outer space.'' 49 U.S.C. 70102(3). Although

the Act differentiates between the conduct of a launch and launch

services, and only directs the licensing of launches, the definition of

``launch'' itself speaks only of placing or trying to place a launch

vehicle and any payload into an orbit or otherwise in outer space. This

definition is silent as to when the act of launching or of ``placing''

commences. Because the statutory definition is as broad as it is, this

lack of specificity requires the Office to determine, in the

implementation of its rulemaking authority and on the basis of its

experience and expertise, when ``launch'' begins.

The Office proposes to include within the definition of ``launch''

the flight of a launch vehicle, and those hazardous pre-flight

activities that are closely proximate in time to flight and are unique

to space flight. 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. The

Office's regulatory charter encompasses more than flight.

In order to advance the interests of safety, the Office proposes to

define 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

Office deems to be when the major components of a licensee's launch

vehicle enter, for purposes of preparing for flight, the gate of a

federal launch range from which flight will occur.

Defining ``launch'' as the arrival of the vehicle at the gate is in

accord with the proposals of a number of commenters, who suggested that

the Office define ``launch'' to begin when hazardous activities start.

The Office 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

Office 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 Office 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.

For purposes of ascertaining the start of launch, the Office

reviewed the hazardous activities associated with the launch of a

launch vehicle to determine when those hazardous activities started. It

is the experience of the Office that commercial launch vehicles share a

number of hazardous procedures, and that most of those procedures take

place once the vehicle is at the launch site in order to minimize

hazardous transport and exposure time.

The Office prepared a study in 1994, available in draft, titled

``Prelaunch Hazardous 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.'' Copies are available through the docket. 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 the

Office's ``Hazard Analysis of Commercial Space Transportation,'' May

1988. The amount of damage that a vehicle may cause varies among

vehicles, 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 \4\ 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 ranges for their analyses of

hazardous operations.

---------------------------------------------------------------------------

\4\ The term ``mishap'' encompasses unplanned events resulting

in injury, occupational illness, or damage to or loss of equipment

or property, or damage to the environment.

---------------------------------------------------------------------------

The operations are considered hazardous because their processes may

lead to identifiable mishaps and dangerous consequences. Solid rocket

motor handling and processing may result in ignition of the propellant,

[[Page 13223]]

either explosively or otherwise. This may be caused by the

unconstrained burning of a major portion of the propellant if a

situation were to develop that did not allow the proper venting of the

burning 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 or explosions that may be caused by

the direct blast and debris effects.

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.

These findings are based on the Office's 1994 review of launch

vehicle manufacturers' data, commercial launch baseline assessments,

past maximum probable loss determination analyses and Ullian's 1988

presentation at the Commercial Space Risk and Insurance Symposium. As a

general rule, hazardous operations begin as soon as, or shortly after,

a launch vehicle's major systems arrive at a government launch

facility.

The Office will continue to employ a geographic element by using

entry of the launch vehicle onto a federal range 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. Although some commenters maintain that launch begins at

different points for different vehicles, because the Office wishes to

treat launch operators in an equivalent fashion, the Office 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 federal range.

Additionally, the Office considers it inappropriate to license pre-

flight activities located outside of the federal range. Before the

vehicle components are brought together at a federal range for

integration or assembly in anticipation of flight, flight is not

imminent and the separate components are thus not part of the process

which Congress intended to protect through the risk management scheme

of the Act. Additionally, it has not been shown that insurance is

unavailable for manufacturing activities. Indeed, that commercial

operations exist off-range to manufacture and process vehicle

components and payloads indicates to the Office that the hazards are

not so extreme as to stifle the development of facilities and services

off a federal range.

There are pre-flight activities that are unique to space flight and

that may be considered part of launch, as the term is commonly

understood. Countdown, for example, occurs prior to ignition and

flight, yet may be considered part of a launch. Many of the activities

that take place once major systems of a launch vehicle arrive at a

federal range are unique to space flight as well. These include vehicle

integration and testing, fueling and the other activities discussed

earlier as hazardous.

Another aspect of the Office's definition attempts to capture those

activties that are proximate in time to flight. If activities are close

in time to flight they are more likely to constitute necessary or

integral elements of the launch. For example, fueling for liquid-fueled

vehicles usually takes place not long before flight to minimize the

risks attendant to the exposure of a fueled vehicle, and the Office

would consider that activity to be a component of launch under the Act.

On the other hand, the Office does not intend to license components

stored at a federal range for a considerable period of time prior to

flight. The Office is aware that the definition of launch may be

construed to encompass motor storage as well. However, if motors arrive

at a federal range for purposes of storage rather than as part of a

launch campaign, the Office does not consider that storage part of a

launch. The Office is interested in views regarding the ramifications

of this approach to motor storage and with respect to any other

activity which might arguably not constitute part of a pending launch

campaign.

Although initially producing licenses of considerable duration, the

Office believes that its proposed ``vehicle at the gate'' definition of

launch may, over time, result in licenses of shorter duration. As

industry practices evolve, a vehicle's arrival at the range will be

more closely proximate to the time of flight. Comments at the public

meeting described industry's evolution toward ``just in time''

processing. A representative of the 45th Space Wing of the Air Force

noted that launch operators are attempting to bring vehicle components

to the range in final form with only some assembly required. Tr. II at

33. Therefore, the arrival of vehicle components may eventually occur

closer in time to ignition, lift-off and flight.

Of interest to the Office are the answers to a number of related

questions. For example, is it likely that the proposed definition of

``launch'' might result in changed activity on the part of licensees?

Would a licensee wait until its vehicle arrives to perform unrelated

hazardous activities? If so, what are those activities?

4. When Does Launch End?

The current practice of the Office is to define the end of a launch

as the point after payload separation when the last action over which

the licensee has direct or indirect control over the launch vehicle

occurs. For a liquid-fueled stage, that point may be when any remaining

fuel is emptied from the upper stage, and the vehicle tank is vented

and otherwise ``safed.'' For solid rocket motors, that point may be

when the upper stage is dead or inert and the payload is released.

Others apply different definitions to the end of launch. The 1994

House Committee Report suggests that launch ends when the 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.

Tr. II at 66. Orbital insertion takes place when a launch vehicle

achieves orbital velocity, or when its instantaneous impact point

leaves the earth. McDonnell Douglas pointed out that there are a number

of post-flight ground operations which would apply to reusable launch

vehicles, such as draining propellants, pressuring down gas systems,

securing all systems and refurbishing the launch pad. Tr. 90.

[[Page 13224]]

The Office believes that defining launch to end at orbital

insertion terminates oversight of a launch too soon for safety. Damage

to other orbiting material may still ensue as the result of activities

subsequent to orbital insertion. Risk exists of the possible collision

of a launch vehicle or its components with other objects in space. The

orbit of a launch vehicle may decay, and its possible reentry would

endanger public health and safety and the safety of property on earth.

Additionally, dangerous orbital debris might be generated.

The Office proposes to retain its current practice of defining the

cessation of launch. From a practical point of view, the Office

believes that this definition keeps pace with technology. As the one

with control over the launch vehicle, the licensee is in the best

position to minimize the probability that the vehicle will cause harm.

If improvements in technology increase a licensee's ability to control

its vehicle, then the Office will expect the licensee to do so in a

safe manner.

With respect to ground operations, the Office's current practice is

to consider post-flight ground operations part of a launch license and

thus as part of launch. The Office does not propose to continue to

regard post-flight ground operations for expendable launch vehicles as

part of ``launch.'' The Office considered several options as to when

ground operations were no longer considered part of a launch. Under the

first 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 Office's experience that post-flight activities

involve the same levels of risk as pre-flight activities, where the

handling, integration and fueling of the vehicle pose substantial

hazards. Alternatively, ground operations for launch could end when

launch ends in the context of flight, namely, when the last act over

which the licensee has control occurs. This alternative would allow 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 Office 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 considered by the Office 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 recognizes that hazardous operations do occur subsequent

to ignition and lift off. These operations include securing ground

propellant and pneumatic systems and verifying through inspection of

the pad that no post-flight hazards exist. The operations cease upon a

determination that the launch pad and other launch related facilities

no longer endanger personnel.

Because the hazards associated with ground operations subsequent to

lift off are not related to the preparation of the vehicle for flight,

the Office proposes to define 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.

B. Formalizing Launch and Launch Operator Licenses

In order to enable the Office to issue a license for a single

mission or for multiple missions, the proposed licensing structure

provides for two types of launch licenses, the launch-specific and the

launch operator license.

A launch specific license authorizes the licensee to conduct a

single launch, or a specified 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 would terminate upon

completion of all launches authorized by the license or the expiration

date set forth in the license, whichever came first.

A launch operator license authorizes the 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. A launch operator license

would authorize the conduct of launches for five years from the date of

issuance.

The option of issuing a launch operator license provides advantages

both to the licensee and to the Office. 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 Office must

review. The Office's proposal to increase the term of a launch operator

license from the current practice of two years to five years reflects

the Office's experience with its licensees during the past few years.

During that time, the Office has encountered no serious safety

problems with launch operator licensees. On the basis of this record,

the Office believes that a launch operator with a safe launch record

should not be required to apply for a new license every two years. The

Office 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 compliance monitoring is to enable the Office to remain

informed regarding how a licensee implements its procedures.

C. Relationship Between DOT and Federal Government Launch Ranges

The Office's proposed launch rules are limited to launches as they

currently take place from Department of Defense (DOD) or NASA launch

ranges. The Office intends to be receptive to the commenters' express

desire to avoid duplication between the Office and the federal launch

ranges in overseeing the safety of launches. The participants in the

public meeting strongly supported avoidance of duplication of effort.

The proposed rule is consistent with that desire. Although the Office

proposes to require information and analyses not required by federal

ranges to ensure that all flight safety issues are addressed, and to

impose certain additional requirements derived from a National

Transportation Safety Board investigation, the Office will not

duplicate the safety assessments performed by federal launch ranges.

Federal launch ranges manage the launch facilities from which

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 ranges

confront different safety issues, practices are not always

standardized, although recent Air Force efforts resulted in a joint set

of documentation requirements and procedures, Eastern and Western Range

Requirements 127-1 (Mar. 1995). In addition to protecting public

safety, the federal launch range procedures protect government property

and launch capability, and are designed, to some extent, to ensure

mission success.

Public meeting participants requested that the Office not duplicate

federal range oversight. The Air Force itself

[[Page 13225]]

advised against a ``redundant set of requirements on commercial space

activities on Federal ranges,'' and recommended that the Office

``accept the approval of the responsible government agency at the

launch site to satisfy all OCST safety approval requirements,'' with

the exception of any information required to perform a financial

responsibility analysis. Comments of Air Force Space Command at 1, 4.

Orbital Sciences Corporation noted that ``National Range safety

requirements have been developed over 30 years and OCST should feel

comfortable adopting them as the core set of safety requirements needed

to protect the public safety.'' Comments of OSC at 2. Others suggested

that ``[l]aunch licensing should continue the general approach of

requiring the minimal information needed to fulfill the mandates of the

Act with regard to public safety, defense and international treaty, and

environmental concerns.'' Weaver Aerospace Comments at 4.

The Office fully recognizes the comprehensive and responsible

safety oversight that DOD and NASA have exercised at their ranges for

over thirty years. The Office also recognizes the scope of information

that a launch operator employing federal range services must submit for

approval in order to conduct launch operations. Therefore, for launches

that take place from DOD or NASA launch ranges, the Office has designed

its proposed regulatory program to make 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 Office would

rely on the processes of the federal range and would not duplicate

those safety analyses conducted by a federal range.

Federal launch ranges require 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.

The Office performed baseline assessments of various federal launch

ranges and found their safety services adequate. The Office 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

Office proposes to require 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 proposes to rely is not within the documented experience of

the federal launch range that the applicant proposes 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.

The proposed rules also codify Office guidelines containing

National Transportation Safety Board recommendations concerning launch

readiness and countdown procedures. The Office's guidelines implement

National Transportation Safety Board 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.

IV. Section-by-Section Analysis

A. Part 401--Organization and Definitions

Section 401.5 contains definitions of significant terms used in the

Office'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 Office proposes to remove the terms ``Director,'' ``launch

activity,'' ``mission,'' and ``safety operations.''

``Director'' no longer constitutes a title within the Office of the

Associate Administrator for Commercial Space Transportation and is

therefore deleted.

``Launch activity'' refers to activities licensed by the Office.

The term is overly broad and unnecessary.

``Mission'' is no longer necessary because the Office proposes to

modify and rename the mission review contained in part 415, subpart C.

``Safety operations'' does not appear in the proposed regulations

and the Office therefore proposes to remove it.

Revisions

Some of the proposed revisions merely reflect the codification of

the Act. These include ``Act,'' ``launch site,'' ``launch vehicle,''

``payload,'' and ``person.''

The Office proposes to revise the term ``launch,'' not only to

reflect the codification of Pub. L. 98-575, but to clarify that launch,

for purposes of licensing, includes the flight of a launch vehicle and

those hazardous pre-flight activities that are closely proximate in

time to flight and are unique to space flight. For launches from

federal launch ranges, hazardous activities begin with the arrival of

the launch vehicle at a federal launch range for purposes of

preparation for flight. The term ``launch'' is addressed in greater

detail earlier in this Notice.

The definition of ``launch site'' reflects changes resulting from

the codification of the Act, but additional clarification is in order.

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). The codified definition of ``launch site'' merely includes

``necessary facilities'' with no mention of their location. 49 U.S.C.

70102(6). According to a House Report explaining the codification, the

statute omitted as surplus the words ``includes all * * * located on a

launch site which are * * * to conduct a launch.'' Revision of Title

49, United States Code, ``Transportation,'' H.R. Rep. No. 180, 103rd

Cong., 1st Sess., at 463 (Jul. 15, 1994). Although no substantive

changes were intended by the codification (see id. at 5), omission of

``located on a

[[Page 13226]]

launch site'' from the law may create the impression that facilities

may be located anywhere and still require a license under the statute.

This is not the case. The Office does not believe that Congress

intended to change the substance of the statute to provide for the

licensing of all necessary facilities regardless of their location.

Additions

New terms include ``Associate Administrator,'' ``federal launch

range,'' ``hazardous materials,'' ``launch accident,'' ``launch

incident,'' ``launch operator,'' ``mishap,'' ``Office,'' and

``regulations.''

``Associate Administrator'' reflects a change in title of the

person in charge of the Office and arises out of the transfer of the

Office from the Office of the Secretary to the Federal Aviation

Administration. The term describes the FAA's Associate Administrator

for Commercial Space Transportation.

``Federal launch range'' means an installation 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.

``Hazardous materials'' means hazardous materials as defined in 49

C.F.R. 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 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 included in the

term ``mishap.'' ``Launch accident'' and ``launch incident'' derive

from the Office's current definition of ``accident'' and ``incident''

as the terms appear in the Office's accident investigation plan. Both

terms encompass unplanned events occurring during flight. ``Launch

accident'' is defined by the seriousness of the results, and ``launch

incident'' focusses 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

requires NTSB involvement. A ``launch incident'' may or may not require

NTSB involvement, depending on the seriousness of the safety issues

involved. Other mishaps, such as a mission failure, have fewer

reporting and investigation requirements.

``Launch operator'' is defined as a person who launches or plans to

launch a launch vehicle and any payload. The term is required in order

to distinguish a launch operator from a ``site operator,'' a term that

the Office intends to define in a future rulemaking concerning the

operation of a launch site.

``Office'' means the office of the Associate Adminsitrator for

Commercial Space Transportation of the Federal Aviation Administration,

U.S. Department of Transportation.

``Regulations'' means regulations adopted by the Office pursuant to

the Act, and describes those regulations contained in 14 CFR Chapter

III.

B. Part 411--Policy

The Office proposes to delete as unnecessary and to reserve part

411, which establishes the policies of the Office for licensing

commercial launch activities. This part identifies two reviews, safety

and mission reviews, which, pursuant to the proposed rules, would be

addressed in parts 413, 415 and 417.

C. Part 413--License Application Procedures

Proposed part 413 continues to describe those license application

procedures applicable to all license applications. The procedures apply

to license applications to launch a launch vehicle or to operate a

launch site. More specific requirements applicable to obtaining a

launch license or site operator license are set forth in parts 415 and

417, respectively. The majority of the revisions to this part are

editorial or self-explanatory. A few revisions bear individual mention.

Proposed Sec. 413.3 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. 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. 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. A foreign corporation,

partnership, joint venture, association or other foreign entity

controlled by a U.S. citizen does not require a license to launch from

foreign territory, unless that foreign nation has agreed that the U.S.

shall exercise jurisdiction over the launch.

Proposed Sec. 413.5 requires a prospective applicant to consult

with the Office prior to submitting an application. This pre-

application consultation would become mandatory in order to allow both

the applicant and the Office the opportunity to identify potential

issues relevant to the Office's licensing determination. Consultations

may be made by telephone.

Proposed Sec. 413.7 contains a change in the name of the Office.

Effective November 15, 1995, the Office became a part of the Federal

Aviation Administration, where it now operates as the FAA's seventh

line of business. With that move, the Office name was changed from the

Office of Commercial Space Transportation to the Office of the

Associate Administrator for Commercial Space Transportation. Proposed

Sec. 413.5(a) reflects that change.

Proposed Sec. 413.7(b)(2) requires an applicant to provide the

Office with one or more points of contact who should receive notices

from the Office.

Proposed Sec. 413.9 describes how an applicant may request

confidential treatment for trade secrets or proprietary commercial or

financial data.

Proposed Sec. 413.11 describes the process by which applications

are accepted or rejected. Proposed Sec. 413.11(a) provides for an

initial screening of an application in order for the Office to

determine whether the application is sufficiently complete to allow the

Office to initiate the required reviews. The Act requires the Office to

complete its review of an application within 180 days. The Office

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 Office receives an application which fails to provide sufficient

information for the Office to conduct a meaningful review, then a

review cannot be performed. Accordingly, the 180-day review period will

start to run only upon receipt of an acceptable application. The Office

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 to ensure that the Office did not

receive piecemeal applications. The Office also considered rejecting or

denying an incomplete application, which would

[[Page 13227]]

also prevent the 180-day review period from commencing. The Office

determined that if an applicant presented sufficient material to allow

at least some meaningful review to commence, the Office 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 Office to review an application, the

application must be sufficiently complete to allow review to commence.

Although review of an incomplete application may commence, proposed

Sec. 413.13 requires an applicant to complete an incomplete

application.

Proposed Sec. 413.15 tolls the review period of 180 days when an

applicant fails to provide information required for the Office to

complete its review. If an application does not address requests for

required information in sufficient detail, or if the application

contains inconsistencies, the Office may advise the applicant and

provide a time by which the requested information must be provided.

Once the deadline has passed, and while the Office waits for any

information necessary to complete its review, the 180-day time limit on

the Office does not run. The Office considered the option of 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

Office'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 accordingly

discourage frivolous applications. The Office determined that most

applicants, provided with information regarding how soon the Office

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 Office's experience that applicants

do not always respond in a timely fashion to requests from the Office

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 Office

proposes to toll the 180-day statutory review period.

Proposed Sec. 413.17 describes an applicant's responsibility for

the continuing accuracy and completeness of the information contained

in the applicant's license application. The applicant must advise the

Office of any proposed material change in any representation contained

in its application, including its launch plans or operations, launch

procedures, classes of payloads, orbital destinations, safety

requirements, the type of launch vehicle, flight path, and range, 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 Office proposes to rely upon federal ranges for safety

considerations, as discussed in other parts of this Notice, the

applicant must also notify the Office 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.

This section also, while permitting an applicant to modify or

supplement its license application, notes that changes to an

application may lengthen the time that the Office requires to complete

its reviews. The Office will reserve to itself the right to toll the

180-day review period in the event that modifications to an application

so radically change the applicant's proposal that the change, in

effect, constitutes a new application. The Office's experience,

however, has been that most modifications, while important, have a

relatively minor impact on the processing time, particularly if those

modifications are submitted in a timely manner.

Proposed Sec. 413.19 addresses issuance of a license.

Proposed Sec. 413.21 contains the procedures employed by the Office

when it denies an applicant a license, and describes the recourse

available to that applicant. The applicant may attempt to correct the

deficiencies which 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.

Proposed Sec. 413.23 allows a licensee to apply for renewal of an

expiring license. A licensee seeking authorization to conduct

activities that are substantially or significantly different from those

authorized under the expiring license is not eligible for renewal of

the license and must apply for a new license.

D. Part 415--Launch License

Proposed 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, possibly, to prospective payload owners

and operators, and should be read in conjunction with the general

application requirements of part 413. A flow chart of the launch

license application process is provided in Figure 1.

Proposed subpart A describes the scope and types of launch

licenses, required approvals or determinations and procedures governing

issuance or transfer of a launch license. Proposed Sec. 415.1 explains

that part 415 prescribes requirements for obtaining a launch license

and prescribes post-licensing requirements. Proposed Sec. 415.3

addresses the types of launch licenses issued, as discussed previously

in this Notice.

Proposed Secs. 415.5 and 415.7 identify the approvals and

determinations required to qualify for a launch license. These sections

would require a license applicant to obtain policy and safety approvals

from the Office. The applicant would also be required to obtain a

payload determination unless the payload were otherwise exempt from

Office consideration. The owner or operator of the proposed payload may

also apply for a payload determination. In addition to these approvals

or determinations that the Office requires of an applicant for a launch

license, an applicant should bear in mind that the National

Environmental Policy Act (NEPA) requires the Office, 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 the

Office's 1986 Programmatic Environmental Assessment of Commercial

Expendable Launch Vehicle Programs, then NEPA may direct the Office to

perform the requisite environmental review. No other approvals or

determinations are required from the Office in order for an applicant

to obtain a license for launch of a launch vehicle.

This subpart also contains provisions for issuance and transfer of

a launch license. Once an applicant has obtained all required

approvals, the Office will issue a launch license under proposed

Sec. 415.9. Proposed Sec. 415.11 allows the Office to amend 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, as proposed in subpart E, apply

to all licensees, it is the experience of the Office that a particular

[[Page 13228]]

launch proposal or a particular licensee may present unique

circumstances which apply only to that licensee. In that event, the

Office may issue or amend 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. Should a licensee wish

to protest an Office modification of its license, it is entitled to a

hearing pursuant to Sec. 406.1(a)(3) of part 406. In the event safety

requires that additional terms and conditions be applied to all

licensees, the Office would revise subpart E by rulemaking to implement

any such standardized terms. A licensee may also initiate license

modification. As provided in part 413, a licensee may request

modification of its license to reflect changes in its proposed

launches.

Under proposed Sec. 415.13 only the Office may issue or 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 proposed requirements for a policy review.

The proposed policy review is currently known as a mission review under

14 CFR part 411. Because the Office proposes to separate a payload

determination from any mission review, it proposes to change the name

of the review to policy review to more accurately identify its purpose.

Under proposed Secs. 415.21 and 415.23, a policy review would address

whether some aspect of a proposed launch presented an issue affecting

U.S. national security or foreign policy interests or is inconsistent

with international obligations of the United States. Launch safety

issues would be addressed only in the safety review although the Office

proposes to 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 Office may review those aspects of an applicant's launch

proposal that are not related to safety. The Office 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. 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 Office proposes to 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 its

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 Office

accomplishes mission reviews relatively quickly in comparison with a

safety review.

Proposed Sec. 415.25 describes the information an applicant would

be required to provide to obtain a policy approval. The information

requested reflects current Office information requests. The Office

requires this information in order to inform itself and other agencies

as to what is being launched, by whom, for what purpose, and where a

vehicle and its payload are going. The State Department, for example,

may be interested in overflight issues regarding particular countries.

Accordingly, the Office proposes to require that an applicant supply it

with sufficient information to describe a proposed launch vehicle and

its mission.

The information requested by proposed Sec. 415.25(b) is required in

the event there are any policy issues surrounding the launch vehicle

itself. The Office 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.

For example, policy questions may arise over the use of nuclear power.

The Department of Defense may have concerns over the allocation of

resources to a commercial launch if a sole source manufacturer is

involved. The Office is interested in views regarding whether this

level of detail is overly burdensome.

The information requested by proposed Sec. 415.25(c)(2) is intended

to provide the Departments of State and Defense the identities of any

foreign interests involved in a licensed launch. These agencies express

interest in foreign involvement in the U.S. launch industry. Also,

there may be issues with respect to whether possible government payment

of excess third-party claims is available to foreign launch

participants. The Office proposes to request the identity of any

foreign owners possessing a ten percent or greater interest in a

license applicant. The Office believes that a ten percent ownership

interest is sufficiently high for a foreign owner to be able to

influence a prospective licensee. The Office 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 more and the Office believes that

this constitutes a reasonable threshold. The Office is interested in

comments addressing whether a ten percent threshold provides sufficient

information concerning the ability of foreign interests to influence

licensee decisions.

Proposed Sec. 415.25(d)(3) requires information regarding the

sequence of major launch events during flight. In this regard, the

Office expects to be informed of events such as approximate engine burn

times of all stages, stage separation events, yaw maneuvers and engine

cutoff. The applicant may provide this information through a text

explanation or through diagrams and charts.

Proposed Sec. 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.

Proposed section 415.27 contains procedures employed by the Office

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.

Proposed subpart C addresses the Office's safety evaluation process

for license applications for launches from a federal launch range.

Because of the history and safety record of the federal launch ranges,

and because the Office's baseline assessments provide a written record

of the federal launch range's experience relevant to commercial space

transportation, the Office accepts that a federal launch range will

perform its safety role. Accordingly, the Office's information

requirements are directed more toward an applicant's own safety

capabilities. The Office requires information regarding the applicant's

safety organization, vehicle design and operational safety practices.

In this

[[Page 13229]]

subpart the Office proposes 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 Office 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. Proposed Sec. 415.31 explains that

the Office 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

provision of launch services and property, as long as the 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 Office 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 Office does not

duplicate federal launch range analyses nor routinely review those

analyses during the launch safety review conducted by the Office.

Instead, the Office relies on its knowledge of the range processes as

documented in the Office's baseline assessments. The Office's

assessments provide a basis for the Office'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 Office's ability to rely on a

federal launch range. The Office may ascertain this during the course

of a pre-application consultation or once an applicant submits its

application. The Office 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 Office will also work with the federal launch

range to address the issue, and will update the Office's baseline

assessment as appropriate.

The Office also makes maximum use of the information an applicant

must provide a federal launch range. The applicant, to save paperwork,

may submit to the Office either entire, or appropriate sections of,

documents it prepares and submits to the federal launch range that are

relevant to the applicant's launch application. It has been the

Office's experience that because information requested by federal

launch ranges provides greater detail than the Office requires, the

Office's requirements may be satisfied by this material.

To aid applicants in identifying those sections of documents

submitted to federal launch ranges that are relevant to the applicant's

launch application, the Office has prepared ``Comparison of OCST Safety

Approval Requirements for Launches from a Federal Launch Range with Air

Force Range User Requirements.'' Figure 2. This comparison may be used

by an applicant as a guide to satisfying subpart C requirements. It is

illustrative only, and where it appears to conflict with the proposed

regulations, the regulations govern. Although the comparison applies

only to launch ranges operated by the Air Force, the Office intends it

to be helpful for applicants using all federal launch ranges. The

Office plans to prepare similar matrices for other federal launch

ranges in the near future, and invites industry comments on this

approach.

Proposed Sec. 415.33 requires an applicant to document its safety

organization. The applicant must possess a functioning safety

organization because an applicant cannot ensure safety without someone

designated as responsible for safety issues. The Office will evaluate

whether the structure, lines of communication, and approval authority

the applicant establishes will enable the applicant to identify and

address safety issues and to ensure compliance with the requirements of

range safety and the Office's regulations. How the federal launch

range's safety services are integrated with the licensee is also

relevant. The Office expects that for launches from federal launch

ranges the 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 Office believes that charts are the most efficient

way to depict much of the required information. An applicant should

include one or more, as appropriate, organizational charts that will

delineate the lines of communication and the internal decision making

process. 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.

Proposed Sec. 415.33(b) would require an applicant to have a safety

official possessing safety authority. 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 person in charge of

licensed launches. The safety official should be identified by title or

position and by qualifications rather than by name.

Although risk is inherent in the launch of a launch vehicle,

proposed Sec. 415.35 establishes limits on how much risk the Office

will allow for a commercial launch. Proposed Sec. 415.35 explains that

acceptable flight risk through orbital insertion is measured in terms

of collective risk. Collective risk constitutes the sum total risk to

that part of the public which constitutes an exposed population over a

region exposed to a launch. The public includes everyone except

essential launch area personnel. Accordingly, government personnel who

are not essential to a launch are defined as the public for purposes of

measuring acceptable risk. The Office proposes to prohibit certain

eventualities to reduce flight risk following orbital insertion.

Pursuant to proposed Sec. 415.35(a), the collective risk associated

with an applicant's proposed launch, measured by expected casualty

(Ec), shall not exceed 30 x 10-6. The Office's proposed

risk threshold reflects acceptable collective risk. Individual annual

risk describes the probability of serious injury or death to a single

person, and is, perhaps, the more common measure of risk. The launch

industry's common measure of risk is collective risk, which may then be

measured as individual risk in light of the factors associated with any

given launch. Individual risk may be correspondingly less than

collective risk, depending on the size of the population exposed. This

means that a collective risk of Ec of 30 x 10-6 is more

strict than an individual risk of 1 x 10-6 (1 per million). For

example, with a collective risk of 30 x 10-6, and a population

of one hundred thousand exposed to a particular launch, the risk to any

one individual is .3 x 10-9 (three tenths per billion). For

purposes of comparison, the Office notes that the Air Force describes

the collective risk level proposed as no greater than that

[[Page 13230]]

voluntarily accepted in normal daily activity. Eastern and Western

Range 127-1 Range Safety Requirements, Sec. 1.4, 1-12 (Mar. 31, 1995).

For example, a person has a one in 600,000 chance over a lifetime of

being hit by lightning, which is a greater risk than the Office

proposes to allow for launch. The Office invites public comment

regarding the adequacy, for purposes of safety, of the standard it

proposes.

This standard derives from launch risk guidance employed by the Air

Force at Cape Canaveral Air Station and Vandenberg Air Force Base to

define acceptable risk. The Office proposes to adopt this standard

because the Office believes that commercial launches should not expose

the public to risk greater than normal background risk. NASA employs an

Ec of 1 x 10-6 at its Wallops Flight Facility, for the

launch of small launch vehicles. Only a few commercial launches have

taken place at Wallops since 1988. Rather than employing the standard

used by NASA for its Wallops launches, the Office decided to use the

Air Force standard, reflecting as it does 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.

The Office 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. The Office believes that the proposed standard should be

met for all commercial launches, however, so that the general public

will not be exposed to a higher than normal risk from a commercial

activity. The Office 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 such a payload would

have to request a waiver from the Office and show that national need

warranted waiver of this standard. The Office would also work with any

government payload owner or operator to resolve such an issue.

Proposed Sec. 415.35(c) requires an applicant to submit an analysis

identifying hazards and assessing risks for flight under nominal and

non-nominal conditions. A federal launch range will sometimes perform a

quantitative analysis for flight until orbital insertion, or, for a

suborbital mission, until impact, or, for example, 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. So long as a federal launch

range's analysis takes into account all aspects of an applicant's

proposed launch, the Office will accept a hazard identification and

risk analysis performed by a federal launch range.

As an alternative to relying on federal launch range procedures, an

applicant may perform its own quantitative risk analysis. Pursuant to

proposed Sec. 415.35(c), although an applicant may submit a federal

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 Office has documented the range

safety process for each of the federal ranges. A launch hazard event

tree, such as the one described in the Office's Hazard Analysis of

Commercial Space Transportation, provides an acceptable method for

identifying hazards and assessing risks.

The Office is interested in comments on this proposed approach. Two

other approaches were considered. One was to have no application

requirements for hazard identification or risk analysis at all. This

approach was not selected because it would not provide the Office with

the necessary assurance that predicted risk would remain within

acceptable levels, namely Ec 30 x 10-6. The

second approach the Office considered was to require an applicant to

develop its own criteria and procedures for identifying hazards and

assessing risks for flight until orbital insertion, and to demonstrate

compliance with the Office's standard without the use of any federal

launch range analysis. The Office, however, believed that requiring an

applicant to invent its own procedures would ignore the experience and

capability of the federal launch ranges as documented in the Office's

baseline assessments and would put an unnecessary burden on the

industry. Instead, the approach chosen maximizes the use of federal

launch range analyses, while at the same time ensuring that the Office

licenses only those applicants who do not expose the public to risks

greater than Ec 30 x 10-6.

Under proposed Sec. 415.35(b), an applicant's launch proposal must

ensure that for all launch vehicle stages or components that reach

earth orbit that there is no unintended physical contact of the vehicle

or its components with the 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. Those involved in commercial, defense

and scientific uses of space are 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 space debris. The operation of

launch vehicles in space affects and is affected by hazards associated

with space debris. Accordingly, the Office proposes the requirements of

paragraph (b) to mitigate hazards associated with space debris.

Federal launch ranges do not evaluate risks posed by either the

launch vehicle upper stages or the attached payload while on orbit or

reentering. Federal launch ranges perform a collision avoidance

analysis, commonly referred to as a COLA, prior to launch to ensure

that manned or potentially manned spacecraft will not be affected

during the first 24 hours following orbital insertion of the launch

vehicle.

Proposed Sec. 415.37 requires that an applicant design and operate

its launch vehicle to ensure that the flight of the launch vehicle does

not exceed acceptable flight risk. This means that integration of the

applicant's launch vehicle, procedures, personnel, support equipment,

and facilities with a federal launch range's flight support resources

and services will result in a calculated flight risk, measured by

expected casualty, for any one launch that does not exceed 30 x

10-6, and that the requirements of Sec. 415.35(b) are satisfied as

well.

Section 415.37(a) proposes to require an applicant to identify and

describe its launch vehicle structure, 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, the requirements of

paragraph (a) may be satisfied by providing the Office with a copy of

all or appropriate portions of the documentation provided to a federal

[[Page 13231]]

launch range. The Office would 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.

Section 415.37(b) proposes to require a description of the

information necessary for ensuring that launch operations satisfy the

criteria contained in proposed Sec. 415.35. Section 415.37(b) proposes

to require an applicant to describe the launch operations and

procedures that the applicant will employ to mitigate risks for flight

both before and after orbital insertion. The applicant should eliminate

or control by design all identified hazards to acceptable levels.

Typical hazard controls for flight until orbital insertion used at

current launch ranges include flight termination systems, azimuth and

elevation adjusting based on real-time wind weighting analysis,

evacuating personnel from high risk areas, modifying vehicle trajectory

to avoid high risk areas, and delaying launch until more favorable

conditions exist. Applicants may rely on the methods used by federal

launch ranges to identify hazard controls and to ensure that the hazard

controls will be effective. 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 may 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 earth 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 415.37(c) proposes to implement the Office's current flight

readiness guidelines. The requirements proposed arise out of

recommendations from a National Transportation Safety Board (NTSB)\5\

investigation 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, use of a

safety directive, countdown checklists, dress rehearsals procedures,

and procedures for crew rest.

---------------------------------------------------------------------------

\5\ The NTSB is an independent agency, and is not part of the

Department of Transportation.

---------------------------------------------------------------------------

The Office recognizes that there are many reviews conducted of a

launch system from its initial design up to flight. However, in

proposed section 415.37(c)(1), the Office 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 Office 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 launch have been checked out

and are ready, and that each participant is cognizant of his or her

role on the day of launch. If this review revealed unresolved issues,

the licensee would be able to assess its ability to resolve those

issues before the intended launch time or to delay the launch, as

appropriate.

Proposed Sec. 415.37(c)(2) would require 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.

Proposed Sec. 415.37(c)(3) would require 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 Office

recognizes that it may be 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.

Proposed Sec. 415.37(c)(4) requires an applicant to have procedures

for the conduct of dress rehearsals. As demonstrated in the past, the

poor performance of a dress rehearsal may indicate the lack of

readiness of individuals or systems responsible for safety. The

applicant's procedures should include criteria for determining when

dress rehearsals are not necessary. The Office recognizes that although

dress rehearsals may not be necessary in every case, they may be

critical to those launch companies which are new to a launch site, or

to those that are launching a new launch vehicle. A number of launch

companies have been conducting routine launches of the same vehicle for

many years. If an applicant does not plan to hold dress rehearsals

prior to any of its launches under any circumstances, the applicant

should explain why rehearsals are not necessary. However, even those

launch operators that routinely conduct launches typically have certain

criteria and procedures in place to verify that the launch team is

ready for launch, especially if a considerable period of time has

elapsed since the last launch took place.

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 site personnel, to recognize an

event that compels a launch hold or delay. The Office is interested 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.

Proposed Sec. 415.37(c)(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 Office would consider

adequate a commitment by the applicant to adhere to these requirements.

Other rest criteria proposed by an applicant may be acceptable if the

applicant requests a waiver of the Office's rules and

[[Page 13232]]

demonstrates that the criteria would be adequate. The Office is

interested in any opinions regarding the need for established minimum

standards for crew rest.

Proposed Sec. 415.39 requires 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 the

proper protocol for communicating on that channel. The Office

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 should 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. This will help eliminate confusion and cross-talk that could

cause a miscommunication leading to an unsafe condition. In addition,

at approximately five or ten minutes prior to flight, the Office

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.

Proposed Sec. 415.41 requires an applicant to submit an accident

investigation plan. The accident investigation plan should comply with

the reporting requirements identified in proposed section 415.41(b),

and should contain procedures for responding to a launch accident,

incident or other mishap.

Proposed Sec. 415.43 contains procedures employed by the Office

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 Office proposes to conduct a payload review and determination

pursuant to 49 U.S.C. Sec. 70104(c) of the Act. 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. Proposed 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 current

practice because the payload review would no longer be performed as

part of the policy review proposed by the new rules. This subpart would

also allow either a launch license applicant or a payload owner or

operator to apply for a payload determination separately from a launch

operator's license application. 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. A license

applicant may not receive a license without a payload determination,

unless the payload is otherwise exempt, but an applicant need not

itself apply for a payload determination if it has otherwise been

issued. In addition to the fact that many payloads are exempt from

Office 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 Office incorporate its earlier

determination.

The Office does not believe that this flexible approach would

affect the statutory requirement that the Office 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 Office is considering issuing

conditional licenses on those occasions when a request for a payload

determination has yet to be completed. This would mean that a license

would be issued subject to or conditional upon issuance of a payload

determination. The Office 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 Office issued a

launch license conditioned upon eventual submission of all required

payload information and a final determination by the Office regarding

the payload.

The Office also addresses payload safety issues because payload

safety is not otherwise part of the safety evaluation of the launch.

Payload issues considered during the review include, but are not

limited to, unique launch safety issues, 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.

Proposed Sec. 415.51 describes the scope of an Office payload

review. Pursuant to proposed Sec. 415.53, the Office 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.

Proposed Sec. 415.55 allows the Office 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 Sec. 415.79(a).

Proposed Sec. 415.57 provides procedures an applicant must follow

to obtain a payload determination. The Office 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 proposed Sec. 415.59 is required to

identify and address possible safety and policy issues related to the

payload, and to

[[Page 13233]]

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.

Proposed Sec. 415.61(a) explains that the Office will issue a

payload determination unless policy or safety considerations prevent

launch of the payload. Proposed Sec. 415.61(b) contains the procedures

employed by the Office were it 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.

Proposed Sec. 415.63 addresses incorporation of a payload

determination into subsequent license reviews. It also explains that

any change in information provided to the Office must be reported in

accordance with applicable rules.

Proposed subpart E addresses post-licensing requirements, including

license terms and conditions. This subpart describes a licensee's

public safety responsibilities under proposed Sec. 415.71. Proposed

Sec. 415.73 describes the circumstances which require a licensee to

apply for an amendment to its license. 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 is no longer accurate, a

licensee must apply for an amendment to its license. For example, if a

licensee intends to alter its accident investigation plan, it must

request an amendment to do so.

The remainder of subpart E contains license terms and conditions

applicable to all licensees. Proposed Sec. 415.75 requires a licensee

to enter into an agreement with the federal launch range from which it

proposes to launch. Proposed Sec. 415.77 requires a licensee to

maintain those records that pertain to activities carried out under a

license issued by the Office. Proposed Sec. 415.79 requires a licensee

to report certain information before each launch. Proposed Sec. 415.81

contains requirements for registration of space objects, including a

new provision that a licensee need not register objects owned and

registered by the government of the United States. Proposed Sec. 415.83

requires a licensee to comply with financial responsibility

requirements as specified in a license or license order. Proposed

Sec. 415.85 explains that a licensee is required to cooperate with the

compliance monitoring responsibilities of the Office.

Proposed subpart F describes the Office's safety review for a

proposed launch from a launch site not operated by a federal launch

range. The Office will conduct a review on an individual, case by case

basis until it issues regulations of general applicability.

Proposed subpart G incorporates the Office's environmental review

requirements, current Secs. 415.31 and 415.33, which require the Office

to comply with applicable environmental laws and regulations, and state

that the applicant must provide the Office with the information

required for doing so. The proposed relocation represents no

substantive change from the current regulations.

E. Part 417--Site Operator License

Because the Office proposes to remove and reserve part 411, which

contains Sec. 411.3 governing the licensing of the operation of a

launch site, the Office proposes part 417 to govern the licensing of

the operation of a launch site. The Office 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

site operator license should refer to the Office's draft guidelines for

application requirements.

V. Statutory Authority for Proposed Rules

These proposed rule changes are proposed pursuant to 49 U.S.C.

Subtitle IX, Commercial Space Transportation, ch. 701--Commercial Space

Launch Activities, Secs. 70101-70119, formerly the Commercial Space

Launch Act of 1984, as amended.

VI. Regulatory Burden and Costs

This NPRM has been reviewed by the Office of Management and Budget

under E.O. 12866. Under regulatory policies and procedures of the

Department of Transportation, this proposed rule is considered

significant because there is substantial public interest in the

rulemaking. 44 FR 11034 (Feb. 26, 1979).

A. Regulatory Evaluation

An assessment of the potential costs and benefits of the proposed

regulatory action was performed as is required by Executive Order

12866. A baseline case was stipulated which assumes that every licensed

commercial space launch is issued one and only one license, and that

that license covers all activities (beginning when the launch operator

commences launch-related activities on the federal range).\6\ This

baseline was then compared to current practice under which launch

operator licenses for up to two years are issued to cover launch

activities beginning when the licensee begins preparation for launch on

the federal range. Then the provisions of the proposed regulation were

compared to current practice.

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\6\ Although the Office practice has evolved toward the multiple

license approach contained in the proposed regulations, it was

believed that it would be more appropriate to use the previous

Office practice as a baseline, so the economic impacts identified in

such a comparison would reflect the real impacts of the changes from

current regulations.

---------------------------------------------------------------------------

The primary impacts of the proposed regulations are on licensees

(generally launch firms) as the primary regulated community and on the

government of the United States (the Office as the implementer of the

regulations and the U.S. Treasury). The effects on launch companies are

reduced paperwork costs, and increased business certainty (i.e.,

reduced uncertainty relating to license requirements and resulting

costs). Specific impacts on launch firms include:

Reduced paperwork and administrative costs resulting from

the availability of the launch operator license,

Increased certainty regarding requirements attendant with

obtaining and maintaining a license,

Increased certainty that would result from being issued a

launch operator license covering multiple launches as compared with a

license for each launch,

Greater certainty regarding the scope of a launch license,

Possibly increased risk due to narrower definition of

launch period (and consequently narrower period during which licensee

might be indemnified by the government).

The more narrow definition of launch would result in less time

during which the activities of a licensee would be subject to the

financial responsibility and risk allocation scheme of the Act. This

means that the possibility of indemnification is correspondingly

shorter. During the time that a launch company is present at a federal

launch range, but its launch vehicle is not present, there would be no

possibility of indemnification under the proposed definition of launch

were an accident to occur. Instead, a launch operator would

[[Page 13234]]

have to make its own evaluations regarding the necessity for and amount

of insurance required for its activities. The Office believes that

insurance for industrial operations is available, but does not have

information regarding its necessity or the impacts, if any, on the

price of insurance, financial risk investment decisions or other

financial impacts of the Office's proposal to truncate the possibility

of indemnification. Accordingly, the Office requests comments regarding

these issues.

Annual savings to industry resulting from the paperwork and

administrative impacts were estimated to be $536,000 when current

practice is compared with the baseline and $180,000 when the proposed

regulation is compared with current practice. The benefits of increased

certainty were not quantifiable. The impact of possibly higher risk was

considered to be so low as to be considered inconsequential.

The specific impacts on the Office are greater certainty about

future operations and better ability to plan due to the institution of

launch operator licenses. Another impact is reduced paperwork and

administrative costs that result from processing fewer, albeit more

costly licenses. This is expected to result in cost savings to the

Office of about $1,266,000 annually when current practice is compared

with the baseline, and $177,000 annually when the proposed regulation

is compared with current practice. Over the four-year time horizon \7\

of this analysis, total benefits to both industry and government total

approximately $7,208,000 when current practice is compared with the

baseline and about $1,428,000 when the proposed regulation is compared

with current practice. There is also a slightly lower risk to the U.S.

Treasury that it would be called upon to indemnify for third-party

damages under the indemnification provision of the statute, because the

launch phase is more limited under the regulation. This risk is

expected to be extremely low and has not been quantified. The overall

primary impacts of the regulation are expected to result in net

benefits to industry and the government.

---------------------------------------------------------------------------

\7\ The Statute has a five-year sunset clause of which one year

has already passed--hence the four year consideration.

---------------------------------------------------------------------------

Limited secondary impacts on payload owners, new market entrants,

and insurance firms were found but were not quantified. It was

impossible to predict the direction of impacts on insurance firms,

while identified potential impacts on payload owners and new market

entrants were likely to provide net benefits.

A copy of the regulatory evaluation analysis is filed in the docket

and may also be obtained from the Office.

B. Regulatory Flexibility Act Analysis

I certify that this rule would not, if adopted as proposed, have a

significant economic impact on a substantial number of small entities.

The Small Business Administration has defined small businesses in the

space industry as entities composed of fewer than 1000 employees. The

Office licenses approximately half a dozen entities for launch from

federal ranges. Only one licensee has fewer than 1000 employees. In

addition, a modest annual savings to industry resulting from paperwork

and administrative impacts were estimated to be $536,000 when current

practice is compared with the baseline and $180,000 when the proposed

regulation is compared with current practice. Accordingly, the proposed

rules are not expected to have a significant impact on a substantial

number of small entities.

C. International Trade Impact Assessment

The impact of the proposed rule on international trade is expected

to be beneficial. The proposed rule streamlines the launch license

procedures to the benefit of U.S. industry, and provides prospective

site operators greater information and certainty to the ultimate

benefit of their ability to plan. These approaches should redound to

the benefit of U.S. industry as it confronts foreign competition.

D. Federalism Implications

The proposed regulations would not have substantial direct effects

on the states, on the relationship between the federal 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 the proposed regulation

does not have sufficient federalism impacts to warrant the preparation

of a federalism assessment.

E. Paperwork Reduction Act

Parts 413 and 415 of the proposed rules contain 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 these proposed rules are being submitted

to the Office of Management and Budget for approval under OMB No. 2105-

0515, TITLE: Commercial Space Transportation Licensing Regulations. The

information to be collected includes data to support policy and safety

reviews, data to support payload reviews, and environmental impact

information. The required information will be used to determine if a

license applicant is eligible for a license to launch a launch vehicle.

The annual cost per year is calculated by multiplying the estimated

cost per application by the total number of applications received on a

yearly basis. The estimated cost per application is calculated by

multiplying the estimated hourly wage rate by the estimated average

hours required for processing by the government and for industry

preparation of an application. The unit cost for each launch license

application is calculated by employing a cost of $59.00 per hour. This

cost includes programmatic costs associated with government personnel

and overhead. The industry rate is also $59.00 per hour for industry

managerial, engineering and clerical personnel involved in gathering,

reviewing and formatting the information required for each application.

Burden hours were obtained based on engineering information. The burden

is expected to decrease compared with existing paperwork requirements

because the proposed regulations clarify the application requirements.

Average burden hours per application are expected to approximate 518

hours for a launch operator license and 421 hours for a launch specific

license.

Comments on the proposed information collection requirements should

be submitted to: Office of Management and Budget, Washington, DC 20503,

Attention: Desk Officer for the Federal Aviation Administration. It is

requested that comments sent to OMB also be sent to the rulemaking

docket for this proposed action, FAA Rules Docket Federal Aviation

Administration, Office of the Chief Counsel, Attention: Rules Docket

(AGC-200), Docket No. 49815, 800 Independence Avenue, SW., Washington,

DC 20591.

BILLING CODE 4910-13-P

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[GRAPHIC] [TIFF OMITTED] TP19MR97.143

BILLING CODE 4910-13-C

[[Page 13236]]

Figure 2.--Comparison of FAA/CST Safety Approval Requirements for Launch From a Federal Launch Range With Air

Force Range User Requirements

----------------------------------------------------------------------------------------------------------------

Related Air Force range requirements

(Eastern and Western Range

Proposed FAA/CST regulations Regulation (EWRR) 127-1, Mar. 31, Requirement comparison

1995)

----------------------------------------------------------------------------------------------------------------

415.33 Safety Organization

(a) Maintain a safety organization Sec. 1B.1.3.1: The range user is The parts of the SSPP related to

and document it by identifying required to describe its system flight safety may meet FAA's

lines of communication and approval safety organization in a System requirement if all of FAA's

authority for all flight safety Safety Program Plan (SSPP), to required elements are addressed.

decisions. Lines of communication include:

shall ensure that personnel perform safety organizational and

flight safety operations in functional relationships;

accordance with range safety and lines of communication

subpart C requirements. Approval (Sec. 1B.1.2c);

authority shall ensure compliance responsibility and

with range safety and subpart C authority of personnel;

requirements. staffing of the safety

organization;

the decision process for

safety related issues;

and identification of the

organizational unit responsible

for performing each task.

(b) Safety Official. Identify a Sec. 1B.1.1.2: The range user is The safety official required by the

qualified safety official required to establish and maintain combination of Sec. 1B.1.1.2 and

authorized to: a key system safety position for Sec. 1B.1.3.1 may meet FAA's

examine all aspects of each program. The individual in requirement if all of FAA's

flight safety operations, this position must be directly required elements are addressed.

monitor independently responsible to the range user

personnel compliance with safety program manager for safety matters.

policies and procedures, and

report directly to the

person responsible for approval

of launches, who shall ensure

that all of the safety official's

concerns are addressed prior to

launch.

----------------------------------------------------------------------------------------------------------------

415.35 Acceptable Flight Risk

(a) Flight risk through orbital Sec. 1.4.1: Acceptable launch risk The Federal Range Commander may

insertion. without high management review is approve risk levels higher than

Acceptable risk level: ECC30 x 10-6. EC30 x 10-6 where

eq>30 x 10-6. national interests require.

(b) Flight risk following orbital Sec. 1.3.7.2: Range safety control FAA's requirements are not required

insertion. Prevent physical contact ends at orbital insertion. A range by the range.

between vehicle or its components uses Collision Avoidance (COLA)

and payload. Prevent debris data to determine the risk of

generation from conversion of collision with a manned or mannable

energy sources into energy that object.

fragments the vehicle or its

components.

(c) Hazard analysis and risk Sec. 2.6, 2.8, 2.11: The range user If the applicant submits the hazard

assessment. is required to provide the data analysis and risk assessment

Submit an analysis assessing risks necessary for range safety to performed by the range, the hazard

to public health and safety and perform a hazard analysis and risk analysis and risk assessment

safety of property associated assessment for the range user's addresses all flight risks and the

with nominal and non-nominal specific vehicle. risk meets the requirement of EC30 x 10-6 for a single

launch, the FAA requirement is met.

----------------------------------------------------------------------------------------------------------------

415.37 Launch Safety Design and

Operations

(a) Provide overview of launch Sec. 3A.2.3: The range requires the A copy of the overview that

vehicle, including structure and user to provide an overview of the satisfies the range requirements

hazardous and safety-critical launch vehicle. will satisfy FAA's requirement.

subsystems. Include drawings and

schematics for each system.

(b) Identify all launch operations Sec. 1.3.8: The range requires the The portions of the documents

and procedures that must be user to submit documents regarding provided to the range that identify

performed to ensure acceptable flight safety for review and launch operations and procedures

flight risks. approval. These documents must related to flight safety may meet

include the information the range FAA's requirement if all of FAA's

needs in order to conduct flight required elements are addressed.

safety operations. Range flight safety procedures

documented in the FAA's Baseline

Assessment may also be referenced

to identify launch operations and

procedures performed by a range.

[[Page 13237]]

(c) Flight readiness requirements. Sec. 7.2.2: The Chiefs of Safety of FAA's requirement for the applicant

Designate an individual responsible the 45th and 30th Space Wings, or to designate an individual

for flight readiness, and submit their designated representatives, responsible for flight readiness is

(1) through (5): are responsible for: not a range requirement.

Providing range users

with a Range Safety Launch

Operations Approval Letter no

later than a Launch Readiness

Review (LRR); and

Providing the final range

safety approval to launch.

Issuance of the Launch Operations

Approval Letter depends on the

range user having obtained the

previously required approvals

(e.g., Sec. 1.5.2.1 items a

through f; Sec. 1.5.2.2 items a

through n).

Sec. 7.2.3: During countdown, a

Missile Flight Control Officer is

responsible for determining whether

a launch should proceed.

(1) Procedures that ensure a launch The range holds a LRR to determine FAA requires the applicant to

readiness review is conducted with if the range is ready to support a conduct a meeting to verify

applicant's flight safety personnel particular launch operation. This readiness of the vehicle and launch

and federal launch range personnel review covers all elements of team, which includes range support.

involved in the launch. The review support that the range will provide The LRR held by the range may meet

must provide the following to the to the range user. The requirement FAA's requirement if all of FAA's

individual responsible for flight for the LRR is contained in required elements are addressed.

readiness: AFSPACECOM Regulation 55-32

Flight readiness of ``Operations Readiness Review of

federal launch range property and Space and Missile Systems.''

services;

Flight readiness of

launch vehicle and payload;

Flight readiness of

flight safety systems;

Mission rules and launch

constraints;

Abort, hold, and recycle

procedures;

Results of dress

rehearsals and simulations;

Unresolved safety issues

and plans for resolution; and

Other safety information

to determine flight readiness.

(2) Procedures that ensure mission Sec. 6.17 At a minimum, procedures The FAA requirement is not required

constraints, rules, and abort for the launch countdown and by the range, but an applicant may

procedures are listed and prelaunch count shall contain the rely on the mission rules and

consolidated in a safety directive operations safety functions for the operations requirements developed

or notebook; specific launch vehicle and payload by the range to satisfy a portion

systems. of the FAA requirement and may

Sec. 6A.2.4a List all non- employ them in the applicant's

hazardous, hazardous, and safety safety directive or notebook.

critical procedures. . . .

Sec. 7.4.5 A copy of the final

range user countdown checklist for

each operation shall be provided. .

. .

Sec. 7.2.4.1: The range develops

mission rules in conjunction with

the range user.

Sec. 7.4: Range safety develops a

Range Safety Operations Requirement

(RSOR) and an Operations Supplement

(OpsSup).

(3) Procedures that ensure currency Sec. 7.2.8: The range user is The FAA requirement is not required

and consistency of applicant and required to provide telemetry by the range, because the range

federal range countdown checklists; measurement lists, countdown requirement does not require

checklist, and special command procedures that specifically ensure

requirements and requests. currency and consistency of

checklists.

Sec. 6B1.5: One copy of procedures

involving hazardous or safety

critical operations shall be

submitted to range safety and one

copy to operations safety for

review and approval. . . . Final

approved, published procedures

incorporating range safety comments

shall be submitted to range safety.

. . .

(4) Dress rehearsal procedures; The range does not require dress The FAA requirement is not required

rehearsals. by the range.

(5) Procedures for ensuring the Sec. 6.5.1.4: The range user is The FAA requirement is satisfied

applicant's flight safety personnel required to comply with range work when the applicant commits to

adhere to federal launch range crew time restrictions. meeting the range requirements.

rest rules.

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[[Page 13238]]

415.39 Communications Plan

(a) Submit communications plan The range user requests all range The federal range sets up a

providing applicant and federal support, including communications communications system to support

launch range personnel support in an Operations launch operations. The range also

communications procedures during Requirement (OR) document; the provides any additional

countdown and flight. Plan must range responds in an Operations communications capabilities

ensure effective issuance and Directive (OD). This is a Universal required by the range user as

communication of safety-critical Documentation System requirement. specified in the OR and OD. The

information during countdown Sec. 7.11: The flight control range support may serve as a

including hold/resume, go/no go, communication circuits shall be portion of the applicant's

and abort commands, and describe specified in the applicable Range communications plan, but because

authority of personnel to issue Safety Operations Requirements the range does not address the

these commands. Ensure that: (RSOR). An RSOR shall be developed requirements of Sec. 415.39(a)(1)-

(1) Communication networks are and published for each applicable (3), an applicant must satisfy

assigned so that personnel have Program Requirements Document (PRD) those additional requirements.

direct access to real-time safety- or OR prepared by a range user.

critical information;

(2) Personnel monitor common

intercom channels during

countdown and flight; and

(3) A protocol is established for

utilizing clearly defined

communications terminology.

(b) Submit procedures that ensure Sec. 7.4.1: The range user requests The FAA requirement is not required

applicant and federal launch range communications support in an by the range.

personnel receive the Operations Requirement (OR)

communications plan that has been document; the range responds in an

concurred in by the federal launch Operations Directive (OD). This is

range. a Universal Documentation System

requirement.

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415.41 Accident Investigation Plan

(AIP)

(a) Submit an AIP containing the Sec. 1.10.1: The range investigates The range does not require the range

applicant's procedures for all mishaps involving Air Force user to submit an AIP.

reporting and responding to launch personnel and resources in

accidents, launch incidents, or accordance with Air Force

other mishaps. Instruction (AFI) 91-204.

(b) Reporting requirements. The AIP Sec. 6.4.7.2: The range user must The FAA's requirement is not

shall provide for immediate include an accident notification required by the range.

notification to the FAA Operations plan in its Ground Operations Plan,

Center, and submission of a written and must provide proper and timely

preliminary report in the event of notification

This text is long and has been trimmed here. Open the source document for the complete record.