# Commercial Space Transportation Licensing Regulations

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A97-6607

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** March 19, 1997
- **Citation:** 62 FR 13216

## Text

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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

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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 appl

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-6607. Public record. Not legal advice.