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Commercial Space Transportation Reusable Launch Vehicle and Reentry Licensing Regulations
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[Federal Register: September 19, 2000 (Volume 65, Number 182)]
[Rules and Regulations]
[Page 56617-56667]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19se00-14]
[[Page 56617]]
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Part II
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 400, 401, 404, et al.
Commercial Space Transportation Reusable Launch Vehicle and Reentry
Licensing Regulations; Final Rule
[[Page 56618]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 400, 401, 404, 405, 406, 413, 415, 431, 433, and 435
[Docket No. FAA-1999-5535; Amdt. Nos. 400-1, 401-1, 404-1, 405-1, 406-
1, 413-1, 415-1, 431-1, 433-1 and 435-1]
RIN 2120-AG71
Commercial Space Transportation Reusable Launch Vehicle and
Reentry Licensing Regulations
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: The FAA amends the commercial space transportation licensing
regulations by establishing operational requirements for launches of
reusable launch vehicles (RLVs) and the authorized conduct of
commercial space reentry activities. The final rules implement the
FAA's reentry licensing authority by prescribing requirements for
obtaining a license to launch and reenter an RLV, to reenter a reentry
vehicle, and to operate a reentry site. Issuance of licensing rules is
necessary to respond to advancements in the development of commercial
RLV and reentry capability. The final rules fulfill the FAA's safety
mandate by limiting risk to the public from RLV and reentry operations.
DATES: Effective November 20, 2000.
FOR FURTHER INFORMATION CONTACT: Mr. Stewart W. Jackson, AST-100, Space
Systems Development Division, Office of the Associate Administrator for
Commercial Space Transportation, Federal Aviation Administration, U.S.
Department of Transportation, 800 Independence Avenue SW., Washington,
DC 20591, (202) 267-7903; or Ms. Esta M. Rosenberg, Attorney-Advisor,
Regulations Division, Office of the Chief Counsel, Federal Aviation
Administration, U.S. Department of Transportation, (202) 366-9320.
SUPPLEMENTARY INFORMATION:
Availability of Final Rules
You can get an electronic copy using the Internet by taking the
following steps:
(1) Go to the search function of the Department of Transportation's
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/
search).
(2) On the search page type in the last four digits of the Docket
number shown at the beginning of this final rule. Click on ``search.''
(3) On the next page, which contains the Docket summary information
for the Docket you selected, click on the final rule.
You can also get an electronic copy using the Internet through
FAA's web page at http://www.faa.gov/avr/arm/nprm/nprm.htm or the
Federal Register's web page at http://www.access.gpo.gov/su_docs/aces/
aces140.html.
You can also get a copy by submitting a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the amendment number or docket number of this final
rule.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. Therefore, any small entity that has a question regarding
this document may contact their local FAA official, or the person
listed under FOR FURTHER INFORMATION CONTACT. You can find out more
about SBREFA on the Internet at our site, http://www.gov/avr/arm/
sbrefa.htm. For more information on SBREFA, e-mail us 9-AWA-
SBREFA@faa.gov.
Background
General
The Commercial Space Act of 1998 (CSA), Public Law 105-303, extends
the Secretary of Transportation's licensing authority under 49 U.S.C.
Subtitle IX, chapter 701 (known as the Commercial Space Launch Act or
CSLA) to reentry vehicle operators and operation of reentry sites by
non-Federal entities. In addition to launch of a launch vehicle and the
operation of a non-Federal launch site, the Secretary licenses reentry
of a reentry vehicle and the operation of a reentry site when those
activities are conducted within the United States or by U.S. citizens
abroad. The Secretary's licensing authority has been delegated to the
Administrator of the Federal Aviation Administration (FAA) and further
assigned to the Associate Administrator for Commercial Space
Transportation (AST). AST carries out the Secretary's regulatory
responsibilities and safety mandate under the CSLA to ensure that
public health and safety and the safety of property are not jeopardized
by licensed operations. AST exercises its licensing authority
consistent with national security and foreign policy interests, as well
as treaty obligations, of the United States.
Reentry vehicles, as defined by the recently amended CSLA, include
reusable launch vehicles, or RLVs, that are designed to return from
Earth orbit or outer space to Earth, substantially intact. Not all
reentry vehicles are RLVs, although all of the reentry concepts
currently identified to the FAA by prospective operators involve RLVs.
RLV development by U.S. commercial space launch providers responds to
increasing demand for lower cost and reliable access to space. Reduced
cost of space access will facilitate greater commercial use of the
space environment along with research and exploration that would
otherwise remain unaffordable. Benefits from medical and microgravity
research would be realized at potentially greater rates, and commercial
services such as telecommunications and data relay would become
increasingly available to the world market at lower cost. New markets
in consumer services, including same day international package delivery
as well as space tourism, could quickly develop with reliable reusable
space vehicles.
In the mid 1990's, prospective RLV operators identified absence of
adequate regulatory oversight over RLV operations, particularly their
reentry, as an impediment to technology development. The need for a
stable and predictable regulatory environment in which reusable launch
vehicles could operate was considered critical to the ultimate ability
of the emerging RLV industry to obtain the capital investment necessary
for research and development and ultimately vehicle operations.
Limitations on the Secretary's licensing authority and ability to
adequately regulate reentry activities was identified by the House of
Representatives Subcommittee on Space as early as 1992, accompanied by
continuing commitment of each successive Congress to enactment of
authorizing legislation addressing reentry operations. The 1998
Commercial Space Act (CSA), signed into law on October 28, 1998,
provides a crucial first step in removing regulatory obstacles to RLV
development. This final rule provides yet another step by establishing
the framework and basis for licensing the next generation of reusable
launch vehicles, as well as other types of reentry vehicles.
Another factor critical to commercial RLV development is the
commitment expressed by the U.S. Government in
[[Page 56619]]
the CSA to share in the risks of RLV and reentry technology and to
extend to operators of those vehicles the financial responsibility and
risk sharing regime that has proven crucial to commercial operators of
expendable launch vehicles (ELVs) in achieving a dominant share of the
U.S. launch market and increasing international competitiveness. Since
1988, ELV launch providers and the U.S. Government have mutually
enjoyed the substantial benefits of statutory risk allocation
requirements. Through enactment of the CSA, a comparable regime would
extend to RLV operators who are expected to enjoy benefits comparable
to those currently enjoyed by ELV launch services providers. The
Reentry Financial Responsibility final rules implement the FAA's
regulatory program for assuring financial responsibility and risk
allocation for licensed reentry operations, including those performed
by RLVs, and remove yet another potential hindrance to RLV developers.
Taken together, the comprehensive RLV and Reentry Licensing Regulations
and Reentry Financial Responsibility final rules provide a stable, yet
flexible, regulatory environment in which commercial RLV and reentry
technology may reside. The FAA remains committed to designing air and
space regulations to accommodate all of its customers, including the
regulated space transportation industry, traveling public, persons on
the ground, and users of air and space resources.
In furtherance of its commitment, the FAA has been working towards
development of an integrated concept of operations involving the
National Airspace System, or NAS, that contemplates shared use of
airspace by aircraft and commercial space vehicles. In addition, the
FAA has formed an integrated product team to examine issues of common
heritage and concern to various FAA business sectors. Working with
industry partners, the FAA plans to further evolve its regulatory
approach to RLVs by defining operations and maintenance plans that
assure safe, continued use of reusable space vehicles and by
identifying human factors that will affect crew and passenger-bearing
RLVs. Addressing those aspects of RLV operations and space flight are
beyond the scope of this rulemaking. A working group of the FAA's
Commercial Space Transportation Advisory Committee (COMSTAC) dedicated
to RLV operational issues provides advice, information and
recommendations at the request of the FAA Administrator and AST for use
in support of further development of the agency's regulatory and
standards development program for RLV operations.
Following enactment of the CSA, the FAA initiated this rulemaking
to define and implement the licensing process, inclusive of safety
standards, that would apply to authorized RLV missions (launch and
reentry) and other reentry operations. For an RLV, both its launch and
reentry require licensing under the amended CSLA and although the FAA
has had a regulatory program in place for years governing launch
licensing, the FAA determined that licensing regulations developed to
address existing ELV commercial launch capability were not adequate to
address the unique safety issues posed by launch vehicles that are
reusable. ELVs rely upon destructive flight termination systems (FTS)
that assure flight safety by destroying a vehicle traveling beyond
approved limits. Timely activation of an FTS assures that vehicle
debris will impact within a designated and unpopulated area so as to
avoid all injury to the public. Unlike an ELV, an RLV may rely upon
non-destructive means of ending vehicle flight, such as returning to
the launch site or use of an alternative landing site, in the event of
a vehicle malfunction or anomalous circumstance affecting the ability
to conclude a mission as planned. Non-destructive means of terminating
flight contemplate the ability to correct a problem and, if possible,
reuse the vehicle in future flight. Although a number of factors
influencing public safety are common to both ELV and RLV launches, the
FAA determined it preferable to commence rulemaking dedicated to RLVs.
Accordingly, on April 21, 1999, the FAA issued a notice of proposed
rulemaking (NPRM) (64 FR 19626) proposing licensing requirements for
the conduct of RLV missions as well as reentry of reentry vehicles that
are not RLVs. In addition, on the same day, the FAA issued final launch
licensing rules addressing, for the most part, launches of ELVs from
Federal launch ranges (64 FR 19586, April 21, 1999).
Notice and comment rulemaking can take months, and sometimes years,
to complete because of the need to consider carefully public input on
an agency proposal before issuance of final rules. To accommodate those
RLV developers requiring regulatory guidance before rulemaking would be
completed, the FAA engaged the space transportation industry and the
interested public in the development of draft interim safety guidance
for RLV operators. In the absence of final rules, interim guidance
would serve to inform the emerging RLV industry of safety issues
identified by the FAA that would require resolution by an applicant
before a license would be granted. The FAA would work closely with each
applicant in constructing an application that would ensure safety
issues presented by an RLV mission proposal were adequately addressed.
Interim guidance has been utilized effectively and efficiently by
prospective launch site operators in the absence of detailed licensing
requirements.
As noted in the supplementary information portion of the NPRM, the
FAA convened a meeting with industry representatives in May 1998, with
participation by each RLV developer and prospective operator then known
to the FAA. A spokesperson from each entity was invited to provide
feedback to the FAA on the draft guidance and its effects on mission
design for the purpose of refining mutual understanding of safety
considerations presented by RLVs. As a result of this effort, the FAA
released revised draft interim safety guidance and convened a public
meeting in February 1999, to solicit oral and written comments from all
interested persons on the revised guidance material. Written comments
and a transcript of the meeting are available for public review in the
FAA Docket Office under Docket No. 29140.
The NPRM issued on April 21, 1999 (64 FR 19626), differs in some
respects from the revised draft interim safety guidance. Where safety
criteria included in the draft interim safety guidance differ
materially from that proposed in the NPRM, the FAA utilized comments on
the draft guidance document as one means of assessing alternative
approaches to achieving RLV mission safety.
In May 1999, the COMSTAC adopted a consensus-based report of the
RLV working group addressing the draft interim safety guidance for RLV
operators. The COMSTAC report was likewise considered by the FAA in
developing the regulatory framework applicable to RLVs and is contained
in the public docket under docket number 29140. It may also be obtained
by accessing AST's web site, located at http://ast.faa.gov.
NPRM Overview: Three-Pronged Public Safety Strategy for RLV and
Other Reentry Missions
The public accepts a certain amount of risk when utilizing or being
exposed to various modes of transportation. For example, the traveling
public accepts certain risks from air travel or when driving a car. The
public is also exposed to transportation risk resulting from
[[Page 56620]]
aircraft flying overhead or when crossing the street. Safety
regulations are intended to assure that public risk is maintained at an
acceptable level. For purposes of this rulemaking, the FAA is concerned
with risk posed to the public on the ground or in airspace, as well as
to property on the ground or on orbit, as a result of space launch and
reentry events. Passenger and crew safety standards are beyond the
scope of this rulemaking.
In the NPRM, the FAA proposed a three-pronged approach, outlined
below, to assure that public health and safety and the safety of
property would not be jeopardized by the conduct of an RLV mission,
defined to include ascent and descent flight of an RLV that has been
authorized under an FAA license. Safety standards proposed by the FAA
were intended to ensure that RLVs would not pose greater risk to public
safety in accomplishing a flight mission than would be posed by more
conventional ELV technology. Consistent application of the FAA's three-
pronged approach to RLVs would mean that all RLVs would be treated
similarly in terms of allowable risk to the public, with no distinction
between vehicles that achieve and reenter from Earth orbit or outer
space and those intended to operate suborbitally inasmuch as they never
enter a closed path or complete an orbit in a closed path. Accordingly,
it has not been necessary to define or delimit outer space. Consistent
application to RLVs of FAA safety requirements would also ensure that
launch concepts involving multi-stage vehicles, comprised of wholly or
partially reusable stages, would not expose the public to greater risk
than that defined as acceptable by the FAA in other commercial space
transportation regulations.
The three safety-related elements reflected in the FAA's safety
strategy for RLV mission and reentry vehicle licensing are:
establishing limitations on the measure of acceptable public risk, use
of a system safety process to identify hazards and mitigate risk and
imposition of operational restrictions. These three elements are
interrelated and together ensure that risks are sufficiently contained
at an acceptable level. Just as system redundancy compensates for
failure or flawed design or performance, interrelated safety elements
assure that actual hazards from vehicle operation, whether anticipated
in analytical assessments or unforeseen, will not increase risk to the
public beyond an acceptable level. The following chart appeared in the
NPRM to illustrate the interrelationship of the three elements of the
agency's public safety strategy and is repeated in this rulemaking to
reflect the FAA's final rule approach to RLV mission and reentry
safety.
[GRAPHIC] [TIFF OMITTED] TR19SE00.000
1. Calculation of Ec (Acceptable Public Risk)
The FAA proposed a collective risk measure, known as expected
number of casualties or Ec, commonly used within the
aerospace community. A collective risk calculation yields the
consequences, measured in terms of human casualties, of the probability
or frequency of occurrence of all events multiplied by the severity of
impacts on public safety. Ec is a statistical estimation of
risk used in the absence of empirical performance data.\1\ Because
launches are still relatively infrequent events, this probabilistic
assessment is used to measure acceptable risk.
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\1\ To the extent it is available, empirical data on safety
systems, materials and components may be used as an input in
determining Ec.
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Federal ranges employ an Ec standard of 0.00003
casualties per ELV launch or Ec 30 x
10-6. Through application of this requirement as well as
other range safety requirements and practices, Federal ranges have
enjoyed 40 years of ELV launch experience with no public casualty.
Under 14 CFR 415.91, the FAA would issue a safety approval for a launch
from a non-Federal launch site if equivalent safety is demonstrated.
The FAA proposed to apply to RLV missions and other missions
involving reentry of a reentry vehicle the same risk threshold as that
used by Federal launch ranges in approving ELV launches and endorsed by
the National Academy of Sciences Study on Federal Ranges: Ec
30 x 10-6. The FAA proposed to adopt a single
Ec risk threshold applicable to all portions of licensed RLV
flight for a particular mission. For other licensed reentries, the FAA
proposed to assess reentry risk of a reentry vehicle in combination
with its associated launch risk, that is, the launch that placed the
reentry vehicle in space. As described in the NPRM, the FAA had also
considered whether to apply Ec risk thresholds separately to
each licensed flight phase of an RLV mission such that there would be
an Ec allowance for launch or ascent flight
[[Page 56621]]
and another Ec allowance for reentry or descent flight. The
FAA determined that doing so would (or could depending upon the risk
thresholds selected) expose the public to greater risk per mission
without sufficient justification for doing so. In the FAA's view,
neither the commercial objective of placing a payload in space nor
scientific and technological goals of other commercial RLV ventures
would justify increased jeopardy to the public as a general rule.
Accordingly, the FAA proposed to apply the ELV launch risk threshold of
Ec 30 x 10-6 to RLVs on a per
mission basis, and would allow an applicant for an RLV mission license
to apportion or allocate flight risk among flight phases without
regulatory direction from the FAA. An advisory circular, AC No. 431.35-
1, provides guidance on an acceptable means of calculating the
Ec that would result from debris dispersion upon explosion
or other vehicle break-up and is available from the FAA.
2. System Safety Process and Risk Analysis
A system safety process relies upon methods and techniques for
identifying: (i) Hazards that result from vehicle operation, (ii)
effects on or consequences to public safety as a result of identified
hazards, (iii) means of controlling or mitigating effects on or
consequences to public safety, and (iv) means of verifying the
effectiveness of risk mitigation measures. A system safety process and
calculation of expected casualties are interrelated because the former
is used to determine potential failure events, the probabilities of
failures, and to estimate consequences of those failures, all of which
affect the expected casualty rate.
The system safety process is used to define the operating envelope
that ensures a proposed mission will remain within the acceptable risk
threshold and also to define operating rules and constraints for
remaining within that envelope. The FAA maintains guidance material
describing an acceptable system safety process; however, an applicant
may employ another process as long as it accomplishes the intended
purpose. Examples of acceptable failure identification techniques are
identified in the NPRM and include: Preliminary Hazards Analysis,
Failure Mode and Effect Analysis, and Fault Tree Analysis Methodology
for Hazard Assessment.
3. Operational Restrictions
Commercially operated RLVs will pose technological challenges and
unique safety issues to the government and industry. Other than the
partially reusable Space Transportation System (STS), of which the
Shuttle is the best known and reusable part, there is no vehicle known
to the FAA currently capable of entering Earth orbit and returning,
substantially intact, to Earth. Once commercial RLVs are fully designed
and ``metal is bent,'' operational concepts may undergo significant
ground testing and some may undergo incremental and experimental flight
testing in controlled airspace and possibly the upper atmosphere.
However, absent any real world launch and reentry experience with the
emerging generation of reusable launch vehicles, and until sufficient
experience is gained, system data recorded and performance verified,
the analytical processes that comprise system safety and that generate
the calculation of Ec do not provide a sufficient basis to
conclude that public risk is sufficiently contained and mitigated.
Given uncertainties of performance, the FAA proposed to impose
operating restrictions on RLV flight and other reentry missions pending
proof of reliability and system performance, either through operational
use or conduct of a flight test program.
Operating restrictions are intended to limit the consequences of a
failure where vehicle reliability cannot be ascertained with a
sufficient level of confidence. Risk is a function of the probability
of a failure and the magnitude of its consequences. Where the
probability of a failure cannot be accurately determined but merely
assumed using engineering judgment and analytical techniques, risk is
appropriately managed by limiting consequences. Hazard analysis and
other quantitative risk analyses are extremely important to vehicle
design and operating concepts; however, absent real time flight
performance data the FAA cannot rely exclusively on analytical
constructs when public safety is at stake. Moreover, thousands of hours
of flight data may be required to prove system reliability,
particularly when the effects of the space environment and launch
stress on continued use through re-flight of a reusable vehicle are not
yet fully identified and understood. In this regard, the FAA notes that
industry representatives have acknowledged that the STS is still
undergoing a flight test program. Accordingly, the FAA proposed in the
NPRM to impose operational restrictions based on probable system
failures and to require adherence to those restrictions for all RLVs.
Some additional restrictions would apply to vehicles that remain
unproven, at least until such time as sufficient vehicle performance
data is obtained to justify relief from restrictions.
The NPRM highlighted four categories of operational restrictions
applicable to RLV flight and reentry of a reentry vehicle other than an
RLV, as follows: (i) Restricting flight over populated areas; (ii)
requirements for monitoring critical systems; (iii) positive enabling
of fail-safe reentry; and (iv) use of a sufficiently large reentry site
as to contain the vehicle upon landing. Each of these restrictions is
discussed in greater detail below.
Proposed Scope of RLV Mission and Reentry Licensing
Although the FAA proposed to incorporate both launch and reentry
authorizations in a single license that would authorize an RLV mission,
it remains necessary to differentiate between activities that are
licensed by the FAA and those that are not covered by FAA licensing
authority. Delimiting the extent of licensed activity is particularly
important because activities that are not licensed by the FAA would not
be covered by the statutory financial responsibility and risk
allocation regime and liability risks resulting from those activities
must be managed privately as a matter of business judgment rather than
Federal regulation.
Definitions of the terms ``launch'' and ``reentry'' are proposed
and discussed in the RLV and Reentry Licensing Regulations NPRM;
however, as signaled in the NPRM, the notice of proposed rulemaking, 64
FR 54448-54472, issued October 6, 1999, concerning reentry financial
responsibility addresses in greater detail the scope of launch and
reentry authorizations that would be contained in an RLV mission
license because of the direct relationship between the scope of
licensed RLV activity and applicability of risk sharing devices,
including indemnification, under the CSLA. Accordingly, although some
comments submitted to the NPRM docket addressed the appropriate scope
of launch and reentry licensing, more extensive discussion and analysis
of this issue appears in comments submitted in response to the Reentry
Financial Responsibility NPRM. Final rules governing reentry financial
responsibility are likewise accompanied by more extensive analysis and
discussion by the FAA of the appropriate extent of FAA licensing
authority over RLV missions and the interested public is referred to
the rulemaking governing financial responsibility for licensed reentry
[[Page 56622]]
activities for a more comprehensive treatment of the issue.
The NPRM described the need to define the extent of FAA launch
licensing authority over launch of an RLV differently from that used to
define launch of an ELV. Launch licenses for ELV launches authorize
activities beginning upon arrival of a launch vehicle (or a major
component) at a U.S. launch site and ending, for purposes of ground
operations, once the launch vehicle leaves the ground. In terms of
flight activity, launch ends at the point after payload separation when
the last action of control over the launch vehicle is exercised by the
licensee. For liquid fueled vehicle stages, the last action of control
is typically exercised when the vehicle's upper stage is rendered inert
or safe from explosive risk. For a solid rocket motor, that point may
occur when upper stage fuel is exhausted or the stage is otherwise
rendered inert.
The FAA proposed no change with respect to commencement of licensed
launch of an RLV from that of an ELV because pre-flight hazards expose
the public to risk and must be regulated regardless of the one-time use
or reusable nature of the vehicle. However, the FAA pointed out that
defining the end of a licensed launch based upon the last act of
control over the vehicle would not be appropriate for an RLV because
doing so would suggest that launch continues through vehicle reentry
and landing. This is an illogical result, in the FAA's view, in light
of congressional direction that reentry of an RLV is subject to, and in
fact requires, reentry licensing by the agency. Instead, the FAA
proposed to use payload deployment as the point at which launch
concludes for those RLVs having that as their mission. At the time the
NPRM was issued, the FAA considered that in defining the end of launch
in this manner it was addressing the vast majority of RLV concepts and
launch missions under consideration. Market projections in support of
RLV development focused on deployment and replenishment of satellite
constellations, chiefly in low Earth orbit. Although this distinction
was discussed in the Supplementary Information portion of the NPRM, the
proposed definition of the term ``launch'' that appears in the
regulatory text failed, due to an oversight, to include this regulatory
distinction between ELV and RLV launches.
Reentry licensing, as proposed in the NPRM, would commence upon
initiation of operations necessary to assure reentry readiness and
safety, that are uniquely associated with reentry and that are critical
to ensuring public health and safety and the safety of property during
reentry. The NPRM addressed the absence of licensing authority over on
orbit operation of an RLV but noted that most of the RLV concepts
briefed by developers to the FAA would deploy a payload and spend
minimal time on orbit in order to minimize risk to the vehicle and to
take advantage of rapid turnaround for the next mission. Therefore, for
most RLVs under development or contemplation, there would be minimal,
or no, on-orbit activity not subject to FAA licensing.
Under the proposed mission approach to RLV licensing, only vehicle
flight would be evaluated against the mission risk criterion of
Ec 30 x 10-\6\. Licensed ground
operations preceding ascent flight and following reentry landing would
not be factored into the Ec analysis. Unlicensed on-orbit
operations also would not enter into the equation.
The FAA proposed an application process and structure similar to
that traditionally applied to requests for ELV launch licenses, and the
section-by-section analysis of the proposed regulatory text explains
the purpose and content of each of the reviews performed by the FAA
before a license may be issued. Policy and safety reviews and approvals
are necessary elements of RLV mission licensing, as well as the
satisfactory completion of any required payload review. A payload
review may be required for launch and also for reentry of a payload. An
environmental review of the impacts associated with proposed operation
of an RLV, including activities to be performed at a planned reentry
site, is also an element of RLV mission licensing and requirements for
conducting the review are described in the NPRM. Where the reentry
vehicle is not an RLV, the same kinds of reviews would be required to
support a reentry licensing determination; however, the information
required of the applicant would be limited to that pertaining to the
reentry or descent flight. Rather than reiterating all of the
application requirements applicable to reentry flight, the NPRM
proposed a new part limited to reentry of a reentry vehicle that is not
an RLV. That part refers an applicant for reentry licensing to reentry-
related elements of RLV mission licensing requirements and contains
additional regulatory requirements that are unique to reentry vehicles
other than RLVs.
Public Response to Three-Pronged Public Safety Strategy for RLV and
Reentry Safety
Twenty entities submitted comments to the docket during the 90-day
comment period provided by the FAA. Comments were submitted chiefly by
developers of RLVs and entities involved in technology development
intended for use in reentry concepts. In general, the comments
commended the FAA for swift issuance of a clear, yet flexible,
regulatory framework in response to a statutory mandate and the growing
need for a predictable licensing regime for RLVs.
A number of observations or general themes can be discerned from
the comments. Among them is the sense of some RLV developers that the
FAA adheres too closely to ELV-based regulations in its proposed
approach to mission safety and that aircraft regulation, including the
FAA's certification authority, provides a better model for RLVs. This
view was espoused by developers of passenger-bearing concepts, in
particular. Some suggest commencing FAA licensing of flight test
operations under an experimental certification, use of a transport
category certification having design criteria and flight test standards
for passenger and cargo bearing vehicles, and the equivalent of
flightworthiness certification once design reliability has been
established. Several comments pointed out the need to begin addressing,
through regulations, safety criteria for RLVs that will transport
passengers in addition to a payload or cargo and the need for
operations and maintenance (O&M) standards that will facilitate re-
flight approval. The FAA has already begun examining human factors in
space, as previously noted, and is engaged with the RLV working group
of the COMSTAC on O&M considerations that may facilitate future
rulemaking on these important matters.
Where an RLV incorporates aircraft technology, some comments
recommend use of existing Federal Aviation Regulations codified at 14
CFR parts 1-198, either exclusively during subsonic or low supersonic
flight, or in combination with FAA licensing under the CSLA. Although
the FAA does not intend to impose certification requirements on RLVs
for a number of reasons, the agency agrees that aircraft certification
may play a role in approving certain vehicle systems for launch. For
example, although it is an ELV, the Pegasus launch system which is
subject to 14 CFR 1-198 certification requirements contained in the
Federal Aviation Regulations referenced above governing operation of
the L-1011 aircraft, and FAA licensing of flight operations commencing
upon take-off of the L-1011, in accordance with the Commercial Space
Transportation
[[Page 56623]]
Regulations, 14 CFR Ch. III, illustrates how the two regulatory
programs may be combined to assure public safety.
Certification suggests design approval based on compliance with
standards developed after years of flight history and experience. Given
that RLVs are still in conceptual and developmental stages, the FAA
considers it premature to impose standards other than those necessary
to protect the safety of persons and property on the ground, in
airspace or on orbit. With additional knowledge of RLV technology, the
FAA may utilize newly granted authority to issue safety approvals for
vehicles or safety systems in order to gain the economic benefits and
efficiencies of standardizing approvals. A safety approval would
signify that a vehicle, when operated within a defined envelope, may be
operated in a manner that does not expose the public to unreasonable
risk. However, unique characteristics of a mission, such as the
proposed launch site, reentry site and trajectories for each flight
phase, would have to be examined for impacts on public safety resulting
from vehicle flight. The FAA anticipates that several years of
experience in licensing RLV missions would be required before it is
prepared to issue proposed safety approval standards.
Kistler Aerospace Corporation (Kistler) commented that licensing
requirements proposed in the NPRM may be used as a regulatory framework
from which the FAA and the applicant would, in essence, negotiate a
licensing plan consisting of requirements tailored to the applicant's
proposed operations. Documentation, analyses, methodologies and tests,
along with a schedule, would be agreed upon by the applicant and the
agency, leaving the applicant free to propose an assessment methodology
and criteria. This licensing arrangement was identified in the COMSTAC
Report on RLVs. Although the FAA does not embrace the notion of binding
license negotiation, per se, the agency intends to engage in pre-
application consultation with license applicants to accomplish a number
of the objectives outlined in Kistler's proposal. For example, elements
of a license application would be identified during pre-application
consultation to address the unique aspects of a proposed RLV or reentry
mission.
The FAA agrees in principle with Space Access's comments suggesting
use of an incremental licensing approval plan whereby the FAA would
approve or provide formal feedback to an applicant on its submissions.
Pre-application consultation is designed to accomplish the objectives
outlined in Space Access's comments. It also provides an applicant
early indication as to whether a proposed mission is eligible for
licensing or poses unreasonable risk that may never be sufficiently
mitigated as to warrant safety approval. As detailed more extensively
in the section-by-section analysis, a number of different approvals
comprise a licensing determination by the FAA, and these may be
requested by an applicant in any order. In this manner, an applicant
may obtain early indication from the FAA as to whether obstacles to a
favorable licensing determination exist because of national security or
foreign policy interests of the U.S. Government, safety concerns, or
environmental considerations.
In addition, the licensing approach outlined in the NPRM and
codified in this final rule would allow an applicant to utilize a
methodology of the applicant's choosing as long as it satisfies the
performance goals stated in the rule. For example, an acceptable system
safety process is one that identifies and assesses the probability and
consequences of reasonably foreseeable hazardous events and safety-
critical system failures during a mission. The FAA has issued an
advisory circular illustrating an acceptable system safety process in
addition to an advisory circular on expected casualty calculation.
Advisory circulars are available from the FAA and, where applicable to
activities licensed under the CSLA, may be obtained by accessing the
AST web site at http://ast.faa.gov. An applicant could follow the
advisory circular guidance or propose another equivalent methodology.
One comment applauded the use of advisory circulars in RLV mission
licensing and the flexibility it affords an applicant. Another
suggested that the FAA continue to refine them.
Taken together, these elements of the FAA's licensing program
afford an applicant great flexibility in seeking a license and optimize
opportunities for fashioning an acceptable application.
One comment not incorporated by the FAA in this final rule would
require the FAA to license an RLV mission unless the FAA could document
reasons to believe the reentry would be unsafe. Shifting the burden in
this manner would reduce costs and paperwork burdens for an applicant,
as the comment points out. Nevertheless, the FAA maintains that the
burden of demonstrating safe operating capability remains on the
applicant and makes no change in its licensing procedure on the basis
of the comment.
The aircraft analogy previously discussed regarding the L-1011
aircraft used as part of the Pegasus launch system informs comments
objecting to FAA's proposed flight phase approach to licensing an RLV
mission whereby the FAA would assess ascent and descent flight risk
without regulation of on-orbit activity. Vela Technology Development,
Inc. (Vela) plans a passenger-bearing vehicle and objected to the FAA's
proposed licensing approach. Vela stated that licensing launch and
reentry is akin to licensing take-off and landing of an aircraft
without regard to en route flight operations. According to Vela, this
philosophy is an inappropriate hold-over from ELV-based regulations and
that only entry into and operations within controlled airspace require
FAA licensing.
Unlike the statutory authority over aircraft granted to the FAA,
the CSLA limits FAA licensing jurisdiction to the launch of a launch
vehicle and reentry of a reentry vehicle. For this reason, the FAA is
unable to abandon the flight phase approach to calculating and
regulating mission risk. The FAA's flight phase approach to assessing
mission risk is explained in greater detail below. Also summarized in
this supplementary information under the heading, ``Scope of RLV
Mission and Reentry Licensing Under the Final Rule,'' is the legal
basis upon which the FAA has determined that it does not license all
RLV operations, wherever conducted.
Vela further commented that only an unpredictable or uncontrolled
reentry poses a risk to public safety requiring safety regulation and
yet Vela understands that ELV ``reentry'' is not subject to FAA
licensing. The FAA agrees with Vela's comments that suggest an
uncontrolled reentry poses certain risk to public safety; however,
unless an object has been designed to survive reentry in substantially
intact condition, risks to public safety should be non-significant if
not negligible and its reentry need not be regulated.\2\ For this
reason, the FAA's licensing jurisdiction is limited to reentry of a
reentry vehicle. ``Reentry,'' as defined by the CSLA, means to return
or attempt to return, purposefully, a reentry vehicle and its payload,
if any, from Earth orbit
[[Page 56624]]
or from outer space to Earth. 49 U.S.C. 70102(12). A ``reentry
vehicle'' means a vehicle designed to return from Earth orbit or outer
space to Earth, or an RLV likewise designed to return, substantially
intact. 49 U.S.C. 70102(13). In other words, when survivability by
design is combined with the purposeful act of reentry, risks to public
safety rise to a sufficient level as to warrant regulatory oversight.
Most debris is expected to burn up due to heating caused by movement
through the atmosphere during descent; however, on occasion, pieces of
debris such as the Delta II second stage may survive in deteriorated
condition and land on Earth. Although the return to Earth of vehicle
debris is not a licensable event under the CSLA, the FAA does consider
vehicle staging impacts as part of the mission review for a launch
license and their associated risks in assessing financial
responsibility requirements when licensing a launch involving vehicle
stages that may impact populated areas during a nominal launch or in
the event of catastrophic failure and vehicle break-up.
---------------------------------------------------------------------------
\2\ As noted in the NPRM, risk to public safety from a reentry
that is essentially random or otherwise non-nominal would be
assessed as part of the licensing process and an applicant would
have to demonstrte that reentry will not exceed aceptable risk
criteria for the mission. Assessing the risk of non-nominal reentry
using mission risk criteria avoids the need for a regulatory
requirement that an operator incapacitate its vehicle in the event
of an abort to orbit situation. (See 46 FR 19639).
---------------------------------------------------------------------------
The Experimental Rocket Propulsion Society (ERPS) commented that
licensing should be based on vehicle design, not operator intent, so
that a vehicle designed to reenter substantially intact would require
reentry licensing by the FAA whether or not its operator intended it to
reenter. Doing so would avoid potential abuse by vehicle operators,
according to ERPS. Presumably, this abuse would be failure to obtain a
reentry license claiming lack of intent to reenter. For reasons related
to concerns cited by ERPS, the FAA noted in the notice of proposed
rulemaking governing financial responsibility requirements for licensed
reentry activities that the term ``purposefully'' in the statutory
definition of ``reentry'' would not necessarily exclude a premature
reentry or suborbital activities from reentry licensing coverage merely
because reentry occurs through physical forces or ballistically.
Designed-in capability and intent to reenter would subject an operator
to reentry licensing as long as other statutory thresholds triggering
FAA licensing authority are met. (See ``Financial Responsibility
Requirements for Licensed Reentry Activities;'' October 6, 1999, 64 FR
54448-54472, at p. 54454, n.8.)
1. Comments on Mission Risk and Ec Calculation
The NPRM proposed a single, per mission risk criterion of Ec
30 x 10-\6\ for an RLV mission. The combined
risk of RLV flight covered by a license for a single mission, both
ascent and descent, would have to satisfy this criterion in order for
the FAA to issue a favorable safety approval, a necessary ingredient
for an RLV mission license. A general explanation of how casualty
expectation is formulated is provided in the NPRM at 64 FR 19634, and
an FAA Advisory Circular, AC No. 431.35-1, offers guidance on an
acceptable methodology for calculating the expected number of
casualties. Although the methodology addresses debris dispersion and
its contribution to expected casualty estimation, the NPRM notes that
the casualty area of a vehicle used in calculating Ec must
also account for casualties related to secondary explosions, hazardous
material exposure such as toxic substances, and lateral debris movement
following impact.
Under the final rule, acceptable per mission risk for an RLV launch
and reentry may not exceed 30 in a million missions or .00003
casualties per mission. The FAA adopts the Federal range standard
applied to ELV launches on a per launch basis to ensure risk to the
public is maintained at an acceptable level and not increased by virtue
of a vehicle's return flight capability. Although licensed activity
includes pre-flight ground operations and reentry-readiness operations
conducted in space before vehicle descent, only ascent and descent
flight during which an instantaneous impact point, or instantaneous
impact point (IIP) debris footprint, exists on Earth is considered in
calculating expected casualty.\3\ Pre-flight hazards and operations
conducted on orbit, whether or not subject to FAA licensing, would not
contribute to the expected casualty calculation.
---------------------------------------------------------------------------
\3\ Existence of an IIP creates risk to public safety inasmuch
as it reflects the projected impact point on the surface of the
Earth where the vehicle or vehicle debris would land in the event
the vehicle fails or breaks up. Generally, the IIP is located ahead
of the vehicle because momentum and atmospheric forces cause the
vehicle to impact in a downrange location rather than directly
underneath the vehicle at the moment of failure or break-up.
---------------------------------------------------------------------------
Several comments endorsed use of expected casualty in assessing
mission risk and the FAA's determination not to allocate, or define,
the total risk ``budget,'' applicable to each flight phase. United
Space Alliance (USA) disagreed with imposition of a single risk
criterion on all RLV mission flights particularly when launch and
reentry events are separated by an extended length of time. TGV
Rockets, Inc. (TGV) argued that use of the single Ec
criterion of .00003 for an RLV mission is too stringent and urged
application of an Ec limit of .00003 for launch and another
Ec limit of .00003 for reentry.
Kistler opposed use of a casualty expectation criterion stating
that it is unjustifiable, too subjective, and would stifle innovation.
Instead, Kistler urged the FAA to utilize a more system-oriented
approach to RLV licensing focused more upon hardware and engineering.
That said, Kistler suggested that a combined risk assessment criterion
may be justified for a suborbital RLV because, once created, the
instantaneous impact point (IIP) of the vehicle exists continuously,
whereas for reentry from orbit, an IIP exists during launch, ceases
upon achieving orbit, and is recreated during reentry flight. In
support of its position, Kistler notes that attaining orbit suggests
that launch resulted in zero risk exposure to the public. Hence,
combining launch and reentry risk is a mathematical abstract with no
bearing on public safety, according to Kistler. Lang Engineering,
Regulatory and Program Support (Lang) stated that casualty expectation
should be used as a guiding principle for now but that the FAA should
explore use of accepted practices and empirical data that can be used
to support a safety demonstration as the regulatory program for RLVs
evolves.
The FAA disagrees with Kistler and has determined to retain use of
casualty expectation, determined in advance of the conduct of a
mission, as a means of limiting RLV mission risk to public safety to an
acceptable level. The level of acceptable risk, defined as not
exceeding 30 casualties in a million missions or .00003 casualties per
mission, has been successful in preserving public safety as evidenced
by Federal range history. The final rules do not allocate a risk quota
for RLV flight phases but allows an applicant maximum flexibility to
design an RLV and operational plan that satisfies the single risk
criterion for mission flight. Limiting mission risk, in combination
with other elements of the FAA's safety strategy, will foster
confidence in RLV operations among the general public as well as ensure
that licensing determinations are made in a manner that is consistent
with the paramount public safety concerns of the agency.
2. Comments on System Safety Process and Risk Analysis
In the NPRM, the FAA invited public comment on proposed use of a
system safety process and risk analysis as part of the FAA's overall
public safety strategy for RLV and reentry vehicle licensing. No
opposition to use of a system safety process appears in the
[[Page 56625]]
comments and some affirmatively endorse its benefits. A number of
comments expressed appreciation for the flexible approach to system
safety outlined in the NPRM and use of an advisory circular to provide
guidance on an acceptable methodology. Consistent with remarks made by
Kistler at the February 11, 1999 public meeting, the FAA would not
require all of the studies listed in the draft interim safety guidance
as examples of system safety analyses but would allow industry
flexibility to select a system safety process appropriate for its
vehicle and concept of operations.
Kelly Space & Technology, Inc. (Kelly) commented that the
documentation used for vehicle development should be used to support
the system safety process to the maximum extent possible to reduce
costs and burdens on the applicant. The FAA agrees and notes that use
of a system safety process much like that embodied in 14 CFR 25.1309
for aircraft should not impose an additional regulatory burden on an
applicant because it is substantially similar to the engineering
analysis a vehicle developer would utilize in assessing vehicle
performance for its own developmental purposes.
Kistler and Applied Science & Technology, Inc. (ASTi) objected to a
statement in the NPRM Supplementary Information to the effect that a
conservative risk assessment is appropriate for a vehicle lacking an
adequate flight history and therefore risk analysis must assume one
hundred percent probability of failure. Kistler commented that the FAA
should define adequacy of flight history based upon experience gained
within the system's design envelope, as opposed to statistical analysis
of launch history, such that a system that demonstrates integrity in
some acceptable portion of its design envelope would qualify as having
an adequate flight history.
The FAA responds to Kistler's and ASTi's comments in two parts.
First, the FAA does not mandate, without provision for relief from the
requirement, that risk analysis assume a one hundred percent
probability of a catastrophic failure. Under an alternative noted in
the NPRM, an applicant could prepare a detailed risk analysis using
traditional system safety methodologies as described in the system
safety process advisory circular. Acceptable risk assessment techniques
for determining failure conditions include Preliminary Hazards
Analysis, Failure Mode and Effect Analysis, Event Tree Analysis, and
Fault Tree Analysis Methodology for Hazard Assessment. Methodologies
such as those listed here include failure modes and probability rates
affecting risk to public safety and safety of property without
necessarily assuming a one hundred percent failure rate. Under this
regulation, an applicant may select any system safety analysis
methodology that assesses the probability and consequences of
reasonably foreseeable hazardous events and safety-critical system
failures that could cause a casualty to the public. It is therefore not
a requirement that an applicant's risk analysis assume the probability
of a catastrophic failure of 1.0 for purposes of the hazard
identification and risk assessment required under the final rule,
Sec. 431.35(c). Rather, probabilistic tools may be utilized by an
applicant as long as they address nominal and non-nominal vehicle
operation during flight. Second, with regard to adequacy of flight
history, the FAA is not prepared to define in this regulation the
criteria by which a vehicle may be deemed ``proven'' as opposed to
``unproven.'' \4\ However, the FAA will accept a record of past
performance of a safety system under comparable operating circumstances
as an indication of reliability and will accept the use of historical
reliability data in an applicant's risk assessment.
---------------------------------------------------------------------------
\4\ A distinction between ``unproven'' RLVs and all others
appears in regulatory text governing operational restrictions.
---------------------------------------------------------------------------
3. Comments on Operational Restrictions for RLV and Other Reentry
Missions
Operational restrictions, particularly those imposed on vehicles
without a proven flight safety record, proved to be the most
controversial aspect of this rulemaking. ACTA, Inc. (ACTA) commented
that the FAA should expect opposition to proposed requirements from the
RLV industry because they are inconsistent with RLV operational
concepts. The Rotary Rocket Company (Rotary Rocket) stated that the
proposed operational restrictions have no factual or analytical basis
and are therefore arbitrary. According to Rotary Rocket, vehicle
reliability and satisfaction of the expected casualty criterion for a
mission are sufficient to limit public risk. Rotary Rocket further
stated that the proposed operational restrictions will distort
operating concepts and are detrimental to the RLV industry.
Comments on each of the four categories of operational restrictions
are summarized and addressed below.
A. Restricting Flight Over Populated Areas.
Proposed restrictions, but not a ban, on population overflight
would apply to all RLV missions and reentries; however, additional
restrictions were proposed for unproven vehicles. In the NPRM, the FAA
proposed that for any RLV mission or reentry, the projected IIP of the
vehicle shall not have substantial dwell time over densely populated
areas during flight. Seven comments objected to the restriction on any
RLV or reentry that the IIP of the vehicle must not have substantial
dwell time over a densely populated area. Some comments expressed
concern that, unless defined more specifically, the terms
``substantial'' and ``densely'' remain vague and ambiguous and will
complicate mission planning for operators. Others objected on the basis
that this additional requirement is overly restrictive and that
remaining within the permissible limits of the expected casualty
threshold should be the sole criterion by which the FAA would allow or
disallow population overflight because the criterion takes into
consideration population density, casualty area and probability of
failure. One comment noted that the proposed regulation would place
more value on the lives of persons living in densely populated areas
since overflight of such areas is limited, whereas overflight of merely
populated areas is not so limited. Another comment stated that the FAA
should dispense with the restriction arguing that an adequate flight
history is sufficient to allow such overflight as long as the vehicle
will remain within its demonstrated flight envelope.
For the following reason, in this final rule as in the NPRM, the
FAA declines to define the terms in issue using quantitative measures
opting instead to apply a qualitative measure on a case-by-case basis.
In response to the comments regarding the projected IIP associated with
substantial dwell time over densely populated areas, the FAA believes
that substantial dwell time applies in a cumulative manner, such that
multiple instances of dense population overflight of the IIP during a
mission could amount to substantial dwell time. Substantial dwell time
is a relative term when applied as a qualitative measure because the
consequences of failure early in flight when the IIP passes slowly over
a densely populated area are far greater than the consequences would be
later in flight just before the vehicle attains orbital velocity. It is
the consequences of failure that prompts the FAA to
[[Page 56626]]
forbid substantial dwell time of the IIP over a densely populated
area.\5\ When failure consequences may be too great to be tolerated
then population overflight would be barred. The approach utilized by
the FAA in the NPRM and retained in the final rule regarding population
overflight by any vehicle resembles that applied to ELV launches from
Federal ranges. The IIP of ELVs launched from Cape Canaveral Air Force
Station may, for example, fly over portions of Africa for a few
seconds. Some population overflight is tolerated in such circumstances
because it contributes little to the expected casualty calculation. It
is perhaps with that in mind that some comments advocated that the
Ec criterion alone should be sufficient to safeguard public
safety interests. However, unlike ELVs, RLV trajectories may cover
inland areas where population centers may be affected early in flight.
For this reason, the FAA considers it necessary to make explicit in the
regulations a restriction against dense population overflight when the
consequences of failure, regardless of how remote the risk of its
occurrence, would be intolerably severe.
---------------------------------------------------------------------------
\5\ Similarly, Sec. 91.319(c) of the Federal Aviation
Regulations provides that unless otherwise authorized by the
Administrator in special operating limitations, no person may
operate an aircraft under an experimental certificate over a densely
populated area or in a congested airway. Generally speaking a
minimum of 1,000 hours of flight testing would be performed before
the FAA would issue a type certification for new aircraft and remove
flight restrictions.
---------------------------------------------------------------------------
The FAA further notes that, unlike aircraft, there is no
operational experience with commercial RLVs or reentry vehicles on
which to assess actual risk from population overflight of a vehicle's
IIP. With experience in RLV regulation and operation, the FAA
anticipates that it may re-examine the need for an absolute restriction
of this nature.
Restrictions proposed in the NPRM in Sec. Sec. 431.43(d)(1) and (2)
on the planned flight trajectory of an unproven vehicle proved even
more controversial than those affecting all RLV and reentry vehicle
flight. Under the first alternative, flight operations would be limited
such that IIP of the vehicle does not have substantial dwell time over
a populated area. Under the second alternative, some population
overflight would be tolerated as long as the expected average number of
casualties to the public would not exceed 30 x 10--6
assuming a vehicle failure at any time the IIP is over a populated
area.
The two alternatives are not mutually exclusive. The FAA clarifies
in this final rule that in planning a mission an applicant may plan a
trajectory that satisfies one restriction during some portion of flight
and the other restriction during other portions of flight. Applied in
combination, operational restrictions for unproven vehicles will not
preclude vehicles from utilizing inland launch and reentry sites as
long as the vehicle flight trajectory is carefully planned and
controlled to comply with rule requirements.
One commenter asked for clarification as to whether the term
``IIP'' used in this context refers to an intact vehicle or the debris
pattern that would result from vehicle breakup. The FAA intends the
term ``IIP'' to refer to the debris footprint of the vehicle, or
casualty area, inclusive of the debris dispersion pattern that would
result, depending on the catastrophic failure mode.
In addition to comments seeking more precise definition of the term
``substantial'' dwell time or proposing quantitative measures, some
comments noted that a restriction of this nature unfairly burdens RLVs
in favor of ELV technology because unproven ELVs are not held to
comparable restrictions. The FAA disagrees. Restrictions on unproven
RLVs were developed to ensure that operators of unproven RLVs are
granted similar latitude to that afforded ELV operators. ELVs typically
are not operated such that there exists substantial dwell time of a
vehicle's IIP over any populated area.
As with proven vehicles, the term ``substantial'' is applied on a
case-by-case basis using a qualitative approach to risk assessment.
Expected casualty is a function of the probability of a failure event
and its consequences. If both the probability of failure and the
consequences of vehicle failure are high, then it is reasonable to
envision a high expected casualty rate. By reducing either the
probability of failure or the consequences of failure, the resulting
expected casualty determination is lowered. Because unproven vehicles
have an unknown or uncertain failure rate, the FAA considers it
reasonable to ensure that risk is most effectively mitigated by
controlling the consequences of a failure. The FAA does so by limiting
opportunities for high consequence events and therefore retains
flexibility to determine on a case-by-case basis whether dwell time
over a populated area is too significant to allow because the
consequences of a failure would be unacceptably high.
Alternatively, an applicant may assume a vehicle failure while the
IIP is over a populated area and obtain approval for flight as long as
the Ec threshold of 30 x 10-6 is not exceeded. Rotary
Rocket commented that it would be impossible to design a flight
trajectory that would satisfy this criterion. In addition, Rotary
Rocket protested in its comment that a regulatory authority could
conjure up failure scenarios that, in combination, would make it
impossible to fly over any populated area. Lockheed Martin Corporation
(Lockheed Martin) suggested replacing the absolute probability of
failure with a 1/250 probability of failure for RLVs that are
substantially aircraft-like.
In contrast, ERPS suggests that the proposed criterion be used
during all phases of flight because the allowable population density
under the IIP is inversely proportional to the casualty area of the
vehicle and the result would be that no RLV would be allowed to fly
over a large population center.
The FAA disagrees with comments suggesting that unproven ELVs are
unfairly subject to more lenient regulations than tolerated under this
rule. As described above, the IIP of ELVs, proven and unproven, are
allowed over some populated areas late in flight when the probability
of failure and its consequences are relatively low.
The FAA also disagrees with those comments opposed to proposed
operational restrictions on unproven vehicles that argue that the
restrictions could only be satisfied by the smallest of vehicles
launching from coastal sites and reentering to coastal areas. With the
restrictions on population overflight by the IIP of an unproven
vehicle, an applicant would be able to plan a flight path that allows
for overflight of a sparsely populated area early in flight when
vehicle failure would not exceed the allowable expected casualty
criterion of 30 x 10 -\6\ and overflight of a populated
area for a brief period later in flight when the contribution to
Ec of failure consequences during that stage of flight are
sufficiently small such that the mission Ec does not exceed
the mission risk criterion of Ec 30 x
10-\6\. Also, as pointed out by Space Access, upon firing of
retrorockets to deorbit an RLV, the vehicle's IIP is expected to pass
rapidly over about half the circumference of the Earth, perhaps passing
over populated areas for mere seconds. Population overflight under such
circumstances is not likely to contribute significantly to the
Ec calculation and is not necessarily prohibited under the
final rule.
Unproven vehicles may fail for any number of reasons and aircraft
history suggests that some failure-causing events may be unforeseen or
unpredicted during risk analysis. Therefore, the FAA determines it
prudent to apply conservative
[[Page 56627]]
operational limits on unproven vehicles in order to limit risk to
public safety.
For these reasons, the FAA retains the operational restrictions
pertaining to population overflight of the IIP of an unproven vehicle
in the final rule with the clarification offered above regarding the
combined applicability of the two restrictions. An applicant need not
limit itself to one or the other operational restriction for the
duration of an RLV or reentry mission. An applicant may plan a flight
trajectory for the mission that utilizes both restrictions as long as
allowable mission risk (Ec 30 x 10-\6\) is not
exceeded.
B. Monitoring Critical Systems.
Under the proposed rules, an operator would be required to monitor
and verify the status of launch and reentry safety-critical systems
both before and during launch flight as well as before initiating
reentry flight, and must maintain procedures for doing so. Because the
FAA also proposed that reentry flight from orbit could not be initiated
without issuance of a command enabling the vehicle's descent to Earth,
the ability to monitor safety-critical systems before initiating
reentry flight is a necessary component of the FAA's public safety
strategy. Monitoring capability would ensure that both launch and
reentry flight would be initiated only under nominal conditions or
under non-nominal conditions assessed in accordance with the licensee's
system safety process and demonstrated to be within acceptable risk
criteria. The proposed rules would not require real-time monitoring of
data used for other purposes, such as system validation, system reuse
or post-flight anomaly investigation. Under the NPRM, an applicant for
an RLV mission license would be required to submit procedures for
monitoring and verifying the status of safety-critical systems
immediately before and during mission operations.
At the February 11, 1999 public meeting, concerns were raised that
requiring real-time data may be cost prohibitive or impossible to
obtain. In response to industry concerns, the NPRM did not include a
requirement that data be obtained in real-time fashion. Rather, some
delay in data relay would be acceptable as long as an applicant's
procedures are adequate to accomplish the regulatory objective of
ensuring reentry flight is initiated only under nominal conditions or
non-nominal circumstances evaluated and approved for safety impacts.
However, the FAA cautions that, as for ELVs, should data be lost due to
an event before it can be recovered, it will be more difficult to
address and resolve potential safety issues before the next flight may
be conducted.
Some misunderstanding appears in the comments because the terms
``launch'' and ``reentry'' by definition include operations other than
flight. However, the regulatory text reflecting the requirement to
monitor safety-critical systems, proposed Sec. 431.43(a)(4) and (e)(1),
refers to the ``mission'' and to flight, respectively. Under
Sec. 431.35(a) of this final rule, the FAA defines the term ``mission''
for purposes of part 431 to mean licensed flight. For purposes of
clarity, the monitoring requirements that appear in Sec. 431.43 of the
final rule are modified to reflect mission flight and not pre-or post-
flight ground operations.
A number of comments objected to the perceived requirement that the
ability to monitor safety-critical systems necessarily means that
telemetry must be fed to a manned control center, and the attendant
costs of such a requirement. The COMSTAC report also indicates that the
FAA should not assume that RLVs will be limited to ground control
systems. Prospective operators of piloted RLVs questioned whether
monitoring must be performed on the ground or whether crew members on
the vehicle could function as data monitors and fulfill the regulatory
requirement. The FAA does not specify in the final rule the precise
means or the form in which data is received by a vehicle operator in
order to remain compliant with the regulations, nor where data must be
received. Although telemetry is the typical means of accessing data,
particularly for unmanned systems, the FAA would consider acceptable
other means of monitoring data that satisfy the regulation. For
example, the crew of an RLV may be an adequate means of monitoring
status of safety-critical systems and the applicant's procedures,
submitted in accordance with Sec. 431.43(a)(4), must demonstrate that
using on board personnel will be adequate to perform the intended
purpose of the requirement. However, the crew would also be a safety-
critical system inasmuch as their performance would be essential to
safe operation and, through the system safety process, an applicant
would need to show that risks to public safety are sufficiently
mitigated in the event the crew became incapacitated. An applicant's
system safety process would address the adequacy of medical
qualifications of crew members in the performance of safety-related
responsibilities. Advisory guidance offered by the agency, Advisory
Circular AC No. 431.35-2, refers to 14 CFR part 67, first-class airman
medical certification requirements, in providing guidance on medical
qualifications of crew members that, if satisfied, may be relied upon
by an applicant as part of its system safety process. The results of
hazard identification and risk assessment analyses would determine
whether, and the extent to which, deviations from such medical
qualifications would contribute to mission risk, and whether those
contributions are acceptable because risk criteria for the mission are
not exceeded or are sufficiently mitigated.
One commenter noted that there may exist safety-critical systems
whose integrity and performance cannot be monitored when an RLV is on
orbit. For example, the vehicle's heat shield may have been impaired or
compromised during launch flight or while the vehicle is on orbit. The
FAA acknowledges that there are some systems that may be critical to
safe reentry flight of an RLV for which it is impossible to gather
flight data prior to initiating the descent from orbit to Earth. For
those systems, the applicant would seek relief from the requirement, or
a waiver, to conduct monitoring of such systems after the RLV has been
launched. A grant of relief from the requirement would be conditioned
upon a determination by the FAA that public safety is not compromised
as a result. For example, if an applicant has performed testing and
analysis during development and before launch of an RLV that supports a
finding that a system, not otherwise subject to monitoring, is
sufficiently reliable then the requirement to monitor that system may
be removed or waived.
Another comment questioned the requirement to monitor safety-
critical system status ``immediately'' before enabling reentry flight.
The FAA revises this requirement in the final rule to reflect the need
for monitoring of such systems, proximate in time to initiation of
reentry flight, in order to verify readiness and capability to
accomplish safe return to Earth. For some vehicles, data obtained one
or perhaps more than one orbit before de-orbit burn is initiated will
be sufficient to achieve the regulatory objective of mitigating risk to
public safety.
C. Positive Enabling of Fail-Safe Reentry
The proposed rules require an operator to issue a command enabling
reentry of an RLV from orbit. The rationale provided in the NPRM
explains that positive control over reentry flight is necessary to
ensure that reentry occurs under the conditions necessary to ensure
that risks to public safety do not exceed acceptable levels.
[[Page 56628]]
Safety-critical systems must be verified for status and proper
configuration, airspace may need to be cleared in the reentry corridor,
and vehicle operational constraints must be satisfied, among other
things, before reentry flight may be initiated. An applicant would be
required to submit procedures as part of an application that ensure
conformance with this restriction.
The operational restriction prohibiting a totally autonomous
reentry of an RLV from orbit generated numerous comments and
objections. Kistler, in particular, objected to requirements that
expressly require a person in the loop stating that such requirements
would amount to a design, rather than a performance, standard and that
autonomous systems should be assessed on a case-by-case basis. The FAA
disagrees with Kistler's characterization of the requirement. Although
positive enabling is required, the FAA does not dictate how enabling
would be accomplished.
At the February 11, 1999 public meeting and as reflected in the
COMSTAC report, industry representatives argue that on board autonomous
systems can be made equally effective and reliable as systems relying
on personnel on the ground. The FAA agrees that this may be so and does
not intend to preclude or inhibit development of RLVs incorporating
innovation in autonomous control. Current ELV functions utilize
autonomy in the separation and ignition of upper stages, fairing
separation and payload deployment, and for non-nominal situations where
human response is inadequate, such as autonomous engine shutdown to
avoid imminent catastrophic failure. The FAA supports continued use and
development of autonomous systems.
One comment observed that placing a human in the loop creates
opportunities for other systems to fail. Even so, the FAA maintains
that it is preferable from a safety validation standpoint to assure an
opportunity exists to confirm conditions for safe reentry. Kelly
suggested that each developer be allowed to propose a reentry
initiation approach that ensures public safety while enabling the
vehicle developer to capitalize on the unique operational
characteristics of the developer's concept of operations.
Notwithstanding the benefits of Kelly's proposed approach to ensuring
safe reentry, the FAA has great concern over the complexity of
autonomous RLV systems and their reaction to a nearly infinite number
of system failure combinations that may occur.
The FAA is aware that even with a positive enabling command
problems may still occur, particularly if the command is based on poor
quality or inaccurate information. For example, a Chinese reentry
capsule was commanded to fire its descent motor at the proper time;
however, it was in reality pointing about 90 degrees off of its planned
attitude. As a result, the vehicle did not reenter but instead went
into an orbit from which it decayed about two and a half years later.
The FAA's regulatory approach to reentry safety is intended to avoid
problems of this nature, to the extent they are foreseeable and
predictable.
Lockheed Martin commented that the proposed rule appears contrary
to current expendable launch vehicle practice where many critical
activities, such as ignition of an upper stage, may be controlled
autonomously within the vehicle. In place of the proposed requirement,
Lockheed Martin recommended changing the requirement such that a
positive command disabling an RLV would be required instead of a
positive enabling command. The FAA declines to adopt the recommendation
because it would not allow for the positive control that the FAA
considers necessary. Lockheed Martin's suggestion would not adequately
address a situation where, for example, a communications failure
results causing the vehicle to begin reentry without an opportunity to
independently check and verify the status of safety-critical systems.
The FAA retains the requirement for positive enabling of reentry
flight in the final rule. and does so In the final rule, the FAA
imposes a requirement for positive enabling of reentry for public
safety assurance purposes in fulfillment of its statutory
responsibility for safety. The FAA believes that there must be an
opportunity to abort reentry flight and leave an RLV on orbit when
conditions for safe reentry cannot be verified. Sole reliance by an
operator on an autonomous system would not be sufficient from a public
safety standpoint where safe limits on public risk exposure cannot
otherwise be assured and public safety could be compromised. The final
rule does not prohibit some autonomous operation of an RLV or reentry
vehicle. Rather, the FAA requires that an operator verify the status of
safety-critical systems prior to enabling the reentry process. Human
intervention to issue a command enabling reentry of a vehicle is not
limited to initiating de-orbit burn. The reentry process that is
enabled may, in fact, be an autonomous one. Human intervention may be
accomplished by flight crew, as Pioneer Rocketplane (Pioneer) intends.
The FAA envisions that the requirement for a person in the loop to
positively enable reentry might possibly be relaxed in the future as
RLV performance and flight history develops. By establishing regulatory
requirements for human control for functions critical to public safety
at this early stage of RLV development, the FAA does not intend to
exclude or inhibit development and use of autonomous control systems
for RLV nominal flight.
Comments pointed out the corresponding need to assure safe return
to Earth of vehicle stages, other than RLVs from orbit, such as an
expendable upper stage of a vehicle where a multi-stage vehicle is
used. The FAA agrees. Where a vehicle stage operates ballistically as
part of an RLV launch system, but is not itself a reentry vehicle, the
flight trajectory for launch must be designed such that expected
casualty criteria for the mission are not exceeded. Despite Vela's
objection, this requirement is not qualitatively different than that
applicable to an ELV. Although the de-orbit of an ELV upper stage is
not a licensed event, its contribution to expected casualty,
historically an extremely small amount, is considered as part of an FAA
licensing determination.
D. Reentry Sites
To further mitigate risk to public safety, the FAA proposed a size
suitability restriction on the landing area designated for an RLV or
other reentry vehicle. The size suitability restriction would apply to
those areas designated by a license applicant for a vehicle landing
under nominal and non-nominal circumstances. It would also be used to
determine whether a reentry site operated under an FAA license could be
designated by an RLV or reentry vehicle operator as a proposed location
for reentry of its vehicle.
The size of the site selected as the landing area would have to be
sufficiently large such that the vehicle would land within its
boundaries with a .997 probability rate, assuming no major system
failure that would make reentry essentially an entirely random event.
The NPRM referred to the three-sigma dispersion of a vehicle as the
basis upon which to calculate the necessary size of the landing area.
The term ``three-sigma'' refers to three standard deviations from the
mean, or average point, assuming a standard normal distribution.
Atmospheric, meteorologic and other external conditions assumed in
calculating the three-sigma dispersion of a vehicle would become
conditions of the
[[Page 56629]]
authorization granted to reenter at that location. Alternatively, the
area designated could be adjusted to accommodate different conditions
or variables.
Reference to the three-sigma dispersion of an RLV appears in two
provisions of the regulatory text governing launch and reentry of an
RLV (Secs. 431.35(d)(8) and 431.43(b)(1)). Additionally, a licensed
operator of a reentry site would be limited to offering its site for
use in support of vehicle reentries for which the three-sigma
dispersion footprint of the vehicle would be wholly contained within
the site. For an RLV mission license, an applicant would be required as
part of the system safety process that includes hazard identification
and risk assessment to provide flight trajectory analyses for launch
flight through orbital insertion and reentry flight through landing.
Flight trajectory analyses must include the three-sigma dispersion of
the vehicle. An applicant for an RLV mission license would also have to
designate the area in which its vehicle and any vehicle stage would
land under nominal circumstances, and if an applicant relied upon the
use of pre-designated contingency abort locations to satisfy acceptable
risk criteria for the mission then those locations would also need to
be identified. A designated landing location, whether for nominal
operations or in the event of reliance by an applicant upon contingency
abort capability, would be of suitable size under the proposed
restriction if 997 times out of 1,000 attempts, vehicle or vehicle
stage landing would be wholly contained within the designated location
and if the location is sufficiently large that it would contain all
landing impacts, including debris dispersion, any toxic release, and
overpressure resulting from an explosion. The latter requirement means
that a location designated to support reentry of an RLV or other
reentry vehicle must be far enough away from a populated area such that
debris, toxic release, and overpressure effects from an explosion would
not jeopardize public safety if splatter or wind effects cause
hazardous materials to pass beyond the boundary of the designated
location, even though a vehicle's landing point was within its
boundary. As an example, for a reentry site that utilizes a runway for
vehicles that land horizontally, the three-sigma landing footprint
includes the point of touchdown and the vehicle rollout. In all cases,
based on the three-sigma footprint, any toxic fumes released from the
vehicle after landing, in the case of normal operations (e.g., at end
of rollout) or in the event of vehicle failure, should remain within
the reentry site as well as any debris or adverse overpressure effects
from an explosion.
The supplementary information provided in the NPRM to explain the
three-sigma site suitability criterion referred to vehicle
maneuverability in defining the area that comprises a designated
reentry location. In doing so, the FAA improperly referred to an
elliptical contour, rather than a footprint, prompting comments on the
accuracy of the .997 probability rate utilized by the FAA. The FAA did
not intend to refer to within-track and cross-track error, necessarily
a bivariate calculation of the probability of landing accuracy. Rather,
the FAA intends to apply a univariate measure of acceptability under
which a reentry location may be of suitable size if the vehicle will
land within it at a .997 probability rate. Statistically, the three-
sigma dispersion limitation means that no more than 3 out of 1000
landings from an RLV reentry would lie outside of the designated
location.
Kistler commented that the FAA needs to identify the contributors
to the three-sigma dispersion of a vehicle or agree to negotiate them
with an applicant. Dispersion factors may vary for different vehicles;
therefore, the FAA declines to list them in this regulation. Instead,
dispersion factors would be identified by an applicant as part of its
hazard identification and risk assessment and evaluated by the FAA
through the licensing process. As part of that process, the FAA would
determine whether all significant contributors to a vehicle's three-
sigma dispersion have been identified.
From the perspective of ensuring aeronautical operations are not
jeopardized by RLVs, the Aircraft Owners and Pilots Association (AOPA)
observed that RLV controllability during launch flight is much better
than during reentry flight and that vehicle design and technology
should accommodate the impacts of meteorological conditions on a
vehicle's three-sigma dispersion. The FAA understands that RLVs will be
of varying controllability during reentry flight, depending upon the
technology employed. RLVs that can be controlled more precisely should
exhibit smaller dispersion patterns along their trajectory because of
the operator's ability to maneuver them and lessen the effects of
perturbing atmospheric forces. Vehicles need not have wings to be
maneuverable. A capsule that is a reentry vehicle could act as a
lifting body during reentry flight and gain some degree of
maneuverability.
AOPA commented and NorthStar Spaceport Corporation (NorthStar)
echoed concern that meteorologic forces may affect three-sigma
trajectory dispersion. The FAA agrees and notes that other contributors
to trajectory dispersion must also be identified as part of an
applicant's hazard identification and risk assessment. These may
include the duration and angle of de-orbit burn, as well as the
accuracy with which dispersion modeling is performed. Variables such as
those listed in this paragraph may become part of the conditions under
which reentry would be authorized. For example, if vehicle operational
characteristics were assessed assuming certain wind conditions, reentry
would not be allowed at a time when those conditions did not exist.
Trajectory dispersion modeling for RLVs and other reentry vehicles
during nominal and non-nominal flight may also be useful to the FAA in
determining appropriate airspace clearances. Comments to the NPRM
suggested that use of a reentry corridor or box within which an RLV
reenters controlled airspace, and the three-sigma dispersion of a
vehicle would assist in defining that area. Vela commented that
aircraft-like RLVs that are controlled through reentry flight would
require clearance comparable to similar aircraft, whereas a ballistic
reentry of a capsule-like vehicle would likely require a larger
clearance zone.
Operation of RLVs within the national airspace system is under
review by the FAA as the agency develops its concept of operations for
an integrated air and space traffic management system. It is beyond the
scope of this rulemaking to stipulate how airspace clearances will be
designed and implemented by the FAA to accommodate emerging RLV and
reentry vehicle traffic.
Kistler expressed concern over the three-sigma dispersion size
suitability requirement of a reentry site, as expressed in the draft
interim safety guidance, noting the cost of preparing an entire site
for vehicle landing. The FAA imposes no requirement that an entire
location be leveled or otherwise prepared to ``host'' the landing of an
RLV or other reentry vehicle. The manner in which a landing site is
prepared may affect mission success in terms of the ability of a
vehicle to withstand landing impacts but is not dictated by the FAA in
this rule. The size requirement imposed upon a landing site is
determined for the
[[Page 56630]]
purpose of protecting the public, not the vehicle, from landing
effects.
In summary, and in response to AOPA's and Kistler's comments, the
FAA's concern with respect to the three-sigma dispersion of an RLV or
other reentry vehicle is two-fold. First, the risk of a non-nominal
trajectory and the resultant dispersion of a vehicle in the event of
failure must be addressed as part of the system safety process employed
by an applicant, typically through hazard identification and risk
assessment, to ensure that risk to public safety is contained at an
acceptable level. Second, risk of an errant, off-site landing must be
limited in the interest of public safety. Accordingly, an applicant
must designate an appropriate location at which its vehicle will land
with a sufficient degree of predictability, established by this final
rule as 997 out of 1,000 landing attempts. Size of the location is not
the sole determinant of suitability. The consequences of a vehicle
landing in a designated location must also be contained within the site
or sufficiently removed from public exposure for the site to be
suitably located. As illustrated above, an RLV that lands on a runway
touches down in one spot but continues to roll. The area required for
continuing roll of the vehicle must be controlled area that does not
expose the public to risk or it must be part of the designated location
itself. Similarly, a narrow landing location may not be appropriate if
toxic fumes released upon landing could be blown outside of the
location or a controlled area such that the public is exposed to them.
The final rules retain the operational restrictions proposed with
respect to suitability of a location designated for an RLV or other
reentry vehicle landing, including contingency abort locations in the
event a licensee designates one or more such locations as part of its
application.
Scope of RLV Mission and Reentry Licensing Under the Final Rule
The FAA's proposed approach to combining launch and reentry
authorization in a single license covering an RLV mission was endorsed
by a number of comments. However, the scope of licensed activity, as
described in the NPRM, prompted a good deal of discussion in the
comments. Many more detailed comments on the appropriate scope of FAA
licensing authority were received in response to proposed rules
governing reentry financial responsibility. Accordingly, a more
complete discussion of RLV launch and reentry licensing coverage
appears in the companion rulemaking.
1. Comments on Scope of RLV Launch Authorization.
The NPRM proposed to continue inclusion of pre-flight ground
operations beginning with the arrival of a launch vehicle or payload at
a U.S. launch site in the definition of launch, as codified at 14 CFR
401.5, for purposes of licensing an RLV mission. USA took issue with
the definition of ``launch'' codified in final rules at 14 CFR 401.5,
despite statutory direction that the term ``launch'' includes
activities involved in the preparation of a launch vehicle and payload
for launch, when those activities take place at a launch site in the
United States. 49 U.S.C. 70102(3). USA recommended that launch begins
when an operator places a vehicle at the launch pad with the intent to
launch the vehicle. B-G commented against licensing of pre-flight
ground operations before the launch vehicle is loaded with propellants
or other hazardous materials because worker safety during the conduct
of such operations is otherwise regulated by the Occupational Safety
Health Administration (OSHA). Moreover, including such operations as
part of a launch would subject them to additional environmental
scrutiny, according to B-G. B-G recommended that launch begins when the
vehicle is loaded with propellants or other hazardous materials.
Lockheed Martin and NorthStar specifically endorsed inclusion of
ground operations, before and after RLV flight, as part of licensed
launch activity; however, NorthStar would not be particular about
whether post-flight ground operations and vehicle remediation, if any,
would be considered part of licensed reentry or the next licensed
launch. ERPS similarly viewed pre-flight operations and post-flight
operations after an RLV returns to Earth as properly within the FAA's
licensing authority; however, maintenance unrelated to a particular
flight would not be licensed activity in its view.
In this final rule, the FAA does not intend to redefine the
commencement of a licensed launch for purposes of an RLV mission. Pre-
flight operations at a launch site are regulated by the FAA as part of
launch, consistent with the CSLA definition, because of the risks posed
to public safety and the safety of property. For purposes of pre-flight
safety and risk, the FAA makes no distinction between an RLV and an ELV
launch.
Comments on the definition of launch included a number of
recommendations governing the end of launch flight for purposes of FAA
licensing jurisdiction. B-G suggested retaining the licensee's last
exercise of control over its launch vehicle for a suborbital launch
vehicle. For an orbital vehicle, B-G suggested that launch ends when a
vehicle is placed in a long-lived orbit, defined as 30 days or more or
the last exercise of control, whichever comes first. Vela commented
that using the ELV definition of launch is inappropriate for an RLV
because an RLV may rely upon autonomous systems, such that the vehicle
is no longer under the operator's control although flight continues,
and because an RLV would be ``launched'' when it lands as part of a
reentry because it has arrived at the launch site.\6\ ERPS recommends a
three-phased approach to an RLV mission consisting of a launch, on
orbit and reentry phase. The launch phase would be defined as ending at
the conclusion of powered flight, when the vehicle has attained its
intended initial orbit, or its intended suborbital trajectory. Under
the ERPS definition of launch, payload deployment, the event proposed
by the FAA as marking the end of licensed launch of a typical RLV,
would be an on-orbit operation not subject to FAA licensing.
---------------------------------------------------------------------------
\6\ The companion rulemaking governing reentry financial
differentiates between vehicle landing at a reentry site and arrival
of a launch vehicle at the gate of a launch site for purposes of
implementing FAA launch licensing authority.
---------------------------------------------------------------------------
The FAA disagrees with B-G's and Vela's comments and agrees to some
extent with the phased approach suggested by ERPS for an RLV mission.
However, as explained in greater detail in the companion rulemaking
governing reentry financial responsibility, the FAA explains that the
end of an orbital RLV launch is defined at payload deployment for RLVs
having payload deployment as a mission objective. For other RLV
missions, the launch phase concludes upon completion of one orbit in
steady-state condition at the location intended by the licensee.
TGV sought clarification of the definition of the term launch such
that it would exclude low energy test flights that remain within the
atmosphere below an altitude of 50,000 feet. The FAA will not prejudge
whether a flight test requires FAA licensing or may be accomplished
under an experimental airworthiness certificate. Such decisions will be
made on an individual basis to ensure consistency with FAA statutory
authority and direction.
2. Comments on Scope of Reentry Authorization.
The NPRM proposed to define ``reentry'' to include those on-orbit
[[Page 56631]]
activities conducted to determine reentry readiness and that are unique
to reentry and critical to ensuring public health and safety and the
safety of property during reentry.
Kistler commented that the definition of reentry is unnecessarily
broad and could lead to licensing of all on-orbit activities. Kistler
proposes two alternative definitions. The first would define reentry to
begin upon creation of an IIP. The second alternative would include
checkout for the deorbit maneuver. ERPS commented that for an RLV in
low Earth orbit, reentry begins at preparation for retrofire. For other
vehicles, reentry begins at preparation for atmospheric interface.
Examples of such other vehicles include those on suborbital
trajectories that do not require retrofire to reenter, vehicles in
geosynchronous orbit for which retrofire occurs hours before
atmospheric interface, and vehicles returning from the Moon for which
retrofire would occur days before atmospheric interface.
To summarize the FAA's response to comments on the appropriate
scope of FAA reentry licensing, the FAA has determined that its
licensing authority must cover reentry readiness activities conducted
on orbit in order to ensure that the FAA fulfills its public safety
mandate. The definition of reenter codified in this final rule includes
those activities and the licensing process would be utilized to
identify when those activities begin for a particular vehicle or
reentry proposal. A more complete discussion of FAA licensing authority
over reentry appears in the companion rulemaking governing reentry
financial responsibility.
The FAA understands that there are activities conducted on orbit
that are part of reentry readiness and would fall within the definition
of reentry except that they may also be performed for other mission
purposes and are therefore not ``unique'' to reentry. Accordingly, as
explained in greater detail in the companion rulemaking, the FAA
modifies the definition of reentry in the final rule to more accurately
delimit those activities that may be comprehended by the FAA's
licensing authority and has removed reference to ``unique'' activities.
The FAA requested public comment on the appropriate commencement of
licensed reentry when reentry has been delayed by design for an
extended duration. For delayed reentry by design, Kelly suggested that
reentry begins with initiation of procedures for reentry preparation.
The FAA considers that Kelly's suggestion is qualitatively consistent
with the definition proposed in the NPRM under which reentry includes
activities conducted in space to determine reentry readiness.
Kelly urged that licensed reentry ends when an RLV touches down on
Earth. However, the FAA has determined that ground operations performed
to secure a vehicle upon its return to Earth would properly be part of
licensed activity to ensure that public safety is not jeopardized by an
RLV that has landed. Securing a vehicle would include activities
performed to ensure that hazardous materials on board the vehicle will
not be inadvertently released and expose the public to risk.
Propellants may need to be removed from the vehicle and other hazardous
or toxic substances must be contained. The definition of the term
``reenter'' is clarified in the final rule to include post-flight
ground operations necessary to render an RLV or other reentry vehicle
safe to the public.
Section-by-Section Analysis and Summary of Additional Comments
Summarized in this section are comments addressing particular
provisions of the proposed rule and additional analysis of some
alternatives considered by the FAA in issuing final rules. Additional
explanation and clarification of certain provisions of the rule is are
also provided. Sections are described and discussed in numerical order;
however, nonsubstantive changes in the regulatory text of the final
rule are not specifically identified.
Section 400.2 Scope
Section 400.2 identifies the scope of regulations presented in 14
CFR Chapter III as commercial space transportation activities subject
to 49 U.S.C. Subtitle IX, chapter 701. As proposed, Sec. 400.2 would
exclude ``exempted-class rocket activities'' from coverage under 14 CFR
Chapter III. Reference to ``exempted-class'' was intended to mean those
activities not subject to FAA licensing. Since 1988, activities not
subject to FAA licensing under 14 CFR 400.2 have been identified as
amateur rocket activities and space activities carried out by the
United States Government on behalf of the United States Government.
Instead of adding a new term to the regulations, the final rule reverts
to the 1988 formulation of activities for which an FAA license is not
required.
Section 401.5 Definitions
These following new terms are the same as those introduced in the
NPRM in Sec. 401.5. They are ``contingency abort,'' ``emergency
abort,'' ``flight safety system,'' ``operation of a reentry site,''
``reenter,'' ``reentry accident,'' ``reentry incident,'' ``reentry
operator,'' ``reentry site,'' ``reentry vehicle,'' ``reusable launch
vehicle,'' ``safety-critical,'' and ``vehicle safety operations
personnel.'' The term ``mishap'' is revised to include reentry events.
The NPRM inadvertently failed to make a distinction in the
definition of ``launch'' between the end of ELV flight and RLV flight,
although it was described in the supplementary information. In the
final rule, the FAA clarifies that for purposes of an ELV launch,
flight ends after the licensee's last exercise of control over its
launch vehicle. For purposes of an orbital RLV launch, flight ends
after deployment of a payload for an RLV having payload deployment as a
mission objective. For other orbital RLVs, flight ends upon completion
of the first sustained, steady-state orbit, at the intended location of
the RLV.
The final rule defines the term ``reenter'' differently from that
proposed. For purposes of clarity, the term defined also includes the
noun form, ``reentry.'' ``Reenter; reentry'' includes activities
conducted to determine reentry readiness that are critical to ensuring
public health and safety and the safety of property during reentry
flight. However, reentry readiness activities need not be unique to
reentry in order to be included as part of a licensed reentry. They
must, however, be performed for the express purpose of initiating
reentry and must be safety-critical from a public safety perspective to
be included as licensed activity. ``Reenter; reentry'' consists of
those on-orbit activities just described, reentry or descent flight and
certain ground operations after landing on Earth to ensure a reentry
vehicle will not pose a threat to public health and safety and the
safety of property. The definition of ``reenter; reentry'' is clarified
to remove reference to activities unique to reentry and include
specific reference to post-landing ground operations. The interested
public is referred to the comprehensive discussion of activities
comprehended by the term ``reentry'' that appears in the companion
rulemaking governing reentry financial responsibility.
``Flight safety system'' is a defined term, abbreviated as FSS for
ease of reference in the supplementary information portion of the NPRM.
The AOPA recommends use of another abbreviation to avoid confusion with
``flight service station,'' a term used in the Federal Aviation
Regulations codified at 14 CFR parts 1-198. The FAA makes no change to
the final rule on the basis of the comment because no confusion in
terminology has been evidenced to date. The FAA will
[[Page 56632]]
reconsider this terminology if a problem becomes apparent.
``Hazardous materials'' is defined to mean those identified as
hazardous materials in 49 CFR 172.101. B-G commented that the
definition should be limited to hazardous materials under 49 CFR
172.101, as applied to cargo aircraft. 49 CFR 172.101 contains a table
of hazardous materials for the purpose of transportation of those
materials. Materials are identified by hazard class and the table
further references requirements applicable to labeling, packaging, and
quantity limits of those materials aboard aircraft. However, any
materials listed in the table are considered hazardous for purposes of
14 CFR chapter III and no change is made to the definition in the final
rule.
The NPRM defined ``operation of a reentry site'' in a manner
similar to ``operation of a launch site.'' NorthStar suggested removing
reference to ``safety operations'' from both definitions and replacing
it with the phrase ``licensed operations.'' The FAA uses the term
``safety operations'' to denote those activities conducted at a launch
or reentry site that may pose a risk to public health and safety and
the safety of property and for which licensing is therefore required.
Other activities, although conducted at a launch or reentry site, may
not require regulatory oversight by the FAA. Reference to ``safety
operations'' is therefore retained in the final rule definitions.
ACTA suggested that the term ``safety-critical'' in the context of
demonstrating acceptable RLV mission risk should be limited to that
which has a direct potential effect on public safety. The FAA agrees
and has adjusted the definition to clarify that safety-critical means
critical to public safety.
Kelly and ERPS proposed additional terms for possible inclusion in
Sec. 401.5. Kelly suggested adding a definition of ``exempted-class
rocket activities.'' The FAA has removed reference to exempted class
rocket activities that appeared in proposed Sec. 400.2 and there is no
longer a need to define the term. Kelly also suggested adding
definitions for ``expectation of casualty'' and ``impacted landmass.''
The final rule refers to acceptable risk, which is measured in terms of
the expected average number of casualties to the collective members of
the public exposed to debris impact hazards. An FAA Advisory Circular,
AC No. 431.35-1, provides detailed guidance on how casualty expectation
may be calculated for purposes of operating a launch or reentry
vehicle. Accordingly, the FAA does not agree that further definition of
the term ``expectation of casualty'' is required. The FAA also does not
find a need to define ``impacted landmass,'' as that term appears only
in explanatory information and not the regulatory text.
ERPS, Orbital Sciences Corporation (Orbital Sciences) and Pioneer
Rocketplane suggested delimiting where ``outer space'' begins. The CSLA
defines ``launch'' as ``to place or try to place a launch vehicle or
reentry vehicle and any payload from Earth--(A) in a suborbital
trajectory; (B) in Earth orbit in outer space; or (C) otherwise in
outer space, * * *'' 49 U.S.C. 70102(3). ``Reenter'' and ``reentry''
means to return or attempt to return, purposefully, a reentry vehicle
and its payload, if any, from Earth orbit or from outer space to Earth.
49 U.S.C. 70102(10). The reference to ``otherwise, in outer space'' may
include interplanetary missions or travel to the Moon. A suborbitally
operated RLV may be regarded solely as launch of a launch vehicle,
although for licensing and regulatory purposes the FAA has determined
to license suborbital RLVs under the RLV mission licensing regulations
in order to ensure a consistent approach to safety issues presented by
intact landing of a vehicle designed to survive atmospheric forces.
Thus, for purposes of safety regulation and licensing, the difference
between an RLV reentry that is conducted suborbitally from one that
begins on Earth orbit is a distinction without a difference. As RLVs
develop, the FAA would evolve a regulatory program that accommodates
deep space exploration and transportation. For the near term, RLV
missions chiefly target low Earth orbit and the final rule focuses
principally on safety issues posed by such mission. Accordingly, it is
not necessary to propose a delimitation of outer space in the final
rule.
In a similar vein, NorthStar suggested defining ``payload'' to mean
an object that a person undertakes to place in space, rather than outer
space. Although the FAA may agree with the suggestion, the agency
retains the current definition of ``payload'' in the final rule simply
to reflect the statutory definition that appears at 49 U.S.C. 70102(8).
Orbital Sciences pointed out that because the definition of
``reentry site'' refers to reentry vehicles, the landing site of
booster stages of an RLV that do not reach Earth orbit are not
regulated. The final rule does, in fact, provide criteria for suitable
and attainable locations for vehicle staging impacts under
Sec. 431.43(b). Therefore, a separate license is not required for a
person to offer use of a location at which a vehicle stage may land
although the location must satisfy safety and environmental criteria
under RLV mission or reentry licensing criteria.
Section 404.1 Scope
As in Sec. 400.2 of the final rule, the FAA replaces reference to
``launch'' with ``transportation'' in describing the extent of
activities to which part 404 applies. Part 404 provides the agency's
procedures for issuing implementing regulations.
Section 404.3 Filing of Petitions to the Associate Administrator
Section 404.3 is revised to include rulemaking petitions regarding
reentry and operation of a reentry site.
Section 405.1 Monitoring of Licensed and Other Activities
Section 405.1 provides that reentry sites and reentry vehicle
manufacturing, testing, assembly and production facilities are subject
to FAA monitoring and observation. The FAA may monitor licensee or
contractor facilities at which a payload is integrated with a launch or
reentry vehicle. NorthStar objected to FAA monitoring authority with
respect to payloads otherwise unlicensed by a Federal agency and for
which a favorable payload determination has been granted. NorthStar's
comments focused on how monitoring and observation of payloads would
affect the launch industry in terms of economy, fairness, and privacy.
Under the CSLA, the FAA retains certain responsibility with respect
to payloads to ensure that their launch or reentry does not jeopardize
public health and safety, the safety of property or national interests
of the United States. To fulfill this safety responsibility, the CSLA
expressly grants the Secretary of Transportation legal authority to
place a government officer or other observer at a site at which a
payload is integrated with a launch or reentry vehicle and directs the
licensee to cooperate with the observer. The final rule reflects the
agency's statutory authority with respect to monitoring activities
involving payloads and no change is made to this provision in the final
rule.
USA commented that information learned as a result of monitoring
activities be subject to the confidentiality and non-disclosure
requirements accorded a license application under Sec. 413.9. The FAA
agrees that trade secrets or proprietary commercial or financial data
disclosed to the agency under its statutory authority shall be accorded
confidential treatment upon request. The CSLA allows disclosure of such
information only where its non-disclosure is
[[Page 56633]]
determined by the Secretary to be in contrary to the public or national
interest. 49 U.S.C. 70114. Given the statutory limitation on disclosure
of such information, the FAA does not agree that it is necessary to
include additional confidentiality and non-disclosure restrictions in
the final rule governing monitoring of licensed activity.
Section 405.5 Emergency Orders
Section 405.5 is amended by adding reentry and operation of a
reentry site to the agency's authority to terminate, prohibit or
suspend licensed activity.
Section 406.1 Hearings
Section 406.1, as revised, reflects the rights of an owner or
operator of a reentry payload, as well as any licensee, to a hearing.
Section 413.1 Scope
The application procedures of part 413 of 14 CFR Chapter III also
apply to applications for a license, or transfer or an existing
license, to reenter a reentry vehicle or to operate a reentry site, as
reflected in the final rule.
Section 413.3 Who Must Obtain a License
Section 413.3 specifies that any person must obtain a license to
reenter a reentry vehicle or operate a reentry site in the United
States and that a U.S. citizen, as defined in 14 CFR 401.5, must obtain
a license to reenter a reentry vehicle or operate a reentry site
outside of the United States. Reentry and reentry site licensing
requirements for foreign entities in which a U.S. citizen has a
controlling interest are also specified and are comparable to those
currently applicable to a launch and operation of a launchsite by such
entities.
USA sought clarification of the licensing requirement for reentry
of a reentry vehicle launched by using a foreign owned or controlled
launch vehicle. Section 413.3, as proposed in the NPRM and codified in
the final rule, adequately covers such situations. An FAA license is
required for any person to reenter a reentry vehicle in the United
States and an FAA license is required for a U.S. citizen to reenter a
reentry vehicle anywhere in the world, regardless of the location at
which its launch occurred. Under part 435 of the final rule, acceptable
risk for such a reentry would take into account the risk associated
with its launch. Where a reentry vehicle is launched abroad by a
foreign entity and its operator seeks a license to reenter in the
United States, the FAA would require certain data of the launch
provider upon which the FAA may determine acceptable risk for the
proposed reentry is not exceeded, even though the launch would not be
subject to FAA licensing. The launch provider would not be subject to
FAA regulatory authority and cannot be compelled to cooperate with the
FAA, however. As a practical matter, absent a sufficient basis upon
which the FAA may determine acceptable risk is not exceeded, the FAA
would be unwilling to license the reentry.
Section 413.5 Pre-Application Consultation
No change was proposed to Sec. 413.5 in the NPRM; however, USA
suggested a more detailed statement in the regulation as to the data
the launch operator should have available when consulting with the FAA.
The FAA uses pre-application consultation as an important means of
identifying the data that will be required as part of an application
for a license. The ``flesh on the bones'' sought by USA in its comment
is derived through this informal consultative process which has worked
successfully in identifying issues and data requirements associated
with individual licensing proposals.
Section 415.1 Scope
Section 415.1 of the final rule limits the scope of part 415 to
requirements pertaining to licenses for launch of an ELV or other
launch vehicle that is not an RLV. It refers the reader to part 431 of
14 CFR Chapter III, subchapter C, ``Licensing,'' for RLV mission
license requirements.
Part 431 Launch and Reentry of a Reusable Launch Vehicle (RLV)
Part 431 of the final rule sets forth comprehensive requirements
applicable to obtaining an RLV mission license and requirements for
remaining in compliance with the license. A licensing determination for
an RLV mission is based upon a number of approvals that must be granted
by the FAA before it can issue a license. Requirements for obtaining
approvals are contained in subpart B (Policy Review and Approval for
Launch and Reentry of a Reusable Launch Vehicle), subpart C (Safety
Review and Approval for Launch and Reentry of a Reusable Launch
Vehicle), subpart D (Payload Reentry Review and Determination), and
subpart F (Environmental Review). Requirements for obtaining approval
to launch a payload appear in 14 CFR part 415. A licensee authorized to
conduct an RLV mission must remain in compliance with certain ongoing
terms of the license and terms and conditions of a license appear in
subpart E (Post-Licensing Requirements--RLV Mission License Terms and
Conditions).
Section 431.1 Scope
Section 431.1 of the final rule provides that part 431 covers
requirements for obtaining and remaining in compliance with an RLV
mission license. An applicant for an RLV mission license is referred to
part 413 of 14 CFR Chapter III, subchapter C, for application
preparation requirements.
Section 431.3 Types of Reusable Launch Vehicle Mission Licenses
An RLV mission for which a license may be granted under part 431
consists of launch and reentry of an RLV. The two authorizations
required for RLV launch and reentry are combined under a single license
authorizing an RLV mission. An RLV mission license is also required to
initiate authorized ascent and descent of a suborbital RLV.
Consistent with launch licenses issued for ELVs, the FAA includes
in the final rule provisions for granting two types of RLV mission
licenses. The two types of licenses that may be issued are mission-
specific and operator licenses.
A mission-specific license is used to authorize a licensee to
launch and reenter, or land, one model or type of RLV from one approved
site to the same or another approved site. One site would be approved
for purposes of launch and one site would be approved for purposes of
vehicle reentry or landing; however, the same site may be used to
support both events. The NPRM omitted reference to a launch site
approved for the mission and the omission is corrected in the final
rule. The license would also authorize use of a contingency abort
location for a particular RLV mission where an applicant has identified
the location in order to satisfy risk criteria applicable to the
mission.
A mission-specific license is not limited by its terms to the
conduct of a single RLV mission. Multiple missions may be authorized by
the license; however, each mission is identified in the license. A
mission-specific license may be used to authorize a flight test program
involving one type of RLV for which launch and reentry or landing take
place at the sites identified in the license. The license terminates
upon completion of the missions authorized by its terms or the
expiration date of the license, whichever first occurs.
USA commented that the authorization granted by a mission-specific
license ought not be limited to use of a single reentry site. The FAA
[[Page 56634]]
notes that a mission-specific license may also authorize use of a
contingency abort location. However, the broader authorization
suggested by USA would typically be granted by the FAA under the terms
of an operator license. An operator license is issued to operators that
have demonstrated their safety capability on an ongoing basis. An
operator license authorizes RLV missions involving any one of a family
of RLVs and identifies approved parameters, such as launch and reentry
trajectories and any of a number of approved launch and reentry sites
that may support the RLV missions authorized by the license. Based on
historical experience with operator licenses for ELV launches, the
final rule provides for a two-year renewable term of an operator
license. NorthStar did not object to a two-year license term but
suggested expedited renewal procedures. The FAA agrees that license
renewals may rely upon existing documentation as long as it remains
valid and complete and that the FAA should utilize procedures for
expediting license renewals. The FAA has in fact employed this approach
to renewing ELV operator licenses without compromising its safety
mandate and intends to do so for RLV mission licenses.
USA suggested that RLV operators with proven experience be able to
``graduate'' to longer term licenses. The FAA agrees that, with
experience, it may consider issuing longer term operator licenses, as
was recently approved for ELV launches. Initially, the FAA granted two-
year renewals of ELV launch licenses and as a result of rulemaking
proceedings determined last year to issue five-year operator licenses.
Section 431.5 Policy and Safety Approvals
Section 431.5 establishes the requirement that an applicant for an
RLV mission license must obtain policy and safety approvals. An
applicant may seek the approvals in any order and may do so in advance
of submitting a complete license application. Generally speaking,
submission of an application for policy review of an RLV mission
requires less technical information from the applicant and may be less
burdensome to prepare. Based upon the FAA's experience in licensing ELV
launches, early submission of information to support a policy review is
useful to determine whether the FAA would disapprove a proposed mission
for policy reasons before the applicant and the FAA undertake the
considerable effort required for safety review and approval. The FAA
believes that the same principle would apply to RLV mission licensing
and therefore allows an applicant to apply for a license in parts.
Section 431.7 Payload and Payload Reentry Determinations
Payloads proposed for launch on an RLV and/or for reentry are
subject to FAA review unless exempt. Government payloads are exempt
from FAA review and payloads subject to review for launch and/or
reentry purposes by another Federal agency would not be subject to
duplicative review by the FAA. However, notwithstanding approval by
another Federal agency, the FAA would evaluate safety of vehicle flight
involving a payload and the particular hazards it may present.
For purposes of launching a payload, the requirements contained in
part 415 governing payload review and determination remain applicable
to an RLV mission. However, there may be different safety and policy
issues arising out of reentry of a payload although it has been
approved for launch and, accordingly, a payload reentry review and
determination is a component of RLV mission licensing. Where one
purpose of an RLV mission or other reentry is to retrieve a space
object for the purpose of returning it to Earth, a payload reentry
determination would be required. The FAA need not review on an
individual basis each payload proposed for launch or reentry but may
issue a favorable determination for a class of payloads that share
similar characteristics. Similarly, the FAA may issue a favorable
determination for reentry of a payload based upon a review performed
for another RLV mission license, where the payloads are similar and
pose comparable safety and policy issues previously considered by the
FAA. Whereas only the license applicant for an RLV mission license may
apply for policy and safety reviews necessary to support a license
determination, a payload owner or operator may apply for a payload and
payload reentry determination separate from the license application.
Comments submitted by the X PRIZE Foundation recommended that where
passengers are the payload, a single review should suffice for all RLV
operations involving passengers. As already noted, this final rule does
not address the unique policy and safety issues presented by passenger-
bearing RLVs. In the future, the FAA will examine human factors
associated with crewed and passenger-bearing vehicles and, through
rulemaking, may determine whether certain criteria affecting crew and
passenger health and safety are appropriate.
Section 431.9 Issuance of a Reusable Launch Vehicle Mission License
Section 431.9 provides that the FAA will issue either type of RLV
mission license to an applicant who has obtained all of the required
approvals and determinations required for that license. It further
provides that the licensee's authorization to conduct an RLV mission is
subject to its continued compliance with terms and conditions of the
license. Terms and conditions include requirements for demonstrating
financial responsibility for the mission. A companion rulemaking
explains what a licensee must do to demonstrate compliance with reentry
financial responsibility requirements.
Section 431.11 Additional License Terms and Conditions
The proposed RLV mission licensing rules included a provision
whereby the FAA may amend an RLV mission license by adding or modifying
license terms and conditions to ensure compliance with the CSLA and
applicable regulations. NorthStar commented that the proposal would
allow for harassment and capricious intervention with a licensee's
activities. USA commented that modifications of law of which a licensee
is not aware may place a licensee in violation of law and that a
procedure for implementing such modifications would be beneficial.
FAA authority to modify a license is essential to its ability to
fulfill its safety responsibility under the CSLA and to respond to
changes in circumstances affecting public safety. Legal remedies and
recourse are available to a licensee who believes its license amendment
is arbitrary or capricious, including a right to a hearing as stated in
14 CFR 406.1. The FAA does not negotiate license terms, contrary to
NorthStar's suggestion, where public safety is at peril but does agree
with USA that the FAA and a licensee can cooperate in defining means of
implementing necessary modifications to operations to reflect safety
needs or changes in law.
Section 431.13 Transfer of a Reusable Launch Vehicle Mission License
Section 431.13 of the final rule states that only the FAA may
transfer an RLV mission license and would do so where an applicant for
transfer of the license has obtained all of the necessary approvals and
determinations for the license. Findings already made by the FAA in
issuing the license to the original licensee may be used to support a
license transfer determination, to the
[[Page 56635]]
extent the findings remain valid and equally applicable to the
transferee.
Section 431.15 Rights Not Conferred by a Reusable Launch Vehicle
Mission License
Section 431.15 of the final rule provides that issuance of an RLV
mission license does not relieve the licensee of its obligations to
comply with other legal requirements applicable to its activities.
Section 431.21 General
This section of the final rule provides that the FAA will issue a
policy approval to an applicant when the FAA has completed its review
with favorable results.
Section 431.23 Policy Review
Section 431.23 of the final rule describes the scope of the
required policy review and the basis upon which a policy approval would
be granted. The FAA reviews the information required by the agency as
part of the review to determine whether the proposed mission would
present any issues, other than issues evaluated as part of the formal
safety review, that would adversely affect U.S. national security or
foreign policy interests, including its international obligations, or
that would jeopardize public health and safety or the safety of
property. The FAA consults with other Federal agencies whose mandate
may be affected by a proposed RLV mission. The FAA provides written
notification to an applicant of any issue raised during the review that
could hinder the agency's ability to issue a policy approval. The
applicant then has an opportunity to respond to concerns raised as a
result of the policy review or may modify its proposal and seek
approval of the mission as modified.
Space Access requested clarification of the role of other Federal
agencies in the policy review conducted for a commercial mission. The
following is offered as an example of the role other federal agencies
may play in a policy review. A proposed RLV mission may include
trajectories that could interfere with Shuttle operations. Through
interagency consultation performed during the policy review, NASA would
have an opportunity to examine proposed mission parameters with its
missions in mind and note any potential conflicts. Overflight, during
ascent or descent flight, of a foreign nation by an RLV may raise
foreign policy concerns within the purview of the State Department.
And, the Department of Defense would evaluate a proposed RLV mission
from a national security perspective.
USA pointed out the difference in policy review parameters for an
RLV mission license from that undertaken with respect to an ELV launch.
For an RLV mission, the FAA reserves authority to identify safety
considerations from a policy, rather than a strictly technical or
engineering perspective, similar to the policy review process utilized
by the FAA during the initial ten years of ELV launch licensing.
Commercialization of reentry capability may present safety
considerations other than those identified as part of a safety review
and subject to risk assessment and technical criteria. The FAA
considers that early identification of such concerns through a policy
analysis would better serve the prospective RLV industry than awaiting
the results of a more technical safety review. As was done during the
first ten years of ELV launch licensing, license applicants would have
the benefit of obtaining a determination from the FAA at an early stage
in mission planning as to whether ``show stopper'' safety
considerations would present an obstacle to mission licensing even if
safety review criteria were satisfied. For example, if a proposed
flight trajectory for reentry flight of an RLV were designed such that
the IIP for the three-sigma trajectory passes over a facility for which
the consequences of collision or unplanned impact would be extreme,
such as a chemical or petroleum storage facility, the FAA may conclude
that, as a matter of policy, it is unacceptable to approve the proposed
mission even though it would satisfy mission risk and other safety
criteria of part 431. When used as an early warning device, the policy
review has proved a useful and efficient means of identifying
impediments to licensing due to general safety considerations. Because
RLV technology, other than Shuttle, remains in a developmental stage,
the FAA is not able to catalogue the safety considerations that may
attend proposed RLV mission operations. For this reason, the FAA
believes it reasonable and prudent to expressly reserve the authority
provided by a policy review to consider safety implications of proposed
RLV flight. Having gained the benefit of twelve years of licensing
experience with respect to ELV launches, the FAA no longer considers it
necessary to expressly include safety policy considerations under the
policy review performed in support of an ELV launch license.
ERPS asked when the FAA would advise an applicant of issues that
would impede issuance of a policy approval and the FAA responds that it
would do so upon obtaining responses from other Federal agencies
reviewing a proposed mission or when the FAA, itself, identifies
impediments to policy approval.
Section 431.25 Application Requirements for Policy Review
Section 431.25 of the final rule lists, in detail, the information
requirements necessary for the FAA to perform the required policy
review for an RLV mission license. Requirements include basic technical
data concerning the pro posed RLV as well as foreign ownership
interests in the applicant.
TGV commented that certain requirements seem more germane to a
safety review than a policy review. Although the FAA agrees with TGV
that technical data is needed as part of the safety review, the FAA
requires certain basic information about a proposed mission in order to
identify policy considerations that may result from use of vehicle
systems, propellants, proposed flight trajectories and mission design.
USA expressed concern over the requirement to identify reentry
sites, including planned contingency abort locations, if any. USA
stated that provision for use of emergency landing sites should follow
an aircraft operation model such that a vehicle could land at an
alternate site within a prescribed range of safety parameters. The FAA
agrees with USA insofar as a flight plan for an RLV mission may
identify locations at which a vehicle may land in an emergency
situation in a manner that poses minimal risk to public safety. For
such emergency situations, reference is commonly made to ``landing in a
cornfield'' or other unpopulated area. However, the requirement
identified in the final rule is for identification of locations, if
any, that would be used for a contingency abort. Such sites are pre-
planned and their potential use may be identified as part of an
application in order to meet mission risk criteria and are therefore
separate and distinct from emergency abort landing situations.
Section 431.27 Denial of Policy Approval
The FAA would notify an applicant in writing if it has determined
that it cannot issue a policy approval and provide the reasons for
denial. The applicant may respond with additional information and
request reconsideration of the FAA's determination.
Kelly suggested placing a time limit upon the policy approval
process and early notification of issues. The FAA
[[Page 56636]]
disagrees with Kelly. The FAA anticipates that it would provide to an
applicant early identification of issues that may impede issuance of a
policy approval. However, other than the 180-day review period imposed
by statute for agency review of an application, the FAA does not elect
to impose additional time requirements upon processes for which it is
often dependent upon other Federal agencies. The FAA reminds applicants
that the 180-day time period for agency review of an application
commences upon acceptance of an application and that an application is
not accepted unless it is sufficiently complete in its entirety to
enable the FAA to initiate the reviews and evaluations required for a
licensing determination.
Section 431.31 General
This section of the final rule describes in a general manner the
safety review performed by the FAA to determine whether an applicant is
capable of launching and reentering, or landing, an RLV and payload, if
any, from and to a designated site without jeopardizing public health
and safety and the safety of property. A safety review entails a
technical, engineering analysis of launch and reentry flight risks and
is necessarily tailored to the unique capabilities of a proposed
vehicle and characteristics of a proposed RLV mission. Safety approval
is a necessary element of a licensing determination and the FAA informs
an applicant, in writing, of any issue raised during a safety review
that may result in denial of safety approval. The applicant has an
opportunity to respond and revise its application rather than waiting
for a final determination on its application.
ERPS and Kelly raised timing concerns comparable to those
registered with regard to subpart B--policy review and approval. The
FAA has, historically, consulted with an applicant on an ongoing basis
when the agency requires additional information or clarification of a
technical data submission in support of the safety review. A
cooperative process, during pre-application consultation and while
reviews are ongoing, is critical to ensuring the FAA has sufficient
information to perform the reviews necessary for safety approval. The
FAA intends to continue its interactive approach to technical reviews
to facilitate licensing but does not impose a deadline upon itself for
completion of the safety review other than the 180-day deadline imposed
by statute for agency review of an application. Commencement of the
180-day timeframe is defined in the discussion of the policy review and
approval necessary for an RLV mission license.
Section 431.33 Safety Organization
The NPRM proposed detailed requirements for an independent safety
infrastructure maintained by an RLV operator in response to National
Transportation Safety Board (NTSB) reports and the Rodgers Commission
report that indicated independence is critical to an effective safety
organization and safe transportation operations.
Under Sec. 431.33(a), an applicant is required to document lines of
communication and approval authority for public safety-related
decisions. The common objective of maintaining lines of communication
and approval authority is to ensure disciplined and appropriate
communications and decisions during real-time to address public safety
considerations. Compliance with regulations governing an applicant's
communications plans is therefore a requirement for obtaining and
maintaining an RLV mission license. As explained in the NPRM, decision
authority over various aspects of an RLV mission, including authority
to make a ``hold'' or ``go/no-go'' decision, may be dispersed among
individuals and the personnel involved in executing an RLV mission must
understand the role of each.
Section 431.33(b) directs an applicant to designate a person
responsible for the conduct of all licensed RLV mission activities.
Section 431.33(c) mandates that an applicant identify a qualified
safety official responsible for monitoring independently compliance by
vehicle safety operations personnel with safety policies and procedures
identified by the applicant in compliance with safety review
requirements. The safety official must report directly to the person
responsible under Sec. 431.33(b) for RLV mission activities who, in
turn, must ensure that the safety official's concerns are resolved
before initiating the mission and before initiating return flight of
the vehicle to Earth. In addition, the safety official would be
responsible for conducting monitoring and evaluating operational dress
rehearsals to ensure readiness of certain personnel and completing a
mission readiness determination. The safety official is also
responsible for compliance with mission readiness requirements,
operational requirements and restrictions, and adherence by a licensee
with representations made in its application.
Although the safety official bears great responsibility for safety-
related decisions, as described above, the safety official need not
perform that function solely. To relieve concerns over cost burdens,
particularly for smaller companies, the FAA notes that the rules do not
require that the safety official perform only those functions. The
rules do require, however, that the safety official remain independent
of other safety personnel.
NorthStar disagrees with the FAA dictating the internal
organizational structure of an entity. NorthStar recommended that the
reporting structure presented in the NPRM become a recommendation,
rather than a requisite to licensing. The FAA does not accept
NorthStar's recommendation. Based upon its experience in regulating
aviation and launch operations, as well as NTSB safety recommendations,
the FAA finds that an independent safety official that has direct
access to the person responsible for the conduct of licensed activities
can positively influence safety. Also, Federal Aviation Regulations
codified at 14 CFR parts 1-198 require a part 121 certificate holder to
have a qualified director of safety serving in a full-time capacity.
See, e.g., 14 CFR 119.65(a)(1). For comparable safety reasons, the FAA
requires in the RLV mission licensing rules that an applicant identify
a safety official who will report directly to the person responsible
for the conduct of licensed activities to ensure that management
adequately considers and addresses public safety concerns before
initiating vehicle launch or reentry flight. Maintaining an
organizational structure whereby safety issues will be raised to the
attention of the responsible person enables safety-related decisions to
be made at an appropriately high level rather than being submerged.
TGV sought a definition of the term ``qualified'' when used to
describe the safety official. The FAA declines to impose specific
educational and training requirements for an individual to function as
a safety official under the final rule. Instead, an applicant would
have to show that the individual is qualified to perform the required
functions based upon the relationship between the individual's
experience and responsibilities, which in turn may vary depending upon
the operator's vehicle and operational concept.
The X PRIZE Foundation commented that for piloted vehicles,
ultimate responsibility for operational safety decisions should reside
with the pilot in command. The FAA has not ruled out the possibility
that the safety official could be the pilot of the vehicle. Much like a
mission flight safety officer for an ELV launch, the pilot would have
[[Page 56637]]
authority to make a decision to abort a mission or continue planned
flight. As long as that individual maintains independence from other
safety operations personnel in terms of decision-making, and is
qualified to perform the designated responsibilities, the FAA accords
an applicant discretion to determine which individual within its safety
organization shall function as the safety official under requirements
of Sec. 431.33.
ERPS commented that the safety official identified in the NPRM
should not be responsible for conducting dress rehearsals, but rather
for ensuring that they occur and then monitoring them. The FAA agrees
and the regulatory text is modified in the final rule to reflect the
safety official's responsibility for monitoring and evaluating dress
rehearsals to ensure that they are conducted in accordance with
procedures identified in the license application. ERPS further stated
that reentry readiness determinations should be the responsibility of
the flight director, not the safety official. The FAA is concerned with
functions, not titles, and will accept as compliant with the
requirement the designation of an official qualified and authorized to
perform the functions of the individuals described in Sec. 431.33(b)
and (c).
Section 431.35 Acceptable Reusable Launch Vehicle Mission Risk
Ensuring that acceptable mission risk is not exceeded is one of the
principal means the FAA employs to fulfill its public safety mandate in
licensing RLV missions. For purposes of satisfying mission risk
criteria, only those risks to the public that may result during
authorized vehicle flight, that is, launch or ascent and reentry or
descent flight to Earth, are included as part of the risk calculation.
For purposes of assessing mission risk, pre-flight ground operations
and post-landing activities are not included in determining the
expected average number of casualties, on a collective risk or
individual risk basis, to the public exposed to vehicle and vehicle
debris even though these are licensed activities.
The NPRM proposed two acceptable risk criteria that must be
satisfied for an RLV mission as defined in Sec. 431.35(a), that is,
during authorized flight of an RLV. Under Sec. 431.35(a), to qualify
for safety approval, acceptable risk for the mission may not exceed a
risk level of .00003 casualties per mission, or Ec criterion
of Ec 30 x 10-\6\, to members of
the public.
The agency response to comments regarding application of a single
risk measure to all licensed flight comprising an RLV mission is
presented under the heading, ``Public Response to Three-Pronged Public
Safety Strategy for RLV and Reentry Missions.'' In summary, Kelly
endorsed the FAA's approach to combining launch and reentry risk
associated with RLV flight thereby allowing an applicant to allocate
risk to flight phases in its discretion. USA objected to a combined
risk measure stating that launch and reentry should be treated as
separate events. TGV also commented that launch and reentry should be
licensed as separate events; however, TGV would apply an Ec
of .00003 to each flight phase. Kistler objected to use of
Ec altogether arguing that it is an unjustifiable assessment
criterion, subjective and would stifle innovation.
In response to the comments previously noted in the discussion of
mission risk and Ec calculation, the FAA has determined to
limit RLV mission risk to public safety to a level considered
acceptable for current launch capability, that is, Ec
30 x 10-\6\, and allows an applicant
flexibility to design a mission that satisfies the criterion.
In addition, the NPRM included a provision to ensure persons
located in areas near a reentry site are not exposed to unacceptable
risk. Under proposed Sec. 431.35(b)(2), acceptable collective risk to
persons within a 100-mile distance from the border of a designated
reentry site, including a pre-planned contingency abort location, shall
not exceed a risk level of .000001 casualties per mission, or
Ec criterion of 1 x 10-\6\. The FAA included
the additional criterion in the interest of limiting public risk
exposure should a minor system failure cause an off-site, but not
random, landing on Earth. A similar standard was applied to the COMET/
METEOR reentry vehicle proposal to ensure that risk exposure of the
population within the vicinity of a landing site would not exceed
normal background risk as a result of planned reentry.
Eight entities commented in opposition to the proposed requirement
that would impose additional restrictions upon reentry. Included among
the objections were complaints that the criterion would not be feasible
to satisfy, is not necessary or appropriate for guided RLVs or reentry
vehicles, appears to place greater value on population near a reentry
site than elsewhere, and imposes separate standards for launch and
reentry when a single expected casualty criterion for the mission would
suffice. Space Access offered, as an alternative, that the additional
restriction on RLV reentry be applied only to unproven RLVs. ERPS
suggested that designation of a 100-mile area is an arbitrary measure
and that when applied in combination with population overflight
criteria for an unproven vehicle that assumes an absolute probability
of failure while the IIP is over a populated area, would disqualify the
Shuttle from licensing assuming existing Shuttle landing strips are the
designated reentry sites.
The FAA has reconsidered the proposed requirement limiting
collective risk to persons located within 100 miles of the border of a
reentry site. As an alternative, the FAA considered acceptable risk
measures utilized by Federal ranges to ensure that population within
the vicinity of a Federal launch range are not exposed to unacceptable
risk. Federal ranges apply an individual risk standard to address this
safety concern. Under Air Force Eastern and Western Range Safety
Requirements, EWR 127-1, the risk of a casualty to any individual
cannot exceed one in a million launches, or Ec 1
x 10 -6 for the mission. Individual risk is different than
collective risk. Individual risk measures the risk to a single person
in the exposed population, whereas collective risk measures the sum
total risk, or the probability of injury or death, to that part of the
public exposed to an event. An individual risk measure is utilized to
address circumstances under which certain people may be exposed to
risk, such as where a single dwelling exists along a vehicle
trajectory. Application of an individual risk measure for persons
residing within the dwelling would dictate whether or not it must be
evacuated for launch or reentry activity along that trajectory to occur
safely.
Upon reconsideration of the additional safety requirement, the FAA
has determined that application of the Air Force standard for
individual risk, in combination with the final rule criterion for
acceptable collective risk for the mission (Ec
30 x 10 -6) accomplishes the regulatory objective of
ensuring that persons in the vicinity of a reentry site or designated
landing location for an RLV or reentry vehicle are not exposed to
greater than normal background risk. Accordingly, Sec. 431.35(b)(2) is
revised in the final rule by removing all reference to a 100-mile
distance from the designated reentry site. In its place, the final rule
limits individual risk of a casualty to 1 x 10-6 for any
person not involved in the licensed activity.
Section 431.35(c) requires that an applicant demonstrate acceptable
risk using a system safety process to identify hazards and mitigate
risks to public
[[Page 56638]]
health and safety and the safety of property. To be acceptable, the
system safety process employed must identify and assess reasonable
reasonably foreseeable hazardous events and failures of safety-critical
systems during nominal and non-nominal launch and reentry that could
result in a casualty to the public, that is, someone not involved in
the mission. ACTA commented that the term safety-critical is
potentially quite broad and should be limited to identifying those
systems that have direct potential effects on public safety. The FAA
agrees and has modified the regulatory definition of the term ``safety-
critical'' in the final rule. By referring to failures that could
result in a casualty to the public, the FAA intends to refer to public
safety-critical systems. FAA Advisory Circular, AC No. 431.35-2 ,
defines a safety-critical system as one whose performance or
reliability can affect public health and safety and the safety of
property.
Other comments regarding use of a safety system process are
discussed above under the discussion of the FAA's three-pronged
strategy for RLV mission safety.
Section 431.35(d) lists the requirements that must, at a minimum,
be covered by an applicant's demonstration of acceptable risk using a
system safety process. These include a description of physical
characteristics of an RLV, identification of hazardous materials on the
vehicle, a description of safety-critical systems and safety-critical
failure modes and consequences, and a timeline identifying safety-
critical events. Section 431.35(d)(7) of the proposed regulations would
require an applicant to provide data that validates its system safety
analyses. USA commented that validation requirements and the methods
and standards used for such validations should be defined by the FAA.
To some extent, the data that would be used to validate a particular
analysis is dependent upon the system safety process selected by an
applicant and is therefore not dictated by regulations. FAA Advisory
Circular, AC No. 431.35-2, provides additional guidance on the nature
of the documentation that would be required. For example, it provides
that documentation must show adequate design, proper assembly, and
vehicle control during all flight phases, and is expected to consist of
design information and drawings, analyses, test plans and reports,
previous program experience, and quality assurance plans and records.
As part of the licensing process, the FAA would consider the nature of
the system safety process selected by an applicant, which in turn would
determine the methods of validation and documentation that flow from
the process. For this reason, the FAA does not define, in the final
rule, particular methods and standards that must be utilized to
validate system safety analyses.
ERPS commented that the section-by-section analysis of the NPRM
refers to empirical data for purposes of validating the required system
safety analyses, which in turn would require a flight test program,
according to ERPS. The regulatory text of the NPRM contains no
reference to empirical data. However, the FAA would welcome empirical
data if it exists, such as that acquired through ground testing of
systems, but would not require a flight test program under the final
rule. No change is made in the final rule on the basis of the ERPS
comment.
Section 431.35(d)(8) requires flight trajectory analyses covering
launch or ascent and reentry or descent flight of an RLV through
landing, including three-sigma dispersion of the vehicle along its
trajectory. Comments addressing the three-sigma dispersion of an RLV
are addressed above in the discussion of public comments addressing
operational restrictions proposed for RLV mission licensing. The FAA
further notes the value of trajectory dispersion modeling for purposes
of analyzing the consequences on the ground or to aircraft in flight of
vehicle failure. For this reason, the FAA anticipates that prospective
RLV operators would perform the modeling contemplated by the final rule
and include risk-producing events and consequences within the three-
sigma limits along a nominal flight trajectory to the designated
reentry site or landing location and would likewise do so for any non-
nominal trajectories identified in advance of an RLV mission.
Section 431.37 Mission Readiness
Section 431.37 specifies procedures for verifying mission readiness
for the conduct of an RLV mission. Mission readiness procedures must be
employed before initiating launch or ascent flight and before reentry
or descent flight, as applicable. Procedures for determining readiness
of safety operations personnel for the vehicle as well as personnel and
services at the launch and reentry site must be covered. Procedures
must also ensure that mission rules and abort procedures are
consolidated in a single location and approved by the individual
responsible for the conduct of the RLV mission, checklists maintained
by the licensee and the launch and reentry site operator are current
and consistent so that all involved participants share common
understanding of the mission, dress rehearsals will verify crew
readiness and readiness of other participants in the RLV mission and
that criteria for dispensing with or adding dress rehearsals are
specified, as well as adherence to crew rest rules.
TGV expressed agreement with the intent of mission readiness
requirements and procedures, as proposed; however, to relieve industry
of the resulting burden TGV proposed that the FAA supply a designated
engineering representative (DER) as a substitute for submission of
procedures and reports. An on-site DER could also approve modifications
to procedures and checklists without the need and the time required for
formal submission of changes to the FAA, according to TGV. DERs have
been used successfully by the FAA in aircraft certification.
The FAA does not agree that use of a DER would relieve an applicant
of paperwork and reporting burdens because the applicant, not the FAA,
must develop the procedures by which it will determine and verify
mission readiness. Although on-site approval authority is an appealing
means of facilitating license application modifications, the FAA
believes that experience in RLV operations should be gained by the FAA
and industry before employing such concepts. That said, the FAA is
considering the best means of identifying and applying processes that
will facilitate licensing, including RLV mission and reentry licensing,
and does not rule out future use of proven, successful concepts in
doing so.
Kelly and ASTi objected to continuing requirements for the conduct
of dress rehearsals. Kelly expressed the view that rehearsals should
only be required as a special circumstance, such as during a flight
test phase or after a significant vehicle modification. ASTi commented
that the requirement should be reduced to a recurring training
requirement as a system matures. ERPS commented that the requirement to
provide a basis for doing away with a dress rehearsal was intrusive and
that a licensee should be allowed to rehearse every mission at its own
election.
Based upon experience, the FAA considers that dress rehearsals are
valuable tools for identifying lack of individual or system readiness
and therefore requires that mission readiness procedures cover them.
However, dress rehearsals may not be necessary for all missions. The
criteria by which an applicant proposes to dispense with a dress
rehearsal must be identified as part of an application and reviewed by
the FAA for sufficient consideration of potential effects on public
safety, as part
[[Page 56639]]
of the FAA's safety review. Through this requirement, the FAA and
applicant would share a common understanding of the number and
complexity of dress rehearsals to be conducted in support of a
particular mission and that understanding would become a stated
condition of an RLV mission license. ERPS's concern is misplaced,
however, in that the FAA would not object to the conduct of one or more
dress rehearsals before every mission proposed by an applicant.
Section 431.39 Mission Rules, Procedures, Contingency Plans, and
Checklists
The FAA's experience in licensing and regulating ELV launches has
demonstrated the importance to public safety of requiring that an
applicant compile missions rules, procedures, checklists, and
contingency plans, in a single volume, to ensure safe conduct of
mission operations. Because RLV missions are comprised of launch or
ascent flight and reentry or descent flight, additional personnel may
be involved in a mission than those typically required for an ELV
launch, such as a reentry site operator that is not necessarily the
launch site operator for the mission. Accordingly, the requirement to
assure consistency in and common understanding of such safety-critical
elements as mission rules, procedures and checklists among involved
participants for nominal and non-nominal flight takes on heightened
importance from a public safety perspective. The FAA requires
submission of such rules and plans to ensure a licensee's procedures
are carried out as proposed in an application and reviewed and approved
by the FAA as part of the safety review.
USA expressed concern that such documents as mission rules and
procedures would not be finalized at the time an RLV mission license
application is submitted to the FAA. Given that material changes in an
application must be reported to and approved by the FAA for a licensee
to retain its authorization, USA requested clarification of what would
constitute a material change in such submissions.
The FAA recognizes that launch plans evolve during pre-application
consultation, throughout the application review period, and after a
license has been issued. As an applicant constructs its application,
the FAA may require additional information pertaining to a data
submission or the applicant may revise its vehicle or mission design
and submit revised information. An analysis previously considered by
the agency may require further refinement later in the review process
if, for example, test results challenge assumptions that form the basis
of the analysis. Ongoing consultation is necessary to build the
complete application upon which the agency's licensing determination is
based and it is therefore not unusual for an application to be finally
deemed complete at the point at which the agency's review is nearly
concluded. Throughout this process, the FAA is able to review and act
upon proposed modifications promptly and efficiently as long as it has
been kept informed and involved during the development of the final
application.
Once a license has been issued, the licensee has a continuing
obligation to report proposed changes from representations contained in
an application that are material, that is, that may affect public
safety. For RLVs, the FAA expects that an applicant would make changes
to mission rules and procedures and the like from that initially
submitted as part of an RLV mission license application because its
operational concept as well as mission hardware may undergo continuing
modification until proven or mature. Mission rules, checklists and
other plans and procedures identified in Sec. 431.39 are required under
the final rule because of their potential effect on public safety. It
is therefore reasonable for an applicant or licensee to anticipate that
any change to such documents would be deemed a material change by the
agency. The FAA encourages applicants and licensees to consult with the
FAA to determine whether a proposed change may affect public safety and
would therefore be considered a material change.
Section 431.41 Communications Plan
Section 431.41of the final rule requires submission of a
communications plan binding upon vehicle safety operations personnel
during the conduct of an RLV mission. It must contain procedures for
issuance of safety-critical information during the mission and describe
the authority of vehicle safety operations personnel to issue commands.
Personnel may be identified by name or position. The required
communications plan resembles that currently required for licensed ELV
launches in the following ways. Communication networks must be assigned
such that safety operations personnel have direct access to real-time
and safety-critical information required for making safety-related
decisions during the mission and issuing commands. Safety-critical
communications are monitored by vehicle safety operations personnel on
one, pre-determined common intercom channel during launch and reentry
including the countdown for launch and reentry flight. Also, a
terminology protocol must be utilized. Safety-critical communications
during the mission must be recorded.
Boeing commented that the requirements for a communications plan
proposed in the NPRM did not address interface with air traffic
controllers. The final rule includes a provision for coordination with
air traffic control regional offices but does so as a condition of an
RLV mission license. Section 431.75(b)(2) of the final rule requires
that the licensee and the FAA regional office with jurisdiction over
the airspace through which a launch and reentry will take place
establish procedures for issuance of notices to airmen prior to flight,
closing of air routes and other measures deemed necessary by the FAA
regional office.
ERPS sought clarification as to whether communications plan
requirements apply to an RLV while it operates on orbit. The
requirements listed in Sec. 431.41 apply to licensed operation of an
RLV and would apply to launch and reentry of the vehicle inclusive of
pre-flight activities such as countdown or preparation for launch
flight and countdown or reentry readiness operations before reentry
flight. They would not apply to on-orbit operation of an RLV that is
not part of launch or reentry.
ERPS also sought clarification on the form of recording that would
be acceptable to the FAA. The reason for recording communications is to
have the ability to recreate or play back transmissions in the event of
an anomalous circumstance requiring investigation or prevention
analysis. The NPRM did not specify how that may be accomplished, or the
format for doing so, as long as the intended purpose can be achieved. A
single recording device may be used or an applicant may propose to use
multiple devices or tracks with synchronized time signals. The FAA
understands that it is common practice in the launch industry to rely
upon several communications channels, each of which is dedicated to a
particular subject area, and the FAA would find it acceptable practice
to record channels separately as long as the timing and sequence of
communications can be reconstructed. For example, where multiple
channels are utilized, recording practices are adequate if individual
channels are recorded separately and synchronized time coding is
employed. Time coding and adherence to the communication
[[Page 56640]]
protocol would also be particularly important where a single recording
is made of all communications on various channels. The final rule
clarifies the requirement. Adequacy of an applicant's proposed method
of assuring that safety-critical communications are recorded accurately
and in a meaningful manner will be evaluated by the FAA as part of the
safety review.
NorthStar commented upon the need for communications system
reliability and backup systems if needed. System reliability will be a
factor considered by the FAA in evaluating the adequacy of an
applicant's proposed method of recording communications to accomplish
its intended purpose. However, where a communications system is
integral to proper performance of a flight safety system and therefore
safety-critical, reliability will be evaluated through hazard
identification and risk assessment required under Sec. 431.35(c). Also,
mission rules and procedures would address non-nominal performance of
safety-critical systems and implementation of contingency plans.
ASTi sought clarification of the reference in Sec. 431.41 to safety
operations personnel because it suggests the responsibilities of a
``pilot in command.'' ``Vehicle safety operations personnel'' is a
defined term under Sec. 401.5. It means those persons whose job
performance is critical to public health and safety or the safety of
property during RLV or reentry operations. Therefore, it is not limited
to a pilot or crew on board a vehicle although it may include them.
Vehicle safety operations personnel would include persons monitoring,
enabling and otherwise controlling vehicle performance during licensed
activity from ground stations.
Section 431.43 Reusable Launch Vehicle Mission Operational
Requirements and Restrictions
Section 431.43 contains the operational restrictions imposed by the
FAA on RLV mission flight. An applicant for an RLV mission license must
submit procedures that ensure conformance by an RLV operator with those
restrictions once a license has been issued. Upon issuance of a
license, a licensee is responsible for conducting authorized RLV
missions in accordance with procedures it submitted as part of the
safety review.
In addition to operational restrictions highlighted in the
discussion of the FAA's three-pronged public safety strategy for RLV
missions, Sec. 431.43 of the final rule requires a collision avoidance
analysis to prevent contact with any inhabitable orbiting object during
launch and reentry, such as the Shuttle or International Space Station.
It also prescribes crew rest requirements which may be increasingly
significant for RLV operators whose personnel may support multiple
flight phases of a mission and long duration missions, unlike ELV
launches. The work and rest standards adopted in the final rule are
similar to those currently used at Federal launch ranges and imposed on
commercial ELV launch operators by FAA regulation.
Section 431.43(a) requires submission of procedures that ensure
acceptable mission risk, as defined in Sec. 431.35, is not exceeded for
nominal and non-nominal operations. The FAA does not prescribe design-
based standards for ensuring operations remain within the acceptable
risk criteria. An applicant may design procedures best suited to its
operational concept and technology for doing so. Operator procedures
would be derived from the system safety process utilized by an
applicant and, in particular, the hazard identification and risk
analysis performed in accordance with Sec. 431.35(c) to address nominal
and non-nominal operation and flight of an RLV. Under Sec. 431.43, an
applicant must submit procedures that ensure conformity with system
safety process results. Procedures must also ensure conformance with
operational restrictions identified in Sec. 431.43, including collision
avoidance analysis, debris mitigation, crew rest requirements,
limitations on overflight of populated areas, monitoring safety-
critical systems for safe reentry and enabling of reentry.
Section 431.43(a)(4) of the NPRM is revised in response to comments
received concerning monitoring of safety-critical systems. The proposed
requirement would compel procedures for monitoring and verifying the
status of safety-critical systems immediately before and during
missions operations.
For some RLVs, it will not be practicable to monitor systems
throughout licensed operation of an RLV. Some RLVs and reentry vehicles
will confront black-out periods during reentry flight during which it
will not be feasible to obtain telemetry data. For some orbital RLV
concepts, the FAA envisions that telemetry would be available only at
certain times or for certain orbital positions during an orbit. Design
and performance factors for specific RLVs will necessarily determine
which systems are safety-critical and can influence monitoring and
verification procedures. The FAA modifies the proposed requirement in
the final rule to more effectively accommodate individualized
procedures. Nevertheless, procedures requiring monitoring and
verification of safety-critical systems must ensure safe reentry and an
applicant's procedures must therefore make provision for performing
such public-safety related functions prior to enabling launch and again
prior to enabling reentry flight of a vehicle.
Section 431.43(a)(5) of the final rule retains the requirement
proposed in the NPRM and reflected in draft interim safety guidance for
RLV operators for human activation or initiation of a flight safety
system that safely aborts an RLV launch if the vehicle is not operating
as approved and acceptable risk standards for an RLV mission would be
exceeded. A flight safety system is broadly defined in Sec. 401.5 of
the final rule to mean a system designed to limit or restrict the
hazards to public health and safety and the safety of property
presented by a launch or reentry vehicle in flight through controlled
ending to vehicle flight. It may be destructive, such as a flight
termination system (FTS) traditionally employed on ELVs to terminate
flight by breaking the vehicle apart, or nondestructive, such as an
engine thrust termination system that enables intact landing.
Vela disagreed with a statement in the supplementary information in
the NPRM to the effect that the RLV industry has agreed that some type
of flight safety system (FSS) would be necessary to satisfy Federal
range safety requirements. Vela commented that an FTS would never be
used on an RLV and believes that RLVs will launch from locations other
than a Federal range. The FAA disagrees with Vela. The FAA reiterates
that the regulatory requirement in issue is for use of an FSS that may
or may not be destructive. Vela plans a passenger-bearing vehicle and,
in all likelihood, would employ an FSS that allows for controlled
landing in the event of an aborted launch. Other RLVs may employ
multiple stages, including an expendable booster that may indeed rely
upon a destructive FTS, much like the solid rocket boosters of the
Shuttle.
A number of comments were submitted addressing the proposed
requirement for a ``human-in-the-loop'' and the FAA proposal to
foreclose total dependence on a fully autonomous abort system. Kistler
and ACTA objected that requiring a human-in-the-loop and disallowing
autonomous systems would limit innovation and increase costs of
development. Autonomous systems should be considered on an individual
basis, they stated. Lockheed Martin pointed out that current ELV
practice allows for autonomous control of some
[[Page 56641]]
critical activities, such as ignition of an upper stage. Comments
offered by industry on the draft interim safety guidance for RLVs and
in the COMSTAC report of the RLV working group varied on the degree of
human control that should be required and whether human intervention
may only be required during flight testing. Space America pointed out,
in response to the draft interim safety guidance for RLVs, that human
intervention does not necessarily decrease risk. Space Access also
stated that human intervention is required but that qualifications
should be better defined. Several RLV developers planning crewed
vehicles suggested that a requirement for human intervention would be
fulfilled by a pilot in command of the vehicle.
In response to the comments, the FAA acknowledges that autonomous
flight safety systems are technically feasible and has allowed total
reliance on an autonomous FTS where risk to public safety is extremely
low. In requiring human intervention capability for activation of an
FSS the FAA does not intend to foreclose development or use of
autonomous systems. The FAA also does not intend that autonomous
decision-making would be foreclosed. However, the FAA does consider
that total reliance on a fully autonomous system to assure RLV safety
to the public is unwarranted until a greater level of confidence in
such systems can be obtained and accordingly requires that capability
exist for a person to intervene and make decisions for FSS activation.
Two recent studies by the National Research Council Committee on Space
Launch Range Safety and a Lockheed Martin technology demonstration for
a new range safety system substantiate the technical feasibility of
autonomous flight safety systems. However, concern remains within the
government that the demonstration of such systems at the requisite
level of confidence remains some time away. A 1999 failure of
autonomous flight return and flight safety systems on a Perseus B drone
aircraft illustrates the benefits of human intervention capability in
the event an autonomous system does not perform as intended. When the
autonomous flight return system and manually commanded FSS failed,
having human control allowed the Perseus B's controllers to move the
vehicle away from a densely populated area before total command was
lost during the last few thousand feet of descent through landing on
Interstate 40 in California. For such reasons, NASA and its industry
partners involved in X-33 and X-34 technology demonstration programs
use human-in-the-loop flight termination systems to ensure public
safety, even though the vehicles are autonomous during nominal flight.
The FAA supports the continued development of autonomous flight
safety systems but does require, for the present, human intervention
capability to assure public safety and in doing so makes no distinction
in the final rule between test flights and operational flights.
Autonomous navigation of RLVs combined with human intervention
capability to verify safety-critical system status and override or
redirect automated functions would be allowed under the final rule. No
change is made in Sec. 431.43(a)(5) of the final rule from that
proposed in the NPRM.
Section 431.43(b) of the final rule imposes the requirement that an
applicant for an RLV mission license identify nominal landing and
vehicle staging impact or landing areas, if any. Also, if an applicant
relies upon the ability to attain one or more contingency abort
locations during launch or reentry in order to satisfy acceptable risk
criteria of the final rule, they must be identified as part of the
safety review process as well.
For each location identified, the FAA would deem it suitable for
purposes of launch or reentry safety if, in addition to any
environmental consequences that must be assessed, the three-sigma
dispersion of the vehicle or vehicle stage can be contained entirely
within the designated location and it is sufficiently large as to
contain landing impacts, including debris and toxic release. The
applicant would also have to demonstrate to the FAA that a designated
location is attainable by its vehicle. ACTA commented that based on X-
33 and other RLV designs, the availability of excess energy that would
be needed to maneuver cross-range to attain a contingency abort
location is usually limited making aborts on azimuth more likely. If
that is so, an applicant could show capability to perform on-azimuth
aborts through analyses, simulation or testing. Other contingency abort
scenarios may include a return to the launch site, an abort to orbit
although not the intended final orbit, and abort to an unpopulated
downrange location, such as a broad ocean area. An applicant would
therefore have to demonstrate that its vehicle can be maneuvered to a
designated landing area given the set of three-sigma bounded
trajectories for a proposed mission and under the failure modes for
which that location would be utilized. Vehicle stages, including those
that fail to ignite or that otherwise operate in non-nominal fashion,
must also satisfy the three-sigma dispersion criterion contained in
Sec. 431.43(b) upon impact or landing and the risks that attend staging
impacts would be considered part of the mission assessed against
acceptable mission risk criteria set forth in Sec. 431.35(b). Comments
on size suitability of a landing location designated under
Sec. 431.43(b) were addressed in the discussion of public comments on
the FAA's three-pronged public safety strategy in RLV mission
licensing.
Draft interim safety guidance for RLVs issued by the FAA and made
the subject of the February 11, 1999 public meeting included as a
safety objective the notion that an RLV operator would necessarily
designate pre-planned, pre-approved abort landing sites that avoid air
traffic areas along the intended flight corridor for the vehicle during
all flight phases. Industry voiced objections to the requirement based
upon feasibility and cost of compliance particularly if each such site
had to be evaluated for environmental impacts, and stressed that
meeting the expected casualty criteria for acceptable risk to public
safety should be sufficient. Careful consideration by the FAA of
industry concerns resulted in the approach proposed in the NPRM and
adopted in the final rule, requiring designation by an applicant of
contingency abort locations only if it is necessary to do so in order
to satisfy the acceptable risk criteria of the rule. Consistent with
the NPRM, the final rule does not require designation of a contingency
abort location for all missions or for all phases of a proposed
mission; however, an applicant would have to show that an uncontrolled
random reentry (e.g., due to orbital decay) will not exceed acceptable
risk criteria for the mission. Except where reliance on a contingency
abort location is necessary to demonstrate that acceptable risk
criteria for the mission will not be exceeded, discretion is left to an
applicant for an RLV mission license to determine whether to select, in
advance of a mission, an alternative location within which to land a
vehicle during ascent or descent flight.
Orbital Sciences asked for clarification of the reference in
Sec. 431.43(b) to a contingency abort location and whether it would be
regulated as a reentry site. The final rule defines a contingency abort
to mean cessation of vehicle flight during ascent or descent, in a
manner that does not jeopardize public health and safety and the safety
of property, in accordance with mission rules and procedures. Cessation
of vehicle flight may be done
[[Page 56642]]
through destructive or non-destructive means. The definition further
provides that contingency abort includes landing at an alternative
location that has been designated as a contingency abort location in
advance of vehicle flight. A contingency abort location may be a
reentry site operated by a non-Federal entity under an FAA license or a
location for which an RLV operator is allowed access, by agreement with
the owner, as long as its suitability for use by an applicant is
evaluated as part of RLV mission licensing. A contingency abort is not
limited to reentry and may occur during any flight phase of an RLV
mission. A pre-selected contingency abort location would be evaluated
as part of the environmental review required for a proposed mission, as
explained in the discussion pertaining to Sec. 431.93 of the final
rule.
Similarly, Space Access commented on the need to differentiate
between a reentry site and a landing site. Although commenters may
refer to a landing site in commenting upon the location at which a
reentry vehicle may land, this final rule uses the term ``reentry
site'' as defined in Sec. 401.5.
Vela also asked for clarification of what is meant by a landing
site asking, hypothetically, whether it would be all area within the
restricted boundary of Los Angeles International Airport. The
designated location for landing an RLV, whether it be a reentry site or
designated contingency abort location, would cover all restricted area
within which the three-sigma dispersion of a vehicle may occur for
purposes of assessing size suitability. Where, for example, debris or
toxic fumes may be dispersed upon landing, an applicant would also have
to show that the restricted area is sufficiently large and removed from
public access as to contain the three-sigma dispersion area for the
vehicle at all landing points. To accomplish this result at an airport,
an applicant may demonstrate that its vehicle can land on a designated
runway with the required level of predictability and that the
restricted area of the airport is sufficiently large as to contain the
vehicle and any toxic emissions within its boundary should the vehicle
touch down at any point within the three-sigma dispersion area of the
vehicle.
Section 431.43(c)(1) requires a collision avoidance analysis to
assure a 200-kilometer separation of an RLV from any inhabitable
orbiting object during launch and reentry and defines launch window
closure requirements. Some questions were raised in the comments as to
who would perform the analysis and how it would be performed. Timing of
the analysis was also raised in the comments to address dynamic
scheduling demands of RLV launches and reentries.
The FAA maintains a memorandum of agreement with U.S. Space Command
to facilitate the conduct of collision avoidance analyses required for
launch activities. Currently, only ELV launches require a collision
avoidance analysis which can generally be performed in advance of a
launch based upon a stable, scheduled date or dates for launch. The FAA
understands that for RLVs, there is greater uncertainty in scheduling a
reentry event because of the potential need to complete additional
orbits before reentry readiness is confirmed. Yet, just as aircraft
file a flight plan to operate in the National Airspace System and avoid
collision with other aircraft, RLV reentries must be coordinated to
assure no collision occurs on orbit with inhabited orbiting objects.
The FAA is engaged in discussions with U.S. Space Command on how best
to accomplish collision avoidance analyses and has specified in this
and other regulations only that it be performed, without designating
the point of contact for an applicant. The collision avoidance
requirement is included in this final rule to alert RLV operators to
the need for such an analysis for every launch and reentry. Means of
complying with the collision avoidance requirement may be supplied in
advisory material prepared by the agency or through future rulemaking.
Lockheed Martin noted in its comments that it intends to address
space station servicing as part of its commercial launch services
market and may require the ability to do so on a first orbit, contrary
to rule restrictions. Lockheed Martin recommends adding an exception to
this final rule to address circumstances in which the inhabited
orbiting object is the intended destination for a launch. A docking
maneuver would not be considered licensed activity under this final
rule. Although the requirement for a collision avoidance analysis is
directed at avoiding such contact during licensed launch and reentry
operations, the FAA declines to adopt Lockheed Martin's recommendation
for the time being preferring instead to consider granting a waiver to
the restriction on an individual basis to assure that safety
considerations are not compromised.
Section 431.43(c)(2) prohibits, for any RLV, substantial dwell time
by its IIP over densely populated area during any segment of mission
flight. Comments directed at this restriction were addressed in the
discussion of public comment on the FAA's three-pronged public safety
strategy for RLV missions and the interested public is referred to that
discussion.
A requirement to minimize debris generation in the space
environment has been part of FAA launch licensing regulations for the
past year. Despite a comment from Kelly that the rule is too directive,
the final rule imposes a comparable requirement on RLV missions to
ensure that debris risks are mitigated. Debris propagation would
interfere with other RLV missions, as well as ELV launches and
satellite operations in space. To minimize that possibility,
Sec. 431.43(c)(3) prohibits unplanned physical contact between a
vehicle and its components and payload after payload separation. The
final rule also prohibits debris generation from conversion of energy
sources into energy that would fragment the vehicle or its payload. ELV
operators are capable of complying with this requirement and the FAA
finds it prudent to extend it to RLV operators as well, although RLV
operators may utilize means other than those typically applied to ELVs
to comply with the requirement. The final rule alerts prospective RLV
operators to the debris mitigation requirement sufficiently early in
RLV design and mission planning as to minimize any burden of compliance
with its terms.
The crew rest requirements presented in Sec. 431.43(c)(4) of the
NPRM prompted two comments. B-G stated that it would not object to
applying the proposed requirements to the crew on a piloted vehicle if
it were made clear that the rest required could take place aboard the
vehicle. The FAA intends the crew rest requirements proposed in the
NPRM to apply to all vehicle safety operations personnel wherever
located and does not specify in the final rule where required rest must
take place. The FAA concurs with B-G's observation that rest may take
place while on board a vehicle. ASTi suggested using aircraft crew rest
requirements for ground and flight crew. Crew rest requirements
contained in the rule are similar to those imposed by the Air Force for
Federal launch ranges and have proven effective in accomplishing their
public safety objective. Accordingly, the FAA adopts those requirements
for RLV operations in the interest of public safety preservation. As
already noted, the FAA will separately consider additional human
factors for crewed and passenger-bearing vehicles in a future
rulemaking.
Section 431.43(d) provides population overflight restrictions
applicable only to
[[Page 56643]]
unproven vehicles.\8\ In an October 8, 1998 letter from AST's Associate
Administrator to the COMSTAC, the FAA requested input from the RLV
working group on, among other things, criteria for defining the types
of test flight programs required to allow over-flight of populated
areas by RLVs during launch and landing and criteria for transitioning
from a flight test program to an operational program. Subsequently, the
FAA issued draft interim safety guidance for RLVs and convened a public
meeting to address safety objectives that included avoidance of
overflight of densely populated areas and a test flight demonstration
program demonstrating abort and recovery capability before allowing
substantial overflight of populated areas.
---------------------------------------------------------------------------
\8\ Comments on these restrictions are addressed above in the
analysis of public comment on the agency's three-pronged public
safety strategy for RLV missions.
---------------------------------------------------------------------------
Intended as a starting point for development of an RLV licensing
process between government and industry, the April 29, 1999 ``Draft
Final Report on RLV Licensing Approaches'' (COMSTAC report) adopted by
the COMSTAC at its May 1999 meeting reflects some working group areas
of consensus; however, additional views expressed by individual working
group members were included in the report. With regard to a test flight
program, the COMSTAC report defined a test flight, supported RLV
mission licensing involving overflight of a populated area following
successful completion of a flight test program and demonstration of
acceptable risk in accordance with a licensing plan, and would allow
multiple flights comprising a flight test program under a single
license. The COMSTAC report also reflects the RLV working group view
that a system may be declared operational after successful completion
of its flight test program in accordance with the licensing plan and
that prudent exploration of the design envelope ultimately yields a
fully operational system approved for flight in all regions of its
design envelope. The COMSTAC report is included in the docket for this
rulemaking.
Objections voiced by RLV developers at the February 1999 public
meeting regarding requirements for flight testing prompted the FAA to
exclude from proposed regulatory requirements the need to conduct a
flight test or demonstration program before commencing operational
missions. Supplementary information accompanying the NPRM explains that
the FAA considered but discarded the requirement for a flight test
regime, a distinct change from the approach considered in draft interim
safety guidance. However, the NPRM distinguishes between flight
restrictions for ``unproven'' RLVs and all RLVs. Among other things, an
``unproven'' RLV would not be allowed to fly over a densely populated
area.
The term ``proven'' does not appear in the regulatory text. The
agency explained that it was not proposing criteria, such as the number
of flights required, to determine the point at which a vehicle
transitions from ``unproven'' to ``proven'' noting that the point of
demarcation may depend upon unique characteristics of a vehicle. In the
NPRM, the FAA explained that flight data would be necessary in order to
validate an operator's risk analysis and show that the vehicle
performed as assumed in the risk analysis. The FAA further explained
that the number of flights necessary to validate a vehicle's risk
analysis would depend, at least in part, on the severity of risks to
public safety posed by the nature of operations the vehicle would be
expected to perform under an applicant's proposal. The example cited in
the NPRM addressed reliance upon abort capability as a basis upon which
the FAA would allow flight by a ``proven'' vehicle over a populated
area. Because the consequences of failure would, in all likelihood,
violate acceptable risk criteria for the mission, the applicant would
be required to demonstrate a sufficiently low probability of failure to
satisfy the criteria. It should be noted, however, that the final rule
does not require demonstration of abort and recovery maneuvers.
An operator may find it desirable to conduct a flight test program,
to gain confidence in system performance and reliability that may not
be attainable through ground testing and simulations. Even those
operators and RLV developers whose designs include subsystems and
components for which there exists some performance data may determine
that it is useful to perform test flights in order to gain data
regarding use of components in a new flight environment or in
combination.
The FAA requested views on appropriate means of validating new
vehicle performance and criteria for determining the point at which a
vehicle may be considered ``proven.'' Unfortunately, no specific
criteria were offered in the docketed comments to assist the FAA in
differentiating a ``proven'' RLV from an ``unproven'' one. Instead,
industry comments focused upon the difficulty of satisfying the
operational restrictions proposed for RLV flight over populated areas.
Several suggested that satisfying acceptable risk criteria for an RLV
mission should be sufficient. Others suggested using FAA regulations
covering experimental aircraft as the basis upon which flight tests may
be authorized, that is, without reference to expected casualty
criteria.
The FAA continues to maintain that it is inappropriate to draw a
bright line between ``unproven'' and ``proven'' RLVs for purposes of
defining operating restrictions. Without flight data, the FAA does not
believe that sufficient confidence can be placed in the results of risk
analyses to warrant exclusive reliance upon an analytical demonstration
of acceptable risk criteria or a system safety assessment. The FAA
retains flexibility in the final rule to evaluate RLV concepts on an
individual basis and consider flight data submitted by an applicant to
validate risk analyses performed as part of the system safety process
required under the regulations. Moreover, proven performance within an
approved flight envelope would not signify that an RLV is ``proven''
for all flight purposes. Modifications in design and expansion of the
performance envelope for successive RLV missions must be considered by
the FAA in issuing a safety approval and possibly relieving operational
restrictions.
The FAA maintains restrictions on ``unproven'' RLVs as distinct
from all other RLVs in the final rule. The FAA does so with the
understanding that there currently exists no commercial RLV eligible
for ``proven'' status because commercial RLVs have yet to be tested,
much less operated. The agency anticipates that future rulemaking may
modify these distinct requirements as RLV concepts become operational.
In the near-term, the FAA would evaluate, on an individual basis,
whether an RLV's performance is sufficiently reliable to allow flight
over a densely populated area because risk to public safety is
sufficiently remote.
Although a flight test program is not required in the final rules,
an applicant may utilize a flight test program as part of its proposed
plan of operation and, through consultation with the FAA, obtain safety
approval to operate within, or up to, a specified performance limit and
also to make adjustments in non-safety-critical vehicle systems without
requiring advance approval from the FAA beyond that already granted by
the license. Adjustments that do not affect public safety or the safety
of property would not require amendment of an application or of a
license. A more complete discussion of matters requiring more
formalized FAA approval appears in the discussion of
[[Page 56644]]
Sec. 431.73--``Continuing accuracy of license application; application
for modification of license.'' Further demonstrations of performance
and validating data would contribute to the basis upon which the FAA
may approve increases in the approved flight envelope for successive
missions.
Comments regarding restricted population overflight by RLVs are
addressed in the discussion of the agency's three-pronged public safety
strategy for RLV missions.
For RLVs that reenter from Earth orbit, Sec. 431.43(e) of the final
rule directs that for reentry to occur, the operator or licensee must
be able to monitor the status of safety-critical systems before
enabling reentry flight and thereby verify that the vehicle can reenter
safely and issue a command to enable reentry. Comments regarding
monitoring requirements and human intervention to enable reentry are
also addressed above as part of the operational restrictions on RLVs
that the FAA imposes to assure RLV mission safety to the public. As
noted above, it may not be necessary to monitor safety-critical systems
immediately before reentry flight commences in order to assure reentry
safety. Verification of vehicle status and position one or more orbits
before reentry flight is planned may be sufficient to assure safe
reentry. Accordingly, the FAA modifies this section of the final rule
by removing the word ``immediately'' from the requirement in
Sec. 431.43(e)(1) of the final rule and has made nonsubstantive changes
for clarity.
Section 431.45 Mishap Investigation Plan and Emergency Response Plan
Section 431.45 requires submission of a mishap investigation plan
(MIP) that satisfies reporting requirements and provides procedures for
cooperating with an FAA and National Transportation Safety Board (NTSB)
investigation, and an emergency response plan (ERP) for notification of
local officials and information dissemination to the public. As crafted
in the NPRM, launch-related information for a MIP covering an RLV
mission was outlined in Sec. 415.41 of the FAA Licensing Regulations,
14 CFR 415.41, and an applicant was referred to that section for
additional requirements in preparing a sufficient MIP. In this manner,
the MIP would include the accident investigation plan applicable to
launches under 14 CFR part 415 and additional requirements addressing
accidents, incidents or other unplanned events during the reentry
portion of an RLV mission. Upon reconsideration, the FAA has determined
to include stand-alone accident, incident and mishap investigation
requirements covering all phases of an RLV mission and to remove
reference to part 415 from its requirements. References to part 415
that appeared in proposed Sec. 431.45 are removed from Sec. 431.45 in
the final rule and the data requirements for purposes of immediate
notification and submission of a written preliminary report to the FAA
are listed in Sec. 431.45. Additional modifications have been made for
the purpose of ensuring consistency in notification and reporting
requirements for ELV and RLV mishaps.
NorthStar requested clarification of the term ``immediate'' for
purposes of accident notification and requested that a time interval,
such as one hour, be specified. Due to the severe nature of an
accident, the FAA requires notification as soon as an event occurs, not
within an hour or more. Therefore, the FAA will not include a time
interval in the final rule. The FAA understands that immediate
notification will not include all of the relevant details. More
detailed information would be provided in the follow-up preliminary
written report required within 5 days of the event. ERPS expressed
concern over the requirement imposed upon the MIP that it provide for
immediate notification that includes potential consequences for other
vehicles or systems of similar type and proposed operations. ERPS
states that this information would not be available until research and
analysis is performed. The FAA agrees and notes that this requirement
is now an element of the written report. ERPS further suggests that the
written preliminary report identify the cause of the mishap. The FAA
disagrees because accurate information concerning the cause of a mishap
will not necessarily be available until an investigation is conducted.
Identification of the cause of a mishap is an investigation report
requirement under Sec. 431.45 of the final rule.
Section 431.47 Denial of Safety Approval
Section 431.47 of the final rule provides that the FAA notifies an
applicant in writing if safety approval is denied and provides the
reasons for the denial. Safety considerations addressed through
performance-based criteria included in the final rule may nevertheless
result in denial of safety approval where the FAA determines that a
proposed mission would jeopardize public health and safety and the
safety of property even though an applicant has addressed the elements
required for safety review in its application. The applicant can
respond and correct any deficiencies identified by the FAA and request
reconsideration. An applicant is notified directly by the FAA.
The Aircraft Owners and Pilots Association (AOPA) expressed concern
that others affected by issuance of an RLV mission license, such as
users of the National Airspace System, should have an opportunity to
voice concerns over issuance of the approvals leading to a license. The
FAA does not envision an open licensing process that would allow
competing concerns to prevent issuance of a license. Rather, the FAA is
designing a concept of operations for use of the national airspace
system to ensure that all users can be accommodated safely and without
unreasonable disruption.
Kelly and ERPS inquired as to the timing of a denial of safety
approval. The FAA envisions that individualized aspects of the safety
review process would require feedback, on an ongoing basis, from the
FAA to an applicant as additional data needs are identified.
Impediments to issuance of a safety approval would result from either
deficient information, which would be identified to an applicant in the
course of the FAA's review, or inability by an applicant to satisfy
safety criteria outlined in subpart C of the final rule, part 431. The
FAA would not withhold its conclusion if it determines that a proposed
mission cannot be approved for safety reasons, but would provide such
indications to an applicant who could modify its proposal to satisfy
safety criteria. By statute, the FAA is committed to a 180-day review
period for review of an accepted application and is also statutorily
bound to notify an applicant not later than 120 days after receiving an
accepted application of any pending issue. The combination of statutory
deadlines, pre-application consultation to facilitate preparation of an
acceptable application, and FAA commitment to an interactive and
consultative licensing program should relieve any concern among
applicants that the FAA would delay in making the determinations
required for an RLV mission license.
Subpart D--Payload Reentry Review and Determination
Reentry of a payload may present policy and safety issues different
from those presented when a payload is launched. Accordingly, a
determination separate from a payload determination is required to
reenter a payload, whether it is one that was reviewed for launch or an
object retrieved from space for return to Earth.
[[Page 56645]]
ERPS did not object to the requirement for a payload reentry
determination but questioned where responsibility lies for obtaining
one. An owner or operator of the payload proposed for reentry may
request the determination in place of an RLV operator; however, an RLV
mission or licensee desiring to reenter a payload on its vehicle must
ensure that a favorable determination has been made by the FAA.
Accordingly, it is ultimately the responsibility of an RLV mission
licensee to ensure that a payload reentry determination has been
requested, if necessary, and that a favorable determination is made
before proceeding with the mission.
Section 431.51 General
Section 431.51 states the requirement for a payload reentry review
and determination. It may be requested as part of, or separate from, an
RLV mission license application review but must be completed favorably
for a payload to be reentered to Earth.
Section 431.53 Classes of Payloads
In the interest of facilitating RLV mission licensing, payloads
sharing common characteristics may be reviewed as a general class and
determined appropriate for reentry. Unique characteristics of payloads
within the class, such as hazardous materials contained within the
payload, may subject a particular payload to individual review. Because
a payload reentry determination may be issued far in advance of an RLV
mission, current information regarding each payload to be reentered
must be reported to the FAA at least 60 days before a scheduled RLV
mission involving the payload. The FAA can then ensure that a payload
approved generally as part of a class does not pose unique hazards or
policy considerations that must be separately addressed.
TGV considers that 60 days notification should be replaced with 24
hours, particularly for payloads similar to those previously launched
and reentered, to facilitate rapid response time by an RLV operator.
The FAA extends to RLV missions the existing 60-day notification period
applicable to ELV-launched payloads for the time being but notes that
only updated information not previously reported to the FAA and
reviewed as part of the payload reentry review would require
submission. An applicant for a payload reentry determination would be
well-served to anticipate the types of payloads and their contents that
it envisions reentering.
Section 431.55 Payload Reentry Review
Other Federal agencies are consulted in performance of a payload
reentry review, as is done in the payload review process, to determine
whether reentry of a proposed payload poses any issues that would
adversely affect U.S. national security or foreign policy interests or
would jeopardize public health and safety or the safety of property. As
in a payload review, as well as other reviews required for an RLV
mission license, the FAA informs the applicant in writing of
impediments to issuance of a favorable determination, allowing the
applicant an opportunity to respond or revise its application. Kelly,
ERPS and NorthStar expressed the same concerns over timing issues
already addressed as part of the policy and safety review process
outlined above. The agency response is the same as previously stated
with regard to such concerns.
ASTi inquired as to whether a payload that is launched and
subsequently reenters without leaving an RLV requires a payload reentry
review. The agency does require a favorable determination for a payload
to be launched and subsequently reentered, whether or not it is first
deployed from the vehicle and then reentered aboard the same or other
RLV. Changes in payload characteristics must be evaluated to ensure
reentry is appropriate. Moreover, a payload that is not hazardous or
problematic in terms of U.S. policy for launch purposes may pose
concerns to public safety or the U.S. Government upon reentry.
Accordingly, a prudent RLV or payload operator may seek a payload
reentry determination if there is a possibility that a payload, once
launched on an RLV, cannot be deployed and would remain on-board the
vehicle for reentry.
Section 431.57 Information Requirements for Payload Reentry Review
Specific information requirements for a payload reentry
determination are listed in this section of the final rule. NorthStar
suggests that a means of assuring confidentiality of proprietary
information be provided. As specified in 14 CFR 413.9, any person
furnishing information or data to the FAA may request, in writing, that
its trade secret or proprietary commercial or financial data be treated
in a confidential manner.
Section 431.59 Issuance of Payload Reentry Determination
Section 431.59 provides the bases upon which the FAA issues a
favorable payload reentry determination. If an unfavorable
determination is issued, the applicant is notified by the FAA in
writing, and has an opportunity to respond to the reasons for denial
and request reconsideration. In response to a request from ERPS for
clarification, the FAA states that a person denied a favorable payload
reentry determination may respond and request reconsideration
immediately upon obtaining written notice from the FAA or may wish to
do so at a future time.
Section 431.61 Incorporation of Payload Reentry Determination in
License Application
As previously stated, a favorable payload reentry determination is
required for an RLV mission that includes a reentering payload. If
information on which a favorable determination is based changes before
the conduct of an RLV mission, the FAA must be provided with updated
data and may perform an additional review including coordination with
other Federal agencies. The FAA would do so if changed information
signals possible effects on the FAA's safety mandate or on U.S.
Government interests safeguarded through the licensing process. These
requirements are consistent with current practice with respect to
payloads proposed for launch on ELVs. Section 431.61 of this final rule
extends this practice to RLV missions.
ERPS commented that the responsibility for complying with
Sec. 431.61 requirements should be imposed upon the payload owner or
operator and not the RLV mission licensee. The FAA disagrees with ERPS.
The privilege granted to a licensee by an RLV mission license is
conditioned upon the FAA having current information that is material to
public health and safety and safeguarding U.S. national security and
foreign policy interests. Because the FAA does not license payloads or
their owners and operators, the RLV mission licensee is in the best
position to ensure that its customer, the payload owner or operator,
reports changes in information to the licensee and to the FAA. By doing
so, the licensee can feel confident that it is in compliance with the
license. This responsibility is properly assigned by the final rule to
the RLV mission licensee.
Section 431.71 Public Safety Responsibility
Consistent with current practice for ELV launch licenses,
Sec. 431.71 of the final rule states the basic principle that a
licensee is responsible for ensuring
[[Page 56646]]
safe conduct of licensed activities. A license is issued on the basis
of representations contained in an application that have been reviewed
and approved by the FAA. Accordingly, a licensee is responsible for
ensuring that it operates in a manner that is consistent with its
application. Any deviation from the application would be a basis for
revocation of the license or other enforcement action by the FAA
against a licensee.
Section 431.73 Continuing Accuracy of License Application; Application
for Modification of License
Section 431.73 applies to a licensed RLV mission, the FAA's
regulatory program for requiring approval of any changes in licensed
activity from that reviewed by the FAA and authorized by a license. A
licensee is therefore responsible for ensuring that representations
contained in its application remain accurate for the life of the
license. Any proposed change in operation that may affect public health
and safety or the safety of property is subject to prior approval by
the FAA. Section 431.73(b)(2) lists elements of an application that, if
altered or affected by the change, would constitute a change in the
accuracy of the license application. An application to amend or modify
a license must comply with 14 CFR part 413 requirements applicable to
preparation and submission of an application. The FAA does not re-open
findings that are not affected by a proposed change and limits its
review to those determinations affected.
Kelly commented that a time limit should be imposed upon FAA
license modification reviews and that a fast track approach should be
used for issue resolution. The FAA has not specified in regulations the
amount of time within which it would approve an application to amend a
license. A proposed modification may affect approvals already granted
in a significant way, essentially requiring that they be performed
anew, such as where an RLV safety-critical system or mission proposal
would change significantly. In such cases, the FAA may treat the
application for modification as a new license application and commence
the 180-day review clock. Minor changes would require far less time.
This variability prevents the FAA from imposing upon itself strict time
limits, other than those dictated by statute, for reviewing a proposal
for modification of a license. The FAA does agree with Kelly, however,
that issues posed by a proposed modification should be identified as
quickly as practicable to facilitate their resolution and to this end
seeks support from the proponent of the modification. With this in
mind, Sec. 431.73(c) requires that the licensee seeking modification of
its license identify those parts of its license or its application that
would be changed or affected by a proposed modification.
USA and ERPS requested clarification of FAA policy on what
constitutes a material change requiring reporting to the FAA and
request for license modification. ERPS is concerned that too strict a
requirement would have a chilling effect on willingness of license
applicants to disclose fully technical information in an application.
ERPS would like the FAA to designate those designs, operations and the
like that must be ``frozen'' in order to remain in compliance with a
license. Otherwise, according to ERPS, a development program would be
hindered by the need to continuously submit license modification
applications to the FAA.
In response to USA and ERPS, FAA believes that a change is material
if it could affect fulfillment of the FAA's safety mandate, that is, if
it could affect public health and safety or the safety of property. The
final rule designates procedures, hardware, systems and plans that, if
changed, could affect public safety. The final rule does so in the
interest of providing notice to RLV mission licensees of particular
aspects of an RLV mission application that must be maintained under
current FAA approval for the license to remain valid. Minor
modification to the list that appears in Sec. 431.73(b)(2) is made in
the final rule to track more closely the required components of a
license application.
Section 431.75 Agreements
For reasons explained in the NPRM, an RLV mission licensee must
enter into a variety of agreements, including an agreement for use of
property and services of a Federal launch range, if applicable, or an
agreement with a licensed site operator. If launch and reentry will
occur at separate sites then agreements with each site operator would
be required. The FAA expects that licensed operators of launch and
reentry sites will impose safety requirements on their customers,
including RLV mission licensees, that would cover activities other than
launch and reentry at the site. Adherence to such safety requirements
is also a requirement under the RLV mission licensing rules.
Where a licensed site is used to support launch or reentry for an
RLV mission, Sec. 431.75(b) of the final rule requires an agreement
between an RLV mission licensee and the U.S. Coast Guard for issuance
of Notice to Mariners before a launch or reentry unless the licensed
site operator already has arrangements in place under the terms of an
agreement with the U.S. Coast Guard. A similar agreement is also
required between an RLV mission licensee and the regional FAA office
for issuance of Notice to Airmen and for closing of air routes during
launch and reentry windows, unless the licensed site operator maintains
a comparable agreement. An RLV mission licensee also bears
responsibility for such agreements when it uses a private site or has
exclusive use of a site that is not a Federal launch range. Where
launch or reentry takes place at a Federal launch range, the Federal
range authority coordinates the Notices with the U.S. Coast Guard and
FAA regional offices, respectively, so the requirement would not be
imposed on the RLV mission licensee.
ACTA commented that closing of air routes anywhere under the flight
path of an RLV may be too restrictive. ACTA states that Federal launch
ranges close airways only if the hazard area includes any part of an
airway or the vehicle or any of its jettisoned stages and debris would
penetrate an airway at an altitude below 100,000 feet. Instead of a
change in the final rule, the FAA prefers to resolve air route closing
issues, including those presented by potential use of contingency abort
locations, as part of the concept of operations it is developing for
use of the National Airspace System and on an individual basis as part
of the FAA's safety review of a proposed mission. The FAA also reserves
discretion within the FAA regional office to impose measures deemed
necessary by that office to protect public safety. The need to clear
airspace over a contingency abort location may depend upon a number of
factors, such as the likelihood of using that location, air traffic
density around it, and the time required to coordinate and clear
airspace should a contingency abort be implemented. The FAA makes no
change to the final rule requirement regarding agreements for notices
to mariners and airmen.
Section 431.77 Records
Section 431.77 extends record retention requirements imposed on ELV
launch licensees to RLV mission licensees. The FAA does not accept the
recommendation offered by TGV to change the record retention
requirement from three years to one year. In the event of an accident
or incident in the course of an RLV mission, a licensee is required to
preserve relevant records until completion of any Federal
[[Page 56647]]
investigation and the licensee is advised by the FAA that the records
need not be maintained any longer. ERPS questions why records must be
maintained in perpetuity if they can be made available to the FAA. The
FAA does not require perpetual record retention and does not intend to
be the custodial record retention office for private industry. The FAA
would share a licensee's interest in prompt, efficient resolution of an
investigation and would require that records be maintained in the
interest of developing accurate and comprehensive investigation
findings. The FAA does not envision that this requirement would be
unduly burdensome to industry.
Section 431.79 Reusable Launch Vehicle Mission Reporting Requirements
The FAA requested public comment on proposed reporting requirements
contained in the NPRM in light of rapid turnaround missions
contemplated for RLV operations. The NPRM proposed 60-day and 15-day
reporting requirements in advance of an RLV mission, in addition to
mishap reporting consistent with the MIP and ERP submitted as part of a
license application under 14 CFR 431.45. Lockheed Martin, ERPS and TGV
recommended a 24-hour advance reporting requirement for an RLV mission
for notifying the FAA of the time and date of intended launch and
reentry of an RLV. TGV also suggested 7 days advance reporting for a
new type of payload and 24 hours for a payload type previously
launched. Vela argued that 60 minutes advance reporting is no more
realistic for an RLV than it would be for an aircraft and was echoed by
ASTi in suggesting use of an aircraft model and filing of a flight plan
in lieu of reporting. The X PRIZE Foundation and B-G suggested using
notice periods comparable to those used for issuance of notices to
airmen and notices to mariners. Kelly suggested a provision be added
for quick turnaround missions, perhaps 3-7 days in lieu of 15.
Mission reporting requirements as proposed in the NPRM provide a
minimum of 60 days notice to the FAA of a planned mission to facilitate
FAA scheduling and final checks on license status. Collision avoidance
analysis must be completed and inspector schedules arranged to
accommodate mission scheduling. As time draws closer to an actual
mission, the FAA seeks 15 days notice of mission plans assuming a
licensee is then actively pursuing a launch campaign to meet its
intended mission date. The 15-day notice is provided to U.S. Space
Command to facilitate its collision avoidance analysis and tracking
efforts. For ELV launches, in particular, comparable requirements have
been extremely useful for the FAA and have not proven burdensome or
problematic for licensees. For purposes of facilitating FAA planning
and scheduling and to ensure the FAA can support a licensed RLV mission
as part of its launch manifest, the FAA retains the 60-day minimum
reporting requirement in the final rule. The FAA also retains the 15-
day requirement. As RLV operation matures and if practical experience
so indicates, the FAA will consider modification of these requirements
in the future, particularly when necessary to facilitate rapid
turnaround missions.
Comments also requested clarification of procedures and paperwork
required to fulfill reporting requirements. Information that must be
reported at least 60 days in advance of a mission is not restricted to
a particular format. For 15-day notification of ELV launches, the FAA
utilizes the FAA/U.S. Space Command Launch Notification Form located at
14 CFR part 415, Appendix A. A licensee may use this form to provide
the required information.
Section 431.81 Financial Responsibility Requirements
A companion rulemaking details requirements for demonstration of
compliance by an RLV mission licensee with financial responsibility
requirements for reentry. For purposes of an RLV launch, requirements
of 14 CFR part 440 apply. Financial responsibility requirements
applicable to a particular mission are set forth in a license order
that is part of an RLV mission license.
Section 431.83 Compliance Monitoring
Section 431.83 of the final rule states the statutory requirement
that a licensee must allow Federal officials or their designee access
to observe activities associated with the conduct of a licensed
mission, including contractor and subcontractor activities.
Kelly commented that access should be qualified by noting that to
the maximum extent possible it should be done on a non-interference
basis. ERPS requested clarification of FAA compliance monitoring
policy.
In fulfilling its safety mandate, the FAA may observe activities
associated with the conduct of licensed activity, including activities
conducted at a production facility or assembly site, as necessary to
ensure compliance by a licensee with the terms and conditions of a
license. Representations made by a licensee in its application are part
of the license and the FAA may observe any activities associated with
the conduct of licensed activity to ensure adherence to representations
made in a license application. The FAA does not use, and has not used,
its authority to interfere with applicant activities or to in any way
obstruct them. However, the FAA is entitled by law to full access to
facilities and need not give a licensee notice of its intent to monitor
activities.
Section 431.85 Registration of Space Objects
Section 431.85 of the final rule retains proposed requirements for
registration of space objects to facilitate fulfillment of
responsibilities accepted by the United States as a signatory to the
Convention on Registration of Objects Launched into Outer Space.
Subpart F--Environmental Review
Subpart F contains environmental review requirements applicable to
licensing of RLV missions. The FAA must comply with the National
Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., Council on
Environmental Quality Regulations for Implementing the Procedural
Provisions of the National Environmental Policy Act, 40 CFR parts 1500-
1508 and its own procedures.
Section 431.91 General
Section 431.91 of the final rule sets forth the basic requirement
that an applicant for an RLV mission license must provide to the FAA
sufficient information to enable the FAA to analyze the environmental
impacts of proposed RLV mission activities, including those to be
performed at a reentry site. Comparable requirements for launch site
impacts are already required under 14 CFR 415.101, and are not repeated
here.
Section 431.93 Environmental Information
Section 431.93 lists the categories of information the FAA requires
from an applicant in order to analyze and assess environmental impacts
resulting from use of a launch site, reentry site or contingency abort
location or RLV in the conduct of an RLV mission, if use of that site
or vehicle as proposed is not already covered by existing environmental
documentation. The same would apply to reentry of a payload that may
have significant environmental impacts in the event of a reentry
accident. Other information needed by the FAA for the agency to comply
with its environmental review requirements under NEPA is also required
from the applicant. Specific reference to the launch site proposed for
[[Page 56648]]
the conduct of an RLV mission is added to the final rule to address
proposed use by an RLV operator of a private site not already assessed
by existing Federal environmental documentation.
Kelly registered its concern that attempts to comply with
environmental laws have been known to quash commercial projects and
expressed unease at the number of potentially applicable laws and the
research needed to identify and comply with them. Kelly suggested that
the FAA be aggressive, with support from Congress, in assuring that
environmental laws do not prevent the RLV industry from developing. In
a similar vein, ERPS was concerned that every new type of RLV could be
subject to environmental review requirements and associated burdens.
ASTi suggested that a licensed site operator should bear responsibility
for covering vehicles in its environmental documentation.
The FAA understands the commitment required by government and
industry to facilitate environmental reviews required by law. Pre-
application consultation is a useful device for scoping environmental
review issues presented by an RLV mission proposal, in addition to
technical safety and policy matters. Issues presented by a specific
proposal would depend upon the proposed action, the proposed sites and
contingency abort locations if any will be used as part of an
application, and the vehicle proposed for flight. To the extent those
issues are covered by existing documentation, such as that prepared in
support of a site operator license, the FAA ``tiers off'' of such
documentation to ensure reviews are conducted only to the extent
necessary to deal with the unique attributes of a proposed mission. For
example, the FAA facilitates environmental reviews for launch vehicles
by covering in programmatic documentation a range of vehicle
characteristics. Accordingly, for many vehicles, only site specific
environmental effects may require analysis.
The FAA works closely with an applicant to identify particular
environmental data and documentation needs and ensure compliance with
applicable environmental laws. The agency encourages early involvement
by an applicant in preparation of environmental documentation to
facilitate the environmental review process and satisfy an applicant's
scheduling needs.
Part 433--License To Operate a Reentry Site
Section 433.1 General
A new part 433 is added to 14 CFR Chapter III governing licensing
of the operation of a reentry site. The FAA will evaluate safety issues
on a case by case basis to allow prospective operators maximum
flexibility in determining the array of services that may be offered at
a site and this principle is reflected in Sec. 433.1 of the final rule.
A license would be required for an entity to operate a reentry site
and offer it for use by reentry vehicle operators. A separate license
to operate a reentry site is not required for an RLV or reentry vehicle
operator to develop and use a private facility for its exclusive use.
Safety and environmental issues associated with private use of a site
by a launch or reentry licensee, as well as an RLV mission licensee,
would be addressed as part of the license to operate the vehicle.
Section 433.3 Issuance of a License To Operate a Reentry Site
Section 433.3 of the final rule establishes that, consistent with
its statutory mandate, the FAA will license an operator to operate a
reentry site in accordance with representations presented in an
application for review and approval by the FAA, and subject to terms
and conditions stated in the license.
Kelly and ASTi inquired as to whether safety operations conducted
at a reentry site would be the sole consideration for licensing
operation of a site. The FAA's mandate in licensing the operation of a
reentry site also includes consideration of national security and
foreign policy interests of the United States. Government policy
considerations would also be a factor in determining whether a license
to operate a reentry site may be issued. However, issuance of a license
to operate a reentry site would not authorize an RLV or reentry vehicle
operator to use that site. An operator wishing to use the site for
reentry would have to demonstrate through the licensing procedure
applicable to it that the site is suitable for the use proposed by that
operator in accordance with FAA regulations.
NorthStar noted in its comments that a site may qualify as a
reentry site under certain conditions that may not exist on a year-
round basis due to atmospheric or other conditions. The FAA agrees and,
consistent with its approach to licensing commercial space
transportation activities, the authorization granted by a license to
operate would be limited to representations and information contained
in the application and evaluated by the FAA.
Section 433.5 Operational Restrictions on a Reentry Site
In addition to other limitations on operation imposed by the FAA in
accordance with Sec. 433.3, a reentry site may only be offered for use
by those reentry vehicles, including RLVs, for which the three-sigma
footprint of the vehicle is wholly contained within the site. Whereas
Sec. 431.43(b) imposes a restriction on an RLV operator in identifying
suitable landing sites, a licensed reentry site operator would be
similarly restricted in terms of the vehicles that may land at its
reentry site. The criteria applicable to identifying and defining the
three-sigma dispersion of a reentry vehicle presented above in the
discussion of Sec. 431.43(b) and the agency's three-pronged public
safety strategy for RLV missions also applies to Sec. 433.5.
Orbital Sciences observed that an RLV stage that is not itself a
reentry vehicle is not covered by the definition of a reentry site and
therefore its landing would not be regulated by the FAA. Landing of
stages is covered by Sec. 431.43(b), which applies to vehicle staging
impact areas as well as nominal landing and contingency abort locations
for an RLV.
Section 433.7 Environmental
Because licensing the operation of a reentry site is a major
Federal action requiring compliance by the FAA with NEPA and associated
regulations, Sec. 433.7 of the final rule requires that a license
applicant supply sufficient information to the FAA to enable the agency
to do so.
Section 433.9 Environmental Information
The FAA understands that a proposed reentry site may be covered by
existing documentation that addresses environmental impacts when that
site is used for certain purposes. Reentry impacts may require
additional environmental consideration and Sec. 433.9 establishes the
requirement that information necessary for doing so must be provided by
an applicant for a license to operate the site as a reentry site. A
licensee authorized to operate a launch site may, for example, be
required to submit additional data for agency review under
environmental laws before the site may also be authorized for use as a
reentry site.
[[Page 56649]]
Part 435--Reentry of a Reentry Vehicle Other Than a Reusable Launch
Vehicle (RLV)
A new part 435 is added to 14 CFR Chapter III under the final rule
to address licensing requirements for reentry of a reentry vehicle that
is not an RLV. Since the COMET/METEOR program was discontinued, all of
the reentry concepts presented to the FAA for informational purposes or
in pre-application consultation have involved RLVs. The final rule
therefore provides detailed requirements for obtaining an RLV mission
license under part 431. Rather than repeat in part 435 all of the
requirements of part 431 that are applicable to the reentry phase of an
RLV mission, part 435 expressly states requirements and licensing
considerations that are unique to reentry of a reentry vehicle that is
not an RLV. An applicant for a license under part 435 is referred to
part 431 for additional requirements applicable to a proposed reentry.
The FAA uses the same three-pronged strategy to address public
safety considerations employed in evaluating an RLV mission. Comments
were solicited on the proposed approach of assessing reentry risk in
combination with the launch of the launch vehicle that placed the
reentry vehicle in Earth orbit or outer space. ERPS commented on this
combined approach to risk noting that an RLV mission to launch a
reentry vehicle as a payload for subsequent reentry involves three
events that, in combination, must satisfy the expected casualty risk
criteria for an RLV mission, that is, launch and reentry of an RLV and
subsequent reentry of the reentry vehicle. ERPS also stated that if the
RLV and reentry vehicle have different operators, they would be
required to negotiate their respective risks and the RLV mission
licensee would have to certify to the FAA that mission risk is within
acceptable limits even though it is not the reentry vehicle operator.
ERPS therefore recommends retention of the combined risk approach
unless the reentry vehicle is intended to reenter after an RLV mission
license has expired.
The FAA does not agree with the recommended approach offered by
ERPS. Currently, in licensing ELV launches, the FAA considers, in some
measure, reentry of upper stages after an ELV launch is completed for
purposes of assessing launch risk because that is part of the launch
mission. In response to a question from Kelly regarding upper stage
reentry risk, the FAA would assess the risk of reentry of an expendable
upper stage of an RLV as part of mission risk for an RLV mission.
Reentry of a reentry vehicle placed in orbit as part of an RLV launch
mission ought to be assessed as part of RLV mission risk, in the FAA's
view, just as an RLV utilizing multiple stages would be subject to
combined risk assessment for the mission, because its reentry may be
considered part of the launch mission. The FAA notes, however, that its
combined risk approach would apply only to launch vehicle stages and to
payloads that are themselves reentry vehicles. It would not apply to
natural de-orbiting of a satellite placed in space by an ELV or RLV for
which purposeful return to Earth, substantially intact, is not
intended, because the return to Earth is not part of the launch
mission.
Subpart A establishes the kinds of reentry licenses that may be
granted by the FAA and the approvals necessary to obtain a reentry
license and describes in general terms the authorization granted by a
reentry license.
Subpart B identifies the policy review and approval required for a
reentry license and incorporates policy review and approval
requirements applicable to reentry of an RLV under part 431, subpart B
of 14 CFR Chapter III, subchapter C.
Subpart C identifies the safety review and approval required for a
reentry license and incorporates safety review and approval
requirements applicable to reentry of an RLV under part 431, subpart C
of 14 CFR Chapter III, subchapter C. The combined risk criteria for a
proposed reentry mission is identified in Sec. 435.35 of the final rule
to be consistent with that applicable to an RLV mission.
Subpart D identifies the payload reentry review and determination
required for a reentry license and incorporates requirements applicable
to a payload reentry determination under part 431, subpart D of 14 CFR
Chapter III, subchapter C.
Subpart E identifies post-licensing requirements and license terms
and conditions applicable to a reentry license and incorporates
requirements applicable to reentry of an RLV under part 431, subpart E
of 14 CFR Chapter III, subchapter C.
Subpart F identifies environmental review requirements applicable
to reentry of an RLV under part 431, subpart F of 14 CFR Chapter III,
subchapter C.
Except for the comments cited in the above paragraphs of this part,
comments directed at provisions of proposed part 435 repeated and
reiterated industry concerns registered with respect to corresponding
requirements of part 431. Likewise, the FAA echoes its response to
those comments and does not separately discuss them here. Other than
nonsubstantive corrections, the FAA makes no change to part 435 in the
final rule from that proposed in the NPRM.
Paperwork Reduction Act
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the FAA has submitted a copy of these sections to the Office
of Management and Budget for its review. The collection of information
was approved and assigned OMB Control Number 2120-0643. This final rule
will amend the commercial space transportation licensing regulations by
establishing operational requirements for launches of reusable launch
vehicles (RLVs) and the authorized conduct of commercial space reentry
activities. The final rule will respond to advancements in the
development of commercial reentry capability and enactment of
legislation extending the FAA's licensing authority to reentry
activities. The agency is proposing requirements that limit risk to the
public from RLV and reentry operations.
The required information will be used to determine whether
applicants satisfy requirements for obtaining a launch license to
protect the public from risks associated with RLV missions and other
reentries. The information collected includes data required for
performing a safety review, which includes a technical assessment to
determine if the applicant can safely reenter a reentry vehicle,
including an RLV and payload, if any, to a designated reentry site
without jeopardizing public health and safety and safety of property.
The frequency of required submissions may depend upon the frequency of
licensed launch activities; however, a license may authorize more than
one launch. The agency received two comments on potential paperwork
burden. One commenter agreed with FAA's estimated cost of $20,000 per
license application and the other commenter stated that as currently
done a large amount of paperwork exists to complete the licensing
process. Once the regulatory process is complete the company does not
believe their there will be enhanced operational efficiency and
decreased paperwork costs. Neither entity presented any compelling
information that disputes FAA's position regarding paperwork reduction.
The estimated number of respondents on an annual basis is five. The
estimated average annual burden is 4,384 hours.
An agency may not conduct or sponsor and a person is not required
to respond to a collection of information
[[Page 56650]]
unless it displays a currently valid Office of Management and Budget
(OMB) control number.
International Compatibility
The FAA has determined that a review of the Convention on
International Civil Aviation Standards and Recommended Practices is not
warranted because there is not a comparable rule under ICAO standards.
Regulatory Evaluation Summary
Proposed and final rule changes to Federal regulations must undergo
several economic analyses. First, Executive Order 12866 directs that
each Federal agency propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies
to analyze the economic impact of regulatory changes on small entities.
Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, the Trade Agreements Act also requires agencies to consider
international standards and, where appropriate, use them as the basis
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995
requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation).
In conducting these analyses, the FAA has determined that the final
rule: (1) Has benefits that do justify its costs, is not ``a
significant regulatory action'' as defined in the Executive Order, and
is ``significant'' as defined in the Department of Transportation's
Regulatory Policies and Procedures; (2) will not have a significant
impact on a substantial number of small entities; (3) will not reduce
barriers to international trade; and (4) does not impose an unfunded
mandate on State, local, or tribal governments, or on the private
sector. These analyses are available in the docket, and are summarized
below.
Baseline for Economic Analysis
The final rule implements certain policies developed by AST in 1992
with respect to public safety for the first commercial space reentry
operation. However, the safety criteria in this final rule use
different measures that better reflect current agency and range safety
practices. The 1992 policy established safety criteria pertaining to a
unique and specific request to conduct a first-of-a-kind payload
reentry mission; that is, the COMET, later renamed METEOR, reentry
vehicle. Accordingly, a comprehensive regulatory (benefit-cost)
analysis was not required. Therefore, the baseline case used for this
analysis views the final rule as a new requirement imposed on an
emerging segment of the commercial space transportation industry that
plans to operate reusable launch vehicles (RLVs) or conduct reentry
operations with reentry vehicles (RVs). Doing so implies that, but for
imposition of safety requirements by the agency, some compliance costs
will not have been incurred by entities planning to conduct RLV
missions (launch and reentry) and RV operations that are associated
with launches from Federal ranges and non-Federal launch sites.
(Regulatory costs and benefits associated with launches from Federal
ranges are assessed as part of a separate rulemaking on launch
licensing requirements for launches from Federal ranges.)
Costs
The final rule is expected to impose a total estimated cost of $151
million ($86 million, discounted), in 1999 dollars, on the commercial
space transportation industry and the FAA over the 15-year period from
2001 to 2015. Commercial space transportation industry entities
potentially impacted by the final rule will incur approximately 20
percent (or $31 million) of this total cost estimate in the form of
compliance costs. The FAA will incur about 70 percent (or $120 million)
of the total cost estimate in the form of administrative costs. All
monetary values shown in this regulatory evaluation summary are
expressed in 1999 dollars over the 15-year period. Due to some of the
operational requirements of the final rule, costs may materialize that
have not been specifically considered in this evaluation. For example,
the requirement for each commercial space operator to have an
independent safety inspector could, under certain circumstances, result
in costs not examined in this evaluation. The independent safety
inspector could require the operator to abort a launch or reentry for
safety reasons, which could result in higher operating costs.
Reentry of RLVs and RVs are subject to comparable safety
requirements and therefore regulatory costs for reentry are assessed
collectively. Costs are assessed on the basis that, over the next 15-
year period, five commercial operators of RLVs or RVs will be impacted
by the regulations. It is assumed that five operators will obtain all
necessary approvals to conduct RLV missions or RV reentries and that
market demand is sufficient to support that level of vehicle operation.
Industry Compliance Costs
Section 431.25: Application Requirements for Policy Review and
Sec. 435.23 Policy Review Requirements and Procedures
These sections of the final rule will impose an administrative
paperwork burden on each of the five anticipated commercial space
industry operators potentially impacted by requiring them to provide
specific policy review information to the FAA with regard to their
anticipated RLV missions (launch and reentry) or RV reentry operations.
The cost estimate of $400 per operator assumes an employee with an
annual loaded salary of approximately $2000 (with fringe benefits) and
a level of effort of eight hours.
Section 431.33: Safety Organization and Sec. 435.33: Safety Review
Requirements and Procedures
Under the baseline, a safety organization with clearly defined
roles, responsibilities, authorities, and lines of communication is
consistent with the findings and recommendations of the Rodgers
Commission and National Transportation Safety Board. However, the
requirement to `` * * * designate a qualified safety official * * * to
monitor independently compliance * * * with * * * [all] safety policies
and procedures'' is not necessarily customary and usual practice.
Inclusion of this requirement suggests that it is a refinement of
industry baseline practices designed to mitigate safety risks to the
public. For example, to be ``responsible for the conduct of all * * *
mission activities * * * '' implies a degree of comprehensiveness that
may not be common practice in industry. Because the safety official
must be independent, the function cannot be assigned as a collateral
duty to an individual with line responsibility for launch and reentry
operations, though it could conceivably be assigned to an existing
employee. Furthermore, the magnitude of responsibilities of the safety
official suggests that the level of effort required to perform this
function will exceed part-time employment. Assuming that the
independent safety official function will not be performed as a
collateral duty, this requirement will result in a commercial space
transportation entity hiring a person to
[[Page 56651]]
fulfill the safety official role. Industry as a whole will incur $6.4
million for all five operators over the 15-year period.
Section 431.35: Acceptable Reusable Launch Vehicle Mission Risk and
Sec. 435.35 Acceptable Reentry Risk for Reentry of a Reentry Vehicle
Commercial space transportation entities are expected to incur
additional costs for performance of risk analyses of vehicle
operations, including reentry, and will incur costs in assessing the
probabilities and consequences of all reentry hazards, events, and
system failures that potentially expose the public to risk.
Additionally, commercial entities will expend effort preparing
documentation and establishing an associated document control system
for drawings and schematics. This compliance activity is expected to
fulfill the level of rigor implied by the requirements contained in the
final rule. The total cost of compliance for all potentially impacted
operators will be approximately $4 million over the 15-year period.
Section 431.37: Mission Readiness and Sec. 435.33: Safety Review
Requirements and Procedures
The requirement to provide specific procedures to the FAA that
verifies mission readiness presents an administrative paperwork burden
to a commercial entity. This requirement will cause an operator to
incur costs for preparing and submitting the requisite information to
the FAA. For all entities, this requirement will impose an estimated
cost of compliance of approximately $20,300 over the 15-year period.
Section 431.39: Mission Rules, Procedures, Contingency Plans, and
Checklists and Sec. 435.33: Safety Review Requirements and Procedures
Commercial space transportation entities are generally expected to
fulfill the requirements as part of their standard operating
procedures. However, the FAA anticipates that these entities will incur
some additional costs conforming to FAA requirements. Additionally,
commercial entities are expected to incur costs from submitting updated
documents with the FAA periodically, and preparing for, accommodating
and reacting to FAA inspection and compliance monitoring activities.
Industry will incur $418,000 over the 15-year period.
Section 431.41: Communications Plan and Sec. 435.33: Safety Review
Requirements and Procedures
Commercial space transportation entities are expected to have in
place communications plans that, for the most part, are consistent with
the final regulatory requirements as a matter of standard business
practice. However, they are expected to incur incremental costs
complying with the requirement, annual recurring costs from interfacing
and exchanging documents with the FAA periodically and preparing for,
accommodating and reacting to FAA inspection and compliance monitoring
activities. Industry will incur $418,000 over the 15-year period.
Section 431.43: Reusable Launch Vehicle Mission Operational
Requirements and Restrictions and Sec. 435.33: Safety Review
Requirements and Procedures
Commercial space transportation entities are expected to expend
additional levels of effort to comply with risk mitigation requirements
that, to some extent, limit vehicle flight path options during nominal
and non-nominal operations. This requirement also imposes limitations
on dwell time over populated areas and requirements for performing a
collision avoidance analysis during launch windows to maintain adequate
separation from orbiting objects.
This final rule will impose work restrictions and personnel rest
requirements on commercial space transportation entities potentially
impacted by this action. For example, an individual having direct
control over reentry or involved in decisions affecting reentry
operations is restricted to working 60 hours over the seven-day period
preceding reentry. Further, the final rule will reduce the maximum
permissible hours worked per shift to 12, limits the maximum number of
consecutive workdays to 14, and specifies the minimum rest required (48
hours) between five consecutive days of 12-hour work shifts.
Currently, based on information received from industry, it is
common practice among commercial space transportation entities to
follow Air Force work and rest standards for launches. Those standards
are similar to the requirements of this rule. Ordinarily, based on
industry information, launch mission operations personnel work less
than the maximum currently permissible, such as a 40-hour work week
comprised of five eight-hour shifts. Hence, the 72-hour workweek is
generally an extreme condition that occurs infrequently.
The duration of a reentry operation is likely to determine the
extent of the impact that the work and rest requirements will have on
commercial space transportation entities. However, this impact will
occur under extreme or limiting conditions only (e.g., one reentry
operations person).
Given the relatively small size of the entities comprising the
emerging RLV segment of the commercial space transportation industry,
staff augmentation of at least one person is not unlikely as a result
of the requirements. Additionally, the FAA anticipates that additional
costs will be incurred for recordkeeping to ensure compliance with
required work and rest standards, and preparing for, accommodating and
reacting to FAA inspection and monitoring activities.
The total cost to industry for the 15-year period will be about $15
million.
Section 431.45: Accident Investigation and Emergency Response Plan and
Sec. 435.33: Safety Review Requirements and Procedures
As a matter of standard business practice, commercial entities are
expected to have in place emergency response plans consistent with much
of the regulatory requirement. However, the FAA anticipates that these
plans will require additional annual maintenance to comply with certain
elements of the final rule. For example, entities are likely to incur
additional costs to establish their ability to successfully respond to
accidents occurring in remote areas having sparse populations.
Furthermore, additional annual maintenance costs are expected to arise
from preparing for, accommodating and reacting to FAA inspection and
monitoring activities. Industry will incur total compliance costs of
approximately $2 million for the 15-year period.
Section 431.57: Information Requirements for Payload Reentry Review and
Sec. 435.43: Payload Reentry Review Requirements and Procedures
The final requirement to provide specific payload information to
the FAA presents an administrative paperwork burden to a commercial
entity. The submission of data to the FAA is estimated to impose costs
of approximately $400 per application or $2,000 for five entities over
the 15-year period.
[[Page 56652]]
Section 431.73: Continuing Accuracy of License Applications Application
for Modification of License and Sec. 435.51: General--Post Licensing
Requirements--Reentry License Terms and Conditions
The final requirement will impose minor costs on a licensee to
advise the FAA of material changes to its application, and RLV and
reentry missions that may impact public safety and property. Depending
upon the types of changes reported, it is assumed based on input
received from FAA and industry technical personnel that, on average, a
commercial space transportation entity will incur incremental
compliance costs of approximately $34,000 per modification application.
Industry as a whole will incur total compliance costs of approximately
$170,000 for the 15-year period.
Section 431.75: Agreements and Sec. 435.51: Post Licensing
Requirements--Reentry License Terms and Conditions--General
Entities that conduct commercial launches of ELVs from Federal
ranges must enter into formal agreements with the Federal range
authority prior to using such facilities. Entities planning to use
these same facilities for reentry missions will also be required to
enter into such agreements. The final requirement has no impact on
commercial entities other than the negligible level of effort expended
(e.g., less than one hour) to advise the FAA of compliance, and the
incremental cost to industry to comply with this requirement will be
negligible.
Section 431.77: Records and Sec. 435.51: Post Licensing Requirements--
Reentry License Terms and Conditions--General
It is generally accepted practice among all commercial concerns to
maintain business operations records for some period of time, often
more than three years. Furthermore, the availability and capability of
electronic storage systems renders records retention a manageable task.
Accordingly, the three-year requirement to maintain records for FAA
review, upon request, will not impact commercial space transportation
entities. From a worst case perspective, this evaluation assumes the
FAA will exercise its record request authority. Total costs to industry
will be approximately $24,000 for the 15-year period.
Section 431.79: RLV Mission Reporting Requirements and Sec. 435.51:
Post Licensing Requirements--Reentry License Terms and Conditions
(General)
The information to be supplied by a licensee under this requirement
is similar to that supplied previously to the FAA during the
application process in accordance with Sec. 431.57. The burden placed
on the licensee is to provide more specific mission data than that
supplied previously but closer in time to the actual conduct of the
mission. Because an operator must have this data to perform a scheduled
mission, the incremental cost to industry to comply with this final
requirement will be zero.
Section 431.93: Environmental Information and Sec. 435.61:
Environmental Review--General
Because licensing is a major Federal action, a commercial space
transportation entity will be required to provide information
addressing the environmental effects of its operations so that the
agency can fulfill its responsibility under NEPA and CEQ environmental
regulations, even in the absence of the final rule. Commercial entities
planning to conduct launch and reentry missions must submit
environmental assessment data to the FAA regarding environmental
impacts of its activities to enable the FAA to evaluate environmental
effects not previously assessed by the agency. This will cause a
commercial entity to incur incremental compliance costs of $278,000.
Industry will incur compliance costs of $1.4 million over the 15-year
period.
Section 433.7: Environmental Information
An analysis of the environmental impacts of operating a reentry
site is required under NEPA. The requirement, as distinct from similar
requirements for operation of a launch site, will cause a commercial
entity to incur incremental compliance costs of $167,000. Industry will
incur total compliance costs of approximately $834,000 over the 15-year
period.
FAA RLV/RV Administrative, License Processing and Monitoring Costs
The final rule will result in the FAA expending great effort in
evaluating RLV mission and reentry license applications and monitoring
licensees for compliance. This evaluation estimates that the FAA will
incur costs of approximately $120 million over the 15-year period, as
the result of administering its review of license applications and
monitoring licensee compliance in accordance with the requirements of
certain sections of parts 431, 433, and 435.
The FAA's actual experience in evaluating an application to conduct
a reentry mission is limited to the COMET/METEOR program. Much of the
final rule reflects safety policies for reentry developed by the agency
in 1992 to ensure that the COMET/METEOR payload reentry mission will
not jeopardize public health and safety and or the safety of property.
Consequently, this experience provides a partial basis for establishing
the costs to the FAA for administering the final rule. Using this past
experience, AST expects that the costs to be incurred in performing its
RLV mission and reentry licensing pre-application consultation,
application evaluation, and compliance monitoring duties in the near
term to be higher than that incurred for COMET/METEOR for a single
application, with or without a formal reentry licensing regulation. The
extent to which such costs will be higher than that incurred for COMET/
METEOR is unknown since there is no history of U.S. commercial reentry
activity. The assessment of higher application costs, however, is
largely due to the expectation that inherently more complex RLV
programs will dominate reentry missions in the future and initially
these will require greater evaluative effort on the part of FAA
personnel until they have developed experience in this area. While AST
budget estimates for fiscal year 2000 reflect additional funding needed
to exercise its reentry mission approval function, this need cannot be
attributed to the final rule, but rather to the complexity associated
with the advancing technology that will be evaluated.
AST budget estimates of the cost to perform its pre-application
consultation and application evaluation licensing responsibilities may
be correlated collectively to Secs. 431.23, 431.27, 431.31, 431.47,
431.55, 431.59, and 431.91; 433.3, 433.9; and 435.23, 435.31, 435.43,
and 435.61 of the final regulation. The costs to be incurred by the FAA
to implement its compliance monitoring responsibilities corresponding
to Secs. 431.73, 431.83, and 435.51 can vary widely, as the spectrum of
changes to reentry program operations can range from minor to major.
Therefore, the FAA expects to spend $3.6 million--an amount equivalent
to that expended for COMET/METEOR--to implement and administer these
final requirements for a single application.
Based on projections of the level of application activity over the
15-year period from 2001 to 2015, the FAA is
[[Page 56653]]
expected to spend approximately $120 million in administering the
safety requirements of parts 431, 433, and 435. Approximately 94
percent (or $112 million) of the cost by the FAA to administer these
parts will be incurred to approve the projected reentry license
applications and modifications to be evaluated over the 15-year period.
Approximately 6 percent (or $7.7 million) of the cost to administer
parts 431, 433, and 435 will be expended on the review of application
denials and reconsideration process.
Unlike the estimates for potential benefits, the costs section of
this evaluation uses a point (or single) estimate rather than a range.
The point estimate approach was chosen in estimating FAA administrative
costs because, due in large measure to the agency's experience with the
COMET/METEOR Program, there is far less uncertainty associated with the
estimation of costs for this final rule relative to benefits.
Benefits
The final rule is expected to generate both quantitative and
qualitative benefits. This rule is expected to generate quantitative
benefits of $119 million (or $66 million, discounted), which represents
enhanced safety over the 15-year period. Benefits include enhanced
safety by limiting reentry risk to a level that does not exceed an
expected average number of 30 casualties per one million RLV missions
or reentries for the general public. The rule is also expected to
generate qualitative benefits in the form of enhanced operational
efficiency on the part of both the U.S. commercial space industry and
the FAA. A formalized licensing process for reentry operations will
enhance communications between the FAA and the commercial space
transportation industry in terms of frequency and efficiency of
information exchange. In so doing, it will instill a regulatory climate
that will promote and foster growth and technological advancement in
this maturing industry.
Quantitative Benefits
The potential safety benefits that are expected to accrue as the
result of this final rule stem principally from a safety criterion
implemented and administered by the FAA on commercial space
transportation industry operators who wish to engage in RLV missions or
reentries. The criterion is as follows:
Ec 30 x 10-\6\: This
criterion applies on a per mission basis and includes both launch
and reentry phases of an RLV mission. It requires that the risk to
the public associated with each mission incorporate a level of
safety that is equivalent to a probabilistic outcome of no more than
an expected average number of 30 public casualties per one million
missions.
Compliance by operators with this safety criterion, along with
other restrictions addressed in the final rule, are intended to limit
risk to public safety. In estimating these potential safety benefits,
the FAA employed the following steps.
First, the agency examined six accident types, grouped into two
categories, related to airborne explosions and ground point-of-impact
crashes. (For the purpose of this evaluation, the term accident is
defined as any unplanned event with potential public casualty losses.)
For each accident category--airborne or ground--the population density
of the area surrounding the accident scene or accident zone can be
either (1) none, (2) sparse (e.g. rural), or (3) dense (e.g., urban).
An examination of the consequences of these types of accidents was
conducted. To arrive at accident consequences, the accident scenes or
zones for airborne and ground accidents are characterized in terms of
fatalities, injuries, and property damage under the baseline and the
final rule. The difference between the baseline scenario and final rule
scenario represents the incremental safety benefits that will be
generated by the final rule. This process was performed for each of the
steps below.
Second, monetary values are assigned to each of the various types
of accidents expected to occur during launch or reentry (including
accidents at or near launch sites).
Third, probabilities are assigned to each of the six accident types
based on the percentage of impacted landmass (e.g., no population,
sparse population, and dense population) for the baseline and the final
rule. That is, the probability of occurrence for each accident type
over the next 15 years was determined by using the two types of risk
criteria mentioned earlier.
Fourth, expected values were estimated for each of the accident
types under the baseline and the final rule. For this final rule, the
expected benefit values represent the difference between these two
scenarios. One of the more difficult areas to ascertain is the
probability of a reusable launch vehicle (RLV) accident in the absence
of government regulation in order to calculate the expected value of an
accident under the baseline and estimate the incremental safety
benefits of the final rule. This difficulty stems from the fact there
is no empirical evidence or historical RLV accident history. Because of
this difficulty, there is uncertainty associated with estimating the
probability of a RLV or RV accident. As a result of this uncertainty,
the FAA estimated a range of accident probabilities, which are based on
historical experience with ELV accidents and incidents, and sorted them
into six categories or types of accidents. In estimating the expected
casualty and property loss values, the probability of each of six
accident types is multiplied by the accident consequence values (e.g.,
the cost of an accident). This process was repeated for all six
accident types and summed. This procedure was done for both scenarios
(baseline and final rule). Thus, the difference in casualty and
property losses for these two scenarios was used as the estimated
benefits for this final rule. The results of these calculations
generate the potential safety benefits as discussed below.
Safety benefits--accident costs avoided--are realized as RLV launch
and reentry operations are performed, without incident. Therefore, the
number of completed RLV missions and reentries projected over the 15-
year period is multiplied by incremental safety benefits per mission to
estimate total incremental safety benefits over the period 2001 to
2015. The total safety benefit resulting from the final rule is
estimated to be $119 million for the period 2001 to 2015. This estimate
of $119 million represents the midpoint of benefits ranging from $21
million to $217 million over the 15-year period. This midpoint estimate
of benefits was chosen because of the high degree of uncertainty
associated with the wide range of accident probabilities. Uncertainty
stems from the extent to which industry has already adopted and
implemented safety measures similar to those requirements as part of
this rulemaking action. (Based on information obtained from commercial
space industry technical personnel, nearly all of the potentially
impacted operators will be in compliance with the final rule to some
degree.) The low end of the range of benefits assumes that practically
all of the potentially impacted operators will be in almost complete
compliance in the absence of the final rule. The high end of the range
of benefits assumes the opposite. There is insufficient information
that will support adopting the benefits estimates at either end of the
range. Thus, the median(or midpoint) was chosen as an appropriate
benefits estimate. It suggests that the actual benefits to be generated
by the final rule lie somewhere between the lower and upper end of this
range.
[[Page 56654]]
Since uncertainty is associated with using a midpoint benefits estimate
and range of benefits, the FAA solicits public comment as to whether
its assumptions are appropriate and the validity of this approach. The
agency asks that comments be specific and supported by quantitative
data wherever possible.
Qualitative Benefits
The final rule is also expected to generate qualitative benefits in
the form of enhanced operational efficiency to both the FAA and the
commercial space industry. These types of benefits are not readily
quantifiable. Examples of these qualitative benefits are shown below.
Formalizing licensing responsibilities for RLV and reentry
operations (by establishing a specific regulation) will emphasize FAA
duties and expectations.
It will also better define the licensing process relative to the ad
hoc approach implemented for COMET and METEOR. This will afford
applicants with clearly defined direction, possibly helping to
facilitate the iterative pre-application consultation process. As the
number of requests for RLV and reentry licensing increases, formality
will also help ensure consistency in implementing the licensing
process. This could lead to cost-savings to the FAA as a result of
economies of scale from repetitive operations. These cost savings will
spill over to commercial space transportation entities by reducing the
turnaround time between application submittal and licensing approval.
Consistent application of the licensing process will help
commercial space transportation entities gain familiarity with its
requirements, leading to proficiency in their ability to interact with
the process and the FAA. This in turn will lead to industry cost-
savings, possibly due to less rework or paperwork avoided.
A formalized licensing process for reentry operations will enhance
communications between the FAA and the commercial space transportation
industry in terms of frequency and efficiency of information exchange.
In so doing, it will instill a regulatory climate that will promote and
foster growth and technological advancement in this maturing industry,
while protecting public health and safety, and the safety of property.
Summary of Total Costs and Benefits
The total quantitative potential benefits and costs of this final
rule are shown below in Table 1. This Table shows that the potential
cost imposed by the final rule will be approximately $151 million over
the 15-year period. Also shown in Table 1, about $31 million of this
total cost will be incurred by industry. Table 1 also shows that the
final rule will generate potential quantitative safety benefits of $119
million over the 15-year period. As noted previously in the benefits
section of this evaluation, this rule is also expected to generate
qualitative benefits in the form of enhanced operational efficiency to
both the FAA and the U.S. commercial space industry.
Table 1.--Summary of Quantitative Total Costs and Benefits
------------------------------------------------------------------------
Undiscounted Discounted (in
Category (in 1999 dollars, 15 yrs.) (in millions) millions)
------------------------------------------------------------------------
Commercial Space Transportation $30.8 $20.4
Industry Compliance Costs............
Federal Aviation Administration 120.1 65.9
Implementation Costs.................
Total Costs........................... 151.0 86.3
Accident Costs Avoided: Lower Bound 21.1 11.8
(Safety Benefits)....................
Accident Costs Avoided: Upper Bound 216.6 120.9
(Safety Benefits)....................
Total Accident Costs Avoided: Midpoint 118.9 66.3
(Safety Benefits)....................
------------------------------------------------------------------------
Final Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and applicable statutes, to
fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the Act (which was amended
March 1996) requires agencies to solicit and consider flexible
regulatory proposals and to explain the rationale for their actions.
The Act covers a wide-range of small entities, including small
businesses, not-for-profit organizations and small governmental
jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis as described in
the Act.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the 1980 act provides that
the head of the agency may so certify and an regulatory flexibility
analysis is not required. The certification must include a statement
providing the factual basis for this determination, and the reasoning
should be clear.
The Small Business Administration has defined small business
entities relating to space vehicles (Standard Industrial Codes 3761,
3764, and 3769) as entities comprising fewer than 1,000 employees.
The FAA projects that the commercial space industry will be
composed of five small businesses over the 2001 to 2015 period.
Furthermore, the FAA expects that the final rule will impact all five
of these entities by imposing an average compliance costs of
approximately $6 million over the 15-year period (in 1999 dollars).
The annualized compliance cost to each small business is
approximately $700,000 (in 1999 dollars). Ordinarily, this section of
the evaluation will be based on typical financial data (for example,
annual net income or losses) as a means to determine whether any of the
commercial space transportation small entities would be significantly
impacted by the final rule. However, the traditional use of such
financial data for these small entities cannot be employed since RLV
operators (including a number of RV operators) represent relatively new
companies and they have no revenue history. In fact, these small
operators are in the process of raising funds to finance their new
ventures. Due to the lack of data on the financial characteristics of
these small RLV operators, this evaluation uses the 1998 average
revenue received per launch for ELV operators. The revenue that RLV
operators will obtain from their customers is expected to be similar to
the revenue that established ELV
[[Page 56655]]
operators currently receive from their customers. Revenue data based on
ELV operators' experience will be used for the purpose of assessing the
extent to which compliance with the final rule will impose significant
economic impacts on each of the five potentially impacted small RLV
operators. This assessment will be done by comparing the annualized
cost of compliance to the annual average revenue, which is expected to
be received by each of the five small RLV operators over the next 15
years. While the long-term revenues of RLV operators are expected to
exceed those of ELV operators, which will be due to inherent lower
operating costs, for the purpose of this evaluation they are assumed to
be nearly the same over the 15-year period, thereby representing a
worst-case scenario. Hence, the average revenue of about $50 million
generated by each ELV launch in 1999 will be used as a indicator of
what RLV operators will be expected to generate per RLV mission in
future years. This assessment is based primarily on information
received for orbital launch events for ELV operators from the FAA's
Office of Commercial Space Transportation Report entitled, ``Commercial
Space Transportation: 1999 Year In Review'', Table 1 and the Appendix
(January 2000).
Each of the five potentially impacted small RLV entities is
expected to average about seven missions per year over the next 15
years. Using $50 million as an average expected revenue per mission,
each entity will be expected to receive about $350 million in revenue
($50m x 7 missions annually) for all missions annually. The FAA has
determined that none of the five small entities will incur a
significant economic impact, since the average annualized cost of
compliance ($681,000) will be only 0.2 percent of the anticipated
average annual revenues of $350 for missions conducted annually.
The FAA certifies that the final rule will not impose a significant
economic impact on a substantial number of small businesses. Therefore,
a regulatory flexibility analysis is not required. Furthermore, the
final rule is not likely to cause small business failures or adversely
impact their competitive position relative to larger businesses.
International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards. In addition, consistent with the Administration's belief in
the general superiority and desirability of free trade, it is the
policy of the Administration to remove or diminish to the extent
feasible, barriers to international trade, including both barriers
affecting the export of U.S. goods and services to foreign countries
and barriers affecting the import of foreign goods and services into
the United States.
In accordance with the above statute and policy, the FAA has
assessed the potential effect of this final rule and has determined
that it will have only a domestic impact and therefore no affect effect
on any trade-sensitive activity.
Unfunded Mandates Act of 1995 Assessment
The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub.
L. 104-4 on March 22, 1995, is intended, among other things, to curb
the practice of imposing unfunded Federal mandates on State, local, and
tribal governments.
Title II of the Act requires each Federal agency to prepare a
written statement assessing the effects of any Federal mandate in a
proposed or final agency rule that may result in a $100 million or more
expenditure (adjusted annually for inflation) in any one year by State,
local, and tribal governments, in the aggregate, or by the private
sector; such a mandate is deemed to be a ``significant regulatory
action.''
Based on those impacts shown in the costs and benefits sections of
the regulatory evaluation, the final rule does not contain such a
mandate. Therefore, the requirements of Title II of the Unfunded
Mandates Reform Act of 1995 do not apply to the final rule for RLV
Reentry and Licensing Requirements.
Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action will not have a substantial direct effect on the States, or the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, we determined that this final rule does not have
federalism implications.
Environmental Assessment
FAA Order 1050.1D defines FAA actions that may be categorically
excluded from preparation of a National Environmental Policy Act (NEPA)
environmental assessment (EA) or environmental impact statement (EIS).
In accordance with FAA Order 1050.1D, appendix 4, paragraph 4(i),
regulatory documents which cover administrative or procedural
requirements qualify for a categorical exclusion. Proposed
Secs. 431.91, 431.93, 433.7, 433.9, and 435.61 would require an
applicant to submit sufficient environmental information for the FAA to
comply with NEPA and other applicable environmental laws and
regulations during the processing of each license application.
Accordingly, the FAA has determined that this rule qualifies for a
categorical exclusion because no significant impacts to the environment
are expected to result from implementation of its administrative
provisions for licensing.
Energy Impact
The energy impact of the notice has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA) Pub. L. 94-163, as
amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined
that the final rule is not a major regulatory action under the
provisions of the EPCA.
List of Subjects
14 CFR Part 400
Space transportation and exploration.
14 CFR Part 401
Organization and functions (Government agencies), Space
transportation and exploration.
14 CFR Part 404
Administrative practice and procedure, Space transportation and
exploration.
14 CFR Part 405
Investigations, Penalties, Space transportation and exploration.
14 CFR Part 406
Administrative practice and procedure, Space transportation and
exploration.
14 CFR Part 413
Confidential business information, Space transportation and
exploration.
14 CFR Part 415
Aviation safety, Environmental protection, Space transportation and
exploration.
14 CFR Part 431
Aviation safety, Environmental protection, Investigations,
Reporting and recordkeeping requirements,
[[Page 56656]]
Rockets, Space transportation and exploration.
14 CFR Part 433
Aviation safety, Environmental protection, Investigations,
Reporting and recordkeeping requirements, Rockets, Space transportation
and exploration.
14 CFR Part 435
Aviation safety, Environmental protection, Investigations,
Reporting and recordkeeping requirements, Rockets, Space transportation
and exploration.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends parts 400, 401, 404, 405, 406, 413, and 415, of
Chapter III Title 14, Code of Federal Regulations and adds parts 431,
433 and 435 as follows:
PART 400--BASIS AND SCOPE
1. The authority citation for part 400 is revised to read as
follows:
Authority: 49 U.S.C. 70101-70121.
2. Section 400.2 is revised to read as follows:
Sec. 400.2 Scope.
These regulations set forth the procedures and requirements
applicable to the authorization and supervision under 49 U.S.C.
Subtitle IX, chapter 701, of commercial space transportation activities
conducted in the United States or by a U.S. citizen. The regulations in
this chapter do not apply to amateur rocket activities or to space
activities carried out by the United States Government on behalf of the
United States Government.
PART 401--ORGANIZATION AND DEFINITIONS
3. The authority citation for part 401 is revised to read as
follows:
Authority: 49 U.S.C. 70101-70121.
4. Section 401.5 is revised to read as follows:
Sec. 401.5 Definitions.
As used in this chapter--
Act means 49 U.S.C. Subtitle IX, Commercial Space Transportation,
ch. 701--Commercial Space Launch Activities, 49 U.S.C. 70101-70121.
Amateur rocket activities means launch activities conducted at
private sites involving rockets powered by a motor or motors having a
total impulse of 200,000 pound-seconds or less and a total burning or
operating time of less than 15 seconds, and a rocket having a ballistic
coefficient-i.e., gross weight in pounds divided by frontal area of
rocket vehicle-less than 12 pounds per square inch.
Associate Administrator means the Associate Administrator for
Commercial Space Transportation, Federal Aviation Administration, or
any person designated by the Associate Administrator to exercise the
authority or discharge the responsibilities of the Associate
Administrator.
Contingency abort means cessation of vehicle flight during ascent
or descent in a manner that does not jeopardize public health and
safety and the safety of property, in accordance with mission rules and
procedures. Contingency abort includes landing at an alternative
location that has been designated as a contingency abort location in
advance of vehicle flight.
Emergency abort means cessation of vehicle flight during ascent or
descent in a manner that minimizes risk to public health and safety and
the safety of property. Emergency abort involves failure of a vehicle,
safety-critical system, or flight safety system such that contingency
abort is not possible.
Federal launch range means a launch site, from which launches
routinely take place, that is owned and operated by the government of
the United States.
Flight safety system means a system designed to limit or restrict
the hazards to public health and safety and the safety of property
presented by a launch vehicle or reentry vehicle while in flight by
initiating and accomplishing a controlled ending to vehicle flight. A
flight safety system may be destructive resulting in intentional break
up of a vehicle or nondestructive, such as engine thrust termination
enabling vehicle landing or safe abort capability.
Hazardous materials means hazardous materials as defined in 49 CFR
172.101.
Launch means to place or try to place a launch vehicle or reentry
vehicle and any payload from Earth in a suborbital trajectory, in Earth
orbit in outer space, or otherwise in outer space, and includes
activities involved in the preparation of a launch vehicle for flight,
when those activities take place at a launch site in the United States.
The term launch includes the flight of a launch vehicle and pre-flight
ground operations beginning with the arrival of a launch vehicle or
payload at a U.S. launch site. For purposes of an ELV launch, flight
ends after the licensee's last exercise of control over its launch
vehicle. For purposes of an orbital RLV launch, flight ends after
deployment of a payload for an RLV having payload deployment as a
mission objective. For other orbital RLVs, flight ends upon completion
of the first sustained, steady-state orbit of an RLV at its intended
location.
Launch accident means
(1) A fatality or serious injury (as defined in 49 CFR 830.2) to
any person who is not associated with the flight;
(2) Any damage estimated to exceed $25,000 to property not
associated with the flight that is not located at the launch site or
designated recovery area.
(3) 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:
(i) For an expendable launch vehicle (ELV), outside designated
impact limit lines; and
(ii) For an RLV, outside a designated landing site.
Launch incident means an unplanned event occurring during the
flight of a launch vehicle, other than a launch accident, involving a
malfunction of a flight safety system or safety-critical system or
failure of the licensee's safety organization, design or operations.
Launch operator means a person who conducts or who will conduct the
launch of a launch vehicle and any payload.
Launch site means the location on Earth from which a launch takes
place (as defined in a license the Secretary issues or transfers under
this chapter) and necessary facilities at that location.
Launch vehicle means a vehicle built to operate in, or place a
payload in, outer space or a suborbital rocket.
Mishap means a launch or reentry accident, launch or reentry
incident, failure to complete a launch or reentry as planned, or an
unplanned event or series of events resulting in a fatality or serious
injury (as defined in 49 CFR 830.2), or resulting in greater than
$25,000 worth of damage to a payload, a launch or reentry vehicle, a
launch or reentry support facility or government property located on
the launch or reentry site.
Operation of a launch site means the conduct of approved safety
operations at a permanent site to support the launching of vehicles and
payloads.
Operation of a reentry site means the conduct of safety operations
at a permanent site on Earth at which a reentry vehicle and its
payload, if any, is intended to land.
Payload means an object that a person undertakes to place in outer
space by means of a launch vehicle, including components of the vehicle
specifically designed or adapted for that object.
Person means an individual or an entity organized or existing under
the laws of a state or country.
[[Page 56657]]
Reenter; reentry means to return or attempt to return,
purposefully, a reentry vehicle and its payload, if any, from Earth
orbit or from outer space to Earth. The term ``reenter; reentry''
includes activities conducted in Earth orbit or outer space to
determine reentry readiness and that are critical to ensuring public
health and safety and the safety of property during reentry flight. The
term ``reenter; reentry'' also includes activities conducted on the
ground after vehicle landing on Earth to ensure the reentry vehicle
does not pose a threat to public health and safety or the safety of
property.
Reentry accident means any unplanned event occurring during the
reentry of a reentry vehicle resulting in the known impact of the
reentry vehicle, its payload, or any component thereof outside a
designated reentry site; a fatality or serious injury (as defined in 49
CFR 830.2) to any person who is not associated with the reentry; or any
damage estimated to exceed $25,000 to property not associated with the
reentry and not located within a designated reentry site.
Reentry incident means any unplanned event occurring during the
reentry of a reentry vehicle, other than a reentry accident, involving
a malfunction of a reentry safety-critical system or failure of the
licensee's safety organization, procedures, or operations.
Reentry operator means a person responsible for conducting the
reentry of a reentry vehicle as specified in a license issued by the
FAA.
Reentry site means the location on Earth where a reentry vehicle is
intended to return. It includes the area within three standard
deviations of the intended landing point (the predicted three-sigma
footprint).
Reentry vehicle means a vehicle designed to return from Earth orbit
or outer space to Earth substantially intact. A reusable launch vehicle
that is designed to return from Earth orbit or outer space to Earth
substantially intact is a reentry vehicle.
Reusable launch vehicle (RLV) means a launch vehicle that is
designed to return to Earth substantially intact and therefore may be
launched more than one time or that contains vehicle stages that may be
recovered by a launch operator for future use in the operation of a
substantially similar launch vehicle.
Safety-critical means essential to safe performance or operation. A
safety-critical system, subsystem, condition, event, operation, process
or item is one whose proper recognition, control, performance or
tolerance is essential to system operation such that it does not
jeopardize public safety.
Vehicle safety operations personnel means those persons whose job
performance is critical to public health and safety or the safety of
property during RLV or reentry operations.
State and United States means, when used in a geographical sense,
the several States, the District of Columbia, the Commonwealth of
Puerto Rico, American Samoa, the United States Virgin Islands, Guam,
and any other commonwealth, territory, or possession of the United
States; and
United States citizen means:
(1) Any individual who is a citizen of the United States;
(2) Any corporation, partnership, joint venture, association, or
other entity organized or existing under the laws of the United States
or any State; and
(3) Any corporation, partnership, joint venture, association, or
other entity which is organized or exists under the laws of a foreign
nation, if the controlling interest in such entity is held by an
individual or entity described in paragraph (1) or (2) of this
definition. Controlling interest means ownership of an amount of equity
in such entity sufficient to direct management of the entity or to void
transactions entered into by management. Ownership of at least fifty-
one percent of the equity in an entity by persons described in
paragraph (1) or (2) of this definition creates a rebuttable
presumption that such interest is controlling.
PART 404--REGULATIONS AND LICENSING REQUIREMENTS
5. The authority citation for part 404 is revised to read as
follows:
Authority: 49 U.S.C. 70101-70121.
6. Section 404.1 is revised to read as follows:
Sec. 404.1 Scope.
Under 49 U.S.C. 70105, this part establishes procedures for issuing
regulations to implement the provisions of 49 U.S.C. Subtitle IX,
chapter 701, and for eliminating or waiving requirements of Federal law
otherwise applicable to the licensing of commercial space
transportation activities under 49 U.S.C. Subtitle IX, chapter 701.
7. Section 404.3 is amended by revising the heading and paragraph
(a) to read as follows:
Sec. 404.3 Filing of petitions to the Associate Administrator.
(a) Any person may petition the Associate Administrator to issue,
amend, or repeal a regulation to eliminate as a requirement for a
license any requirement of Federal law applicable to commercial space
launch and reentry activities and the operation of launch and reentry
sites or to waive any such requirement in the context of a specific
application for a license.
* * * * *
PART 405--INVESTIGATIONS AND ENFORCEMENT
8. The authority citation for part 405 is revised to read as
follows:
Authority: 49 U.S.C. 70101-70121.
9. Section 405.1 is revised to read as follows:
Sec. 405.1 Monitoring of licensed and other activities.
Each licensee must allow access by and cooperate with Federal
officers or employees or other individuals authorized by the Associate
Administrator to observe licensed facilities and activities, including
launch sites and reentry sites, as well as manufacturing, production,
and testing facilities, or assembly sites used by any contractor or a
licensee in the production, assembly, or testing of a launch or reentry
vehicle and in the integration of a payload with its launch or reentry
vehicle. Observations are conducted to monitor the activities of the
licensee or contractor at such time and to such extent as the Associate
Administrator considers reasonable and necessary to determine
compliance with the license or to perform the Associate Administrator's
responsibilities pertaining to payloads for which no Federal license,
authorization, or permit is required.
10. Section 405.5 is amended by revising the introductory text and
paragraph (a) to read as follows:
Sec. 405.5 Emergency orders.
The Associate Administrator may immediately terminate, prohibit, or
suspend a licensed launch, reentry, or operation of a launch or reentry
site if the Associate Administrator determines that--
(a) The licensed launch, reentry, or operation of a launch or
reentry site is detrimental to public health and safety, the safety of
property, or any national security or foreign policy interest of the
United States; and
* * * * *
PART 406--ADMINISTRATIVE REVIEW
11. The authority citation for part 406 is revised to read as
follows:
Authority: 49 U.S.C. 70101-70121
[[Page 56658]]
12. Section 406.1 is amended by revising paragraphs (a),
introductory text, (a)(2), and (a)(3) to read as follows:
Sec. 406.1 Hearings.
(a) Pursuant to 49 U.S.C. 70110, the following are entitled to a
determination on the record after an opportunity for a hearing in
accordance with 5 U.S.C. 554.
(1) * * *
(2) An owner or operator of a payload regarding any decision to
prevent the launch or reentry of the payload;
(3) A licensee regarding any decision to suspend, modify, or revoke
a license or to terminate, prohibit, or suspend any licensed activity;
and
* * * * *
PART 413--LICENSE APPLICATION PROCEDURES
13. The authority citation for part 413 continues to read as
follows:
Authority: 49 U.S.C. 70101-70121
14. Section 413.1 is revised to read as follows:
Sec. 413.1 Scope.
This part prescribes the procedures applicable to applications
submitted under this chapter to conduct licensed activities. These
procedures apply to all applications for issuance of a license,
transfer of an existing license, and renewal of an existing license.
More specific requirements applicable to obtaining a launch license or
a license to operate a launch site are contained in parts 415 and 417
of this chapter, respectively. More specific requirements applicable to
obtaining a license to launch and reenter a reentry vehicle or to
operate a reentry site are contained in parts 431, 433 and 435 of this
chapter.
15. Section 413.3 is revised to read as follows:
Sec. 413.3 Who must obtain a license.
(a) A person must obtain a license--
(1) To launch a launch vehicle from the United States;
(2) To operate a launch site within the United States;
(3) To reenter a reentry vehicle in the United States; or
(4) To operate a reentry site within the United States.
(b) An individual who is a U.S. citizen or an entity organized
under the laws of the United States or any State must obtain a
license--
(1) To launch a launch vehicle outside the United States;
(2) To operate a launch site outside of the United States;
(3) To reenter a reentry vehicle outside of the United States; or
(4) To operate a reentry site outside of the United States.
(c) A foreign entity in which a United States citizen has a
controlling interest, as defined in Sec. 401.5 of this chapter, must
obtain a launch license to launch a launch vehicle from or a license to
operate a launch site within--
(1) Any place that is both outside the United States and outside
the territory of any foreign nation, unless there is an agreement in
force between the United States and a foreign nation providing that
such foreign nation shall exercise jurisdiction over the launch or the
operation of the launch site; or
(2) The territory of any foreign nation if there is an agreement in
force between the United States and that foreign nation providing that
the United States shall exercise jurisdiction over the launch or the
operation of the launch site.
(d) A foreign entity in which a U.S. citizen has a controlling
interest, as defined in Sec. 401.5 of this chapter, must obtain a
license to reenter a reentry vehicle or to operate a reentry site in--
(1) Any place that is outside the United States and outside the
territory of any foreign nation, unless there is an agreement in force
between the United States and a foreign nation providing that such
foreign nation shall exercise jurisdiction over the reentry or the
operation of the reentry site; or
(2) The territory of any foreign nation if there is an agreement in
force between the United States and that foreign nation providing that
the United States shall exercise jurisdiction over the reentry or the
operation of the reentry site.
PART 415--LAUNCH LICENSE
16. The authority citation for part 415 continues to read as
follows:
Authority: 49 U.S.C. 70101-70121
17. Section 415.1 is revised to read as follows:
Sec. 415.1 Scope.
This part prescribes requirements for obtaining a license to launch
a launch vehicle, other than a reusable launch vehicle (RLV), and post-
licensing requirements with which a licensee shall comply to remain
licensed. Requirements for preparing a license application are
contained in part 413 of this subchapter. Requirements for obtaining a
license to launch an RLV and conduct an RLV mission are contained in
part 431 of this subchapter.
18. Part 431 is added to read as follows:
PART 431--LAUNCH AND REENTRY OF A REUSABLE LAUNCH VEHICLE (RLV)
Subpart A--General
Sec.
431.1 Scope.
431.3 Types of reusable launch vehicle mission licenses.
431.5 Policy and safety approvals.
431.7 Payload and payload reentry determinations.
431.9 Issuance of a reusable launch vehicle mission license.
431.11 Additional license terms and conditions.
431.13 Transfer of a reusable launch vehicle mission license.
431.15 Rights not conferred by a reusable launch vehicle mission
license.
431.16-431.20 [Reserved]
Subpart B--Policy Review and Approval for Launch and Reentry of a
Reusable Launch Vehicle
431.21 General.
431.23 Policy review.
431.25 Application requirements for policy review.
431.27 Denial of policy approval.
431.28-431.30 [Reserved]
Subpart C--Safety Review and Approval for Launch and Reentry of a
Reusable Launch Vehicle
431.31 General.
431.33 Safety organization.
431.35 Acceptable reusable launch vehicle mission risk.
431.37 Mission readiness.
431.39 Mission rules, procedures, contingency plans, and
checklists.
431.41 Communications plan.
431.43 Reusable launch vehicle mission operational requirements and
restrictions.
431.45 Mishap investigation plan and emergency response plan.
431.47 Denial of safety approval.
431.48-431.50 [Reserved]
Subpart D--Payload Reentry Review and Determination
431.51 General.
431.53 Classes of payloads.
431.55 Payload reentry review.
431.57 Information requirements for payload reentry review.
431.59 Issuance of payload reentry determination.
431.61 Incorporation of payload reentry determination in license
application.
431.62-431.70 [Reserved]
Subpart E--Post-Licensing Requirements-Reusable Launch Vehicle Mission
License Terms and Conditions
431.71 Public safety responsibility.
431.73 Continuing accuracy of license application; application for
modification of license.
431.75 Agreements.
431.77 Records.
431.79 Reusable launch vehicle mission reporting requirements.
[[Page 56659]]
431.81 Financial responsibility requirements.
431.83 Compliance monitoring.
431.85 Registration of space objects.
431.86-431.90 [Reserved]
Subpart F--Environmental Review
431.91 General.
431.93 Environmental information.
Authority: 49 U.S.C. 70101-70121
Subpart A--General
Sec. 431.1 Scope.
This part prescribes requirements for obtaining a reusable launch
vehicle (RLV) mission license and post-licensing requirements with
which a licensee must comply to remain licensed. Requirements for
preparing a license application are contained in part 413 of this
subchapter.
Sec. 431.3 Types of reusable launch vehicle mission licenses.
(a) Mission-specific license. A mission-specific license
authorizing an RLV mission authorizes a licensee to launch and reenter,
or otherwise land, one model or type of RLV from a launch site approved
for the mission to a reentry site or other location approved for the
mission. A mission-specific license authorizing an RLV mission may
authorize more than one RLV mission and identifies each flight of an
RLV authorized under the license. A licensee's authorization to conduct
RLV missions terminates upon completion of all activities authorized by
the license or the expiration date stated in the reentry license,
whichever occurs first.
(b) Operator license. An operator license for RLV missions
authorizes a licensee to launch and reenter, or otherwise land, any of
a designated family of RLVs within authorized parameters, including
launch sites and trajectories, transporting specified classes of
payloads to any reentry site or other location designated in the
license. An operator license for RLV missions is valid for a two-year
renewable term.
Sec. 431.5 Policy and safety approvals.
To obtain either type of RLV mission license, an applicant must
obtain policy and safety approvals from the FAA. Requirements for
obtaining these approvals are contained in subparts B and C of this
part. Only the license applicant may apply for the approvals, and may
apply for either approval separately and in advance of submitting a
complete license application, using the application procedures
contained in part 413 of this subchapter.
Sec. 431.7 Payload and payload reentry determinations.
(a) A payload determination is required to launch a payload unless
the proposed payload is exempt from payload review under Sec. 415.53 of
this chapter. Requirements for obtaining a payload determination are
set forth in part 415, subpart D of this chapter.
(b) A payload reentry determination is required to reenter a
payload to Earth on an RLV unless the proposed payload is exempt from
payload reentry review.
(c) A payload reentry determination made under a previous license
application under this subchapter may satisfy the requirements of
paragraph (b) of this section.
(d) The FAA conducts a review, as described in subpart D of this
part, to make a payload reentry determination. Either an RLV mission
license applicant or a payload owner or operator may request a review
of the proposed payload using the application procedures contained in
part 413 of thissubchapter. Upon receipt of an application, the FAA may
conduct a payload reentry review independently of an RLV mission
license application.
Sec. 431.9 Issuance of a reusable launch vehicle mission license.
(a) The FAA issues either a mission-specific or operator license
authorizing RLV missions to an applicant who has obtained all approvals
and determinations required under this chapter for the license.
(b) An RLV mission license authorizes a licensee to launch and
reenter, or otherwise land, an RLV and payload, if any, in accordance
with the representations contained in the licensee's application,
subject to the licensee's compliance with terms and conditions
contained in license orders accompanying the license, including
financial responsibilityrequirements.
Sec. 431.11 Additional license terms and conditions.
The FAA may amend an RLV mission license at any time by modifying
or adding license terms and conditions to ensure compliance with 49
U.S.C. Subtitle IX, chapter 701, and applicable regulations.
Sec. 431.13 Transfer of a reusable launch vehicle mission license.
(a) Only the FAA may transfer an RLV mission license.
(b) An applicant for transfer of an RLV mission license shall
submit a license application in accordance with part 413 of this
subchapter and satisfy the applicable requirements of this part. The
FAA will transfer an RLV mission license to an applicant who has
obtained all of the approvals and determinations required under this
chapter for an RLV mission license. In conducting its reviews and
issuing approvals and determinations, the FAA may incorporate any
findings made part of the record to support the initial licensing
determination. The FAA may modify an RLV mission license to reflect any
changes necessary as a result of a license transfer.
Sec. 431.15 Rights not conferred by a reusable launch vehicle mission
license.
Issuance of an RLV mission license does not relieve a licensee of
its obligation to comply with requirements of law that may apply to its
activities.
Secs. 431.16-431.20 [Reserved]
Subpart B--Policy Review and Approval for Launch and Reentry of a
Reusable Launch Vehicle
Sec. 431.21 General.
The FAA issues a policy approval to an RLV mission license
applicant upon completion of a favorable policy review. A policy
approval is part of the licensing record on which the licensing
determination is based.
Sec. 431.23 Policy review.
(a) The FAA reviews an RLV mission license application to determine
whether the proposed mission presents any issues, other than those
issues addressed in the safety review, that would adversely affect U.S.
national security or foreign policy interests, would jeopardize public
health and safety or the safety of property, or would not be consistent
with international obligations of the United States.
(b) Interagency consultation is conducted as follows:
(1) The FAA consults with the Department of Defense to determine
whether an RLV mission license application presents any issues
adversely affecting U.S. nationalsecurity.
(2) The FAA consults with the Department of State to determine
whether an RLV mission license application presents any issues
adversely affecting U.S. foreign policy interests or international
obligations.
(3) The FAA consults with other Federal agencies, including the
National Aeronautics and Space Administration, authorized to address
issues identified under paragraph (a) of this section, associated with
an applicant's RLV mission proposal.
(c) The FAA advises an applicant, in writing, of any issueraised
during a policy review that would impede issuance of a policy approval.
The
[[Page 56660]]
applicant may respond, in writing, or revise its license application.
Sec. 431.25 Application requirements for policy review.
In its RLV mission license application, an applicant must--
(a) Identify the model, type, and configuration of any RLV proposed
for launch and reentry, or otherwise landing on Earth, by the
applicant.
(b) Identify all vehicle systems, including structural, thermal,
pneumatic, propulsion, electrical, and avionics and guidance systems
used in the vehicle(s), and all propellants.
(c) Identify foreign ownership of the applicant as follows:
(1) For a sole proprietorship or partnership, identify all foreign
ownership;
(2) For a corporation, identify any foreign ownership interests of
10% or more; and
(3) For a joint venture, association, or other entity, identify any
participating foreign entities.
(d) Identify proposed launch and reentry flight profile(s),
including--
(1) Launch and reentry site(s), including planned contingency abort
locations, if any;
(2) Flight trajectories, reentry trajectories, associated ground
tracks, and instantaneous impact points for nominal operations, and
contingency abort profiles, if any;
(3) Sequence of planned events or maneuvers during the mission; and
for an orbital mission, the range of intermediate and final orbits of
the vehicle and upper stages, if any, and their estimated orbital life
times.
Sec. 431.27 Denial of policy approval.
The FAA notifies an applicant, in writing, if the FAA hasdenied
policy approval for an RLV mission license application. The notice
states the reasons for the FAA's determination. The applicant may
respond to the reasons for the determination and request
reconsideration.
Secs. 431.28-431.30 [Reserved]
Subpart C--Safety Review and Approval for Launch and Reentry of a
Reusable Launch Vehicle
Sec. 431.31 General.
(a) The FAA conducts a safety review to determine whether an
applicant is capable of launching an RLV and payload, if any, from a
designated launch site, and reentering the RLV and payload, if any, to
a designated reentry site or location, or otherwise landing it on
Earth, without jeopardizing public health and safety and the safety of
property.
(b) The FAA issues a safety approval to an RLV mission license
applicant that satisfies the requirements of this Subpart. The FAA
evaluates on an individual basis all public safety aspects of a
proposed RLV mission to ensure they are sufficient to support safe
conduct of the mission.A safety approval is part of the licensing
record on which the FAA's licensing determination is based.
(c) The FAA advises an applicant, in writing, of any issueraised
during a safety review that would impede issuance of a safety approval.
The applicant may respond, in writing, or revise its license
application.
Sec. 431.33 Safety organization.
(a) An applicant shall maintain a safety organization and document
it by identifying lines of communication and approval authority for all
mission decisions that may affect public safety. Lines of communication
within the applicant's organization, between the applicant and the
launch site, and between the applicant and the reentry site,shall be
employed to ensure that personnel perform RLV mission operations in
accordance with plans and proceduresrequired by this subpart. Approval
authority shall beemployed to ensure compliance with terms and
conditionsstated in an RLV mission license and with the plans and
procedures required by this subpart.
(b) An applicant must designate a person responsible for the
conduct of all licensed RLV mission activities.
(c) An applicant shall designate by name, title, and
qualifications, a qualified safety official authorized by the applicant
to examine all aspects of the applicant's operations with respect to
safety of RLV mission activities and to monitor independently
compliance by vehicle safety operations personnel with the applicant's
safety policies and procedures. The safety official shallreport
directly to the person responsible for an applicant's licensed RLV
mission activities, who shall ensure that all of the safety official's
concerns are addressed both before a mission is initiated and before
reentry or descent flight of an RLV is initiated. The safety official
is responsible for--
(1) Monitoring and evaluating operational dress rehearsals to
ensure they are conducted in accordance with proceduresrequired by
Sec. 431.37(a)(4) and under Sec. 431.37(a)(1)(iv) to ensure the
readiness of vehiclesafety operations personnel to conduct a safe
mission under nominal and non-nominal conditions; and
(2) Completing a mission readiness determination as required by
Sec. 431.37 before an RLV mission is initiated. The safety official
must monitor and report to the person responsible for the conduct of
licensed RLV mission activities any non-compliance with procedures
listed in Secs. 431.37 and 431.43, or any representation contained in
the application, and the readiness of the licensee to conduct mission
operations in accordance with the license and this part. The safety
official is responsible for compliance with Secs. 431.37 and 431.43,
and with representations contained in the application.
Sec. 431.35 Acceptable reusable launch vehicle mission risk.
(a) To obtain safety approval for an RLV mission, an applicant must
demonstrate that the proposed mission does not exceed acceptable risk
as defined in this subpart. For purposes of this section, the mission
commences upon initiation of the launch phase of flight and consists of
launch flight through orbital insertion of an RLV or vehiclestage or
flight to outer space, whichever is applicable, and reentry or descent
flight, and concludes upon landing on Earth of the RLV.
(b) Acceptable risk for a proposed mission is measured in terms of
the expected average number of casualties (Ec).
(1) To obtain safety approval, an applicant shalldemonstrate:
(i) For public risk, the risk level to the collective members of
the public exposed to vehicle or vehicle debris impact hazards
associated with a proposed mission does notexceed an expected average
number of 0.00003 casualties per mission (or Ec criterion of
30 x 10-6) to members of the public from the applicant's
proposed activity; and
(ii) For public risk, the risk level to an individual does not
exceed .000001 per mission (or individual risk criterion of 1 x
10-6).
(c) To demonstrate compliance with acceptable risk criteria in
thissection, an applicant shall employ a system safety process to
identify the hazards and assess the risks to publichealth and safety
and the safety of property associated with the mission, including
nominal and non-nominal operation and flight of the vehicle and
payload, if any. An acceptablesystem safety analysis identifies and
assesses the probability and consequences of any reasonably
foreseeablehazardous event, and safety-critical system failures during
launch flight or reentry that could result in a casualty to the public.
[[Page 56661]]
(d) As part of the demonstration required under paragraph (c) of
this section, an applicant must--
(1) Identify and describe the structure of the RLV, including
physical dimensions and weight;
(2) Identify and describe any hazardous materials, including
radioactive materials, and their container on the RLV;
(3) Identify and describe safety-critical systems;
(4) Identify and describe all safety-critical failure modes and
their consequences;
(5) Provide drawings and schematics for each
safety-critical system identified under paragraph (d) (3) of this
section;
(6) Provide a timeline identifying all safety-critical
events;
(7) Provide data that validates the applicant's system safety
analyses required in paragraph (c) of this section; and
(8) Provide flight trajectory analyses covering launch or ascent of
the vehicle through orbital insertion and reentry or descent of the
vehicle through landing, including its three-sigma dispersion.
Sec. 431.37 Mission readiness.
(a) Mission readiness requirements. An applicant shall submit the
following procedures for verifying mission readiness:
(1) Mission readiness review procedures that involve the
applicant's vehicle safety operations personnel, and launch site and
reentry site personnel involved in the mission. The procedures shall
ensure a mission readiness review is conducted during which the
designated individual responsible for the conduct of licensed
activities under Sec. 431.33(b) is provided with the following
information to make a judgment as to mission readiness--
(i) Readiness of the RLV including safety-critical systems and
payload for launch and reentry flight;
(ii) Readiness of the launch site, personnel, and safety-related
launch property and launch services to be provided by the launch site;
(iii) Readiness of the reentry site, personnel, and safety-related
property and services for reentry flight and vehicle recovery;
(iv) Readiness of vehicle safety operations personnel to support
mission flight, including results of dress rehearsals and simulations
conducted in accordance with paragraph (a)(4) of this section;
(v) Mission rules and constraints, including contingency abort
plans and procedures, if any, as required under Sec. 431.39;
(vi) Unresolved safety issues identified during the mission
readiness review and plans for addressing them; and
(vii) Any additional safety information required by the individual
designated under Sec. 431.33(b) to determine launch and reentry
readiness.
(2) Procedures that ensure mission constraints, rules, contingency
abort and emergency abort procedures are listed and consolidated in a
safety directive or notebook approved by the person designated by the
applicant under Sec. 431.33(b), the launch site operator, and the
reentry site operator, if any;
(3) Procedures that ensure currency and consistency of licensee,
launch site operator, and reentry site operator checklists;
(4) Dress rehearsal procedures that--
(i) Ensure crew readiness under nominal and non-nominal flight
conditions;
(ii) Contain criteria for determining whether to dispense with or
add one or more dress rehearsals; and
(iii) Verify currency and consistency of licensee, launch site
operator, and reentry site operator checklists; and
(5) Procedures for ensuring the licensee's vehicle safety
operations personnel adhere to crew rest rules of this part.
(b) [Reserved]
Sec. 431.39 Mission rules, procedures, contingency plans, and
checklists.
(a) An applicant shall submit mission rules, procedures,
checklists, emergency plans, and contingency abort plans, if any, that
ensure safe conduct of mission operations during nominal and non-
nominal vehicle flight.
(b) Mission rules, procedures, checklists, emergency plans, and
contingency abort plans must be contained in a safety directive,
notebook, or other compilation that is approved by the safety official
designated under Sec. 431.33(c) and concurred in by the launch site
operator and reentry site operator, if any.
(c) Vehicle safety operations personnel must have current and
consistent mission checklists.
Sec. 431.41 Communications plan.
(a) An applicant shall submit a plan providing vehicle safety
operations personnel communications procedures during the mission.
Procedures for effective issuance and communication of safety-critical
information during the mission shall include hold/resume, go/no go,
contingency abort, if any, and emergency abort commands by vehicle
safety operations personnel. The communications plan shall describe the
authority of vehicle safety operations personnel, by individual or
position title, to issue these commands. The communications plan shall
ensure that--
(1) Communication networks are assigned so that personnel
identified under this section have direct access to real-time, safety-
critical information required for making decisions and issuing
commands;
(2) Personnel identified under this section monitor a common
intercom channel for safety-critical communications during launch and
reentry;
(3) A protocol is established for utilizing defined radio
communications terminology; and
(4) Communications affecting the safety of the mission are recorded
in a manner that accurately reflects communications made on individual
channels, synchronized time coding, and sequence of communications.
(b) An applicant shall submit procedures to ensure that licensee
and reentry site personnel, if any, receive a copy of the
communications plan required by this section and that the reentry site
operator, if any, concurs with the communications plan.
Sec. 431.43 Reusable launch vehicle mission operational requirements
and restrictions.
(a) An applicant for RLV mission safety approval shall submit
procedures--
(1) That ensure RLV mission risks do not exceed the criteria set
forth in Sec. 431.35 for nominal and non-nominal operations;
(2) That ensure conformance with the system safety process and
associated hazard identification and risk assessment required under
Sec. 431.35(c);
(3) That ensure conformance with operational restrictions listed in
paragraphs (c) through (e) of this section;
(4) To monitor and verify the status of RLV safety-critical systems
sufficiently before enabling both launch and reentry flight to ensure
public safety and during mission flight unless technically infeasible;
and
(5) For human activation or initiation of a flight safety system
that safely aborts the launch of an RLV if the vehicle is not operating
within approved mission parameters and the vehicle poses risk to public
health and safety and the safety of property in excess of acceptable
flight risk as defined in Sec. 431.35.
(b) To satisfy risk criteria set forth in Sec. 431.35(b)(1), an
applicant for RLV mission safety approval shall identify suitable and
attainable locations for
[[Page 56662]]
nominal landing and vehicle staging impact or landing, if any. An
application shall identify such locations for a contingency abort if
necessary to satisfy risk criteria contained in Sec. 431.35(b)(1)
during launch of an RLV. A nominal landing, vehicle staging impact and
contingency abort location are suitable for launch or reentry if--
(1) For any vehicle or vehicle stage, the area of the predicted
three-sigma dispersion of the vehicle or vehicle stage can be wholly
contained within the designated location; and
(2) The location is of sufficient size to contain landing impacts,
including debris dispersion upon impact and any toxic release.
(c) For an RLV mission--
(1) A collision avoidance analysis shall be performed in order to
maintain at least a 200-kilometer separation from any inhabitable
orbiting object during launch and reentry. The analysis shall address:
(i) For launch, closures in a planned launch window for ascent to
outer space or, for an orbital RLV, to initial orbit through at least
one complete orbit;
(ii) For reentry, the reentry trajectory;
(iii) Expansions of the closure period by subtracting 15 seconds
from the closure start-time and adding 15 seconds to the closure end-
time for each sequential 90 minutes elapsed time period, or portion
there of, beginning at the time the state vectors of the orbiting
objects were determined;
(2) The projected instantaneous impact point (IIP) of the vehicle
shall not have substantial dwell time over densely populated areas
during any segment of mission flight;
(3) There will be no unplanned physical contact between the vehicle
or its components and payload after payload separation and debris
generation will not result from conversion of energy sources into
energy that fragments the vehicle or its payload. Energy sources
include, but are not limited to, chemical, pneumatic, and kinetic
energy; and
(4) Vehicle safety operations personnel shall adhere to the
following work and rest standards:
(i) A maximum 12-hour work shift with at least 8 hours of rest
after 12 hours of work, preceding initiation of an RLV reentry mission
or during the conduct of a mission;
(ii) A maximum of 60 hours worked in the 7 days, preceding
initiation of an RLV mission;
(iii) A maximum of 14 consecutive work days; and
(iv) A minimum 48-hour rest period after 5 consecutive days of 12-
hour shifts.
(d) In addition to requirements of paragraph (c) of this section,
any unproven RLV may only be operated so that during any portion of
flight--
(1) The projected instantaneous impact point (IIP) of the vehicle
does not have substantial dwell time over populated areas; or
(2) The expected average number of casualties to members of the
public does not exceed 30 x 10-6 (Ec
30 x 10-6) given a probability of vehicle
failure equal to 1 (pf=1) at any time the IIP is over a populated area;
(e) Any RLV that enters Earth orbit may only be operated such that
the vehicle operator is able to--
(1) Monitor and verify the status of safety-critical systems before
enabling reentry flight to assure the vehicle can reenter safely to
Earth; and
(2) Issue a command enabling reentry flight of the vehicle. Reentry
flight cannot be initiated autonomously under nominal circumstances
without prior enable.
Sec. 431.45 Mishap investigation plan and emergency response plan.
(a) Mishap investigation plan and emergency response plan. An
applicant shall submit a mishap investigation plan (MIP) containing the
applicant's procedures for reporting and responding to launch and
reentry accidents, launch and reentry incidents, or other mishaps, as
defined in Sec. 401.5 of this chapter, that occur during the conduct of
an RLV mission. An acceptable MIP satisfies the requirements of
paragraphs (b)-(d) of this section. An applicant shall also submit an
emergency response plan (ERP) that contains procedures for informing
the affected public of a planned RLV mission. An acceptable ERP
satisfies the requirements of paragraph (e) of this section. The MIP
and ERP shall be signed by an individual authorized to sign and certify
the application in accordance with Sec. 413.7(c) of this chapter, the
person responsible for the conduct of all licensed RLV mission
activities designated under Sec. 431.33(b) of this subpart, and the
safety official designated under Sec. 431.33(c) of this subpart.
(b) Report requirements. A MIP shall provide for--
(1) Immediate notification to the FAA Washington Operations Center
in case of a launch or reentry accident, launch or reentry incident, or
a mishap that involves a fatality or serious injury (as defined in 49
CFR 830.2);
(2) Notification within 24 hours to the Associate Administrator for
Commercial Space Transportation in the event of a mishap that does not
involve a fatality or serious injury, as defined in 49 CFR 830.2; and
(3) Submission of a written preliminary report to the FAA Associate
Administrator for Commercial Space Transportation in the event of a
launch accident or launch incident occurring in the conduct of an RLV
mission, or reentry accident or reentry incident, occurring in the
conduct of an RLV mission, within 5 days of the event. The report shall
identify the event as either a launch or reentry accident or incident
and must include the following information:
(i) Date and time of occurrence;
(ii) Description of the event and sequence of events leading to the
accident or incident, to the extent known;
(iii) Intended and actual location of launch and reentry or other
landing on Earth;
(iv) Identification of the vehicle;
(v) Identification of the payload, if applicable;
(vi) Number and general description of any fatalities and injuries;
(vii) Property damage, if any, and an estimate of its value;
(viii) Identification of hazardous materials, as defined in
Sec. 401.5 of this chapter, involved in the event, whether on the
vehicle, payload, or on the ground;
(ix) Action taken by any person to contain the consequences of the
event;
(x) Weather conditions at the time of the event; and
(xi) Potential consequences for other vehicles or systems of
similar type and proposed operations.
(c) Response plan. A MIP must contain procedures to--
(1) Ensure the consequences of a launch accident, launch incident,
reentry accident, reentry incident, or other mishap occurring in the
conduct of an RLV mission are contained and minimized;
(2) Ensure data and physical evidence are preserved;
(3) Require the licensee to report and to cooperate with FAA and
the National Transportation Safety Board investigations and designate
one or more points of contact for the FAA or NTSB; and;
(4) Require the licensee to identify and adopt preventive measures
for avoiding recurrence of the event.
(d) Investigation plan. A MIP shall contain--
(1) Procedures for investigating the cause of an event described in
paragraph (c)(1) of this section;
(2) Procedures for reporting investigation results to the FAA;
(3) Delineated responsibilities, including reporting
responsibilities, for
[[Page 56663]]
personnel assigned to conduct investigations and for any unrelated
entities retained by the licensee to conduct or participate in
investigations.
(e) Emergency response plan. An ERP shall provide for--
(1) Notification to local officials in the event of an off-site or
unplanned landing so that vehicle recovery can be conducted safely and
effectively and with minimal risk to public safety. The plan must
provide for the quick dissemination of up to date information to the
public, and for doing so in advance of reentry or other landing on
Earth to the extent practicable; and
(2) A public information dissemination plan for informing the
potentially affected public, in laymen's terms and in advance of a
planned reentry, of the estimated date, time and landing location for
the reentry activity.
Sec. 431.47 Denial of safety approval.
The FAA notifies an applicant, in writing, if the FAA has denied
safety approval for an RLV mission license application. The notice
states the reasons for the FAA's determination. The applicant may
respond to the reasons for the determination and request
reconsideration.
Secs. 431.48-431.50 [Reserved]
Subpart D--Payload Reentry Review and Determination
Sec. 431.51 General.
(a) A payload reentry review is conducted to examine the policy and
safety issues related to the proposed reentry of a payload, other than
a U.S. Government payload or a payload whose reentry is subject to
regulation by another Federal agency, to determine whether the FAA will
approve reentry of the payload.
(b) A payload reentry review may be conducted as part of an RLV
mission license application review or may be requested by a payload
owner or operator in advance of or separate from an RLV mission license
application.
(c) A payload reentry determination will be made part of the
licensing record on which the FAA's licensing determination is based.
Sec. 431.53 Classes of payloads.
(a) The FAA may approve the return of a type or class of payload
(for example, communications or microgravity/scientific satellites).
(b) The RLV mission licensee that will return a payload approved
for reentry under this section, is responsible for providing current
information in accordance with Sec. 431.57 regarding the payload
proposed for reentry no later than 60 days before a scheduled RLV
mission involving that payload.
Sec. 431.55 Payload reentry review.
(a) In conducting a payload reentry review to decide if the FAA
should approve reentry of a payload, the FAA determines whether its
reentry presents any issues that would adversely affect U.S. national
security or foreign policy interests, would jeopardize public health
and safety or the safety of property, or would not be consistent with
international obligations of the United States.
(b) The FAA consults with the Department of Defense to determine
whether reentry of a proposed payload presents any issues adversely
affecting U.S. national security.
(c) The FAA consults with the Department of State to determine
whether reentry of a proposed payload presents any issues adversely
affecting U.S. foreign policy interests or international obligations.
(d) The FAA consults with other Federal agencies, including the
National Aeronautics and Space Administration, authorized to address
issues identified under paragraph (a) of this section.
(e) The FAA advises a person requesting a payload reentry
determination, in writing, of any issue raised during a payload reentry
review that would impede the issuance of a favorable determination to
reenter that payload. The person requesting a payload reentry review
may respond, in writing, or revise its application.
Sec. 431.57 Information requirements for payload reentry review.
A person requesting reentry review of a particular payload or
payload class must identify the following:
(a) Payload name or class and function;
(b) Physical characteristics, dimensions, and weight of the
payload;
(c) Payload owner and operator, if different from the person
requesting the payload reentry review;
(d) Type, amount, and container of hazardous materials, as defined
in Sec. 401.5 of this chapter, and radioactive materials in the
payload;
(e) Explosive potential of payload materials, alone and in
combination with other materials found on the payload or RLV during
reentry;
(f) Designated reentry site(s); and
(g) Method for securing the payload on the RLV.
Sec. 431.59 Issuance of payload reentry determination.
(a) The FAA issues a favorable payload reentry determination unless
it determines that reentry of the proposed payload would adversely
affect U.S. national security or foreign policy interests, would
jeopardize public health and safety or the safety of property, or would
not be consistent with international obligations of the United States.
The FAA responds to any person who has requested a payload reentry
review of its determination in writing. The notice states the reasons
for the determination in the event of an unfavorable determination.
(b) Any person issued an unfavorable payload reentry determination
may respond to the reasons for the determination and request
reconsideration.
Sec. 431.61 Incorporation of payload reentry determination in license
application.
A favorable payload reentry determination issued for a payload or
class of payload may be included by an RLV mission license applicant as
part of its application. Before the conduct of an RLV mission involving
a payload approved for reentry, any change in information provided
under Sec. 431.57 must be reported by the licensee in accordance with
Sec. 413.17 of this chapter. The FAA determines whether a favorable
payload reentry determination remains valid and may conduct an
additional payload reentry review.
Secs. 431.62-431.70 [Reserved]
Subpart E--Post-Licensing Requirements--Reusable Launch Vehicle
Mission License Terms and Conditions
Sec. 431.71 Public safety responsibility.
(a) A licensee is responsible for ensuring the safe conduct of an
RLV mission and for protecting public health and safety and the safety
of property during the conduct of the mission.
(b) A licensee must conduct a licensed RLV mission and perform RLV
safety procedures in accordance with representations made in its
license application. A licensee's failure to perform safety procedures
in accordance with the representations made in the license application
or comply with any license condition is sufficient basis for the
revocation of a license or other appropriate nforcement action.
Sec. 431.73 Continuing accuracy of license application; application
for modification of license.
(a) A licensee is responsible for the continuing accuracy of
representations contained in its application for the entire term of the
license.
[[Page 56664]]
(b) After a license has been issued, a licensee must apply to the
FAA for modification of the license if--
(1) The licensee proposes to conduct an RLV mission or perform a
safety-critical operation in a manner not authorized by the license; or
(2) Any representation contained in the license application that is
material to public health and safety or the safety of property is no
longer accurate and complete or does not reflect the licensee's
procedures governing the actual conduct of an RLV mission. A change is
material to public health and safety or the safety of property if it
alters or affects the--
(i) Mission rules, procedures, checklists, emergency plans, and
contingency abort plans, if any, submitted in accordance with
Sec. 431.39
(ii) Class of payload;
(iii) Type of RLV;
(iv) Any safety-critical system;
(v) Type and container of the hazardous material carried by the
vehicle;
(vi) Flight trajectory;
(vii) Launch site or reentry site or other landing location; or
(viii) Any safety system, policy, procedure, requirement, criteria,
or standard.
(c) An application to modify an RLV mission license must be
prepared and submitted in accordance with part 413 of this chapter. The
licensee must indicate any part of its license or license application
that would be changed or affected by a proposed modification.
(d) The FAA reviews determinations and approvals required by this
chapter to determine whether they remain valid after submission of a
proposed modification.
(e) Upon approval of a modification, the FAA issues either a
written approval to the licensee or a license order amending the
license if a stated term or condition of the license is changed, added,
or deleted. An approval has the full force and effect of a license
order and is part of the licensing record.
Sec. 431.75 Agreements.
(a) Launch and reentry site use agreements. Before conducting a
licensed RLV mission using property and services of a Federal launch
range or licensed launch or reentry site operator, a licensee or
applicant shall enter into an agreement with the Federal launch range
and/or licensed site operator that provides for access to and use of
property and services required to support a licensed RLV mission or
reentry and for public safety related operations and support. The
agreement shall be in effect before any licensed RLV mission or
reentry. A licensee shall comply with any requirements of the agreement
that may affect public health and safety and the safety of property
during the conduct of its licensed activity.
(b) Agreements for notices to mariners and airmen. Unless otherwise
addressed in agreements between a licensed launch site operator and the
U.S. Coast Guard and the FAA, respectively, a licensee authorized to
conduct an RLV mission using a launch site or reentry site other than a
Federal launch range shall complete the following:
(1) An agreement between the licensee and the local U.S. Coast
Guard district to establish procedures for the issuance of a Notice to
Mariners prior to a launch or reentry and other measures as the Coast
Guard deems necessary to protect public health and safety; and
(2) An agreement between the licensee and the FAA regional office
having jurisdiction over the airspace through which a launch and
reentry will take place, to establish procedures for the issuance of a
Notice to Airmen prior to the conduct of a licensed launch or reentry
and for closing of air routes during the respective launch and reentry
windows and other measures deemed necessary by the FAA regional office
in order to protect public health and safety.
Sec. 431.77 Records.
(a) Except as specified in paragraph (b) of this section, a
licensee shall maintain for 3 years all records, data, and other
material necessary to verify that a licensed RLV mission is conducted
in accordance with representations contained in the licensee's
application.
(b) In the event of a launch accident, reentry accident, launch
incident or reentry incident, as defined in Sec. 401.5 of this chapter,
a licensee shall preserve all records related to the event. Records
must be retained until completion of any Federal investigation and the
FAA advises the licensee that the records need not be retained. The
licensee shall make all records required to be maintained under the
regulations available to Federal officials for inspection and copying.
Sec. 431.79 Reusable launch vehicle mission reporting requirements.
(a) Not less than 60 days before each RLV mission conducted under a
license, a licensee shall provide the FAA with the following
information:
(1) Payload information in accordance with 14 CFR Sec. 415.59 of
this chapter and Sec. 431.57; and
(2) Flight information, including the vehicle, launch site, planned
launch and reentry flight path, and intended landing sites including
contingency abort sites.
(3) Launch or reentry waivers, approved or pending, from a federal
Federal range for at which the launch or reentry will take place, that
are unique and may affect public safety.
(b) Not later than 15 days before each licensed RLV mission, a
licensee must notify the FAA, in writing, of the time and date of the
intended launch and reentry or other landing on Earth of the RLV and
may utilize the FAA/U.S. Space Command Launch Notification Form,
contained in part 415, Appendix A, of this subchapter for doing so.
(c) A licensee must report a launch accident, launch incident,
reentry accident, reentry incident, or other mishap immediately to the
FAA Washington Operations Center and provide a written preliminary
report in the event of a launch accident, launch incident, reentry
accident, or reentry incident, in accordance with the mishap
investigation and emergency response plan submitted as part of its
license application under Sec. 431.45.
Sec. 431.81 Financial responsibility requirements.
A licensee under this part must comply with financial
responsibility requirements specified in its license.
Sec. 431.83 Compliance monitoring.
A licensee shall allow access by, and cooperate with, federal
officers or employees or other individuals authorized by the FAA to
observe any activities of the licensee, or of the licensee's
contractors or subcontractors, associated with the conduct of a
licensed RLV mission.
Sec. 431.85 Registration of space objects.
(a) To assist the U.S. Government in implementing Article IV of the
1975 Convention on Registration of Objects Launched into Outer Space,
each licensee shall provide to the FAA the information required by
paragraph (b) of this section for all objects placed in space by a
licensed RLV mission, including an RLV and any components, except:
(1) Any object owned and registered by the U.S. Government; and
(2) Any object owned by a foreign entity.
(b) For each object that must be registered in accordance with this
section, a licensee shall submit the following information not later
than thirty (30) days following the conduct of a licensed RLV mission :
[[Page 56665]]
(1) The international designator of the space object(s);
(2) Date and location of the RLV mission initiation;
(3) General function of the space object; and
(4) Final orbital parameters, including:
(i) Nodal period;
(ii) Inclination;
(iii) Apogee; and
(iv) Perigee.
(c) A licensee shall notify the FAA when it removes an object that
it has previously placed in space.
Secs. 431.86-431.90 [Reserved]
Subpart F--Environmental Review
Sec. 431.91 General.
An applicant shall provide the FAA with sufficient information to
analyze the environmental impacts associated with proposed operation of
an RLV, including the impacts of anticipated activities to be performed
at its reentry site. The information provided by an applicant must be
sufficient to enable the FAA to comply with the requirements of the
National Environmental Policy Act, 42 U.S.C. 4321 et seq., the Council
on Environmental Quality Regulations for Implementing the Procedural
Provisions of the National Environmental Policy Act, 40 CFR parts 1500-
1508, and the FAA's Procedures for Considering Environmental Impacts,
FAA Order 1050.1D. Copies of FAA Order 1050.1D may be obtained from the
Office of Environment and Energy, AEE-300, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591,
(202) 267-3553. Copies of FAA Order 1050.1D may be inspected in the
Rules Docket at the Federal Aviation Administration, Office of the
Chief Counsel, AGC-200, Room 915G, 800 Independence Avenue SW.,
Washington, DC 20591 weekdays between 8:30 a.m. and 5:00 p.m.
Sec. 431.93 Environmental information.
An applicant shall submit environmental information concerning--
(a) A designated launch and reentry site, including contingency
abort locations, if any, not covered by existing FAA or other Federal
environmental documentation;
(b) A proposed new RLV with characteristics falling measurably
outside the parameters of existing environmental documentation;
(c) A proposed reentry to an established reentry site involving an
RLV with characteristics falling measurably outside the parameters of
existing environmental impact statements covering that site;
(d) A proposed payload that may have significant environmental
impacts in the event of a reentry accident; and
(e) Other factors as necessary to comply with the National
Environmental Policy Act.
19. Part 433 is added to read as follows:
PART 433--LICENSE TO OPERATE A REENTRY SITE
Subpart A--General
Sec.
433.1 General.
433.3 Issuance of a license to operate a reentry site.
433.5 Operational restrictions on a reentry site.
433.7 Environmental.
433.9 Environmental information.
Authority: 49 U.S.C. 70101-70121
Sec. 433.1 General.
The FAA evaluates on an individual basis an applicant's proposal to
operate a reentry site.
Sec. 433.3 Issuance of a license to operate a reentry site.
(a) The FAA issues a license to operate a reentry site when it
determines that an applicant's operation of the reentry site does 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.
(b) A license to operate a reentry site authorizes a licensee to
operate a reentry site in accordance with the representations contained
in the licensee's application, subject to the licensee's compliance
with terms and conditions contained in any license order accompanying
the license.
Sec. 433.5 Operational restrictions on a reentry site.
A license to operate a reentry site authorizes the licensee to
offer use of the site to support reentry of a reentry vehicle for which
the three-sigma footprint of the vehicle upon reentry is wholly
contained within the site.
Sec. 433.7 Environmental.
An applicant shall provide the FAA with information for the FAA to
analyze the environmental impacts associated with proposed operation of
a reentry site. The information provided by an applicant must be
sufficient to enable the FAA to comply with the requirements of the
National Environmental Policy Act, 42 U.S.C. 4321 et seq. (NEPA), the
Council on Environmental Quality Regulations for Implementing the
Procedural Provisions of NEPA, 40 CFR Parts 1500-1508, and the FAA's
Procedures for Consideration Environmental Impacts, FAA Order 1050.1D.
Sec. 433.9 Environmental information.
An applicant shall submit environmental information concerning a
proposed reentry site not covered by existing environmental
documentation for purposes of assessing reentry impacts.
20. Part 435 is added to read as follows:
PART 435--REENTRY OF A REENTRY VEHICLE OTHER THAN A REUSABLE LAUNCH
VEHICLE (RLV)
Subpart A--General
Sec.
435.1 Scope.
435.3 Types of reentry licenses.
435.5 Policy and safety approvals.
435.7 Payload reentry determinations.
435.9 Issuance of a reentry license.
435.11 Additional license terms and conditions.
435.13 Transfer of a reentry license.
435.15 Rights not conferred by reentry license.
435.16-435.20 [Reserved]
Subpart B--Policy Review and Approval for Reentry of a Reentry Vehicle
435.21 General.
435.23 Policy review requirements and procedures.
435.24-435.30 [Reserved]
Subpart C--Safety Review and Approval for Reentry of a Reentry Vehicle
435.31 General.
435.33 Safety review requirements and procedures.
435.35 Acceptable reentry risk for reentry of a reentry vehicle.
435.36-435.40 [Reserved]
Subpart D--Payload Reentry Review and Determination
435.41 General.
435.43 Payload reentry review requirements and procedures.
435.44-435.50 [Reserved]
Subpart E--Post-Licensing Requirements--Reentry License Terms and
Conditions
435.51 General.
435.52-435.60 [Reserved]
Subpart F--Environmental Review
435.61 General.
435.62-435.70 [Reserved]
Authority: 49 U.S.C. 70101-70121
Subpart A--General
Sec. 435.1 Scope.
This part prescribes requirements for obtaining a license to
reenter a reentry vehicle other than a reusable launch vehicle (RLV),
and post-licensing
[[Page 56666]]
requirements with which a licensee must comply to remain licensed.
Requirements for preparing a license application are contained in part
413 of this subchapter.
Sec. 435.3 Types of reentry licenses.
(a) Reentry-specific license. A reentry-specific license authorizes
a licensee to reenter one model or type of reentry vehicle, other than
an RLV, to a reentry site or other location approved for the reentry. A
reentry-specific license may authorize more than one reentry and
identifieseach reentry authorized under the license. A licensee's
authorization to reenter terminates upon completion of all activities
authorized by the license or the expiration date stated in the reentry
license, whichever occurs first.
(b) Reentry-operator license. A reentry operator license authorizes
a licensee to reenter any of a designated family of reentry vehicles,
other than an RLV, within authorized parameters, including
trajectories, transporting specified classes of payloads to any reentry
site designated in the license. A reentry operator license is valid for
a 2-yearrenewable term.
Sec. 435.5 Policy and safety approvals.
To obtain a reentry license, an applicant must obtain policy and
safety approvals from the FAA. Requirements for obtaining these
approvals are contained in subparts B and C of this part. Only a
reentry license applicant may apply for the approvals, and may apply
for either approval separately and in advance of submitting a complete
license application, using the application procedures contained in part
413 of this subchapter.
Sec. 435.7 Payload reentry determination.
(a) A payload reentry determination is required to transport a
payload to Earth on a reentry vehicle unless the proposed payload is
exempt from payload review.
(b) A payload reentry determination made under a previous license
application under this subchapter may satisfy the requirements of
paragraph (a) of this section.
(c) The FAA conducts a review, as described in subpart D of this
part, to make a payload reentry determination. Either a reentry license
applicant or a payload owner or operator may request a review of the
proposed payload using the application procedures contained in part 413
of thissubchapter. Upon receipt of an application, the FAA may conduct
a payload reentry review independently of a reentry license
application.
Sec. 435.9 Issuance of a reentry license.
(a) The FAA issues a reentry license to an applicant who has
obtained all approvals and determinations required under this chapter
for a reentry license.
(b) A reentry license authorizes a licensee to reenter a reentry
vehicle and payload, if any, in accordance with the representations
contained in the reentry licensee's application, subject to the
licensee's compliance with terms and conditions contained in license
orders accompanying the reentry license, including financial
responsibilityrequirements.
Sec. 435.11 Additional license terms and conditions.
The FAA may amend a reentry license at any time by modifying or
adding license terms and conditions to ensure compliance with 49 U.S.C.
Subtitle IX, chapter 701, and applicableregulations.
Sec. 435.13 Transfer of a reentry license.
(a) Only the FAA may transfer a reentry license.
(b) An applicant for transfer of a reentry license shall submit a
reentry license application in accordance with part 413 of this
subchapter and satisfy the applicable requirements of this part. The
FAA will transfer a reentry license to an applicant who has obtained
all of the approvals and determinations required under this chapter for
a reentry license. In conducting its reviews and issuing approvals and
determinations, the FAA may incorporate any findings made part of the
record to support the initial licensing determination. The FAA may
modify a reentry license to reflect any changes necessary as a result
of a reentry license transfer.
Sec. 435.15 Rights not conferred by reentry license.
Issuance of a reentry license does not relieve a licensee of its
obligation to comply with requirements of law that may apply to its
activities.
Secs. 435.16-431.20 [Reserved]
Subpart B--Policy Review and Approval for Reentry of a Reentry
Vehicle
Sec. 435.21 General.
The FAA issues a policy approval to a reentry license applicant
upon completion of a favorable policy review. A policy approval is part
of the licensing record on which the licensing determination is based.
Sec. 435.23 Policy review requirements and procedures.
Unless otherwise indicated in this subpart, regulations applicable
to policy review and approval of the reentry of an RLV contained in
part 431, subpart B of this subchapter shall apply to the policy review
conducted for a license to reenter a reentry vehicle under this part.
Secs. 435.24-435.30 [Reserved]
Subpart C--Safety Review and Approval for Reentry of a Reentry
Vehicle
Sec. 435.31 General.
The FAA conducts a safety review to determine whether an applicant
is capable of reentering a reentry vehicle and payload, if any, to a
designated reentry site without jeopardizing public health and safety
and the safety of property. A safety approval is part of the licensing
record on which the licensing determination is based.
Sec. 435.33 Safety review requirements and procedures.
Unless otherwise stated in this subpart, regulations applicable to
safety review and approval of the reentry of an RLV contained in part
431, subpart C of this subchapter shall apply to the safety review
conducted for a license to reenter a reentry vehicle under this part.
Sec. 435.35 Acceptable reentry risk for reentry of a reentry vehicle.
To obtain safety approval for reentry, an applicant must
demonstrate that risk for the proposed reentry, when assessed in
combination with launch of the reentry vehicle, does not exceed
acceptable risk for the conduct of an RLV mission as defined in
paragraphs (a) and (b) of Sec. 431.35 of this subchapter.
Secs. 435.36-435.40 [Reserved]
Subpart D--Payload Reentry Review and Determination
Sec. 435.41 General.
The FAA conducts a payload reentry review to examine the policy and
safety issues related to the proposed reentry of a payload, except a
U.S. Government payload, to determine whether the FAA will approve the
reentry of the payload.
Sec. 435.43 Payload reentry review requirements and procedures.
Unless otherwise indicated in this subpart, regulations contained
in part 431, subpart D of this subchapter applicable to a payload
reentry review and determination for reentering a payload using an RLV
shall apply to the payload reentry review conducted for a license to
reenter a reentry vehicle under this part.
[[Page 56667]]
Secs. 435.44-435.50 [Reserved]
Subpart E--Post-Licensing Requirements--Reentry License Terms and
Conditions
Sec. 435.51 General.
Unless otherwise indicated in this subpart, post-licensing
requirements contained in part 431 subpart E, of this subchapter
applicable to a license to reenter an RLV shall apply to a license
issued under this part.
Secs. 435.52-435.60 [Reserved]
Subpart F--Environmental Review
Sec. 435.61 General.
Unless otherwise indicated in this subpart, environmental review
requirements contained in part 431 subpart F, applicable to a license
to reenter an RLV shall apply to an application for a reentry license
under this part.
Secs. 435.62-435.70 [Reserved]
Issued in Washington, DC on August 28, 2000.
Patricia Grace Smith,
Associate Administrator for Commercial Space Transportation.
[FR Doc. 00-22564 Filed 9-18-00; 8:45 am]
BILLING CODE 4910-13-U