Commercial Space Transportation Licensing Regulations

SUMMARY: The Associate Administrator for Commercial Space

Transportation of the Federal Aviation Administration (FAA), Department

of Transportation (DOT) is amending the FAA's commercial space

transportation licensing regulations. The FAA amends its licensing

regulations in order to clarify its license application process

generally, and for launches from federal launch ranges, specifically.

The regulations are intended to provide applicants and licensees

greater specificity and clarity regarding the scope of a license, and

to codify and amend licensing requirements and criteria.

EFFECTIVE DATE: June 21, 1999. An application pending at the time of

the effective date must conform to any new requirements of this

rulemaking as of the effective date. All license terms and conditions,

and all safety requirements of this rulemaking also apply as of the

effective date.

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

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

Transportation, Federal Aviation Administration, DOT, Room 331, 800

Independence Avenue SW., Washington, DC 20591; telephone (202) 267-

8379; or Laura Montgomery, Office of the Chief Counsel (AGC-250),

Federal Aviation Administration, 800 Independence Avenue SW.,

Washington, DC 20591; telephone (202) 267-3150.

SUPPLEMENTARY INFORMATION:

Availability of Final Rules

Any person may obtain a copy of this final rule by submitting a

request to the Federal Aviation Administration, Office of Rulemaking,

800 Independence Avenue, SW., Washington, DC 20591, or by calling (202)

267-9680. Communications must identify the amendment number or docket

number of this final rule. Persons interested in being placed on a

mailing list for future FAA notices of proposed rulemaking and final

rules should request a copy of Advisory Circular No. 11-2A, Notice of

Proposed Rulemaking Distribution System, which describes application

procedures.

An electronic copy of this document may be downloaded using a modem

and suitable communications software from the FAA regulations section

of the Fedworld electronic bulletin board service (telephone: 703-321-

3339) or the Government Printing Office's electronic bulletin board

service (telephone 202-512-1661) or the FAA's Aviation Rulemaking

Advisory Committee Bulletin Board service (telephone: 800-322-2722 or

202-267-5948). Internet users may reach the FAA's web page at http://

www.faa.gov/avr/arm/nprm/nprm.htm or the Government Printing Office's

webpage at http://www.access.gpo.gov/nara/aces/aces140.html for access

to recently published rulemaking documents.

In order to enhance communications regarding commercial space

transportation with the public, the FAA developed an internet-based

information system, which provides the public with electronic access to

the FAA. The system provides on-line information to interested parties,

and allows applicants, through a secure portion of the system, to check

the status of applications and licenses. The system currently contains

a limited amount of information, but includes schedules of upcoming

commercial launches, the FAA's regulations, guidance documents, and

research studies. The address is: http://ast.faa.gov/.

Small Entity Inquiries

If you are a small entity and have a question, contact your local

FAA official. If you do not know how to contact your local FAA

official, you may contact Charlene Brown, Program Analyst Staff, Office

of Rulemaking, ARM-27, Federal Aviation Administration, 800

Independence Avenue SW., Washington, DC 20591, 1-888-551-1594. Internet

users can find additional information on SBREFA in the ``Quick Jump''

section of the FAA's web page at http://www.faa.gov and may send

electronic inquiries to the following Internet address: 9-AWA-

[email protected]

Introduction

By this rulemaking, the FAA clarifies license application

procedures and requirements. The FAA's revisions to its regulations

provide information regarding the scope of a launch license, the

criteria for obtaining a license for expendable launch vehicles (ELVs)

launching from federal launch ranges, and the underlying safety

rationale for the FAA's launch licensing regime. These regulations also

explain that the FAA will license the operation of a launch site or the

launch of a launch vehicle from a site that is not operated by a

federal launch range on a case by case basis.

History and Current Revisions

The Commercial Space Launch Act of 1984, as codified at 49 U.S.C.

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

Launch Activities, 49 U.S.C. 70101-70121 (the Act), authorizes the

Secretary of Transportation to oversee, license and regulate commercial

launch and reentry activities and the operation of launch and reentry

as carried out by U.S. citizens or within the United States. 49 U.S.C.

70104, 70105. The Act directs the Secretary to exercise this

responsibility consistent with public health and safety, safety of

property, and the national security and foreign policy interests of the

United States, 49 U.S.C. 70105, and to encourage, facilitate and

promote commercial space launches by the private sector, 49 U.S.C.

70103.

The FAA carries out the Secretary's responsibilities for licensing

and regulating launches and the operation of launch sites. Prior to

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

the Office of Commercial Space Transportation (the Office), which was

located within the Office of the Secretary in the Department of

Transportation. Now, the Associate Administrator for Commercial Space

Transportation is part of DOT's Federal Aviation Administration. When

this administrative change was effected, the Secretary delegated the

statutory authority over the regulation of commercial space

transportation to the Administrator of the Federal Aviation

Administration, and the Administrator redelegated this authority to the

Associate Administrator.

On August 4, 1994, President Clinton announced a new National Space

Transportation Policy reaffirming the government's commitment to the

commercial space transportation industry and the critical role of the

Department of Transportation in encouraging and facilitating private

sector launch activities. In 1996, President Clinton signed a National

Space Policy, which recognized the Department of Transportation as the

lead federal agency for regulatory guidance regarding commercial space

transportation activities. The FAA's

[[Page 19587]]

rules, by offering greater specificity and certainty regarding

licensing requirements and the scope of a license, should assist the

launch industry in its business and operational planning. This will

facilitate the private sector's launch activities by increasing

certainty and by easing its regulatory burden.

Background on the FAA's Commercial Launch Licensing History and Process

The FAA licenses commercial launches and the commercial operation

of launch sites through 14 CFR Ch. III. In April 1988, when the then

Office of Commercial Space Transportation first issued final

regulations, no licensed launches had yet taken place. Accordingly, the

Office established a flexible regime intended to be responsive to an

emerging industry while at the same time ensuring public safety. The

Office noted that it would ``continue to evaluate and, when necessary,

reshape its program in response to growth, innovation and diversity in

this critically important industry.'' Commercial Space Transportation

Licensing Regulations, 53 FR 11004, 11006 (Apr. 4, 1988). Under the

1988 regulations the Office implemented a case-by-case approach for the

evaluation of launch license applications. All commercial launches at

the time took place from federal launch ranges.

In conjunction with information guidelines describing the Office's

application process, the Office's regulations reflected the intent of

Congress that the Office evaluate the policy aspects and safety of a

proposed launch. The Office followed a case-by-case approach to

performing these reviews, tailoring its information requests to the

specifics of a given launch proposal.

Later, the Office took further steps designed to simplify the

licensing process for launch operators with established safety records.

For example, before issuing its final rules in 1988, the Office issued

interim regulations, in which it had contemplated the possibility that

``one license could cover a specified series of launches where the same

safety resources [would] support identical or similar missions.''

Commercial Space Transportation Licensing Regulations; Interim Final

Rule and Request for Comments, 51 FR 6870, 6872 (Feb. 26, 1986). In

1991, the Office implemented this option by instituting a launch

operator license for similar launches carried out by a single licensee.

The launch operator license currently authorizes a licensee to conduct

any number of launches within defined parameters over the course of a

two year period. The FAA has continued to apply a case by case analysis

to licenses authorizing a single launch or to licenses authorizing a

set of specifically identified launches.

The FAA, in accordance with 49 U.S.C. 70112 and 14 CFR Ch. III,

part 440, imposes financial responsibility requirements on a licensee,

commensurate with the scope of its license, pursuant to which a

licensee is required either to purchase insurance to protect launch

participants in the event of claims by third parties and to protect

against damage to government property, or to otherwise demonstrate

financial responsibility. In the event that there were a launch

accident and third party claims arising out of that launch exceeded the

financial responsibility required by the FAA, the Act contains

procedures through which the government of the United States may pay

those excess claims up to a statutory ceiling. See 49 U.S.C. 70113. The

possible payment of excess claims by the government for damages related

to a particular launch is commonly referred to, albeit erroneously, as

``indemnification'' of the launch industry. The payment of excess

claims constitutes, in fact, only a provisional agreement by the

government of the United States subject to conditions, including

Congressional appropriation of funds.

Growth and Current Status of Launch Industry

The number of commercial space launches has steadily grown over the

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

13, 1999, 110 licensed launches have taken place from five different

federal launch ranges, and from two non-federal launch sites. Launch

vehicles have included traditional orbital launch vehicles such as the

Atlas, Titan and Delta, as well as suborbital vehicles such as the

Starfire. New vehicles using traditional launch techniques include

Lockheed Martin's Athena I and II, EER's Conestoga, Orbital Sciences

Corporation's Taurus, and Boeing's Delta III. Unique vehicles such as

the Pegasus are also included in this count. New launch vehicles are

proposed every year. For example, the Pegasus air-launched rocket has

been developed since the passage of the Act. On the horizon are sea-

launched rockets, Lockheed Martin's Atlas III and Boeing's and Lockheed

Martin's evolved expendable launch vehicles. A number of companies are

proposing partially and fully reusable launch vehicles. Several

companies are participating in partnership with the National

Aeronautics and Space Administration (NASA) to develop X-33 and X-34

launch vehicles incorporating reusable and single-stage-to-orbit

technology, which could result in vehicles for commercial use.

Currently, commercial launches take place from federal launch

ranges operated by the Department of Defense and NASA. Launch operators

bring launch vehicles to federal ranges such as Cape Canaveral Air

Station, Vandenberg Air Force Base, White Sands Missile Range and

Wallops Flight Facility for launch. A launch operator obtains a number

of services from a federal range, including radar, tracking and

telemetry, flight termination and other launch services. Pursuant to an

agreement between a federal launch range and a launch operator, the

federal range has final authority over decisions regarding whether to

allow a launch to proceed. A federal range operates pursuant to its own

internal rules and procedures, and the launch operator must comply with

those rules and procedures in addition to the requirements of the FAA.

The U.S. commercial space transportation industry faces strong

international competition. Ariane, Europe's launch vehicle, continues

to be the market leader, with other competition coming from China,

Russia, and Ukraine. The U.S. industry still obtains a significant

percentage of launch contracts, and AST projects over seventy

commercial orbital launches within the next three years.

Additionally, U.S. participation in international ventures is

increasing. For example, International Launch Services (ILS), comprised

of Lockheed Martin Corporation, Khrunichev Enterprise and NPO Energia,

markets Russia's Proton rockets and the U.S. Atlas. Another

international partnership, Sea Launch Limited Partnership (Sea Launch),

involves Boeing Commercial Space Company, S.P. Korolev Rocket and Space

Corporation Energia, KB Yuzhnoye and PO Yuzhnoye Mashinostroitelny

Zavod, and Kvaerner Moss Technologies a.s., which are U.S., Russian,

Ukrainian and Norwegian companies, respectively. Sea Launch has

launched a commercial rocket from a modified oil rig located in the

Pacific Ocean. Orbital Sciences Corporation has conducted a launch

outside the United States and envisions more.

Current Revisions to Licensing Regulations

With six years of experience in regulating the commercial launch

industry, the DOT Office of Commercial Space Transportation initiated a

process for standardizing its licensing

[[Page 19588]]

regulations. Originally, when the Office first initiated its licensing

program, the Office did not possess standardized rules or requirements.

Accordingly, it evaluated each license application individually to

ensure that a proposed launch would not jeopardize public health and

safety, the safety of property, U.S. national security or foreign

policy interests or international obligations of the United States.

Over the course of time, and with the input of licensees and federal

launch ranges, the FAA has evolved a standardized approach to licensing

launches from federal launch ranges. Accordingly, the FAA now

implements that approach through revisions to its regulations.

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

proposed rulemaking, the Office of Commercial Space Transportation,

DOT, announced that it was holding a public meeting to obtain

industry's views to assist the Office in developing an NPRM that would

address specific requirements for launch and launch site operator

licenses. Notice of Public Meeting, 59 FR 52020 (1994). The Office

stated that it would streamline its launch licensing process by

standardizing requirements and by codifying certain information

requirements in its regulations. Id. The Office also advised the public

that it would promulgate rules concerning licensing the operation of a

launch site. Id. The FAA proposes to implement rules of general

applicability for operation of a launch site through an additional

notice of proposed rulemaking in order to foster certainty for this new

industry as well. Id. The public meeting took place on October 27, and

28, 1994, and was attended by representatives of the commercial launch

industry, payload companies, prospective commercial launch site

operators, interested government agencies, both state and federal, and

the public.

On March 19, 1997, the FAA released a notice of proposed rulemaking

proposing to amend its licensing requirements. Commercial Space

Transportation Licensing Regulations, Notice of Proposed Rulemaking

(NPRM), 62 FR 13216 (Mar. 19, 1997). In the NPRM, the FAA proposed to

narrow its definition of launch from ``gate to gate,'' which resulted

in the licensing of the launch related activities of a launch operator

at a federal launch range prior to the arrival of the launch vehicle,

to ``vehicle at the gate,'' which encompasses only the launch

operator's activities once its vehicle arrives. The NPRM proposed a

launch license application process developed through its case by case

license history, including the implementation of certain safety

proposals recommended by the National Transportation Safety Board. The

FAA also proposed to streamline and reorganize a variety of other

licensing provisions. The comment period closed May 19, 1997. At the

request of several launch operators, the FAA reopened the comment

period until August 4, 1997. The FAA received comments from a number of

interested parties, including launch operators, a payload provider, a

launch site operator and prospective reusable launch vehicle operators.

The Environmental Protection Agency commented on the FAA's

environmental procedures. The launch operators who filed comments

included Boeing Commercial Space Company, Lockheed Martin Corporation,

McDonnell Douglas Aerospace, and Orbital Sciences Corporation. Reusable

launch vehicle operators' views were represented by Kistler Aerospace

Corporation, Rotary Rocket Company, and Space Access. Hughes

Electronics, Spaceport Florida Authority, and the National

Transportation Safety Board also filed comments. The comments focused

on several major issues, with the proposed definition of launch

eliciting the most attention. Foreign ownership of a license applicant

also proved a topic of concern, as did issues surrounding the FAA's

proposed risk threshold and various safety requirements. In light of

the great variety of topics encompassed by this rulemaking, rather than

devoting a single section to all of the comments, the FAA addresses the

comments by subject matter throughout the preamble and section by

section analysis in the relevant context.

On October 28, 1998, the Commercial Space Act of 1998 was signed

into law. Among other things, it revised the definition of launch to

include activities ``involved in the preparation of a launch vehicle or

payload for launch, when those activities take place at a launch site

in the United States.'' P.L. 105-303 (1998), 49 U.S.C. 70102(3). The

change affects this rulemaking's definition of launch by both

confirming the more narrow application proposed in the NPRM and

expanding the scope of launch to encompass launch vehicle preparatory

activities occurring at any launch site in the United States, even when

those activities take place at a launch site from which flight of the

launch vehicle does not take place.

Launch License

The amendments to the FAA's launch licensing regulations address

the definition of ``launch,'' licensing requirements, including payload

determinations and policy reviews, and information required from an

applicant proposing to launch a vehicle employing established

technology and procedures from a federal launch range. The FAA here

changes its interpretation of the definition of ``launch'' and thus

changes the scope of a launch license. Additionally, in contrast to

what was originally proposed in the NPRM, which was to define with

particularity the beginning of launch for purposes of those taking

place from a federal launch range, the FAA will apply its proposed

definition of launch to a launch taking place at any launch site

located in the United States, whether that launch site is a federal

launch range or not. Through this rulemaking the FAA is formalizing its

practice of issuing two different types of launch licenses, a launch

operator license pursuant to which a licensee may conduct any launches

that fall within the broad parameters described in its license, and a

launch-specific license, which allows a licensee to conduct only those

launches enumerated in the license.

Scope of Launch License and Definition of ``Launch''

The Act requires a launch operator to obtain a license for the

launch of a launch vehicle. Accordingly, the definition of ``launch''

controls the scope of a launch license. Greater certainty regarding

this definition will allow a licensee to plan better regarding a number

of issues. Because the FAA's financial responsibility requirements and

eligibility for payment by the United States of excess claims for

liability for damages to third parties are coextensive with a licensed

launch, knowledge of the scope of a launch license allows a licensee to

manage its risks appropriately and to make its own provisions for

financial responsibility or insurance coverage in addition to that

required under the statute. Through this rulemaking, the FAA defines

launch to begin with the arrival of a launch vehicle at a federal

launch range or other U.S. launch site.1 Launch ends, for

purposes of ground operations, when the launch vehicle leaves the

ground, and, for purposes of flight, after the licensee's last exercise

of control over the vehicle. The NPRM had proposed to include within

the new definition ``[t]he term launch includes the flight of a launch

vehicle, and those hazardous pre-flight activities that are closely

[[Page 19589]]

proximate in time to flight and are unique to space flight.'' That

sentence is now omitted as superfluous in light of the application of

the launch license period to all U.S. launch sites, regardless of

whether the launch site is located on a federal launch range or not.

The concepts guided the creation of the definition for this rulemaking,

and will still guide the FAA in defining the beginning of launch

outside the United States.

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\1\ As discussed in greater detail in response to comments, the

FAA does not define launch to commence with the arrival of a payload

at a launch site.

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In its NPRM, the FAA considered three options to defining launch

and the scope of a launch license and, by necessary implication,

possible ``indemnification'' for government property and third party

damages arising out of a launch. The FAA noted that its approach of

licensing the activities of a launch operator within the gates of a

federal launch range, commonly referred to as ``gate to gate,'' had

been criticized as too broad. The criticism came from Congress through

non-binding report language; however, because Congress would ultimately

prove the source of funding for any possible ``indemnification,'' the

FAA was concerned that ``gate to gate'' might eventually mislead

industry into inappropriately relying on the government for money that

was not available. Congress might deny funding on the grounds that pre-

flight preparation did not constitute part of launch under 49 U.S.C.

Subtitle IX, ch. 701.2 Accordingly, the FAA considered two

approaches to narrowing its definition of launch. It considered, but

rejected, defining launch as commencing with ignition. Instead, it

proposed to define launch as commencing with the arrival of a launch

vehicle at a federal launch range from which flight would occur. The

FAA also proposed in its NPRM to clarify when launch ended. With

flight, launch ends when the last action over which a licensee has

direct control is performed. As proposed in the NPRM, ground operations

would no longer be deemed part of launch when an expendable launch

vehicle left the ground. With the changes to the definition brought

about by the Commercial Space Act of 1998, the FAA revises the

definition to include activities involved in the preparation of a

launch vehicle for launch, when those activities take place at a launch

site in the United States. The FAA now adopts those changes.

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\2\ Although originally prompted to revisit the scope of launch

out of concern for the availability of funding, the FAA's revision

derives from its interpretation of the Act as a whole.

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In reaching its final decision regarding its interpretation of

launch, the FAA considered a number of factors. The statutory

definition provided the first line of inquiry. The FAA also took into

account the commenters' desire for a consistent and broad

interpretation. Ease of administration played a role as well. In the

end, the change in the level of risk proved determinative as to where

in the course of preparation for flight the FAA would deem launch to

commence.

The FAA received comments on its proposed revisions. Boeing

Commercial Space Company (Boeing) voiced its concern with the FAA's

proposed definition of launch, opposing the inclusion of ground

operations out of concern for the precedent such a definition might

establish for launches conducted by Sea Launch, which proposes to

launch from the ocean, and in which Boeing participates as a partner.

Boeing believes that although some hazardous activities are part of

launch preparation, these activities do not ``in themselves constitute

uniquely hazardous events which should be covered in the scope of a

launch license. Such activities should [be] and are regulated by

existing hazardous material and operations regulations that are

applicable to industry at large.'' Boeing at 1. According to Boeing,

the purpose of the Act was to define the scope of launch ``so as to

cover those operations which directly placed the general public at

risk.'' Boeing at 1. Where more innovative launch technologies are

employed, such as that contemplated by Sea Launch, Boeing expects that

launch will be defined consistently with this purpose.

Hughes Electronics (Hughes) requested that the FAA clarify whether

a launch vehicle's payload is part of launch site activities in order

for Hughes to determine when the possible indemnification provisions of

the Act apply. Hughes proposed that indemnification provisions of the

FAA's rules be clarified to apply to a payload and its components, or

that a payload be included within the definition of launch vehicle.

Hughes asked, in essence, that the FAA define launch, for purposes of

including payload activities, to commence with the arrival of a payload

at the launch site. Launch would end, under Hughes' proposal, either

after a defined period of time or after such time as a launch vehicle

could cause a payload accident, whichever came later. Hughes did not

elaborate on the implementation of its proposals.

Kistler Aerospace Corporation (Kistler), concerned that the

proposed regulations governing expendable launch vehicles (ELVs) might

serve as a model for rules governing reusable launch vehicles (RLVs),

argued against including ground operations within a launch license.

Kistler recommended, instead, that, for a liquid-fueled vehicle, launch

be defined to commence with the fueling of a vehicle. In support of

this position Kistler first noted that defining launch as commencing

with the arrival of a launch vehicle at a federal launch range, may not

or should not apply to the launch of an RLV, pointing out that although

an ``RLV may ``arrive'' at the launch range initially, it thereafter

returns directly and repeatedly to the launch range. Clearly, however,

the RLV is not constantly in a ``launch'' state.'' Kistler at 7.

Kistler also argued against the FAA position that pre-flight activities

constitute uniquely hazardous activities. ``Many of these activities

are entirely routine industrial activity and pose no unique hazards.''

Kistler at 7. Kistler maintained that subjecting all these activities

to FAA review and prohibiting them without the issuance of a license

would constitute an unnecessary and costly regulatory burden. Moreover,

if the FAA were to require a license for ground activities, Kistler and

its customers would have to sign cross-waivers with its contractor and

subcontractors, its customers and the contractors and subcontractors of

its customers. This, Kistler maintained, ``would distort the normal

commercial allocation of risk and legal remedies for fault and,

consequently, would increase insurance costs to the licensee.'' Kistler

at 7-8.

Kistler recommended, for a liquid fueled vehicle, that launch

commence with fueling. This is because fueling is closely proximate in

time to flight and may be directly attributable to space flight, unlike

other activities, which Kistler characterized as routine industrial

activities not directly attributable to space flight. Kistler at 8.

Kistler did not describe the other ``routine industrial'' activities.

Nor did it describe its basis for distinguishing between routine

industrial activities and those that are directly attributable to space

flight. Nonetheless, its point of view is interesting, indicating as it

does, that there is an insurance market for ground operations, and one

apparently affordable to a start up company such as Kistler.

Kistler also advised that it believes that an RLV launch ends with

the landing of the RLV, and would include any ``proximate

consequences'' of the landing. Kistler at 9. Kistler was silent with

respect to what it considers a proximate consequence. Kistler would not

include post-launch ground activities within the definition of launch.

[[Page 19590]]

Lockheed Martin also filed comments, which included correspondence

from Marsh & McLellan, an aviation underwriter. Lockheed Martin stated

that it ``views with serious reservations the Office's proposed

definition of ``launch'' that would narrow the scope of a license

issued by the Office and effectively standardize the treatment of all

launch systems from federal ranges, without regard for the[ir] unique

attributes * * *.'' Lockheed Martin at 1. Lockheed Martin supported the

FAA's proposal to dispense with gate to gate as a means of defining

launch, agreeing that it resulted in illogical exclusions. Lockheed

Martin at 3. It maintained, however, that ``vehicle at the gate''

achieves the same illogical exclusions of hazardous activities

depending on whether they take place before or after a vehicle's major

components arrive at a federal launch range. Lockheed Martin at 3.

Lockheed Martin also believes that the FAA's concerns regarding

congressional report language were groundless. Lockheed Martin at 3-4.

Lockheed Martin proposed that the FAA adopt an activity test to

determine what may be included within the scope of a launch license.

Lockheed Martin at 6. The FAA should ``address hazardous risks

associated with a particular launch campaign,'' presumably on a case-

by-case basis for each license it issues. Lockheed Martin at 6.

Lockheed Martin believed it would be instructive for the FAA, in

considering hazardous risks, to consider the Public Law 85-804

3 indemnification that the Department of Defense

contractually offers its contractors. Lockheed Martin at 5. It noted

that DoD contracts for Atlas, Titan and Delta launch services provide

government indemnification for ``unusually hazardous risks,'' which

include, in part, the burning, explosion or detonation of propellants,

liquid fueled rocket engines or solid fueled rocket motors, or launch

vehicles or their components during testing, transporting, launch

preparation or launch. Lockheed Martin at 5. ``Unusually hazardous

risks'' also include, according to Lockheed Martin's list, the toxic or

other unusually hazardous properties of propellants or inert gases,

their constituent ingredients, or their degradation products and the

flight or surface impact of launch vehicles or components or fragments

thereof. Lockheed Martin at 5.

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\3\ P.L. 85-804, 50 U.S.C.A. Secs. 1431-1435 (1991 and West

Supp. 1997), is effective only during a national emergency. 50

U.S.C. Sec. 1435. It does not define launch.

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The former McDonnell Douglas Aerospace filed draft comments with a

request for an extension of time. In its draft comments, McDonnell

Douglas asked that the FAA continue to employ gate to gate as the scope

of a launch license, with certain modifications. Specifically,

McDonnell Douglas sought to extend license coverage off of a federal

launch range, for activity that ``is consistent with standard

commercial space industry practice.'' McDonnell Douglas does not

elaborate on what it envisions as consistent with standard commercial

space industry practice. The main thrust of its argument appears to be

that it favors centralizing questions of liability and insurance within

the FAA and removing them as subjects of Air Force launch support

agreements.

Orbital Sciences Corporation (Orbital) opposed that portion of the

proposed definition of launch that confined a licensed launch to the

launch site from which flight would occur. According to Orbital, the

FAA's proposed approach was illogical because it meant that identical

activities might in some instances be licensed and in others not. Also,

the proposed approach would discriminate against modern launch vehicle

technologies, so that they would be ``penalized by the denial of

license coverage.'' Orbital at 2. Orbital, relying on 1997 report

language, also argued that the House Science Committee opposed the

FAA's narrowing of the definition of launch. See Civilian Space

Authorization Act, Fiscal Years 1998 and 1999, H.R. 1275, H. Rep. 65,

51, 105th Cong., 1st Sess. (Apr. 21, 1997).

Orbital proposed that the FAA adopt an activity test to determine

what activities might be included in the definition of launch. It

recommended that the FAA ``identify pre-launch activities generally

common to launch systems and cover them for all launch systems if they

are sufficiently hazardous and integral to a licensed launch,

regardless of where or when they occur.'' Orbital at 4. Orbital

provides a list of those of its pre-flight activities it considers

hazardous. Orbital, Attachment 2.

Space Access, which intends to operate a reusable launch vehicle,

also filed comments. Space Access' comments focused on the impact on

future developments, such as reusable launch vehicles, of the FAA's

proposed definition of launch. Space Access opposed defining launch to

encompass a vehicle's entire time at a launch site, and believes that

there is no way to consistently and fairly apply the FAA's proposed

definition of launch. Space Access noted that the FAA ``does not

regulate the development, testing, or transportation of solid rocket

boosters at a manufacturer's facility, even though this [is a]

significant hazardous activity, so it should not license nor should the

government offer to indemnify that activity just because it occurs on a

Federal Launch Range.'' Space Access at 6. Furthermore, defining a

vehicle's ``major components'' may ultimately prove a burdensome task

for the FAA. Space Access at 4. Space Access also questioned the FAA's

legal authority for its proposed definition, and does not believe that

the Act supports the ``gate to gate'' approach. In support of this,

Space Access pointed out that under the Act, as the NPRM also notes,

launch does not start with launch services.

After reviewing a number of conceptual approaches, Space Access

recommended that the FAA define launch to begin with ``an intentional

self propelled change in the state of equilibrium of the launch vehicle

and any payload toward Earth orbit or outer space [that] continues

until the launch vehicle and payload achieve[] a new state of

equilibrium or exit[]the Earth's dominant gravitational influence.''

Space Access at 5. By this, Space Access intended ``vertical or

horizontal takeoff.'' Id. For the end of launch, this would mean that

once a vehicle completes its propellant expulsion and no other changes

in equilibrium are planned, the launch process is over. Space Access at

5. A change in equilibrium to reach other places in earth orbit or

outer space would not be part of launch.

The Spaceport Florida Authority (SFA) supported the proposed

definition of launch as including those hazardous pre-flight activities

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

flight. SFA at 1. SFA also supported the FAA's proposal to define the

beginning of launch as commencing with the arrival of a vehicle's major

components at a federal range. SFA opposed limiting the scope of a

licensed launch to those activities that occur at the federal launch

range from which flight would occur because this approach would result

in some of the current pre-flight activity of at least two launch

companies not being licensed. SFA at 2. SFA accordingly viewed this

approach as discriminatory. SFA also maintained that the proposal was

contrary to the statute, which requires consistency with public health

and safety. SFA pointed out that in some situations the FAA would

review certain pre-flight activities and in others it would not, thus

resulting in no FAA safety oversight and no possibility of

indemnification by the federal government. SFA at 2. On a separate

[[Page 19591]]

note, SFA stated its support for excluding the storage of solid rocket

motors from the definition of ``launch.'' SFA at 3. SFA notes that such

storage is not extremely hazardous and that commercial insurance for

storage is available at a reasonable premium.

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

for purposes of developing proposed regulations. The FAA considered

codifying its ``gate to gate'' definition but was concerned that ``gate

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

available for all commercial activities taking place within the

confines of a federal range. The FAA also weighed the most narrow

approach, which would employ the ordinary definition of ``launch'' as

only those flight activities beginning at ``T minus zero (T-0),'' or

intentional first stage ignition; but the FAA initially determined in

its NPRM that this approach failed to provide regulatory oversight of

certain hazardous activities and that concerns regarding international

competition weighed against this formulation. In light of the 1998

change to the Act, the FAA must reject this narrow definition as

inconsistent with the new law. A less expansive approach than ``gate to

gate,'' one within the scope of the FAA's mandate, will include within

a launch license those activities that are part of a launch as

contemplated by the new directive to license activities involved in the

preparation of a launch vehicle for launch, when those activities take

place at a launch site in the United States. This satisfies the

requirements of the statutory change and the wishes of commenters such

as Orbital and the Spaceport Florida Authority. Under the approach the

FAA now adopts, because of the 1998 changes and because risks change

shortly after the launch vehicle or its components enter the gate of a

launch site, launch begins, for purposes of licensing, upon the arrival

of that vehicle to be prepared for flight at a U.S. launch site.

Vehicle at the Gate

By this rulemaking, the FAA will license as launch those

preparatory activities that may be considered part of a launch. As

noted in the NPRM, the FAA's licensing authority derives from the Act,

which states that a license is required ``to launch a launch vehicle.''

49 U.S.C. Sec. 70104(a). The word ``launch'' is commonly understood to

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

perhaps only in popular parlance, certain immediately preliminary

activities such as countdown and other final steps necessary to

effectuate flight. The Act defines ``launch'' to mean ``to place or try

to place a launch vehicle or reentry vehicle 4 and any

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

in outer space; or (C) otherwise in outer space, including activities

involved in the preparation of a launch vehicle or payload for launch,

when those activities take place at a launch site in the United

States.'' 49 U.S.C. Sec. 70102(3).

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

\4\ The Commercial Space Act of 1998 also amends the definition

of launch to add ``reentry vehicle and any payload from Earth--.''

Because reentry will be the subject of a separate rulemaking it will

not be addressed here.

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

The recently enacted change to the definition of launch in the Act

establishes which pre-flight activities are part of a launch. There are

certain pre-flight activities so integral to the launch of a launch

vehicle that they should be considered part of the launch itself even

though they do not constitute flight. Additionally, there are hazards

associated with pre-flight activity that are proximate in time to

flight and unique to space flight. Because the changes to the Act

dictate that launch include preparation of a launch vehicle and payload

for flight, the FAA defines the commencement of launch as the moment at

which hazardous activities related to the assembly and ultimate flight

of the launch vehicle begin, which, for purposes of consistency and

clarity, the FAA deems to be when the major components of a licensee's

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

a U.S. launch site, whether situated on a federal launch range or not,

and regardless of whether flight occurs from there or not.

In its NPRM, the FAA determined that defining ``launch'' as the

arrival of the launch vehicle at the gate of a launch site accorded

with the proposals of a number of earlier commenters, who suggested

that the FAA define ``launch'' to begin when hazardous activities

start. The FAA is charged by statute with protecting the public, and a

definition that recognizes hazards will address concerns regarding

public health and safety. Only if an activity is so hazardous as to

pose a threat to third parties should regulatory oversight by the FAA

be exercised, and ``indemnification'' to recompense third parties be

available. Because shortly after vehicle components arrive, hazardous

activities related to the assembly and ultimate flight of the launch

vehicle begin, the arrival of the vehicle or its parts is a logical

point at which the FAA should ensure that a launch operator is

exercising safe practices and is financially responsible for any damage

it may cause. These hazardous activities include, but are not limited

to, fuel tank wet testing, ordnance installation, spin balancing and

the stacking of motors. They are hazardous because they expose third

parties and government property to risk of damage or loss. The FAA

believes that this test is well within the new licensing authority

conferred by the Congress' 1998 revision to the Act. Also it both

broadly incorporates the activity test advocated by commenters such as

Lockheed Martin and Orbital and accommodates the FAA's need for

simplicity in administration. A launch license will encompass hazardous

activities without requiring numerous decisions regarding individual

hazardous activities on a piecemeal basis.

Moreover, with the expansion of the definition as originally

proposed to encompass the ground operations of a launch operator at a

commercial launch site not situated on a federal launch range, the

advisability of this approach is further evident. The FAA believes that

a launch operator contracting with a licensed launch site operator

should be the licensee responsible for activities in preparation for

flight. To the extent that the government may hope to achieve seamless

safety and financial responsibility coverage, the FAA would rather look

to a launch operator, who has control and authority over its employees,

contractor and subcontractors, including any launch site operator

providing services as well as a location from which to launch, for

regulatory responsibility. Otherwise, the FAA might have to attempt to

apportion responsibility for ground operations between a launch

operator and a launch site operator and develop additional criteria for

doing so. In this regard, commenters such as Kistler and Space Access

should note that were a launch license for ground operations not

required a license to operate a launch site might be.

For purposes of ascertaining the start of launch, and particularly

with the 1998 addition to the definition of launch, the FAA reviewed

the hazardous activities associated with the launch of a launch vehicle

to determine when those hazardous activities started. The FAA's

experience shows that commercial launch vehicles share a number of

hazardous procedures, and that most of those procedures take place once

the vehicle is at a launch site in order to minimize hazardous

transport and exposure time. The DOT Office of Commercial Space

Transportation prepared a study in 1994, available in draft, titled

``Prelaunch Hazardous

[[Page 19592]]

Operations for the Delta, Atlas, Titan at Cape Canaveral Air Station,

Pegasus at Vandenberg Air Force Base, Conestoga at Wallops Flight

Facility and Black Brant at White Sands Missile Range.'' The study

analyzed similarities in the risk profiles for pre-flight processing of

these vehicles, and compared the pre-flight processing timelines for

the various vehicles. The results complement information available in a

DOT ``Hazard Analysis of Commercial Space Transportation,'' May 1988.

The amount of damage that a vehicle may cause varies from vehicle to

vehicle, depending upon such factors as the mass of the vehicle, the

number of stages, the presence and number of solid rocket motors, and

the type and quantity of propellants. The launch vehicles studied and

their pre-flight processing procedures are similar in that each has a

similar hazardous potential.

The study showed that even though pre-flight processing procedures

and the sequence of those procedures may vary among vehicles, the

vehicles studied share such pre-flight processing procedures as solid

rocket motor handling and processing, flight termination system or

separation ordnance installation and checkout, and fueling. These

activities occur at different times for different vehicles. The

likelihood of a mishap 5 resulting from these procedures is

similar for each vehicle. These procedures constitute hazardous

operations that have an identifiable or otherwise quantifiable

probability of occurrence (Po) of a mishap. The

probabilities that these operations will result in a mishap are

approximately Po=10-4 to 10-5 for

solid rocket motor handling and processing;

Po=10-5 for flight termination system or

separation ordnance installation and checkout, and

Po=10-3 to 10-6 for fueling. ``Eastern

Launch Site Safety Programs,'' Louis J. Ullian, Commercial Space Risk

and Insurance Symposium, Cocoa Beach, Florida (Oct. 26, 1988). These

probabilities are relied upon by launch companies, federal agencies and

federal launch ranges for their analyses of hazardous operation risks,

and reflect the rigorous safety standards, analysis and review process

required at federal launch ranges for hazardous ground operations.

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

\5\ The term ``mishap'' means a launch accident, a launch

incident, failure to complete a launch as planned, or an unplanned

event or series of events resulting in a fatality or serious injury

(as defined in 49 CFR Sec. 830.2) or resulting in greater than

$25,000.00 worth of damage to a payload, a launch vehicle, a launch

support facility or government property located on the launch site.

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

The FAA considers these operations hazardous because their

processes may lead to identifiable mishaps and dangerous

consequences.6 Solid rocket motor handling and processing

may result in ignition of the propellant, either explosively or

otherwise. This may be caused by the unconstrained burning or explosion

of a major portion of the propellant if circumstances prevented proper

venting of the propellant. Casualties and property damage may result if

an installed igniter initiates and causes an engine or solid rocket

motor to become fully propulsive, as during flight. Casualties or

damage may result from fire, explosion or toxic fumes that may be a by-

product of combustion. These events may result in direct damage or

casualties as the consequence of blast and debris effects. These events

may also lead to secondary effects such as fires, explosions or

unintended motor stage flight that may be caused by the direct blast

and debris effects.

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

\6\ These findings are based on the DOT Office of Commercial

Space Transportation's 1994 review of launch vehicle manufacturers'

data, FAA commercial launch baseline assessments, past FAA maximum

probable loss determination analyses and Ullian's 1988 presentation

at the Commercial Space Risk and Insurance Symposium.

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

Flight termination system or separation ordnance installation and

checkout may result in lethal or damaging releases of energy. The

inadvertent ignition of installed or uninstalled ordnance, including

that of the flight termination system and explosive bolts installed on

various separation systems could result in explosion and debris.

Fueling may result in a range of consequences, including fires, either

pool fires or fireballs, or the release of vapor clouds, which may be

toxic or which may ignite. These events may occur because of leakage

during fueling or spills during an accident. If such a mishap involves

toxic propellants, toxic components of the fuels may be released into

the atmosphere or spilled on the ground. If a vehicle releases its

hazardous materials into the atmosphere, it could expose people at a

launch site or in the public at large to those hazards.

As a general rule, hazardous operations begin as soon as, or

shortly after, a launch vehicle's major systems arrive at a launch

site. The FAA relies on the new 1998 definition to employ a geographic

element in defining launch by using entry of a launch vehicle onto a

launch site in the United States as part of its definition of

``launch.'' This ensures consistency and clarity of interpretation.

Consistency is guaranteed by the fact that regardless of vehicle type,

each vehicle will receive the same regulatory coverage within the

United States. Although some commenters maintain that launch begins at

different points for different vehicles, because the FAA wishes to

treat launch operators in an equivalent fashion, the FAA will not

define ``launch'' on the basis of the launch vehicle. Moreover,

reliance on a geographic element provides clarity of interpretation

even for a launch operator of a new vehicle using different technology.

An applicant seeking a license for a new vehicle will know to plan for

license coverage at the time its vehicle enters a U.S. launch site.

Some commenters dispute this conclusion, arguing that defining a

launch to commence with a vehicle's arrival results in different

licensing treatment of different activities. The FAA recognizes this

dilemma. It believes, however, that a single test such as a vehicle's

arrival will avoid an administrative burden on both the FAA and its

licensees. Rather than creating an activity test, as recommended by

some, which would result in a series of tests, the FAA will face only

questions attendant to a single activity. Many of the questions that

will plague determining when a vehicle arrives at a federal launch

range'' launch vehicles show up in parts, a lot of them'would also

bedevil any particular hazardous activity related to the preparation of

any particular vehicle for flight. Additionally, the FAA considers it

outside of its statutory mandate to license pre-flight activities

located outside of a launch site in light of the new definition of

launch. That definition limits launch to activities taking place at a

U.S. launch site. In any event, that commercial operations exist

outside of federal launch ranges to manufacture and process vehicle

components and payloads indicates to the FAA that the hazards are not

so extreme as to stifle the development of facilities and services off

of a federal launch range. Additionally, as some of the comments

indicate, insurance does appear to be available.

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

activities that constitute preparation for flight. For example, fueling

for liquid-fueled vehicles usually takes place not long before flight

to minimize the risks attendant to the exposure to a fueled vehicle,

and the FAA would consider that activity to be a component of launch

under the Act. On the other hand, the FAA does not intend a launch

license to encompass components stored at a launch site for a

considerable

[[Page 19593]]

period of time prior to flight. The FAA is aware that the definition of

launch may be construed to encompass motor storage as well. However, if

motors arrive at a launch site for purposes of storage rather than as

part of a launch campaign in preparation for flight, the FAA does not

consider that storage part of a launch. SFA's comments support this

interpretation.

Orbital questioned one element of the FAA's proposed definition.

Orbital disputed that part of the FAA's definition that included within

the definition of launch only those activities that take place at the

launch site from which flight will occur. Orbital's concern is

addressed in the 1998 amendment to the definition of launch. The

statutory revision expands launch to include preparatory activities

that ``take place at a launch site in the United States.'' 49 U.S.C.

70102(3) (emphasis added). This provision includes preparatory

activities at any U.S. launch site. The FAA notes that the revision

excludes preparatory activities outside of a U.S. launch site.

Hughes asked for clarification regarding the commencement of launch

with respect to payloads. Hughes suggested that launch be defined to

commence with the arrival of a payload. Under current conditions, a

payload tends to arrive after a launch vehicle, and its integration to

a launch vehicle has been included within the definition of launch. The

FAA does not consider payload processing absent launch vehicle

integration to constitute part of launch or part of a licensee's

licensed activities. Although the 1998 amendment appears to provide

that preparation of a payload for launch at a U.S. launch site is part

of launch, the revision does not require the definition of launch to

encompass payload processing at a launch site until the payload is

being integrated with a launch vehicle. The revision itself provides

for activities involved in the preparation of a launch vehicle or

payload for flight to ensure that launch may begin with a launch

vehicle's arrival alone at a launch site, regardless of the presence of

a payload. Read in the context of existing statutory provisions and

requirements, the revised definition does not encompass payload

activities that are not otherwise associated with a launch vehicle. The

original and still unchanged definition of launch means, in relevant

part, the launch of a launch vehicle and any payload. 49 U.S.C.

70102(3). Section 70104 further confirms the inadvisability of

commencing launch with the arrival of a payload. Section 70104 requires

a license for the launch of a launch vehicle, not for the launch of a

payload or for the launch of a launch vehicle and a payload. Moreover,

were launch to begin with the arrival of a payload it would constitute

unlicensed launch, and a payload operator is not required to obtain a

launch license in any event. Additionally, the launch operator, who is

the licensee, is not necessarily participating in the payload

processing until integration of the payload with the vehicle. For all

these reasons, the FAA will not change its definition.

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

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

ordinarily understood. This would have limited the scope of a launch

license to activities commencing at intentional first stage ignition.

Were a launch license to cover only those activities, the launch

industry would no longer have been eligible for so-called

indemnification for damages arising out of any preparatory activities.

The regulatory burden, however, would be correspondingly less. Such a

licensee would not, for instance, be required to obtain a license as

early in the process as it must for gate to gate, nor would it be

required to provide the FAA as much information. Likewise, this

approach would have resulted in similar treatment of licensees

regardless of the type of vehicle employed or the timing or location of

hazardous activities. The FAA carefully weighed this approach,

especially in light of those comments advocating a more narrow

definition of launch. With the changes brought about by the 1998

revision to the Act, which expands the scope of launch, defining launch

as commencing with intentional first stage ignition is no longer an

option.

``Gate to Gate''

The FAA's practice of licensing ground operations associated with

the conduct of a launch, commonly referred to as ``gate to gate,'' was

to license all commercial, launch related activities by a launch

operator operating within the gates of a federal range. Through this

rulemaking the FAA abandons this approach. Under this view, a launch

operator's operations were licensed, even if ignition and flight were

not imminent and even if the launch vehicle itself was not present at

the range. The 1998 amendment to the definition of launch confirms the

FAA's intent to abandon this approach. A launch vehicle must be present

for preparatory activities to constitute part of launch.

The ``gate to gate'' approach constituted an attempt to treat

different launch vehicles similarly. Whether a launch vehicle undergoes

hazardous integration significantly in advance of flight, as the Delta

and Pegasus do, or closer in time as an Atlas does, a license covered

the same pre-launch activities: all launch related activities performed

by a launch operator within the gates of a federal range. Additionally,

``gate to gate'' licensing ensured that the FAA required launch

operators to demonstrate financial responsibility through the purchase

of insurance coverage or other appropriate measures for possible damage

arising out of commercial activities to government property. ``Gate to

gate'' licensing received support because of the belief that a launch

operator would be indemnified for damage to third parties caused by

pre-flight and post-flight ground operations.

The FAA does not define ``launch'' to encompass all pre-flight

activities by a launch operator at a launch site because not all

activities are part of the launch of a launch vehicle. A launch

operator may be present on the range, and engaged in preparatory

activities, but not be working on a launch vehicle or its component

parts in preparation for flight. A licensed launch operator may be

present at a federal range between launches. The FAA is aware of launch

operators who perform construction activities within the gates of a

federal range months or years prior to any anticipated flight of a

launch vehicle. At that point, the launch operator may or may not be

engaged in the type of hazardous activities warranting FAA oversight or

indemnification because construction activity, however hazardous, is

not part of the process of preparing the vehicle itself for flight.

In support of ``gate to gate'' licensing it has been suggested that

pre-launch licensing authority arises out of the Act's directive to

license ``operation of a launch site.'' See 49 U.S.C. 70104(a). In the

case of a launch taking place from a federal launch range, the launch

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

by the federal range. Moreover, it is the FAA's opinion that a person

requires a license to operate a launch site only if offering the site

to customers for their launch. Otherwise, activities related to

preparation for flight are part of a launch license rather than a

license to operate a launch site.

As noted in the NPRM, ``gate to gate'' evolved out of an industry

desire for broad license coverage, and this approach was the FAA's

official position with respect to the scope of its licenses. Other

government sectors, including NASA, have criticized this

[[Page 19594]]

approach as overly broad. Civilian Space Authorization Act, Fiscal

Years 1998 and 1999, H. Rep. 65, 51 105th Cong., 1st Sess. (Apr. 21,

1997). In 1995, House Science Committee Report No. 104-233,

accompanying H.R. 2043, the NASA Authorization Act for Fiscal Year

1996, noted that members of Congress view with concern this approach to

covering all licensee activities within the gates of a federal range,

and considered it too broad.7 Although recognizing that the

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

concerned that launch operators might be pursuing their pre-launch

activities in reliance on an indemnification that must be enacted by

Congress and that may or may not be available from Congress. This

prompted the FAA in its NPRM to revisit the issue of the scope of a

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

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

\7\ In 1994, a House Space, Science and Technology Committee

Report expressed the same sentiments. The report accompanied H.R.

4489, the NASA Authorization Act for Fiscal Year 1995, a bill that

was not enacted into law.

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

Lockheed Martin questioned the FAA's concern over the possibility

that Congress would refuse to vote for indemnification for all of a

launch operator's activities at a federal launch range. As stated in

the NPRM, while the FAA recognizes that the report language of concern

does not have the effect of law, see, e.g., Public Employees Retirement

Systems of Ohio v. Betts, 492 U.S. 158, 168, 109 S. Ct. 2854, 2862

(1989), it nonetheless remains a fact that Congress does play a role in

deciding whether to provide ``coverage'' for damages in excess of the

FAA's financial responsibility requirements. In Betts, the Court noted

that it ``has observed on more than one occasion that the

interpretation given by one Congress (or a committee or Member thereof)

to an earlier statute is of little assistance in discerning the meaning

of that statute.'' Id. However, in this funding context, the FAA does

not believe that it behooves either the FAA or licensed launch

operators to ignore these warnings. That is the source of the FAA's

concern. Additionally, the fact that 1997 also produced report language

recommending a more narrow definition indicates to the FAA, as it

should to industry, that the better course is to rely on a definition

grounded in the Act rather than on fluctuating Congressional report

language.

End of Launch

The FAA notes that the end of launch may be expressed both in terms

of flight activity and ground operations. For purposes of flight, the

FAA will continue to define the end of a launch as the point after

payload separation when the last action occurs over which a licensee

has direct or indirect control over the launch vehicle. For a liquid-

fueled stage, that point may be when any remaining fuel is emptied from

the upper stage, the vehicle propellant and gas tanks are vented and

other stored energy is released. For solid rocket motors, that point

may arrive when the upper stage fuel is expended or the stage is inert,

and the payload is released. For purposes of ground operations, launch

no longer ends with the cessation of supporting ground operations but

when the vehicle leaves the surface.

With respect to flight, others apply different definitions to the

end of launch. The most recent House Committee Report, H.R. Rep. No.

347, 105th Cong., 1st Sess., 22 (1997), suggests that launch ends when

a payload is placed into orbit or in its planned trajectory in outer

space. The 45th Space Wing considers a launch complete when all

hazardous activities are secured and, for purposes of flight safety,

upon orbital insertion. NPRM, 62 FR at 13223. Orbital insertion takes

place when a launch vehicle achieves orbital velocity or when its

instantaneous impact point leaves the earth. In other words, orbital

insertion is achieved when a launch vehicle is moving horizontally to

the earth's surface sufficiently fast enough, given its altitude, to

counteract the effects of the earth's gravity. The FAA believes that

although defining launch to end at orbital insertion may make sense

from a federal range ``flight termination'' perspective, such a

definition would halt FAA oversight of certain aspects of launch too

soon for safety. For example, damage to other orbiting material may

still ensue as the result of activities subsequent to orbital

insertion. Absent a licensee taking appropriate measures, risk exists

of the possible collision of a launch vehicle or its components with

other objects in space. Additionally, dangerous orbital debris might be

generated. Accordingly, in the interests of safety, the FAA will retain

its current practice of defining the cessation of launch.

With respect to ground operations, the FAA now changes its current

practice of including post-flight ground operations for expendable

launch vehicles in a launch license and thus as part of launch.

Instead, ground operations are no longer part of launch once the

vehicle leaves the ground. The FAA considered several options as to

when ground operations were no longer considered part of a launch.

Under the chosen option, ground operations would not be considered part

of launch once the launch vehicle left the ground. Reentry activities

aside, it has not been the FAA's experience that post-flight activities

involve the same levels of public safety risk as pre-flight handling,

integration and fueling of a vehicle. The FAA reviewed another option.

Ground operations for launch could end with the end of launch in the

context of flight, namely, when the last action occurs over which a

licensee has direct or indirect control over the launch vehicle. This

alternative would have allowed for at least part of the post-flight

ground operations to be covered by the license. The end of launch for

purposes of flight is not, however, related to activities on the

ground. The FAA is concerned that attempting to create such a

connection would be arbitrary and might inappropriately influence a

licensee's post-flight ground operation procedures. The third option

the FAA considered was to define the end of ground operations for

launch as that point at which all personnel may resume operations at

the launch pad and related environs. This approach recognized that

hazardous operations do occur subsequent to ignition and lift off.

These operations include such activities as securing ground propellant

and pneumatic systems and inspecting the launch pad to verify that no

post-flight hazards exist. With this option, ground operations would no

longer have been part of launch when the launch pad and other launch

related facilities no longer endangered personnel. Because, however,

the hazards associated with ground operations subsequent to lift off

are not related to the preparation of the vehicle for flight, the FAA

defines the end of launch for purposes of ground operations as the

point at which the launch vehicle leaves the ground. This analysis

applies to expendable launch vehicles. For the time being, judgment is

reserved with respect to reusable launch vehicles.

Formalizing Launch and Launch Operator Licenses

This rulemaking, through section 415.3, codifies the FAA practice

of issuing two types of launch licenses, the launch-specific and the

launch operator, and amends the duration of a launch operator license

from two to five years. In order to enable the FAA to issue a license

for a single mission or for multiple missions, the FAA's licensing

structure provides for two types of launch licenses, the launch-

specific and the launch operator license. A launch specific license

authorizes a licensee to conduct a single launch, or a specified

[[Page 19595]]

number of identical launches, from a single launch site. The launch

vehicle for each authorized launch must be the same and launch

parameters must present no unique public safety issues or other issues

affecting U.S. national interests. The licensee's authorization to

conduct launches terminates upon completion of all launches authorized

by the license or the expiration date set forth in the license,

whichever comes first. A launch operator license authorizes a licensee

to conduct launches from a specified launch site, using the same family

of launch vehicles, carrying specified classes of payloads, within the

range of launch parameters defined by the license.

Initially, the FAA's launch operator license allowed a launch

operator to conduct launches authorized by its license for a period of

two years. Under the new section 415.3(b), a launch operator license

authorizes the conduct of launches for five years from the date of

issuance.

The option of issuing a launch operator license, as opposed to

requiring a launch-specific license for every launch, provides

advantages both to the licensee and to the FAA. Although the

application preparation for and review of a launch operator license

will be more extensive than for a launch specific license, use of this

class of license will ultimately result in cost reductions and

efficiency gains for licensees by reducing the number of applications

that a company with an active launch schedule must submit, and that the

FAA must review. The FAA's increase of the term of a launch operator

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

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

During that time, the FAA has encountered very few serious safety

problems with launch operator licensees.

On the basis of this record, the FAA proposed in the NPRM that a

launch operator with a safe launch record should not be required to

apply for a new license every two years. The FAA will continue to

verify, through compliance monitoring, that a licensee is operating in

accordance with the terms and conditions of its license. In this

regard, the longer the license term, the more important the role

compliance monitoring plays in enabling the FAA to provide safety

oversight regarding how a licensee implements its procedures.

The FAA received comments regarding the duration of a launch

operator license. Several launch operators supported the proposed

increase from two to five years. Boeing at 1; Lockheed Martin at 7;

Orbital Sciences at 6; Rotary Rocket Company at 4-5 (while emphasizing

its need for a launch operator license for a reusable flight test

program); Space Access at 6. Kistler Aerospace Corporation requested

that the FAA consider issuing launch operator licenses of indefinite

duration. Kistler at 4. Kistler maintains that the choice of five years

is arbitrary and of little utility in regulating a licensee. Id.

Kistler notes that the proposed regulations vest the FAA with

continuing oversight powers, require a licensee to ensure the

continuing accuracy of its application representations and allow the

FAA to amend the terms and conditions of a license at any time. Id.

Kistler claims that renewing a license every five years poses an

unnecessary burden and creates an uncertainty that adversely affects a

licensee's ability to enter into contracts, attract capital and

otherwise make long term plans. Id.

Although the FAA appreciates the issues raised by Kistler, the FAA

will increase the duration of a launch operator license from two to

five years as originally proposed rather than creating a license of

indefinite duration. This is because an increase in duration from two

to five years already place greater reliance on the FAA's compliance

monitoring program. A license renewal application has the benefit of

compelling the FAA and a licensee to perform a comprehensive review of

a licensee's operations. Experience has shown that a renewal process

ensures that oversight is performed.

Space Access raises a separate issue, namely the question of how

the FAA will determine who is qualified for a launch operator license

as opposed to a launch-specific license. Space Access asks what

constitutes a safe launch record. To this, the FAA is able to respond

with some guidance culled from its past practices. The FAA licensed the

first launch of a Pegasus launch vehicle on a launch-specific basis. It

is currently contemplating a launch-specific license for Sea Launch's

proposed first launch from the Pacific Ocean. Other examples of launch-

specific licenses include the first launches of Lockheed Martin's LMLV-

1 and 2, EER's Conestoga launch and AMROC's hybrid launch vehicle

launch. To date, the FAA has not considered a new launch operator one

with a safe launch record. A new launch operator has no record.

Although a launch-specific license might be required for a new

vehicle, an established operator may apply for a launch operator

license after the first launch, but a newer entity may have a greater

showing to make. A first launch may be safe without being successful. A

first launch LMLV-1 failure that demonstrated that a safety system

worked led to a launch operator license for Lockheed Martin.

Historically, launch operators who received launch operator licenses

had already demonstrated some level of capability in conducting

launches, either by conducting launches for the government or with

other launch vehicles.

The FAA policy of considering an applicant for a launch operator

license after a safe launch conducted under a launch-specific license

has, to date, applied to launches from federal launch ranges. This

policy may not always be appropriate under other circumstances. The

complexity of the proposed operations, whether a vehicle is reusable

and the potential for endangering the public may also play a role in

whether the FAA decides a launch operator license is appropriate for

subsequent launches.

Space Access also asks whether an overall accident history of

approximately ten to fifteen percent is acceptable. The FAA has not

made a determination regarding an acceptable mishap rate at this point,

and is hesitant to prejudge the question. The answer may turn more on

the facts underlying a mishap rather than on a particular rate. The FAA

would also like to stress what it defines as a launch accident. By

definition, a launch accident is an unplanned event occurring during

the flight of a launch vehicle resulting in the known impact of a

launch vehicle, its payload or any component thereof outside designated

impact limit lines, or a fatality or serious injury to any person who

is not associated with the flight, or resulting in damage estimated to

exceed $25,000 to property not associated with the flight. This has

rarely, if ever, happened in the history of the U.S. space program.

Space Access appears to be referring to other mishaps such as mission

failures that are not launch accidents. An unsuccessful mission is not

necessarily an un-safe flight. In fact, a successful mission may not

even be a safe one, as recognized by the FAA's definition of ``launch

incident,'' which is an unplanned event occurring during the flight of

a launch vehicle, other than a launch accident, involving a malfunction

of a flight safety system or failure of the licensee's safety

organization, design or operations. Because the FAA is concerned with

public safety, a safe launch record is judged based on whether an

applicant's launches have placed the public at risk,

[[Page 19596]]

not whether the launches have placed payloads in space.

Space Access contends that any launch accident, incident or mishap

should result in a license amendment reflecting changes made to prevent

a reoccurrence. If circumstances warrant, this may prove a likely

result. Space Access also asks whether a launch operator accident that

is not covered by an FAA license, that is, perhaps, a government

launch, is considered part of a licensee's accident history, and

whether an accident would result in a license revocation. An un-

licensed launch resulting in a mission failure may certainly raise

safety concerns for future licensed launches, but need not necessarily

lead to license revocation. When a mishap occurred with McDonnell

Douglas' Delta vehicle in January 1997, during a government launch, the

FAA did not revoke, suspend or modify McDonnell Douglas' launch

operator license. This was because McDonnell Douglas' license specified

that it comply with the requirements of the federal launch range from

which it was authorized to launch, and the FAA knew that the Air Force

would not allow additional Delta launches to take place until the

problem was identified and resolved. Space Access' inquiry arises,

perhaps, out of contemplating launch activity that is not governed by

federal launch range oversight. To avoid prejudging a hypothetical

situation, the FAA will not address that situation until confronted

with it.

Relationship Between FAA and Federal Government Launch Ranges

The FAA's launch requirements as promulgated through part 415,

subpart C, of this rulemaking apply to launches as they currently take

place from Department of Defense (DOD) or NASA launch ranges. Public

meeting comments strongly supported avoidance of duplication of launch

safety oversight for launches that take place from a federal launch

range. The rules are consistent with that desire. Although the FAA

requires information and analyses not required by federal launch ranges

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

certain additional requirements derived from a National Transportation

Safety Board investigation, the FAA will not duplicate the safety

assessments performed by federal launch ranges.

Federal launch ranges manage the launch facilities from which the

great majority of commercial launches now take place. The federal

ranges act, in effect, both as landlords and as providers of launch

facilities and services. The ranges require compliance with their

safety rules as a condition of using their facilities and services.

Because different federal launch ranges confront different safety

issues, practices are not always standardized; the Air Force ranges

did, however, produce a joint set of documentation requirements and

procedures, ``Eastern and Western Range Requirements 127-1'' (Mar.

1995).8 In addition to providing for public safety, the

federal launch range procedures protect government property and launch

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

success.

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

\8\ The latest version of these requirements may be found at

http://www.pafb.af.mil/45SW/rangesafety/ewr97.htm. The Air Force up-

dates its requirements on an ongoing basis.

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

The FAA fully recognizes the comprehensive and responsible safety

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

forty years. The FAA communicates on an ongoing basis with the federal

launch ranges regarding standards and launch activities. The FAA also

recognizes the scope of information that a launch operator employing

federal range services must submit for approval over a two to three

year period in order to conduct launch operations. Therefore, for

launches that take place from DOD or NASA launch ranges, the FAA's

regulatory program makes maximum use of information provided by an

applicant to the federal launch range and of federal launch range

analyses and approvals. This means that the FAA relies on the processes

of the federal launch range and does not duplicate those safety

analyses conducted by a federal launch range.

A federal launch range requires a launch operator to provide data

regarding its proposed launch. The range evaluates the data to

ascertain whether the launch operator will comply with range

requirements. The range also uses the data to prepare range support for

the mission. DOD ranges require that a launch operator apply for and

obtain specific mandatory approvals from the range in order to conduct

certain specified operations. For example, the Air Force's Eastern and

Western Range Requirements 127-1 require a launch operator to obtain

approvals for hazardous and safety critical procedures before the range

will allow those operations to proceed. In the event that a launch

operator's proposal does not fully comply with range requirements, a

range may issue a deviation or a waiver if the mission objectives of

the launch operator could not otherwise be achieved. A range may issue

a deviation to allow a launch even when a launch operator's designs or

proposed operations do not comply with range requirements. A range may

issue a waiver when it is discovered after production that hardware

does not satisfy range requirements or when it is discovered that

operations do not meet range requirements after operations have begun

at a federal range. A range will allow a deviation or grant a waiver

only under unique and compelling circumstances, or when the intent of

the range requirements is met.

The FAA's baseline assessments 9 of various federal

launch ranges found their safety services adequate. The FAA will not

require an applicant to demonstrate the adequacy of the range services

it proposes to employ if the applicable baseline assessment included

those services and if those services remain adequate. Certain showings

regarding the applicant's own capabilities are still required. The FAA

requires specific information regarding the interface between the

safety organizations of a federal launch range and of an applicant. In

the event that a service or procedure upon which an applicant proposed

to rely was not within the documented experience of the federal launch

range that the applicant proposed to utilize, the applicant would have

to demonstrate the safety of that particular aspect of its launch. This

is also true if a documented range safety service has changed

significantly or has experienced a recent failure. In those cases, the

burden of demonstrating safety shifts to the applicant.

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

\9\ ``Commercial Launch Baseline Assessment, NASA Goddard Space

Flight Center, Wallops Flight,'' DOT (Oct. 1989); ``Commercial

Launch Baseline Assessment, U.S. Air Force Western Space and Missile

Center,'' DOT (Jul. 1989); ``Commercial Launch Baseline Assessment,

U.S. Air Force Eastern Space and Missile Center,'' DOT (Sept. 1988).

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

The revisions also codify FAA guidelines containing National

Transportation Safety Board (NTSB) recommendations concerning launch

readiness and countdown procedures. The FAA's guidelines implement NTSB

recommendations made following an investigation of a commercial launch

anomaly occurring during a launch from a federal launch range. These

guidelines are designed to ensure that a launch licensee has clear

lines of authority and communication during launch, and has specific

procedures governing other safety aspects of its launch operations. The

NTSB filed comments to the docket stating that the regulations proposed

in the NPRM would, if implemented, satisfy the intent of the NTSB's

[[Page 19597]]

recommendations. Accordingly, the NTSB supports their adoption.

Discussion of Parts Affected by the Rule

Part 401--Organization and Definitions

Section 401.5 contains definitions of significant terms used in the

FAA's regulations. Proposed amendments include both changes to existing

definitions and the addition of new terms. Certain changes are intended

only to reflect changes resulting from the 1994 codification of the

Act. Others are editorial.

Deletions

The FAA proposes to remove the terms ``Director,'' ``launch

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

``Director'' no longer constitutes a title related to the FAA's

Associate Administrator for Commercial Space Transportation and is

therefore deleted. ``Launch activity'' refers to activities licensed by

the FAA. The term is overly broad and lacking in specificity.

``Licensee'' is also deleted as a term whose meaning is self-evident.

``Mission'' is no longer necessary because the FAA is modifying and

renaming the mission review contained in part 415, subpart C. ``Safety

operations'' does not appear in the regulations and the FAA has

therefore removed it.

Revisions

Some of the proposed revisions merely reflect the codification of

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

``payload,'' and ``person.'' The FAA revises the term ``launch,''

however, not only to reflect the codification of Pub. L. 98-575 and the

Commercial Space Act of 1998, but to clarify that launch, for purposes

of licensing, includes the flight of a launch vehicle and preflight

activities commencing with the arrival of a launch vehicle at a U.S.

launch site as discussed earlier.

As noted in the NPRM, the FAA proposed to change the definition of

``launch vehicle'' to reflect the changes made to the Act when it was

codified in 1994. This rulemaking implements that change. Space Access

provides an interesting analysis of one of the constituent parts of a

launch concerning an element that the NPRM did not address in detail,

namely, that vehicle stages are part of launch. ``Space Access believes

anything that does not achieve orbit should be considered as part of

launch, just like multiple stage boosters are today.'' Space Access at

5. Space Access points out that if the FAA's intent is to cover the

hazardous elements of launch, ``the return of any boosters is

pertinent.'' Id. at 5-6. For these reasons, the FAA's proposed

definition of launch vehicle should clearly encompass ``all physically

connected parts used to propel or to otherwise place [a] launch vehicle

and any payload into an Earth orbit or otherwise in outer space.'' Id.

at 5. Space Access believes that its proposed definition would clearly

encompass first stage boosters that fall back to earth and a carrier

aircraft such as is used to launch a Pegasus. Id.

Under the Act, launch vehicle means ``(A) a vehicle built to

operate in, or place a payload in, outer space; and (B) a suborbital

rocket.'' 49 U.S.C. Sec. 70102(7). Congress chose this definition, and

the FAA designed the new regulatory definition to match the

congressional choice. Space Access fears that the definition could

imply that only the parts of a launch vehicle that reach outer space

are part of a launch vehicle, thus excluding both the carrier aircraft

for an air launch and any vehicle stages that fall back to earth. Space

Access at 5. The definition does not preclude the inclusion of carrier

aircraft or vehicle stages as part of the definition of launch vehicle.

The FAA agrees with Space Access that vehicle stages are included

within the definition of a launch vehicle. It should be noted that

because the definition includes a vehicle that either operates in or

places a payload in outer space, the definition includes the entire

vehicle necessary to accomplish that objective. This necessarily

includes the first and intermediate stages of a launch vehicle.

Therefore, the FAA will not change what it proposed as the new

definition of ``launch vehicle'' with the exception that it will change

``and'' to ``or'' to clarify that a suborbital rocket is also a launch

vehicle.

Additions

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

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

incident,'' ``launch operator,'' ``launch site,'' and ``mishap.''

Although the NPRM proposed ``Office,'' that term is no longer included.

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

person in charge of Commercial Space Transportation within the FAA and

arises out of the transfer of the Office of Commercial Space

Transportation from the Office of the Secretary, DOT, to the Federal

Aviation Administration. The term describes the FAA's Associate

Administrator for Commercial Space Transportation.

``Federal launch range'' means a launch site from which launches

take place that is owned and operated by the government of the United

States. Federal launch ranges include Cape Canaveral Air Station,

Vandenberg Air Force Base, White Sands Missile Range and Wallops Flight

Facility. In its comments, Kistler Aerospace Corporation recommended

that the FAA clarify that only these four facilities constitute federal

launch ranges. The FAA is not prepared to do this, but will reach a

separate accommodation. The FAA agrees that the definition of a federal

launch range should only encompass those federal launch facilities

where the government facilities, services and organization routinely

support launch activities. The four listed above, however, are not the

only current ones, and others could emerge in the future.

The FAA assumes that Kistler's interest in this topic arises out of

its proposed launch plans for the Nevada Test Site, which is not

currently a federal launch range. The Nevada Test Site should not, in

its current operational status, be considered a federal launch range

because the U.S. government does not routinely oversee the launch of

launch vehicles from the site. Although it is true that the U.S.

government has conducted launches from the site, this does not mean

that the Nevada Test Site is a federal launch range for purposes of

this rule because the activities that have occurred there are not

routine. No staff is dedicated to routinely supporting launch activity,

and the FAA is not aware of any permanent launch infrastructure at the

site. Nor is the Nevada Test Site a member of the Range Commander's

Council. Accordingly, the FAA here clarifies its definition by adding

``routinely.''

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

CFR Sec. 172.101.

``Launch accident,'' ``launch incident,'' and ``mishap'' all

address related issues. The term ``mishap'' is a general term for all

unplanned events at a launch site or during a launch resulting in

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

property. Mishaps include but are not limited to launch accidents and

launch incidents. Launch accidents and launch incidents are types of

``mishaps.'' ``Launch accident'' and ``launch incident'' derive from

the FAA's current definition of ``accident'' and ``incident'' as the

terms appear in the FAA's accident investigation plan. Both terms

encompass unplanned events occurring during flight. ``Launch accident''

is

[[Page 19598]]

defined by the seriousness of the results, and ``launch incident''

focuses on the failure of a safety system or process that may or may

not have caused serious harm. Special reporting and investigation

requirements attach if a launch accident or incident occurs.

``Accident'' is also defined in a Memorandum of Understanding with the

National Transportation Safety Board (NTSB). A launch accident will

entail NTSB involvement. A ``launch incident'' may or may not involve

the NTSB, depending on the seriousness of the safety issues involved.

Other mishaps, such as a mission failure, have fewer reporting and

investigation requirements.

Orbital raised a concern regarding the reporting requirements for a

mishap. Orbital at 5. It noted that, if read literally, section 415.41

would require FAA notification every time a piece of the licensee's own

equipment was damaged. The FAA does not require this and now amends its

definition of mishap from that originally proposed in the NPRM to

include only a launch accident, a launch incident, failure to complete

a launch as planned, or an unplanned event resulting in fatal or

serious injury or greater than $25,000 damage to a payload, a launch

vehicle, a launch support facility, or government property located at

the launch site. The notification requirement has also been modified

for mishaps other than launch accidents and launch incidents. For a

mishap that is not a launch accident or launch incident, or one that

does not involve a fatality, a licensee must notify the FAA within 24

hours of the event. Such mishaps may involve insurance claims or may

uncover flaws in a licensee's safety procedures.

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

launch a launch vehicle and any payload.

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

the codification of the Act and a subsequent revision. The definition

of ``launch site'' in the original Commercial Space Launch Act includes

``facilities located on a launch site which are necessary to conduct a

launch.'' 49 U.S.C. App. 2603(5) (emphasis added). As noted in the

NPRM, the codified definition of ``launch site'' merely included

``necessary facilities'' with no mention of their location. Now,

Congress has remedied that oversight, and the definition of ``launch

site'' means the location on Earth from which a launch takes place and

necessary facilities at that location. 49 U.S.C. 70102(6) (emphasis

added). The FAA correctly proposed to include only those facilities

located at the launch site. In order, however, to reflect accurately

the new language of the codified statute, the FAA's definition of

launch site will not, as proposed in the NPRM, include ``necessary

facilities located at the site,'' but ``necessary facilities at that

location.''

The FAA will not include the term Office in its definitions as

originally proposed in the NPRM. There is greater familiarity with the

term ``FAA'' and the agency believes that its use will result in less

confusion.

Part 411--Policy

The FAA deletes as unnecessary and reserves part 411, which

establishes the policies of the FAA for licensing commercial launch

activities. This part identified how the FAA addressed safety and

mission reviews, which, pursuant to this rulemaking, are addressed in

parts 413, 415 and 417.

Part 413--License Application Procedures

Part 413 continues to describe those license application procedures

applicable to all license applications. As explained by section 413.1,

which clarifies the former section of the same number, the procedures

apply to any application for a license to launch a launch vehicle or to

operate a launch site. These procedures should also be used by a

payload owner or operator requesting a payload review. More specific

requirements applicable to obtaining a launch license or a license to

operate a launch site are set forth in parts 415 and 417, respectively.

The majority of the revisions to this part are editorial or self-

explanatory. A few bear individual mention.

Section 413.3, which renumbers the former section 415.3 and amends

the provision by including operation of a launch site, identifies who

must obtain a license to launch a launch vehicle or to operate a launch

site. Any person proposing to launch a launch vehicle or to operate a

launch site within the United States must obtain a license authorizing

the launch or the operation of the launch site. 49 U.S.C.

Sec. 70104(a)(1). A U.S. citizen or entity proposing to launch outside

the United States or to operate a launch site outside of the United

States must obtain a license authorizing the launch or the operation of

the launch site. 49 U.S.C. Sec. 70104(a)(2). A foreign corporation,

partnership, joint venture, association or other foreign entity

controlled by a U.S. citizen and proposing to launch from, or to

operate a launch site within, international territory or waters must

obtain a license if the United States does not have an agreement with a

foreign nation providing that the foreign nation shall exercise

jurisdiction. 49 U.S.C. Sec. 70104(a)(3). A foreign corporation,

partnership, joint venture, association or other foreign entity

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

from foreign territory, unless that foreign nation has agreed that the

United States shall exercise jurisdiction over the launch. 49 U.S.C.

Sec. 70104(a)(4).

Section 413.5, which renumbers and amends the former section 413.3,

requires a prospective applicant to consult with the FAA prior to

submitting an application. Pre-application consultation is now

mandatory in order to allow both an applicant and the FAA the

opportunity to identify potential issues relevant to the FAA's

licensing determination. Pre-application consultation does not possess

a formal structure or timetable. Nor does it require personal meetings.

For many proposals consultations may be made by telephone, electronic

mail or other means.

Pre-application consultation is intended to provide an efficient

and effective process leading to the development of a substantially

complete application. It should also ensure that an applicant is aware

of the responsibilities of a licensee. Pre-application consultation

allows a prospective applicant to familiarize the FAA with its proposal

and the FAA to familiarize the prospective applicant with the licensing

process. It has been the FAA's experience that pre-application

consultation helps speed the overall licensing process by ensuring that

any unique safety issues are uncovered early. It also avoids

potentially wasted efforts by a prospective applicant in preparation of

an application. For new launch concepts, the pre-application process

allows a prospective applicant and the FAA's Commercial Space

Transportation Licensing and Safety Division to identify the most

efficient process for the applicant to demonstrate the safety of any

proposed launch. Experience shows that this often is best carried out

through a series of meetings, and other interchanges, each focusing on

different issues. The schedule and order of such discussions is nearly

always driven by a prospective applicant's concept, issues and

schedule. In all cases, the FAA encourages the proposed applicant to

submit, as part of the process, application material in draft, and the

FAA will review and provide feedback on the content.

Although the FAA will answer general questions regarding the

licensing process at any time, the pre-

[[Page 19599]]

application process is best begun when a prospective applicant is ready

to discuss specific application requirements or to begin preparation of

an application. At this time, the Licensing and Safety Division will

assign a primary staff engineer who will be responsible for working

with the prospective applicant. Typically, a second engineer is also

assigned to track the project and to be available should the primary

engineer not be available. Other support staff may also be assigned to

help in specialized areas such as environmental reviews.

Section 413.7, which renumbers and amends the former section 413.5,

contains a change in the name of the entity regulating commercial space

transportation. Effective November 15, 1995, the DOT Office of

Commercial Space Transportation became a part of the Federal Aviation

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

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

Commercial Space Transportation to that of the Associate Administrator

for Commercial Space Transportation. Section 413.7(a), which directs an

applicant where to file an application, reflects that change, as well

as the new address. Section 413.7(b)(2) requires an applicant to

provide the FAA with one or more points of contact to receive notices

from the FAA.

Section 413.9, which renumbers the former section 413.7, describes

how an applicant may request confidential treatment for trade secrets

or proprietary commercial or financial data. The treatment of

confidential information is governed by applicable law, including the

Freedom of Information Act.

Section 413.11, amending former section 413.9, describes the

process by which an application is accepted or rejected. Section

413.11(a) provides for an initial screening of an application in order

for the FAA to determine whether the application is sufficiently

complete to allow the FAA to initiate the required reviews. The Act

requires the FAA to complete its evaluation of an application within

180 days. The FAA determines when an application is sufficiently

complete for the 180 days review period to commence and how those 180

days will be measured. If the FAA receives an application that fails to

provide sufficient information for the FAA to commence a meaningful

review, then a review cannot be performed. The FAA returns applications

that are not substantially complete, noting the areas of deficiency.

Accordingly, the 180-day review period will start to run only upon

receipt of an acceptable application.

The FAA considered the option of not commencing any review of an

application and thus of not starting to count the 180-day statutory

time limit until the application was complete in order to ensure that

the FAA did not receive piecemeal applications. The FAA also considered

rejecting or denying an incomplete application, which would also

prevent the 180-day review period from commencing. Instead, the FAA

determined that if an applicant presented sufficient material to allow

at least some meaningful review to commence, the FAA would do so in the

interests of the applicant. Commencing the review of even an incomplete

application should allow for earlier identification of required

information not addressed, hasten the process and increase efficiency.

In order for the FAA to review an application, however, the

application must be sufficiently complete to allow review to commence.

Accordingly, under section 413.13, the FAA's acceptance of an

application does not constitute a determination that the application is

complete. That section now contains an additional provision that was

not explicit in the NPRM. The new provision clarifies that the FAA may

ask for additional information in the course of the licensing process.

It states that if, in addition to the information required by the

applicable parts of this chapter, the FAA requires other information

necessary for a determination that public health and safety, safety of

property and national security and foreign policy interests of the

United States are protected during the conduct of a licensed activity,

an applicant shall submit the additional information required to show

compliance with this chapter. The FAA anticipates that there will be

situations where an applicant's proposal contemplates activities,

vehicle configurations or technologies not envisioned in the course of

this rulemaking. In that case, it is necessary for the regulations to

reflect clearly the FAA's authority to request additional information

prior to issuing a license.

Although review of an incomplete application may commence, section

413.13 requires an applicant to complete an incomplete application, and

section 413.15 allows for tolling in the event an applicant does not

submit the remaining material in sufficient time to avoid affecting the

evaluation process. Section 413.15, a new provision, tolls, or stops

the clock of, the review period of 180 days when an applicant fails to

provide information required for the FAA to complete its review.

Although the FAA will commence its application review once it receives

a substantially complete application, the fact that an application is

only substantially complete means that more information may be required

before the application is entirely complete. If an application does not

address requests for required information in sufficient detail, or if

the application contains inconsistencies, the FAA will advise the

applicant and provide a time by which the requested information must be

provided. Once the deadline has passed, and while the FAA waits for any

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

the FAA does not run. The FAA considered the option of denying a

license and returning the application for resubmission if the requested

information were not submitted within the time provided. Because of the

new submission of the application, a new 180-day review period would

commence. This course would provide the applicant a strong incentive to

respond to the FAA's information request in a timely fashion, and,

perhaps, result in the processing of only those applications where the

applicant possesses the actual capacity to respond. This would

discourage frivolous applications. The FAA determined, however, that

most applicants, provided with information regarding how soon the FAA

would require information necessary to complete a review, would respond

in the time allotted. Thus, so extreme an incentive would not be

required. However, it has been the FAA's experience that applicants do

not always respond in a timely fashion to requests from the FAA for

clarification or additional information. Accordingly, some incentive to

respond promptly is necessary, and in the event an applicant fails to

respond within the time provided, the FAA will toll the 180-day

statutory review period.

Both Orbital and Rotary Rocket objected to this provision. Oribital

at 5; Rotary Rocket at 5. Neither, however, proposed a different

solution for addressing the problem of an applicant not supplying

requested information in a timely fashion. For the reasons discussed

above, the FAA adopts the tolling provision.

Section 413.17, which renumbers and amends former section 413.19,

describes an applicant's responsibility for the continuing accuracy and

completeness of the information contained in the applicant's license

application. Orbital objects to requiring that an applicant update its

application any time it is no longer accurate and complete in all

respects, and recommends retaining the

[[Page 19600]]

language of former section 413.19. Orbital at 6. The FAA agrees that it

need not be advised of any and all changes, and will therefore

incorporate a materiality standard. An applicant should note, however,

that the FAA considers a great majority of the information required for

an application to be material. Otherwise, the FAA would not require

that information. An applicant must advise the FAA in a timely manner

of any proposed material change in any representation contained in its

application, including, without being limited to, its launch plans or

operations, launch procedures, classes of payloads, orbital

destinations, safety requirements, the type of launch vehicle, flight

path, launch site, and launch point, or any safety related system,

policy, procedure, requirement, criteria or standard, related to

commercial space launch or launch site operation activities, that may

affect public health and safety, the safety of property, including

government property, or hazards to the environment. Because the FAA

proposes to rely upon federal launch ranges for launches from those

sites, an applicant must also notify the FAA in a timely manner in the

event the applicant applies to the federal range for a waiver to, or

deviates from the federal range's safety requirements or procedures.

Changes to an application may lengthen the time that the FAA

requires to complete its reviews in support of a license determination.

The FAA will reserve to itself the right to toll the 180-day review

period in the event that any amendment to an application so radically

changes the applicant's proposal that the change, in effect,

constitutes a new application. The FAA's experience, however, has been

that most amendments, while important, have a relatively minor impact

on the processing time, particularly if those amendments are submitted

in a timely manner.

Section 413.19 addresses issuance of a license.

Section 413.21 contains the procedures employed by the FAA when it

denies an applicant a license, and describes the recourse available to

that applicant. An applicant may attempt to correct the deficiencies

that resulted in the denial of its application and request

reconsideration of its application, or it may request a hearing to show

why the application should not be denied.

Section 413.23 allows a licensee to apply for renewal of an

expiring license. A licensee seeking authorization to conduct

activities that are substantially different from those authorized under

the expiring license is not eligible for renewal of the license and

must apply for a new license.

Part 415--Launch License

Part 415 establishes requirements applicable to obtaining a license

to launch a launch vehicle and establishes post-licensing requirements.

The provisions of this part apply to prospective and licensed launch

operators and to prospective payload owners and operators, and should

be read in conjunction with the general application requirements of

part 413. This part replaces and amends the former part 415. A flow

chart of the launch license application process is provided in Figure

1.

Subpart A describes the scope and types of launch licenses,

required approvals or determinations, and procedures governing issuance

or transfer of a launch license. Like the former section 415.1, the new

section 415.1 explains that part 415 prescribes requirements for

obtaining a launch license and adds that it prescribes post-licensing

requirements. Section 415.3, a new provision arising out of this

rulemaking, addresses the types of launch licenses issued, as discussed

previously.

Sections 415.5 and 415.7 identify the approvals and determinations

required to qualify for a launch license. These sections require a

license applicant to obtain policy and safety approvals from the FAA.

Section 415.7 constitutes an administrative change, although the FAA

has conducted payload reviews in the past. This provision requires an

applicant to obtain a payload determination unless the payload is

otherwise exempt from FAA consideration. The owner or operator of the

proposed payload may also apply for a payload determination. Only a

launch license applicant may apply for safety and policy approvals,

and, as with former section 415.5, may apply for either approval

separately and in advance of submitting a complete license application.

An applicant applying for a separate approval should note, however,

that some of the information described as required for one approval may

be necessary for a different approval. In order to avoid duplication,

the FAA is requesting only once material that is relevant to more than

one review. For example the information required by section 415.25 is

germane to an FAA safety review although it is also pertinent to a

policy review.

In addition to the approvals and determinations that the FAA

requires of an applicant for a launch license, an applicant should bear

in mind that the National Environmental Policy Act (NEPA) requires the

FAA, prior to considering a license application, to perform

environmental reviews of major federal actions such as issuing a launch

license. Accordingly, if a proposed launch vehicle is not otherwise

already encompassed by a 1986 Programmatic Environmental Assessment of

Commercial Expendable Launch Vehicle Programs, then NEPA may direct the

FAA to perform an additional environmental review. No other approvals

or determinations are required from the FAA in order for an applicant

to obtain a license for launch of a launch vehicle.

This subpart also contains new provisions for issuance and transfer

of a launch license. Once an applicant has obtained all required

approvals, the FAA will issue a launch license under section 415.9.

Section 415.11, a new provision, allows the FAA to modify a launch

license at any time by modifying or adding terms and conditions to the

license to ensure compliance with the Act and regulations. Although

standard license terms and conditions, contained in subpart E, apply to

all licensees, it is the experience of the FAA that a particular

licensee's launch may present unique circumstances which apply only to

that licensee. In that event, the FAA may issue or modify a license

with terms and conditions not identified in subpart E to protect public

health and safety, safety of property, U.S. national security and

foreign policy interests, or international obligations of the United

States. A licensee may also initiate license modification.\10\

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\10\ Should a licensee wish to protest an FAA modification of

its license, it is entitled to a hearing pursuant to section

406.1(a)(3) of part 406. In the event safety requires that

additional terms and conditions be applied to all licensees, the FAA

would revise subpart E by rulemaking to implement any such

standardized terms. As provided in part 415, a licensee may request

modification of its license to reflect changes in its proposed

launches.

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Under section 415.13, a new provision, only the FAA may transfer a

license, and only upon application by the transferee. The prospective

transferee must satisfy all requirements for obtaining a license as

specified in parts 413 and 415.

Subpart B describes the requirements for a policy review. To date a

policy review has been known as a mission review under former sections

415.21-415.25. Because the FAA now separates a payload determination

from any mission review, it is changing the name of the review to

policy review to more accurately identify its purpose. Under sections

415.21 and 415.23, a policy

[[Page 19601]]

review addresses whether some aspect of a proposed launch presents any

issues affecting U.S. national security or foreign policy interests or

is inconsistent with international obligations of the United States.

Specific launch safety issues will be addressed only in a safety review

although the FAA will address payload safety issues in the course of a

payload determination. Only a launch license applicant may request a

policy approval. An applicant must provide the information required by

subpart B so that the FAA may review those aspects of an applicant's

launch proposal that are not related to safety. The FAA coordinates

this review with other government agencies, including the Departments

of Defense, State, and Commerce, the National Aeronautics and Space

Administration and the Federal Communications Commission. Space Access

questioned the inclusion of NASA in the policy review. Space Access at

12. Space Access states that NASA does not determine U.S. national

security, foreign policy or questions of international obligations. Id.

The FAA's experience has been that NASA, as the primary civilian

government launch operator, often offers insights of value with respect

to issues of concern. The FAA plans to continue to consult with NASA

for a number of reasons. NASA has a long history of launching

expendable launch vehicles, and currently operates the Space Shuttle.

NASA also operates a federal launch range . NASA procures launch

services from the private sector for a wide range of satellites and

space probes. Also, NASA has programs and assets that it may wish to

bring to the FAA's attention in the context of a particular launch.

Accordingly, NASA will remain one of the agencies regularly consulted

regarding any launch license application.

An applicant may choose to submit an application for policy review

separately from its license application, or, as do most applicants, it

may submit a complete license application. The FAA will allow separate

submission of a request for a policy review because of the possibility

that an applicant might be uncertain about policy issues surrounding

its proposal, and might wish to allay concerns over reactions to any

proposed launch. An applicant might then request only a policy review

prior to undertaking the additional effort necessary to prepare a

complete license application. Past experience indicates that the FAA

accomplishes these reviews relatively quickly in comparison with a

safety review.

Section 415.25, a new provision, describes the information an

applicant must provide to obtain a policy approval. As described in the

NPRM, the information required reflects current FAA information

requests. The FAA requires this information in order to inform it and

other agencies of what is being launched, by whom, for what purpose,

and where a vehicle and its payload are going. The State Department,

for example, may identify overflight issues regarding particular

countries.

Accordingly, the FAA requires that an applicant supply sufficient

information to describe a proposed launch vehicle and its mission. The

information requested by paragraph 415.25(b) is required in the event

there are any policy issues surrounding the launch vehicle itself. The

FAA requires a brief description of the launch vehicle, including the

propellants used and the vehicle's major systems, such as its

structural, pneumatic, propulsion, electrical or avionics systems.

Policy questions may arise, for example, over the use of nuclear power,

or the Department of Defense may have concerns over the allocation of

resources to a commercial launch if a sole source manufacturer is

involved.

The information requested by paragraph 415.25(c)(2), that an

applicant identify any foreign ownership interests of 10% or more means

that an applicant must identify any foreign owner possessing a ten

percent or greater interest in a license applicant. This provision is

intended to provide the FAA and the Departments of State and Defense

the identities of foreign interests involved in a licensed launch. The

Departments of State and Defense have interests in foreign involvement

in the U.S. launch industry, including, for example, issues surrounding

technology transfer and national security. The FAA believes that a ten

percent ownership interest is sufficiently high for a foreign owner to

be able to influence a prospective licensee. The FAA is aware that a

publicly traded corporation will not always know the identity of each

of its smaller shareholders. However, such an applicant should be aware

of any shareholders possessing that significant an interest in the

corporation. Reporting requirements of the Securities and Exchange

Commission and the Department of Defense are often triggered by an

ownership interest of ten percent or even less, and the FAA believes

that this constitutes a reasonable threshold.

Through the comment process, Kistler Aerospace Corporation and

Lockheed Martin Corporation requested that the FAA not require an

applicant to identify its foreign ownership interests. Kistler at 10;

Lockheed Martin at 7. Kistler recommended that the FAA require,

instead, a statement from the applicant that it is in compliance with

all federal requirements governing foreign ownership in certain

sensitive industries under 50 U.S.C. Secs. 1701 et seq. and 31 CFR Part

800. Kistler notes that the Treasury Department examines and passes

upon foreign involvement in sensitive industries such as the launch

industry. Thus, according to Kistler, the FAA's information

requirements concerning foreign ownership would be duplicative.

Lockheed Martin maintains that the FAA offers an insufficient

explanation regarding the purposes of obtaining the information.

The statutory and regulatory provisions upon which Kistler relies

for its argument do address certain elements of foreign ownership, but

address a more narrow area of concern than identified in the Act. The

provisions of 50 U.S.C. ch. 35--International Emergency Economic

Powers, Secs. 1701-1706, apply to the President's exercise of authority

in a national emergency. The FAA, on the other hand, may apply the

information on a more routine basis, and for its own purposes. For

example, the FAA has occasion, as with Sea Launch, to determine whether

a U.S. citizen controls a license applicant for purposes of

ascertaining whether the launch operator requires a license. Nor do the

regulations Kistler cites address all forms of foreign ownership. On

its face, part 800 only applies to mergers, acquisitions and takeovers

by foreign persons. 31 CFR Part 800. There are transactions that are

not acquisitions under part 800. See 31 CFR Sec. 800.302 and examples

provided. In light of the fact that not all foreign ownership receives

scrutiny under part 800, the FAA finds that its information

requirements concerning foreign ownership will not duplicate those of

the Treasury. The FAA also takes note of the fact that part 800 does

not alter or affect any other reviews. Accordingly, because the FAA

itself may require the information regarding foreign ownership in order

to determine whether a U.S. citizen exercises control over an

applicant, because the Departments of State and Defense have interests

in foreign ownership issues, and because the Treasury regulations do

not address all forms of foreign ownership, the FAA adopts paragraph

415.25(c)(2) as proposed.

Section 415.25(d)(2) requires an applicant to identify proposed

vehicle flight profiles. Space Access maintains

[[Page 19602]]

that compliance may be difficult when planning large numbers of

launches. To date, it has been the experience of the FAA that

compliance is possible. An applicant may satisfy this requirement by

providing a range of proposed flight azimuths, trajectories, ground

tracks, and instantaneous impact points. Launch frequency should not

affect an accurately identified range of flight profiles. In any event,

this same information is also used by the FAA in its safety review and

is critical to assessing public risk.

Section 415.25(d)(3) requires information regarding the sequence of

major launch events during flight. In this regard, the FAA expects to

be informed of events such as approximate engine burn times of all

stages, stage separation events, pitch and yaw maneuvers and engine

cutoff. An applicant may provide this information through a text

explanation or through diagrams and charts.

Section 415.25(d)(4) requests a description of the range of nominal

impact areas for all spent motors and other discarded mission hardware.

The area identified for each impacting component shall include that

area within three standard deviations of the nominal impact point, a

calculation otherwise known as a 3-sigma footprint.

Section 415.27 contains procedures employed by the FAA when it

denies an applicant a policy approval and describes the recourse

available to that applicant. If an applicant fails to obtain a policy

approval, the applicant may attempt to correct the deficiencies which

resulted in the denial and request reconsideration of the denial, or,

upon denial of a license, it may request a hearing. The final version

of this provision differs slightly from what the NPRM proposed. The

NPRM stated that an applicant who was denied a policy approval could

reapply. In order to avoid confusion, the provision now permits an

applicant to request the FAA's reconsideration of its denial. This

makes clear that the FAA need only reconsider an issue once rather than

an unlimited number of times. The particular issue in controversy may

serve as one of the reasons for requesting a hearing before an

administrative law judge after denial of a license.

BILLING CODE 4910-13-P

[[Page 19603]]

[GRAPHIC] [TIFF OMITTED] TR21AP99.000

BILLING CODE 4910-13-C

[[Page 19604]]

Subpart C addresses the FAA's safety evaluation process for license

applications for launch from a federal launch range. This subpart is

new and replaces the former subpart B--Safety Review, 14 CFR 415.11-

415.17. Because of the history and safety record of the federal launch

ranges, and because the FAA's baseline assessments provide a written

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

space transportation, the FAA accepts that a federal launch range will

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

requirements are directed more toward an applicant's own safety

capabilities and its integration with a federal launch range's safety

organization. The FAA requires information regarding an applicant's

safety organization, vehicle design and operational safety practices.

This subpart includes standards regarding acceptable flight risk and

requires an applicant to submit procedures and plans that demonstrate

that it will satisfy certain other safety requirements if it obtains a

license.

The FAA recognizes that federal launch ranges provide a number of

safety services for launch operators, and that these sites have an

historically good record of safety. Section 415.31 explains that the

FAA will issue a license to an applicant proposing to launch from a

federal launch range if the applicant satisfies the requirements of

subpart C and has contracted with the federal launch range for the

range to provide launch services and property, as long as the safety

related launch services and proposed use of property are within the

experience of the federal launch range. All other safety services and

property associated with an applicant's proposal are evaluated on an

individual, case by case basis.

The FAA has assessed the four federal launch ranges which provide

launch services and facilities. The federal ranges assessed include

Cape Canaveral Air Station, Vandenberg Air Force Base, Wallops Flight

Facility and White Sands Missile Range. The FAA does not duplicate

federal launch range analyses or routinely review those analyses during

the launch safety review conducted by the FAA. Instead, the FAA relies

on its knowledge of the range processes as documented in the FAA's

baseline assessments. The FAA's assessments provide a basis for the

FAA's reliance on the adequacy of the services provided by each of the

federal launch ranges. Some safety issues, however, may not be

adequately addressed by a federal launch range. The failure of federal

launch range safety systems or procedures may, for example, affect the

FAA's ability to rely on a federal launch range. The FAA may ascertain

this during the course of a pre-application consultation or once an

applicant submits its application, or through its communications

regarding launch activities with the federal ranges. The FAA may then

require the applicant to demonstrate safety with respect to those

specific areas of concern on an individual or case by case basis. In

addition to requiring a showing of safety from the applicant, the FAA

will also work with the federal launch range to address the issue, and

will update the FAA's baseline assessment as appropriate.

The FAA also makes maximum use of the information an applicant must

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

submit to the FAA either entire, or appropriate sections of, documents

it prepares and submits to a federal launch range that are relevant to

the applicant's launch application. It has been the FAA's experience

that because information requested by federal launch ranges provides

greater detail than the FAA requires, the FAA's requirements may be

satisfied by this material.

Section 415.33 requires an applicant to document its safety

organization. An applicant must possess a functioning safety

organization because an applicant cannot ensure safety without someone

designated as responsible for safety issues. The FAA will evaluate

whether the structure, lines of communication, and approval authority

an applicant establishes will enable the applicant to identify and

address safety issues and to ensure compliance with the requirements of

range safety and the FAA's regulations. How a federal launch range's

safety services are integrated with the licensee is also relevant. The

FAA expects that for launches from federal launch ranges an applicant

will structure its safety organization to ensure compliance with

federal launch range requirements, such as, for example, Eastern and

Western Range Regulation 127-1 for Air Force launch ranges. The FAA

believes that charts are the most efficient way to depict much of the

required information, and encourages applicants to include one or more,

as appropriate, organizational charts that will delineate the lines of

communication and the internal decision making process. The lines of

communication must depict the lines of communication within the

applicant's organizational structure, and between the applicant and any

federal launch range providing launch services. In providing this

information, the applicant should include those services of the federal

launch range upon which the applicant proposes to rely, and those of

any other organization providing flight safety services. The

applicant's description must include interfaces with the federal launch

range and should explain how the safety policies and procedures of all

segments of the safety organization identified above will be

implemented.

Section 415.33(b) requires an applicant to have a safety official

possessing authority to examine launch safety operations and to monitor

independently personnel compliance with safety policies and procedures.

In order to keep safety concerns separate from mission goals, the

person responsible for safety should have the ability to perform

independently of those parts of the applicant's organization

responsible for mission assurance, and should also have the authority

to report directly to the licensee's personnel in charge of licensed

launches. The safety official should be identified by name, title or

position, and by qualifications.

Orbital suggests that a safety official should not be required to

report to someone who has a vested interest in the outcome of the

launch. Orbital at 7. According to Orbital, such a person might be in a

position to exert undue influence or pressure on the safety official.

Id. When it proposed this requirement, the FAA intended just the

opposite. The FAA intended that the safety official have authority to

report directly to the person in charge of licensed launches in order

to ensure that safety decisions were made at appropriately elevated

levels, rather than becoming low priority issues buried in the lower

levels of an organization. As noted in the NPRM, the FAA intends the

reporting to ensure that the person responsible for the licensed launch

ensure that all of a safety official's concerns are addressed prior to

launch. Accordingly, because both the safety official and the person

responsible for licensed launch possess safety obligations, no conflict

of interest should exist. The FAA also believes that this decision

reflects a reality within industry, namely, that the person in charge

of mission success may well make final decisions regarding safety. The

regulations impose safety obligations on that individual as well.

Space Access also questioned this provision, querying the value of

an applicant identifying the qualifications of a safety official's

position. Space Access believes that this could result in an applicant

identifying the qualifications of the position even though the

individual performing the

[[Page 19605]]

job is not qualified. In order to clarify the FAA's intent, section

415.33(b) now states that an applicant shall identify the safety

official by name, title, and qualifications. An applicant must show

that there is a relationship between the individual's experience and

responsibilities. The FAA agrees with Space Access that a safety

official's experience be provided. The FAA will not at this time impose

requirements governing the particulars of a person's education and

years of experience. Instead, it will rely on the performance standard

articulated in 415.33(b).

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

section 415.35, which is promulgated through this rulemaking,

establishes limits on how much risk the FAA will allow for a licensed

launch. The FAA has clarified this section from that originally

proposed in the NPRM to better describe the FAA's expected casualty

(Ec) measure of risk by deleting ``the probability of

occurrence'' and including mention of suborbital launch vehicles. The

FAA is also classifying the scope of the hazards addressed. An

Ec measure reflects risk from debris, not from toxic

releases or blast overpressure, which the federal launch ranges handle

through other means. Additionally, the proposed term ``collective

risk'' in the second sentence is now deleted to state more specifically

that an applicant's proposed launch shall not exceed an expected

average number of 30 casualties in one million launches. This phrasing

still describes collective risk, but with more precision. With these

clarifying editorial changes, the FAA now adopts its measure of

acceptable risk of Ec 30 x 10-6 per

launch.

The FAA received comments regarding its proposed risk threshold.

Boeing supported the FAA's proposal. Boeing at 1. Space Access argued

that the Ec was insufficiently strict, and should be

compared to involuntary rather than voluntary risk. Space Access

recommended an individual risk threshold of Ec 1

x 10-7. Space Access at 11. The FAA anticipates that a

better explanation of what Ec measures and the differences

between individual and collective risk will respond to Space Access'

arguments against an Ec of 30 x 10-6. In short,

when expressed in terms of individual risk, the FAA's collective risk

measure satisfies the concerns voiced by Space Access. Space Access

also maintains that a comparison to voluntary risk is inappropriate and

that involuntary risk provides the better measure. The FAA, however,

like the Air Force, defines background risk as the risk voluntarily

accepted in the course of day to day activities, and finds that

voluntary risk provides an acceptable basis of comparison for

determining acceptable risk. Moreover, even when compared to

involuntary risk, as Space Access recommends, if the FAA's collective

risk measure is described in terms of its individual risk counterpart,

the measure compares favorably.

Section 415.35(a) requires that acceptable flight risk through

orbital insertion for an orbital launch vehicle, and through impact for

a suborbital launch vehicle, be measured in terms of collective risk.

Pursuant to section 415.35(a), the collective risk associated with

debris from an applicant's proposed launch, measured by casualty

expectancy, shall not exceed 0.00003 (30 x 10-6)

casualties per launch. Ec represents the FAA's measure of

the collective risk to the population exposed to the launch of a launch

vehicle. The measure represents the expected average number of

casualties for a specific launch mission. In other words, if there were

thousands of the same mission conducted and all the casualties were

added up and the sum divided by the number of missions, the answer and

the mission's expected casualty should statistically be the same. This

Ec value defines acceptable collective risk.11

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\11\ The Ec value adopted originated with the Air

Force's stated measure of acceptable risk. ``Eastern and Western

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

1995). Space Access brought a number of risk levels to the FAA's

attention, requesting that the FAA reconcile the apparent

discrepancies between those risk levels, including the agency's own

past descriptions of risk levels, and the FAA's proposed risk

measure. A rulemaking is the appropriate mechanism for the FAA to

adopt new standards. Thus, although the FAA now adopts a standard

different than those its earlier reviews described, this rulemaking

provides the forum for doing so. The conflicts Space Access

identifies stem, in relevant part, from the fact that the risk

figures Space Access cites pre-date the Eastern and Western Ranges'

publication of an acceptable risk threshold of Ec

30 x 10-6. For example, although it is true

that DOT's ``Hazard Analysis of Commercial Space Transportation''

(1988) (``DOT Hazard Analysis'') states that the Department of

Defense (DOD) ranges do not have published standards for acceptable

levels of public risk, DOD's Eastern and Western Ranges have since

published the risk criteria on which the FAA now bases its own

measure. Likewise, ``Financial Responsibility for Reentry Vehicle

Operations,'' DOT, 27 (May 1995) describes general background risk

as 1 x 10-6 per year. Prior to 1990, a collective risk

of Ec 1 x 10-6 was thought to be

the typical safety level at the DOD ranges. However, studies using

the most up to date models for predicting risk, undertaken to

support the effort by the Eastern and Western Ranges to adopt a

common standard showed that this was not always the case. The Air

Force eventually published an Ec 30 x

10-6 in 1995 instead. Again, the ``Commercial Launch

Baseline Assessment for US Air Force Western Space and Missile

Center'' DOT, 79, Sec. D.7.e (Jul. 1989) states that Ec

should lie between 1.9 x 10-7 and 4.6 x

10-7. The referenced passage was a relatively simple

calculation of risk in the launch area for a representative launch,

and provides an example of the risks rather than a worst case limit.

This estimate today proves low with the availability of more

accurate data.

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Collective risk is estimated prior to launch, and constitutes the

sum total launch related risk to that part of the public exposed to the

hazards of a launch. The public includes everyone except launch

personnel. Government personnel who are not essential to a launch are

defined as the public for purposes of measuring acceptable risk.

The FAA's standard derives from launch risk guidance employed by

the Air Force at its Eastern Range, Cape Canaveral Air Station, and its

Western Range, Vandenberg Air Force Base, to define acceptable risk.

The FAA adopts this standard because the FAA believes that commercial

launches should not expose the public to risk greater than normal

background risk, which the FAA defined in its NPRM as those risks

voluntarily accepted in the course of normal day-to-day activities. The

FAA is using the Air Force standard because it reflects the standard

already in place for the majority of commercial U.S. launches, and for

the majority of government launches of vehicles of a comparable size.

No casualties arising out of a government or commercial launch have

occurred to the public under this standard. It is the FAA's

understanding that although the Air Force published this figure in

1995, it did so because it found that this figure best represented

historical launch risk levels.

The FAA is aware that the Air Force implements this standard as

``acceptable launch risk without high management (Range Commander)

review.'' ``Eastern and Western Range 127-1 Range Safety

Requirements,'' Sec. 1.4.1, 1-12. This means that based on national

need and the approval of a range or wing commander the Air Force may

allow a launch with a predicted expected casualty risk of greater than

30 x 10-6. Id. As mentioned in the NPRM, the FAA

recognizes that many commercial launches carry government payloads, and

that there may be a national need to launch a critical national payload

with a predicted launch risk of greater than 30 x 10-6. An

applicant proposing to launch a government payload, where the launch

would not meet the FAA's risk requirement, would have to request a

waiver from the FAA and show that national need warranted waiver of

this standard. The FAA would work with any government payload owner or

operator to resolve such an issue. The FAA establishes this standard,

however, for all commercial launches, so that the

[[Page 19606]]

general public will not be exposed to a higher than normal risk from a

commercial activity.

The FAA also recognizes that the federal launch ranges may perform

separate Ec analyses for three different hazard categories,

including debris, toxic releases and blast overpressure. When the FAA

relies on a federal launch range's Ec analysis to determine

whether the FAA Ec requirement is met, the FAA is interested

only in the debris analysis performed by a range, and this provision

makes that clear. For toxic releases and blast overpressure, the

federal launch ranges implement specific safety requirements designed

to keep toxic releases and the effects of blast from reaching the

public. For example, if more than a given number of parts per million

of a toxic release would reach people, a launch will be delayed until

conditions improve. Likewise, if atmospheric effects threaten to carry

overpressure impact to persons outside the federal launch site, a

launch will be delayed. Because these measures achieve safety, the FAA

will rely on them rather than implementing an Ec analysis

requirement for toxic releases and blast overpressure.

Space Access raised the question of whether an Ec of 30

x 10-6 meant that if an accident occurred and 100,000

people were exposed then 3 deaths would occur. Space Access at 8. The

FAA wishes to take advantage of this opportunity to clarify the

concepts involved. Ec is the expected average number of

casualties per launch of a launch vehicle. The consequence measured is

casualties, which includes serious injury as well as deaths, and the

measure is per event, namely, launch. Space Access based its question

on the assumption that 30 x 10-6 is ``3 per 100,000''

persons. That Ec is a measure of casualties rather than

deaths aside, expected casualty is measured for each event, which, in

this case is a single launch. Although Space Access is, of course,

correct that an Ec of 30 x 10-6 is equivalent

to 3 per 100,000, the 100,000 refers not to exposed persons, but to the

number of launches that would have to be conducted before one would

expect statistically that total number of casualties. One would have to

launch 100,000 times to statistically reach 3 casualties.

Space Access sought clarification on the differences between

individual and collective risk. In contrast to the more familiar

measure of risk, namely, individual risk, which describes the

probability of serious injury or death to a single person, the launch

industry's common measure of risk is collective risk. Collective risk

constitutes the sum total launch related risk, that is, the probability

of injury or death to that part of the public exposed to a launch.

Collective risk is analogous to an estimate of the average number of

people hit by lightning each year, while individual annual risk would

be an individual's likelihood of being hit by lightning in any given

year. Collective risk may be expressed in terms of individual risk if

certain factors associated with any given launch are taken into

account. Also, individual risk may be--and will be, in most instances--

less than collective risk, depending on the size of the population

exposed. For example, a collective risk of Ec of 30 x

10-6 for a defined population of one hundred thousand people

exposed to a particular launch results (assuming the risk is spread

equally throughout the defined population) in a probability of injury

or death to any one individual exposed of 3 x 10-10 (three

per ten billion).

In its comments, Space Access argued for a stricter standard on the

basis of what it understood to be other measures of risk. Space Access

analyzed the FAA's proposed measure in terms of two categories:

background risk, which may be further categorized as a combination of

voluntary and involuntary risk, and other launch risk thresholds.

Contrary to the contentions of Space Access, the FAA finds that the

comparison to voluntary risks is appropriate. Even, however, when

compared to involuntary risk, if the risks of launch are expressed in

terms of individual risk, launch risk usually compares favorably. In

fact, it is possible to have an unacceptably high expected casualty

value while still having an extremely low individual risk level.

Space Access inquired whether the proposed standard appropriately

reflects risk levels voluntarily accepted by the public in normal daily

activity. Voluntary risk provides an appropriate comparison. The FAA

defines background risk in the context of its statutory mandate to

regulate and facilitate the commercial launch industry. Congress has

chosen to accept the risk of launch in order to reap the benefits

attendant to the activity. Recognizing that this country has decided to

accept these risks, the FAA believes, as the federal launch ranges do

(see ``Eastern and Western Range 127-1 Range Safety Requirements'',

Sec. 1.4(d), 1-12), that it is appropriate to compare launch risks to

other measures of voluntary risk. A recent study proves helpful for

making that comparison. See Acceptable Risk Criteria for Launches from

National Ranges: Rationale, Rep. No. 97/350-2.1-01, ACTA, for the

Department of the Air Force, 30th and 45th Space Wings (Sept. 1997)

12. ACTA estimated the average annual accidental fatality

probability for any individual, which is defined as all accidental

causes of death. ACTA estimated the fatality probability by adding the

estimated annual individual fatality probability from accidents outside

the home and the reported annual individual fatality probability from

accidents in the home. This excludes risk of disease. ACTA estimated a

total risk of 2 x 10-4. Id. at 18. The FAA's measure of

acceptable risk for casualties may be as much as four orders of

magnitude lower than this accident death risk. The comparison may only

be made, of course, by translating the FAA's collective risk measure

into individual risk and by employing the same time scale for both. If

the comparison is made on an annual basis, and the example of an

exposed population of 100,000 persons continues to be employed, then

individual risk for a launch is, as mentioned earlier, 3 x

10-10. Assuming 100 launches per year, then the individual

annual risk results in a figure of 3 x 10-8, which is four

orders of magnitude lower than the risks, both voluntary and

involuntary, of day to day activity.

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\12\ ACTA prepared this study in support of Range Commander's

Council Standard 321-97, which articulates federal launch range

policies and criteria for protection of personnel, aircraft, ships,

and spacecraft.

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

Space Access also makes the point that the FAA would have to assign

a maximum number of launches per launch site if the agency intends

acceptable risk to remain below background risk. In the NPRM, the FAA

acknowledged that its standard is based on present launch rates, and it

still finds that this threshold is appropriate for the scope and

frequency of launch operations planned over the next several years.

Even if launch rates increase by an order of magnitude, individual

annual risk will still compare favorably with other voluntary and

involuntary risks. An exponential rise in launch rates may require a

reassessment, although the FAA does not foresee an exponential increase

in launch rates in the near term.

Space Access also suggests that other launch risk standards provide

the proper measure of acceptable risk. Space Access notes that the 1988

DOT Hazard Analysis states that ``acceptable risk criteria'' for NASA's

Wallops Flight Facility (WFF) is Ec 1 x

10-7. Space Access at 10. As noted in its NPRM the FAA

recognizes that WFF does not use an expected casualty standard of

Ec 30

[[Page 19607]]

x 10-6. Although at the time of the publication of DOT's

Hazard Analysis WFF may have reported Ec 1 x

10-7, since that time, NASA has stated that WFF uses an

Ec of less than or equal to 1 x 10-6. ``Range

Safety Manual for Goddard Space Flight Center (GSFC)/Wallops Flight

Facility,'' 24 (Jun. 23, 1993); Beyma, ``Flight Safety Range Safety

Officer Training Manual, NASA/Wallops Flight Facility,'' 2 (Sept.

1993). The FAA must choose one standard. The level of safety at the

Eastern and Western Ranges, represented by the collective risk standard

of Ec 30 x 10-6 has resulted in no

harm to the public. The vast majority of U.S. commercial launches take

place from CCAS and VAFB. The FAA therefore finds that this accepted

standard is appropriate for all licensed launches.

Space Access also maintains that in order to adopt an Ec

standard of Ec 30 x 10-6, the FAA

would have to obtain NASA's acceptance. This is not in fact the case.

NASA and the FAA have different roles. Commercial launches are

regulated by the FAA, not NASA. As the operator of a launch site, NASA

is free to require a different measure of acceptable risk than that

required by the FAA. Any FAA licensed commercial launch, regardless of

where it takes place, must, however, at least meet FAA standards, even

were a particular federal launch range to impose less stringent

requirements. In this case, the more stringent NASA standard with which

a user of WFF would have to comply does not conflict with the FAA

standard.

Paragraph 415.35(b), which the NPRM proposed as paragraph

415.35(c), requires an applicant to submit an analysis that identifies

the hazards and assesses the risks for flight under nominal and non-

nominal conditions.13 This requirement has been modified to

clarify that the risk assessment serves the purpose of demonstrating

compliance with paragraphs 415.35(a). A federal launch range will

sometimes perform a quantitative analysis for flight until orbital

insertion, or for a suborbital mission until impact. A range may

determine that an analysis of previously approved missions applies or

may serve as a basis for a comparative analysis. If an applicant's

previously submitted application contains a risk assessment, the

applicant need not submit additional analyses for similar launches. In

such cases, a comparative analysis may be supplied.

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\13\ This section is renumbered in order to accommodate the move

of the NPRM's proposed paragraph 415.35(b) into section 415.39,

which addresses safety at the end of launch.

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

applicant may perform its own quantitative risk analysis. Pursuant to

section 415.35(b), although an applicant may submit a federal launch

range risk analysis, the applicant bears the burden of demonstrating

that predicted risk does not exceed an expected casualty of 30 x

10-6. To assist applicants, the FAA has documented the range safety

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

tree, such as the one described in the DOT Hazard Analysis of

Commercial Space Transportation, page 10-29, provides an acceptable

method for identifying hazards and assessing risks.

Section 415.35(c), which was proposed in the NPRM as section

415.37(a), ensures that an applicant identify the design of its launch

vehicle. In its application, an applicant shall identify and describe

its launch vehicle's design, including its structure and the vehicle's

hazardous and safety-critical systems, and provide drawings and

schematics for each system identified. Because federal launch ranges

require an applicant to provide a detailed description of the

applicant's launch vehicle and its systems, including drawings and

schematics, an applicant may satisfy the requirements of this paragraph

by providing the FAA with a copy of all or appropriate portions of the

documentation provided to a federal launch range. The FAA will not use

the data to duplicate the federal launch range's design approval

process, but to document the characteristics of the launch vehicle

being licensed and upon which the hazard identification and risk

assessment are based.

Section 415.35(d) requires that an applicant's launch vehicle be

operated in a manner that meets the criteria of paragraph 415.35(a). To

that end, an applicant must describe the launch operations and

procedures that the applicant will employ to mitigate risks for flight.

The applicant should eliminate or control by design and operations all

identified hazards to the levels specified in paragraph (a). Typical

hazard controls for flight until orbital insertion used at current

federal launch ranges include flight termination systems, and, for

suborbital launches, azimuth and elevation adjustments based on a wind

weighting analysis. Other hazard controls may involve modifying a

vehicle trajectory to avoid high risk areas, and delaying launch until

more favorable conditions exist. An applicant for a license to launch

from a federal launch range may rely on the methods used by federal

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

controls will be effective.

Section 415.37(a), which was originally proposed as section

415.37(c), implements the FAA's current flight readiness guidelines. As

noted in the NPRM, the requirements arise out of recommendations from a

National Transportation Safety Board (NTSB) investigation 14

of an anomaly that occurred during a commercial launch from a federal

launch range. Requirements intended to ensure the readiness of a launch

team include designation of an individual responsible for flight

readiness, launch readiness reviews, rules and abort procedures and,

countdown checklists, dress rehearsals procedures, and procedures for

crew rest.

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

\14\ ``Special Investigation Report, Commercial Space Launch

Incident, Launch Procedure Anomaly, Orbital Sciences Corporation

Pegasus/SCD-1 80 Nautical Miles East of Cape Canaveral, Florida,''

NTSB (Feb. 9, 1993).

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The FAA recognizes that there are many reviews conducted of a

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

415.37(a)(1), the FAA places special emphasis on a flight readiness

review, or its equivalent. A review is typically conducted not more

than one or two days prior to scheduled flight. In most cases a flight

readiness review is standard practice at federal launch ranges, but the

FAA considers the review, and the topics required in this section, to

be so important that the applicant must, in its application, commit to

a meeting and identify the topics to be addressed. This review must

ensure that all system and personnel readiness problems are identified

and are associated with a plan to resolve them, that all systems needed

for flight have been checked out and are ready, and that each

participant is cognizant of his or her role on the day of flight. If

this review reveals unresolved issues, the licensee will be able to

assess its ability to resolve those issues before the intended launch

time or to delay the flight, as appropriate.

Section 415.37(a)(2) requires an applicant to possess procedures

that ensure mission constraints, rules and abort procedures are

contained in a single document approved by licensee flight safety and

federal launch range personnel.

Section 415.37(a)(3) requires an applicant to employ procedures

that ensure that all launch countdown checklists are current and

consistent. Past inconsistencies in critical countdown checklists and

procedures have raised serious safety concerns. The FAA recognizes that

it may be

[[Page 19608]]

impractical for all launch participants to have identical checklists

due to differences in the roles of launch participants. The applicant

should, however, have some process, such as a master countdown manual,

to ensure the currency and consistency of all participants' checklists

during countdown to flight. This will ensure that confusion and

uncertainties on launch day are minimized, that flight safety critical

procedures are completed successfully, and that those individuals with

launch decision authority know what is going on and are able to make

sound decisions.

Section 415.37(a)(4) requires an applicant to have procedures for

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

performance at a dress rehearsal may indicate a lack of readiness of

individuals or systems responsible for safety. An applicant's

procedures should include criteria for determining when dress

rehearsals are not necessary. A number of launch companies, for

example, have been conducting routine launches of the same vehicle for

many years. The FAA recognizes that although dress rehearsals may not

be necessary in every case, they may be critical to those launch

companies that are new to a launch site, to those that have significant

changes in personnel, or to those launching a new launch vehicle.

Even those launch operators that routinely conduct launches

typically have certain criteria and procedures in place to verify that

a launch team is ready for launch, especially if a considerable period

of time has elapsed since the last launch took place. In this regard,

Space Access recommends that the FAA impose a currency requirement of

45 days. Space Access at 11. The FAA will take the recommendation into

account in future rulemakings, but for the time being declines to

impose a currency requirement of 45 days. The need for dress rehearsals

is driven by issues specific to particular vehicles, including the

number of personnel required to launch the vehicle, the complexity of

their tasks, and the amount of communication required among team

members to launch safely.

For those situations where dress rehearsals are necessary, the

dress rehearsal should simulate both nominal and non-nominal

conditions, induced not only by the launch vehicle or payload, but by

the range safety system as well. Anomalies introduced during the

rehearsal should exercise and prove the abilities of all launch

participants, including federal launch range personnel, to recognize an

event that compels a launch hold, delay or flight termination decision.

In the NPRM, the FAA noted its interest in views as to any need for

future standards relating to rehearsals and the criteria for deciding,

based on performance during the rehearsal, that it is acceptable to

proceed with the launch. In response, Space Access suggested that no

discrepancies be permitted for a nominal profile, and only minor

discrepancies be permitted for failure profiles, if the discrepancies

involve non-critical actions. Space Access at 11. The FAA agrees, and

will interpret section 415.37(a)(4)(i) according to Space Access'

recommendation.

Section 415.37(a)(5) responds to another NTSB recommendation, and

requires that an applicant ensure that its flight safety personnel

adhere to federal launch range crew rest rules. Experience has shown

that launch crew rest criteria for all those involved in supporting

launch operations are extremely important and can have a significant

impact on public health and safety. Federal launch ranges typica

This text is long and has been trimmed here. Open the source document for the complete record.