[Federal Register Volume 79, Number 139 (Monday, July 21, 2014)]
[Proposed Rules]
[Pages 42241-42254]
[FR Doc No: 2014-16928]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 417, 431, and 435

[Docket No.: FAA-2014-0418; Notice No. 14-05]
RIN 2120-AK06

Changing the Collective Risk Limits for Launches and Reentries
and Clarifying the Risk Limit Used To Establish Hazard Areas for Ships
and Aircraft

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA proposes to amend the collective risk limits for
commercial launches and reentries. Under this proposal, the FAA would
separate its expected-number-of-casualties (Ec) limits for
launches and reentries. For commercial launches, the FAA proposes to
aggregate the Ec posed by the following hazards: Impacting
inert and explosive debris, toxic release, and far field blast
overpressure. The FAA proposes to limit the aggregate Ec for
these three hazards to 1 x 10-\4\. For commercial reentries,
the FAA proposes to aggregate the Ec posed by debris and
toxic release, and set that Ec under an aggregate limit of 1
x 10-\4\. Under the FAA's proposal, the aggregate
Ec limit for both launch and reentry would be expressed
using only one significant digit.
    The FAA also proposes to clarify the regulatory requirements
concerning hazard areas for ships and aircraft. The proposed rule would
require a launch operator to establish a hazard area where the
probability of impact does not exceed: 0.000001 (1 x 10-\6\)
for an aircraft; and 0.00001 (1 x 10-\5\) for a water-borne-
vessel.

DATES: Send comments on or before October 20, 2014.

ADDRESSES: Send comments identified by docket number FAA-2014-0418
using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey

Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC
20590-0001.
     Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at<PHONE_NUMBER>.
    Privacy: The FAA will post all comments it receives, without
change, to http://www.regulations.gov, including any personal
information the commenter provides. Using the search function of the
docket Web site, anyone can find and read the electronic form of all
comments received into any FAA docket, including the name of the
individual sending the comment (or signing the comment for an
association, business, labor union, etc.). DOT's complete Privacy Act
Statement can be found in the Federal Register published on April 11,
2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.
    Docket: Background documents or comments received may be read at
http://www.regulations.gov at any time. Follow the online instructions
for accessing the docket or go to the Docket Operations in Room W12-140
of the West Building Ground Floor at 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this action, contact Rene Rey, AST-300, Office of Commercial Space
Transportation, Federal Aviation Administration, 800 Independence
Avenue SW., Washington, DC 20591; telephone<PHONE_NUMBER>; email
<EMAIL_ADDRESS>    For legal questions concerning this action, contact Alex Zektser,
AGC-250, Office of the Chief Counsel, Federal Aviation Administration,
800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-
3073; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules on commercial space
transportation safety is found in Title 49 of the United States Codes,
section 322(a), which authorizes the Secretary of Transportation to
carry out the Commercial Space Launch Act of 1984, as amended and re-
codified at 51 United States Code (U.S.C.) Subtitle V--Commercial Space
Transportation, ch. 509, Commercial Space Launch Activities, 51 U.S.C.
50901-50923 (the Act). The Act authorizes the Secretary of
Transportation and thus the FAA, through delegations, to oversee,
license, and regulate commercial launch and reentry, and the operation
of launch and reentry sites as carried out by U.S. citizens or within
the United States. 51 U.S.C. 50904, 50905. The Act directs the FAA to
exercise this responsibility consistent with public health and safety,
safety of property, and the national security and foreign policy
interests of the United States. 51 U.S.C. 50905. Section 50901(a)(7)
directs the FAA to regulate only to the extent necessary, in relevant
part, to protect the public health and safety and safety of property.
The FAA is also responsible for encouraging, facilitating, and
promoting commercial space launches and reentries by the private
sector. 51 U.S.C. 50903.

I. Background

    This rulemaking addresses the risks associated with commercial
space launch and reentry. Launch is conducted using expendable launch
vehicles (ELVs) and reusable launch vehicles (RLVs). Reentry is
conducted with RLVs or other reentry vehicles. An ELV is a launch
vehicle whose propulsive stages are flown only once. An RLV is 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. A reentry vehicle
is a vehicle designed to return from Earth orbit or outer space
substantially intact, and includes a reentering RLV.\1\
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    \1\ See 14 CFR 401.5 (definitions of expendable launch vehicle,
reusable launch vehicle, and reentry vehicle).
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    Parts 417, 431 and 435 of Title 14 of the Code of Federal
Regulations (14 CFR) limit the collective risk posed to the public by
commercial launches and reentries by, among other things, limiting the
expected number of casualties (Ec). These Ec
regulations are based primarily on Ec limits that the United
States (U.S.) Air Force imposed on launches from federal launch ranges
at the time the FAA began establishing Ec limits.\2\ In
addition to imposing Ec limits on risk posed by launches and
reentries to collective members of the public, these regulations also
impose separate limits on the risk posed by these operations to
individual members of the public.
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    \2\ See, e.g., Commercial Space Transportation Licensing
Regulations, Final Rule (Launch Licensing Rule), 64 FR 19586, 19605
n.11 (Apr. 21, 1999).
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A. Launch Risk Limits of an ELV

    The FAA's limitations to collective risk associated with commercial
launches of ELVs are set out in part 417. Section 417.107(b) applies to
all commercial ELV launches, and it allows a launch operator to
initiate the flight of an ELV only if the collective risk to the public
is within: (1) An Ec limit of 30 x 10-\6\ for
impacting inert and impacting explosive debris; (2) an Ec
limit of 30 x 10-\6\ for toxic release; and (3) an
Ec limit of 30 x 10-\6\ for far field blast
overpressure.
    The FAA first used an Ec limit of 30 x 10-\6\
in 1999, when, as part of a rulemaking to regulate ELV launches from
Federal launch ranges, the FAA adopted the U.S. Air Force's public risk
Ec limit of 30 x 10-\6\ to limit the risk
associated with debris.\3\ At that time, the FAA only applied the
Ec limit to the hazard caused by vehicle debris.\4\
Subsequently, the FAA proposed to extend the 30 x 10-\6\
Ec limit to all commercial ELV launches, which would be
regulated by part 417.\5\ In its part 417 NPRM, the FAA initially
proposed to limit to 30 x 10-\6\ the combined risk posed by
debris, toxic release, and far field blast overpressure.\6\
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    \3\ Id.
    \4\ Id.
    \5\ Licensing and Safety Requirements for Launch, Notice of
Proposed Rulemaking (Launch NPRM), 65 FR 63922, 63981 (Oct. 25,
2000).
    \6\ Id.
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    The FAA received a number of comments objecting to this proposal,
arguing that the proposed aggregate 30 x 10-\6\
Ec limit for debris, toxicity, and far field blast
overpressure was too low.\7\ In response to these comments, the FAA
considered regulating the hazards of toxicity, debris, and far field
blast overpressure under a single Ec limit, but ultimately
set the limit at a higher level than the proposed 30 x
10-\6\.\8\ In support of this approach, the FAA noted that
``a risk assessment that determines the total risk due to all hazards
associated with a single launch would be an ideal approach.'' \9\
However, the FAA ultimately rejected this approach, reasoning that a
higher Ec limit ``would have been difficult to justify in
the absence of historical data on which to base it.'' \10\ The FAA also
noted that aggregating the Ec posed by toxicity, debris, and
far field blast

overpressure would be problematic because: (1) Conservative methodology
for estimating the Ec for toxicity, debris, and far field
blast overpressure used assumptions unique to each hazard; and (2)
toxicity, debris, and far field blast overpressure cause injury in
different ways, and thus, it was difficult to normalize the injuries
caused by these hazards in a manner that would allow them to be added
together.\11\
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    \7\ See Licensing and Safety Requirements for Launch,
Supplemental Notice of Proposed Rulemaking (Launch SNPRM), 67 FR
49456, 49461 (July 30, 2002).
    \8\ Id. at 49463.
    \9\ Id. at 49461.
    \10\ Id.
    \11\ Id. at 49462.
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    As a result, the FAA decided to retain the 30 x 10-\6\
Ec limit that was being used by the U.S. Air Force. In order
to address the commenter's concerns, in the final rule, the FAA
separated the three hazards of toxicity, debris, and far field blast
overpressure and placed each under its own Ec limit of 30 x
10-\6\.\12\ In addition, the rule imposed a separate
Ec limit of 1 x 10-\6\ on risk to individual
members of the public posed by each of these three hazards.\13\
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    \12\ Licensing and Safety Requirements for Launch, Final Rule,
71 FR 50508, 50516 (Aug. 25, 2006).
    \13\ See id. at 50542; 14 CFR 417.107(b)(2).
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B. Risk Limits of Reentry Vehicles

    The FAA's risk limitations for launches and reentries of RLV's and
other reentry vehicles are found in parts 431 and 435. Part 431 governs
the launch and reentry of one type of a reentry vehicle: A reusable
launch vehicle (RLV). Section 431.35(b)(1) prohibits the combined
Ec of the launch and reentry of an RLV from: (1) Exceeding
30 x 10-\6\ for vehicle or vehicle debris impact hazards to
the collective members of the public; and (2) exceeding 1 x
10-\6\ for vehicle or vehicle debris impact hazards to
individual members of the public.
    Part 435 governs the launch and reentry of all other types of
reentry vehicles. Section 435.35 subjects reentry vehicles to the RLV
Ec limitations of Sec.  431.35(a) and (b) for the combined
risk associated with launch and reentry.
    The FAA did not apply separate Ec limits to the launch
and reentry of reentry vehicles because separate limits could have
resulted in a launch Ec of 30 x 10-\6\ and a
reentry Ec of 30 x 10-\6\, which, the FAA noted,
would have resulted in a total Ec of 60 x 10-\6\.
\14\ Accordingly, the FAA rejected commenters' requests to set the
launch and reentry of an RLV and other reentry vehicle under separate
Ec limits.
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    \14\ Launch Licensing Rule, 64 FR at 19635.
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C. New Developments In Implementing Risk Limits

    Recent developments have led the FAA to review its collective risk
limits. In 2010, the U.S. Air Force, after conducting over 5,000
launches under a 30 x 10-\6\ Ec limit, increased
its collective-risk Ec launch limit from 30 x
10-\6\ per hazard to 100 x 10-\6\ for the
aggregate public risk associated with debris, toxicity, and far field
blast overpressure combined. The U.S. Air Force's new Ec
standards also apply a separate Ec limit to reentry,
limiting reentry risk to an Ec to 100 x 10-\6\
for the aggregate public risk associated with debris, toxicity, and far
field blast overpressure. In addition, in 2010, the National
Aeronautics and Space Administration (NASA) also revised its risk
acceptability policy to limit the aggregate risk for launch to 100 x
10-\6\ for each mission. NASA's revision also sets the
aggregate risk for reentry under a separate 100 x 10-\6\
Ec limit. Before this revision, NASA launched over 100 ELVs
under an Ec of 30 x 10-\6\ for each hazard.\15\
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    \15\ See ``A History of the Use of the Risk Acceptability
Criterion, 30 x 10-\6\ Casualties per Launch'', ACTA
Inc., Presented to the Committee on Launch Range Safety (May
24,1999).
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    Because the FAA's current Ec limits are based on a U.S.
Air Force limit that both the U.S. Air Force and NASA, after
considerable experience, have now rejected, the FAA believes that its
existing collective risk limits may no longer be appropriate. In
addition, as discussed below, experience has led the FAA to conclude
that its current Ec limits create an obstacle to NASA's
implementation of the National Space Policy.
    In 2010, President Obama issued a National Space Policy that
directed U.S. government departments and agencies to purchase and use
commercial space capabilities and services to the maximum practical
extent when such capabilities and services are available in the
marketplace and meet United States Government requirements.\16\
Pursuant to this policy, NASA expanded its use of the Commercial
Orbital Transportation Services (COTS) program, which utilized
commercial space operations to accomplish NASA missions. The COTS
program was designed to stimulate efforts by the private sector to
demonstrate safe, reliable, and cost-effective space transportation to
the International Space Station.
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    \16\ National Space Policy of the United States of America, at
10 (June 28, 2010) http://www.whitehouse.gov/sites/default/files/national_space_policy_6-28-10.pdf.
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    As part of its COTS program, NASA entered into a Space Act
Agreement with Space Exploration Technologies Corporation. (SpaceX).
This agreement required SpaceX to launch and reenter a reentry vehicle
with the goal of ultimately reaching the International Space Station
(ISS). SpaceX conducted two missions under the COTS program.\17\ NASA
also entered into an agreement with Orbital Sciences Corporation
(Orbital) with a similar goal of reaching the ISS. In addition to
launches under the above programs, SpaceX has also recently performed a
mission to launch a scientific research satellite for NASA into orbit.
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    \17\ NASA has now concluded the COTS program, and has entered
into a new arrangement with SpaceX for future missions to the
International Space Station.
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    The first ISS mission occurred in 2010, when SpaceX launched and
reentered the first commercially-launched reentry vehicle into orbit.
SpaceX's vehicle included systems that mitigated the risk associated
with the launch and reentry of that vehicle. In spite of these
mitigations, the Ec for vehicle debris from the combined
launch and reentry of SpaceX's vehicles exceeded the 30 x
10-\6\ limit imposed by Sec.  431.35(b)(1)(i), which applies
to reentry vehicles through Sec.  435.35. Because the Ec for
vehicle debris would have exceeded the Ec limits, SpaceX
applied to the FAA for a waiver.
    In order to grant a waiver, the FAA had to determine whether, among
other things, the grant would jeopardize public health and safety or
safety of property,\18\ and concluded that, in spite of the mission's
total Ec of 47 x 10-\6\, SpaceX's mission would
not jeopardize public health and safety or safety of property.\19\ The
FAA issued SpaceX a waiver from Sec.  431.35(b)(1)(i).\20\ The FAA's
determination relied on the fact that, when viewed separately, the
launch had an Ec under 30 x 10-\6\ and the
reentry also had an Ec under 30 x 10-\6\. The FAA
treated the launch and reentry as separate events because SpaceX's
reentry vehicle would perform a health check after completing a launch,
and the results of the health check would be used to determine whether
to commence reentry. This health check was an intervening event, as
contemplated in the original rulemaking,\21\ and allowed the FAA to
treat launch and reentry as separate events. SpaceX's mission was
successful, and resulted in no harm to members of the public.
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    \18\ 51 U.S.C. 50905(b)(3); 14 CFR 404.5(b).
    \19\ Waiver of Acceptable Mission Risk Restriction for Reentry
and Reentry Vehicle, 75 FR 75619 (Dec. 6, 2010).
    \20\ Id.
    \21\ See id.
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    SpaceX's second COTS mission occurred in 2012, when SpaceX launched
and reentered another reentry vehicle that also exceeded the FAA's
Ec

limits. The U.S. Air Force,\22\ pursuant to Sec.  417.203(d)
requirements, estimated Ec for debris from SpaceX's 2012
launch to be between 98 x 10-\6\ and 121 x 10-\6\
at the time that SpaceX applied to the FAA for launch and reentry
licenses. Even though these Ec numbers exceeded the 30 x
10-\6\ Ec limits of parts 417 and 431, after the
FAA examined the details of SpaceX's vehicle and mission plans, the FAA
concluded that SpaceX's launch would not jeopardize public health and
safety or safety of property.\23\ A major factor in the FAA's
determination was that the low end of the Ec estimate, 98 x
10-\6\, which included significant conservatism, was lower
than the 100 x 10-\6\ Ec limit used by the U.S.
Air Force.
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    \22\ Section 417.203(d) states, in part, that the ``FAA will
accept a flight safety analysis used by a Federal launch range
without need for further demonstration of compliance to the FAA. . .
.''
    \23\ Waiver of Acceptable Risk Restriction for Launch and
Reentry, 77 FR 24556 (Apr. 24, 2012).
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    Also for the waiver, the FAA examined SpaceX's reentry and
concluded the reentry would not jeopardize public health and safety or
safety of property because, if the reentry was viewed separately from
launch, the Ec for reentry was under 30 x
10-\6\.\24\ Accordingly, the FAA again issued SpaceX a
waiver from the 30 x 10-\6\ Ec limits.\25\ SpaceX's 2012
mission was ultimately successful and harmed no member of the public.
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    \24\ The reentry portion of the waiver analysis for SpaceX's
2012 mission summarily adopts the reasoning set out in the waiver
for SpaceX's 2010 mission.
    \25\ Id.
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    The third ISS mission was conducted by Orbital and took place in
2013. The launch phase of this mission had a far-field-blast-
overpressure Ec that exceeded 30 x
10-\6\. The FAA granted a waiver to the
Ec limits for this mission relying on the fact that the
Ec for debris, toxic release, and blast overpressure
combined would not exceed the 100 x 10-\6\ Ec
limit used by the U.S. Air Force.\26\ This mission was ultimately
successful and harmed no member of the public.
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    \26\ A copy of this waiver can be found in the docket for this
rulemaking.
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    Finally, in 2013, SpaceX conducted a mission in which it launched a
research satellite into space for NASA. The far-field-blast-
overpressure Ec for the launch phase of this mission
exceeded the FAA's 30 x 10-\6\ limit, but was within the 100
x 10-\6\ limit used by the U.S. Air Force. Relying on the
fact that this Ec would not exceed the limits used by the
U.S. Air Force, the FAA found that this mission would not jeopardize
public health and safety and the safety or property, and granted SpaceX
a waiver from the Ec limitations.\27\ This mission was
ultimately successful and harmed no member of the public.
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    \27\ Waiver to Space Exploration Technologies Corporation of
Acceptable Risk Limit for Launch, 78 FR 52998 (Aug. 27, 2013).
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    The FAA expects that future missions flown under contract with NASA
to the ISS may present a collective risk that is similar to the risk
presented by the SpaceX and Orbital ISS missions. This is because the
collective risk posed by these missions is driven in large part by the
flight path from the United States to the ISS that must be taken during
launch. This flight path is expected to remain unchanged, and as such,
the risk associated with these missions is unlikely to change
significantly in the near future. The FAA also expects a significant
number of other future commercial launches and reentries, such as
SpaceX's research satellite mission, to exceed the existing
Ec limits. This is because commercial space transportation
is a relatively new industry, and the probability of failure of a new
ELV or RLV is relatively high.\28\ This high probability of failure
often results in higher Ec estimates.
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    \28\ See 14 CFR part 417, Appendix A.
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    The FAA's existing collective risk limits are no longer appropriate
because the U.S. Air Force has rejected the Ec standard on
which these limits were based after operating over 5,000 launches under
the 30 x 10-\6\ Ec collective-risk standard. NASA
has likewise rejected the 30 x 10-\6\ Ec standard
after operating approximately 129 launches under that standard. Based
on this change in position by two agencies with significant launch and
reentry risk experience and based on its own experience of having to
issue Ec waivers, the FAA has concluded that its existing
Ec limits regulate more than is necessary to protect public
health and safety and safety of property. Accordingly, the agency now
seeks to change its collective risk limitations for launch and reentry
in a manner that would maintain public safety and be less burdensome on
the regulated parties and the FAA.

II. Overview of Proposed Rule

    The FAA proposes to change its collective risk limits for launch
and reentry to more closely match the Ec standard currently
used for government missions by the U.S. Air Force and NASA in a manner
that properly addresses the level of uncertainty that exists in
Ec calculations. For all launches, regardless of vehicle
type, the FAA proposes to aggregate the risk posed to the collective
members of the public from the following hazards: (1) Impacting and
inert explosive debris, (2) toxic release, and (3) far field blast
overpressure. The proposed rule would prohibit an aggregate
Ec of these three hazards from exceeding 1 x
10-\4\. Because of the uncertainty in Ec
calculations, this Ec limit would be expressed using only
one significant digit.
    For all reentries, for the reasons it provided in the SpaceX
waivers, the FAA proposes to split up launch and reentry risk limits
for collective members of the public so that launch and reentry no
longer have to take place under a single Ec limit for both
activities. Launches of RLV's and other reentry vehicles would be
governed by the proposed launch limit of 1 x 10-\4\ for all
three hazards.
    Reentries would be subject to a separate 1 x 10-\4\
Ec limit that would account for the aggregated risk posed by
vehicle debris and toxic release. While the existing reentry risk
limits do not require an operator to account for risks arising out of a
toxic release, the next generation of reentry vehicles could present
significant toxicity dangers to the public. Accordingly, the FAA
proposes to establish a risk limit for this reentry hazard. In
addition, due to the uncertainty associated with the Ec
calculations, the 1 x 10-\4\ reentry Ec limit
would be expressed using one significant figure in the same manner as
the launch Ec limit.
    The FAA also proposes to clarify the regulatory requirements of
part 417 concerning hazard areas for ships and aircraft. Section
417.107(b) currently requires a launch operator to establish aircraft
and water-borne vessel hazard areas ``that provide an equivalent level
of safety'' to the hazard areas provided for launch from a federal
launch range.
    Under proposed section 417.107(b)(4), a hazard area for aircraft
would satisfy part 417 if the probability of impact with debris capable
of causing a casualty on any given aircraft in the vicinity of that
hazard area did not exceed 0.000001 (1 x 10-\6\). Under
proposed section 417.107(b)(3), a hazard area for water borne vessels
would satisfy part 417 if the probability of impact with debris capable
of causing a casualty on any given water borne vessel did not exceed
0.00001 (1 x 10-\5\).
    This proposed rule would achieve a quantified net benefit by
eliminating the costs associated with waivers for commercial space
launches with an aggregate Ec between 90 x 10-\6\
and 149 x 10-\6\ and for reentries with a debris
Ec exceeding 30 x 10-\6\. The resulting savings
for both the industry and the

FAA with an estimated mid-point would be approximately 695,754
($456,699 present value at a 7% discount rate). The lower and the
higher estimates are approximately $0.3 million and $1 million
($283,619 and $688,866 present value at a 7% discount rate),
respectively. This proposed rule would also result in the unquantified
benefit of expanding launch capability by avoiding mission delays and
scrubs. The costs of this proposed rule, if any, are minimal.

III. Discussion of the Proposal

A. Maintaining the Status Quo on Risk Limits to An Individual Member of
the Public

    Launch and reentry are each governed by two separate Ec
limits: (1) An Ec limit on risk posed to the collective
members of the public; and (2) a limit on risk posed to an individual.
Although the specific numerical limits for collective and individual
risk are different, they currently function under a similar regulatory
structure. Specifically, individual risk limits prohibit the launch
risk to an individual from exceeding an Ec of 1 x
10-\6\ for each hazard (debris, toxic release, and far field
blast overpressure) for launch of an ELV vehicle.\29\ For reentry of an
RLV or other reentry vehicle, the pertinent regulations prohibit the
risk to an individual from exceeding an Ec of 1 x
10-\6\ per mission.\30\
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    \29\ See 14 CFR 417.107(b)(2).
    \30\ See 14 CFR 431.35(b)(1)(ii) and 435.35.
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    To date, the FAA has had to issue a waiver to the collective
Ec limit for every commercial space operation that sought to
reach the ISS. In contrast, the FAA has never had to issue a waiver to
the limits on risk posed to an individual. To date, the FAA has only
had to consider one request for a waiver from the individual risk
limits, and the FAA denied that request, stating that ``[u]nlike public
risk, individual risk can almost always be mitigated through reasonable
means.'' \31\ Because the FAA has never needed to waive the limits
governing risk to an individual, the FAA proposes no changes to its
limits on individual risk. Moreover, the FAA's current individual risk
limit is consistent with the U.S. Air Force and NASA's standards.
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    \31\ Letter to Christopher H. DeMars, Orbital Sciences
Corporation, from Kenneth Wong, Manager, AST Licensing and
Evaluation Division (Dec. 13, 2013). A copy of the FAA's waiver
denial letter may be found in the docket.
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    The FAA invites comment on this issue, and on whether the limits
governing risk to an individual should be changed in light of the
changes proposed by this NPRM to the Ec limits governing
risk to the collective members of the public.

B. Aggregation of Launch Hazards and Setting An Ec Limit At 1 x 10-\4\

    Turning to the Ec limits governing risk to the
collective members of the public, part 417, which governs the launch of
ELVs, prohibits ELV launches from exceeding the following collective
Ec limits: (1) A limit of 30 x 10-\6\ for
impacting inert and explosive debris; (2) a limit of 30 x
10-\6\ for toxic release; and (3) a limit of 30 x
10-\6\ for far field blast overpressure. Proposed section
417.107(b)(1) would state that an ELV launch operator may initiate the
flight of a launch vehicle only if the total risk associated with the
launch to all members of the public, excluding persons in water-borne
vessels and aircraft, did not exceed an expected average number of
0.0001 casualties (Ec<= 1 x 10-4). The total risk
would consist of the risk posed by impacting inert and impacting
explosive debris, toxic release, and far field blast overpressure. As
it currently requires, the FAA would determine whether to approve
public risk due to any other hazard associated with the proposed flight
of a launch vehicle on a case-by-case basis. Again, as it currently
requires, this Ec criterion would apply to each ELV launch
from lift-off through orbital insertion, including each planned impact,
for an orbital launch, and through final impact for a suborbital
launch.
    As discussed above, during the rulemaking that created the part 417
Ec limits, the FAA wanted to set debris, toxicity, and far
field blast overpressure under a single aggregate Ec limit,
noting that such a limit would be ``ideal.'' \32\ This is because, in
setting collective risk limits, what matters is the number of people
who could be seriously injured by a launch rather than the number of
people who could be injured by a specific hazard. For example, under
current Ec limits, an ELV that has an Ec of 30 x
10-\6\ for toxicity, an Ec of 30 x
10-\6\ for debris, and an Ec of 30 x
10-\6\ for far field blast overpressure would be allowed to
initiate launch without a waiver. For this ELV, the total Ec
posed by the three hazards would be 90 x 10-\6\ (30 x
10-\6\ for toxicity + 30 x 10-\6\ for debris + 30
x 10-\6\ for far field blast overpressure). Conversely, an
ELV with an Ec of 31 x 10-\6\ for debris and an
Ec of 0 for toxicity and far field blast overpressure would
not be allowed to launch under current regulations because its debris
Ec would exceed 30 x 10-\6\. Thus, in this
example, an ELV with total average expected serious injuries of 90 x
10-\6\ would be allowed to launch under the existing
regulations, while an ELV with significantly lower total average
expected serious injuries of 31 x 10-\6\ would not be
allowed to launch simply because of the manner in which those potential
injuries are caused.
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    \32\ Launch SNPRM, 67 FR at 49461.
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    Because, as the above example shows, the existing regulatory
approach does not properly limit the total number of expected average
injuries, the FAA noted during the part 417 rulemaking that this was
not the ideal regulatory approach.\33\ However, the FAA was ultimately
forced to settle for this approach because at the time, the FAA did not
have historical data on which to base a higher Ec limit,\34\
which would have been necessary in order to aggregate the risk posed by
toxicity, debris, and blast overpressure.\35\
---------------------------------------------------------------------------

    \33\ See id.
    \34\ Id.
    \35\ In the rationale for its decision not to aggregate the risk
posed by toxicity, debris, and blast overpressure, the FAA also
stated that it would be difficult to normalize among these three
hazards. That part of the FAA's rationale is discussed below.
---------------------------------------------------------------------------

    The FAA now has the requisite historical data. In 2010, the U.S.
Air Force, after conducting over 5,000 launches under the 30 x
10-\6\ Ec limit that formed the basis for the
FAA's Ec regulations, has recently changed its limits as a
result of its operational experience. The U.S. Air Force now uses an
Ec limit for launch of 100 x 10-\6\ and an
Ec limit for reentry of 100 x 10-\6\. Each of
these limits applies to the combined risk posed by toxicity, debris,
and far field blast overpressure. Similarly, in 2010 NASA, after
conducting approximately 129 launches under an Ec standard
of 30 x 10-\6\, also changed its requirements to aggregate
the risk posed by toxicity, debris, and far field blast overpressure
under an Ec limit of 100 x 10-\6\.\36\ The FAA
did not have the benefit of the U.S. Air Force and NASA's 2010 changes
in position during its part 417 rulemaking.
---------------------------------------------------------------------------

    \36\ NASA Procedural Requirements (NPR) 8715.5A (Sep. 17, 2010).
A copy of this document may be found in the docket.
---------------------------------------------------------------------------

    In particular, at this time there have been over 100 U.S. launches
and reentries where the predicted risks to people on the ground
significantly exceeded 100 x 10-\6\ Ec, all
without any casualties as expected. For example, debris risks from the
135 space shuttle launches and reentries routinely exceeded 100 x
10-\6\ Ec. Specifically, all of NASA's 21 \37\
post-Columbia launches exceeded 100 x 10-\6\ Ec
on

Kennedy Space Center property,\38\ and at least 9 of those exceeded 30
x 10-\6\ Ec for members of the public outside of
Kennedy Space Center. In addition, 20 post-Columbia re-entries exceeded
100 x 10-\6\ Ec to the public by at least a
factor of three.
---------------------------------------------------------------------------

    \37\ See ``Aggregate Data'' (2014), which may be found in the
docket.
    \38\ NASA and the FAA employ different definitions of the
public. Under FAA definitions, persons on Kennedy Space Center
merely to view the launch without a mission role would qualify as
members of the public and be part of a risk analysis.
---------------------------------------------------------------------------

    The U.S. Air Force also approved at least two Titan IVB launches
that exceeded 100 x 10-\6\ Ec either due to
debris, toxics, or far field blast overpressure hazards. For example,
in 1998, the U.S. Air Force successfully launched a Titan IV B-12\39\
mission with an Ec of about 200 x 10-\6\
Ec due to far field blast overpressure hazards in the launch
area. Another example occurred in 2005 when the U.S. Air Force approved
a government launch of the Titan IV B-30 mission with a predicted
debris risk between a factor of 1.5 to 3 above 100 x 10-\6\
Ec attributable to downrange overflight.\40\ Neither of
these missions harmed members of the public.\41\
---------------------------------------------------------------------------

    \39\ SeeAggregate Data
    \40\ See RTI International, Titan IV B-30 Downrange Risks. A
copy of this document may be found in the docket.
    \41\ The elevated risks associated with those Titan launches
were deemed acceptable by the U.S. Air Force based on rules that
allowed a Range Commander to accept collective risks from launch
involving ``national need'' that exceed the normal risk criteria.
See Common Risk Criteria Standards for National Test Ranges (RCC)
321-07, Sec.  1.4(c) (2007).
---------------------------------------------------------------------------

    The FAA has already begun to rely on the U.S. Air Force's new
Ec limits as part of its collective-risk analysis. For
example, in its analysis of SpaceX's proposed 2012 launch, the FAA
estimated that the launch would result in a debris Ec
ranging from 98 x 10-\6\ to 121 x 10-\6\.
However, even though these Ec totals were over the FAA's 30
x 10-\6\ Ec limit, the FAA ultimately concluded
that SpaceX's launch would not pose a danger to persons or property
because the low end of the Ec estimate (98 x
10-\6\) was lower than the 100 x 10-\6\
Ec limit that is now being used by the U.S. Air Force.\42\
The FAA has also heavily relied on the U.S. Air Force's standards in
granting the three other waivers described above.
---------------------------------------------------------------------------

    \42\ 77 FR at 24556
---------------------------------------------------------------------------

    Accordingly, because the government launches on which the FAA
waivers were based provide the FAA with the historical data necessary
to select a higher Ec limit, the FAA proposes to revise part
417 to aggregate the collective risks posed by toxicity, debris, and
far field blast overpressure associated with commercial ELV launches.
Under the FAA's proposal, the risks posed by toxicity, debris, and far
field blast overpressure to the collective members of the public would
continue to be calculated separately for each hazard. The final
Ec totals for these hazards would then be aggregated and
rounded (as discussed more fully below) so that they are expressed
using only one significant digit.
    Aggregating the risks posed by toxicity, debris, and far field
blast overpressure should not present the problems regarding
conservatism and normalizing across hazards that the original
rulemaking discussed. This is because the Ec calculations
for toxicity, debris, and far field blast overpressure only count the
injuries that qualify as Level 3 or higher on the Abbreviated Injury
Scale (AIS) of the Association for the Advancement of Automotive
Medicine.\43\ The AIS is an anatomical scoring system that provides a
means of ranking the severity of an injury and is widely used by
emergency medical personnel. Within the AIS system, injuries are ranked
on a scale of 1 to 6, with Level 1 being a minor injury, Level 2
moderate, Level 3 serious, Level 4 severe, Level 5 critical, and Level
6 a non-survivable injury. Even though toxicity, debris, and far field
blast overpressure may cause injuries in different ways, the meaning of
the Ec results for these three hazards fundamentally do not
differ. This is because the Ec total for each hazard
determines how many injuries that are AIS Level 3 or higher a
particular hazard would cause.
---------------------------------------------------------------------------

    \43\ See Launch SNPRM, 67 FR at 49465 (explaining how
Ec is calculated).
---------------------------------------------------------------------------

    In its original rulemaking, the FAA treated conservatisms in
calculations as a reason not to assess the risk of a combination of
hazards.\44\ The FAA was concerned that aggregation of the risks posed
by toxicity, debris, and blast overpressure could be problematic
because assumptions that are unduly conservative for one hazard may not
be unduly conservative for calculating the Ec of another
hazard. For example, when assessing the risks posed by far field blast
overpressure, the conservative approach, in the absence of data
detailing true locations, would be to assume all the population was
located inside buildings and thus exposed to the danger of flying
glass. When assessing the risk posed by a release of toxic substances,
on the other hand, the conservative approach would be to assume that at
least a portion of the exposed population was outdoors, thus increasing
the likelihood of harm from the release.\45\
---------------------------------------------------------------------------

    \44\ Id. at 49462.
    \45\ Id. at 49462.
---------------------------------------------------------------------------

    This concern may be allayed by the use of realistic assumptions,
and by recognizing that the use of AIS Level 3 provides a basis for
normalizing across all three hazards. Using realistic assumptions,\46\
as well as the AIS framework discussed above, a license applicant may
account for a person's location at the time of the launch or reentry
and determine the extent of possible injuries that person could sustain
as a result of the operation. Regardless of which hazard caused
injuries to the person, that person would have to be injured at AIS
Level 3 or higher in order for the injury to be considered serious for
Ec analysis purposes. Because the AIS analysis used in
Ec calculations looks at the severity of an injury and not
how an injury is caused, the FAA does not anticipate problems
normalizing Ec calculations in order to aggregate the
serious injuries that could be caused by debris, toxic release, and far
field blast overpressure.
---------------------------------------------------------------------------

    \46\ Ec calculations that are based on realistic
assumptions will result in lower Ec totals than
Ec calculations that are based on conservative
assumptions. As such, it would behoove license applicants to use
realistic rather than conservative Ec assumptions in
their calculations.
---------------------------------------------------------------------------

    Even if an applicant based its hazard-specific Ec
calculations on conservative assumptions, the error from aggregating
those assumptions would be minimal. This is because ``[c]onditions that
are conducive to driving up the risk associated with one hazard usually
make another hazard less significant.'' \47\ For example, the 2012
SpaceX launch had a debris Ec ranging from 98 x
10-\6\ to 121 x 10-\6\, a toxicity Ec
that was less than 10 x 10-\6\, and a far field blast
overpressure Ec of essentially 0. If these numbers were
added together, any uncertainty caused by the addition would not have a
significant effect on the resulting total because most of that total
Ec was caused by a single hazard (debris) that was
calculated using a single set of assumptions. In any case, as discussed
above, the Ec for all three hazards is calculated using the
same AIS Level 3 standard thus allowing a launch operator to focus on
the severity of an injury instead of how an injury is caused. This
normalizes calculations across all the hazards and allows the serious
injuries caused by the hazards to be aggregated regardless of the
assumptions that underlie the estimates of those injuries.
---------------------------------------------------------------------------

    \47\ See Launch SNPRM, 67 FR at 49461.

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

C. Use of One Significant Digit for Launch and Reentry Ec
Limits

    Proposed sections 417.107(b)(1), 431.35(b)(1) and 435.35 would
express the proposed risk limit as one significant digit, as an
Ec limit of 1 x 10-\4\. In selecting a limit
under which to set the aggregated risk posed to the collective members
of the public by toxicity, debris, and far field blast overpressure,
the FAA considered the 100 x 10-\6\ Ec limit that
is now being used by the U.S. Air Force. To date, the FAA has employed
two significant digits. In exploring whether it had a basis to employ
three significant digits, the FAA had to explore the advisability of
employing more than one in the first place. Due to the uncertainties
associated with Ec calculations, which are discussed more
fully below, the FAA proposes to employ one significant digit.
    Significant digits are used to express a measure of mathematical
certainty. Thus, trailing zeroes are significant only if they are used
to express a measure of precision. For example, assume a person has a
height of 168 centimeters, and this person wants to express his height
as 168.000 centimeters. The three trailing zeroes in 168.000 would be
significant only if the person had his height measured by a device
capable of measuring that height to the thousandth place. In that
instance, the zeroes would convey that the device determined that this
person's height, as measured to the thousandth place, is exactly
168.000 centimeters. Otherwise, if the three trailing zeroes are not
being used to convey this message, they are not significant and should
be removed so as to not convey a false measure of precision.
    An Ec limit of 100 x 10-\6\ would be 0.000100
if expressed as a decimal. There are two trailing zeroes in this number
(0.000100), implying that the Ec is measured to the
millionth place of precision. However, due to the modeling
uncertainties associated with one of the variables in calculating
Ec, namely, the probability of failure discussed below, the
FAA proposes to use only one significant digit as the final expression
of Ec results.
    As discussed above, the purpose of significant digits is to
identify the number of digits after the decimal that reflect the level
of precision in a numerical result. The number of digits in a properly
prepared and formally formatted numerical result indicates the level of
precision of that result; more digits indicate higher level of
precision, fewer digits indicate lower level of precision. The last
significant digit reported indicates that the result comes from
empirical data to within +/- 1 of the reported number. That is, if the
last significant digit reported is a 4, then the reader can confidently
assume that the value is closer to 4, and not 3 or 5. For complex
mathematical calculations, the numerical input (or intermediate
calculation) with the fewest significant digits establishes the number
of significant digits that can be reported legitimately in the final
numerical result (where legitimate means that the certainty of the
final result is properly reflected.) When using scientific notation to
report a numerical result, every digit reported is considered
significant. For example, the number 30 x 10-\6\ is not the
same as 3 x 10-\5\ in the sense that the first number has 2
significant digits and the second has only 1 significant digit.
    Examining how many significant digits should be used to express
Ec limits, we note that there are two types of uncertainty
associated with calculating Ec: Aleatory and epistemic
uncertainty. Aleatory uncertainty is the randomness in the occurrence
and consequences of an accident, and epistemic uncertainty represents
the uncertainty in the ability of the model to compute the true point
value of risk.
    Aleatory uncertainty is the result of inherently random processes:
the uncontrollable variability of real events even under tightly
controlled conditions. Aleatory uncertainty is due to the randomness
inherent in the occurrence and consequences of an accident. For risk
analysis, improved modeling cannot reduce aleatory uncertainty. A key
example of aleatory uncertainty arises out of the prevailing weather
conditions for a launch risk analysis. The true Ec is
dependent upon the prevailing weather conditions during launch, and no
amount of analysis will reduce the variability associated with weather
conditions. The uncertainty in the true Ec due to weather
conditions is substantial for a typical baseline launch risk analysis
that represents the weather conditions in a given month based upon
historical data, and assumes that a launch is equally likely under any
of those weather conditions. The uncertainty in the true Ec
for a day of launch risk analysis is much smaller, but the weather
input data will still produce some variability in the Ec due
to errors and variability in the weather measurements and forecasts.
There are numerous other sources of aleatory uncertainty in an
Ec analysis, and there are different ways these aleatory
uncertainties can be accounted for. These aleatory uncertainties may
include: the natural variations in the normal and malfunction
trajectories, population and sheltering characteristics (e.g. between
day and night), the velocities induced during break-up, the aerodynamic
properties of the debris, and the yield from an explosive impact. All
of these aleatory uncertainties directly influence the predicted
consequence of a failure, and thus the Ec estimate.
    Epistemic uncertainty is the result of the uncertainty in some of
the model input parameters, the potential influence of unknowns and the
approximate nature of the model itself. The model and its input
parameters require data or knowledge that are not known perfectly and
can only be estimated, creating model inadequacies that produce
systemic uncertainty, referred to as bias, in determining the correct
answer. The probability of failure is typically the greatest source of
epistemic uncertainty for a launch or reentry risk analysis. The
probability of failure uncertainty is so significant because: (1) It is
typically the dominant source of uncertainty in the overall
Ec associated with a launch or reentry of a new vehicle, (2)
the probability of a failure has the most direct influence on public
risks posed by a launch or reentry (especially during those phases of
flight where public risk is the greatest), and (3) it is present
regardless of the hazard involved (i.e. debris, toxics, or far field
blast overpressure). Given the fact that even a structural fatigue test
result is best modeled using a probability distribution, the
probability of failure for a system as complex as a launch or reentry
vehicle is often shrouded in substantial uncertainty, particularly for
a new vehicle.
    The FAA has examined multiple analyses performed to quantify the
uncertainty in launch and reentry risk analyses for various
circumstances, including those where the risks are predominantly in the
launch area, where a flight safety system is used, and those due to
down range over-flight of large land masses where a flight safety
system would not likely be activated. The uncertainty assessments
examined the uncertainty in the Ec results due to all
sources, epistemic and aleatory, and the results of these sensitivity
studies quantified the uncertainties related to both the probability of
the launch risk and the consequence of the launch risk. The results of
these uncertainty analyses show that, even for relatively mature
vehicles, the inability to determine the true probability of failure
generally creates too much uncertainty to justify more than one
significant digit in the Ec results for launch or reentry.

    Furthermore, the results demonstrate that there is generally enough
aleatory uncertainty alone to make a second significant digit in the
reported Ec illegitimate, even if there was no uncertainty
with all the critical input data such as the probability of failure and
debris catalogs. Thus, considering both the aleatory uncertainty and
the epistemic uncertainty in launch and reentry risk analyses, the
calculation of a most likely Ec must be reported with
caution so as not to overstate the confidence levels associated with
the result. The magnitude of uncertainty in Ec results
computed with current state-of-the-art models demonstrates that no more
than one significant digit should be used. Any more than one
significant digit in the Ec result implies greater certainty
in that digit, and greater confidence in that digit by the safety
community, than can be justified.
    The FAA notes that there could be instances in which the use of
more than one significant digit is justified. However, at this time,
the FAA does not have sufficient data to set a generally-applicable
regulatory Ec limit using more than one significant digit.
Accordingly, at this time, the FAA proposes an Ec limit on
collective risk to the public that uses only one significant digit.
Once more data become available, the FAA may revisit this issue in a
future rulemaking.
    The way that the FAA's one-significant-digit proposal would work in
practice is that the Ec for each hazard would be calculated
as it is now calculated. Those Ec values could then be added
together, any known double counting would be corrected, and the result
would be rounded to the closest significant digit. For example, take a
launch that has the following Ecs: a debris Ec of
9 x 10-\5\, a toxicity Ec of 9 x
10-\6\, and a far-field blast overpressure Ec of
5 x 10-\5\. When the Ecs for these three hazards
are added together, the total is 149 x 10-\6\, or
equivalently 1.49 x 10-\4\, at least until the overall level
of certainty is accounted for. This number would then be rounded so
that it is expressed using only one significant digit. Thus, 1.49 would
be rounded to 1, and the resulting total Ec would be 1 x
10-\4\. Consequently, the hypothetical launch discussed here
would comply with of the 1 x 10-\4\ aggregate Ec
standard that the FAA proposes to apply to the collective risk
associated with ELV launches.
    Conversely, if the Ec results for the hazards associated
with an ELV launch were such that they totaled to 151 x
10-\6\, this total would be rounded to an Ec of 2
x 10-\4\ in order to be expressed using one significant
digit. In that scenario, the launch would violate the proposed 1 x
10-\4\ aggregate Ec standard for risk to the
collective members of the public.
    The FAA notes that its proposed aggregate Ec limit of 1
x 10-\4\ is more stringent than the total Ec of
some of the safely-conducted NASA and U.S. Air Force launches that have
been discussed above. As such, the FAA invites comments as to whether
the aggregate Ec limit should be set at a level that is less
stringent than 1 x 10-\4\ and what the reasons for such an
increase would be. Also, if the Ec limit is set at a level
that is less stringent than 1 x 10-\4\, should additional
restrictions be added to the regulations in order to compensate for the
additional public risk caused by the higher Ec limit?

D. Splitting Up Launch and Reentry Ec for Reentry Vehicles

    The FAA also proposes to separate the Ec limits for
launch and reentry of all reentry vehicles rather than applying a
single risk limit, as it does now, to both phases of a mission. The
FAA's risk limits for reentry can be found in Sec. Sec.  431.35(b)(1)
(for RLVs) and 435.35 (for all other reentry vehicles). Both sections
impose the same Ec limits because Sec.  435.35 requires
compliance with the RLV Ec limitations of Sec.  431.35.
    The collective risk limit imposed on reentry-vehicle operations
applies to launch and reentry combined, which means that the debris
risk from a launch added to the debris risk from the ensuing reentry
may not exceed an Ec of 30 x 10-\6\. The
regulations do not apply separate risk limits to launch and reentry
conducted as a single mission because at the time of the original
rulemaking, the FAA wanted to ensure that the accumulated mission risk
did not exceed an Ec of 30 x 10-\6\.\48\ The FAA
reasoned that setting RLV launch and reentry under separate
Ec limits could have resulted in a total mission
Ec of 60 x 10-\6\ (a launch Ec of 30 x
10-\6\ + a reentry Ec of 30 x 10-\6\).
However, the FAA acknowledged there could be circumstances where it
would be appropriate to separate launch from reentry risk, such as
where different operators were involved and could be apportioned
allowable risk thresholds, or where intervening events or time made
reentry risks sufficiently independent of launch risks as to warrant
separate consideration.\49\
---------------------------------------------------------------------------

    \48\ Reentry Rule, 64 FR at 19635.
    \49\ Id.
---------------------------------------------------------------------------

    Assigning a single risk limit to launch and reentry combined is
neither necessary nor justifiable. Under Sec.  417.107(b), a mission
that does not include a reentry (which would usually be conducted with
an ELV-only vehicle) may be initiated with a debris Ec to
the collective members of the public of 30 x 10-\6\.
However, if a mission that included a reentry was to be launched in the
same manner, carrying a reentry vehicle as a payload, that mission
would be unable to commence a reentry, as its 30 x 10-\6\
launch Ec would ``use up'' all of the Ec allotted
for the combined launch and reentry mission. Thus, in order to be able
to initiate a reentry, a reentry vehicle is required to be launched
under a more stringent Ec standard than other payloads.
Stated another way, under current regulations, a launch without a
reentry is subject to a less stringent Ec limit than a
launch that includes a reentry because the reentry-less launch does not
have to budget any of the allowable Ec toward reentry risk.
    Parts 431 and 435 currently combine launch and reentry under a
single Ec standard because when the FAA promulgated the
regulations governing reentry, proposed reentry vehicles were primarily
envisioned as reusable launch vehicles, which are both a launch and
reentry vehicle. As a result, the FAA did not have experience with
missions in which launch and reentry functioned independently of each
other. As it turned out, the first reentry vehicle the FAA ultimately
licensed was not an RLV but a capsule, which is only a reentry vehicle.
The capsule's reentry highlighted that the decision-making behind the
reentry was sufficiently independent to require separate consideration
and thus its own risk assessment.
    This is also shown by the FAA's waiver analysis of SpaceX's 2010
and 2012 missions, which noted that after launch, SpaceX's vehicle
would perform a health check, and that the results of this health check
would determine whether the vehicle would initiate a reentry.\50\ For
both missions, the FAA found the health check made the collective risk
associated with launch and reentry ``sufficiently independent to
warrant separate consideration . . .'' \51\ Both the 2010 and 2012
SpaceX waivers examined the launch of each mission under a separate 30
x 10-\6\ Ec limit than the reentry for that
mission.
---------------------------------------------------------------------------

    \50\ See 75 FR at 75621 and 77 FR at 24558.
    \51\ 75 FR at 75621.
---------------------------------------------------------------------------

    SpaceX is not alone in performing independent checks. Section
431.43(e)(1) requires all operators to conduct a health check before
commencing a reentry. This requirement is in Sec.  431.43(e)(1), which

states that an RLV operator must ``[m]onitor and verify the status of
safety-critical systems before enabling reentry flight,'' shows that
launch and reentry are sufficiently independent to warrant separate
consideration.
    A number of other factors support setting launch and reentry risk
separately. As an initial matter, reentry is independent from launch
because the two are separate events. A launch may not always be
successful, and a single risk limit that encompasses both launch and
reentry makes reentry risk calculations unnecessarily dependent on the
probability of failure associated with launch. Separating launch and
reentry risk criteria is the preferred approach because under a
separate reentry risk limit, the reentry would have to meet the risk
criteria assuming that the launch had succeeded.
    In addition, a reentry trajectory does not have to be finalized, at
the earliest, until launch concludes. For example, a reentry vehicle
could have multiple viable reentry trajectories, and the operator of
that vehicle would not have to pick one of those trajectories until the
vehicle was ready to commence reentry after launch had already taken
place. In that scenario, it would not make sense to limit the
operator's reentry decision by an event that had already taken place
(the launch), which the operator could not affect after it had
occurred.
    In addition, launch and reentry could be handled by different
entities. For example, one company (Company 1) could launch a reentry
vehicle operated by another company (Company 2). Just like in the
previous scenario, it would not make sense to limit Company 2's
decisions regarding its reentry based on a launch that had already
taken place.
    We note that launch and reentry are also distinct because they
generally pose risks to distinct populations, and the tolerable level
of collective risk is logically correlated with the nature and size of
the exposed population. A general difference between the nature of the
populations exposed to launch and reentry risks is that launches
generally expose fewer people that are near the launch site or under
the launch trajectory, but reentry risks are often widely distributed
over populations that dwell within the latitudes bounded by the orbital
inclination.
    As discussed above, the U.S. Air Force and NASA, both of which have
significant operational experience administering collective risk
limits, recently set launch and reentry under separate Ec
limits of 100 x 10-\6\. This decision by the U.S. Air Force
and NASA also supports the FAA's proposal to assign separate
Ec limits to launch and reentry. The specific Ec
limits that the FAA proposes are discussed in the next section.
    We note, however, that the proposed rule would assign separate the
Ec limits to launch and reentry only for reentry from orbit.
The FAA proposes to leave unchanged the requirement that suborbital
launches and reentries are subject to a single launch Ec
limit that encompasses the entire operation from launch through final
impact. The FAA invites comments on whether the Ec limit for
the launch and reentry of suborbital reentry-vehicle operations should
be separated in the same manner as the Ec limit for
reentries from orbit.

E. Including Toxicity in the Reentry Ec Limits of Parts 431
and 435 and Harmonizing That Part With Part 417

    Sections 431.35 and 435.35 govern the Ec associated with
the operation of reentry vehicles. The FAA proposes to change the
structure of these regulations as follows. As discussed above, the
Ec associated with a licensed launch would be regulated
separately from reentry. For launch, the FAA proposes to harmonize the
Ec launch requirements for ELVs and reentry vehicles by
setting the Ec launch limit for reentry vehicles under the
same aggregate 1 x 10-\4\ limit that this proposal would
apply to ELV launches under part 417. This launch limit would regulate
the aggregate risk associated with toxicity, impacting inert and
explosive debris, and far field blast overpressure. In addition, just
like the aggregate Ec launch limit that governs ELVs under
part 417, the aggregate Ec launch limit that governs reentry
vehicles under parts 431 and 435 would be expressed using only one
significant digit. Using this approach, the Ec associated
with a licensed launch would be regulated the same way regardless of
what vehicle or payload was used in the launch.
    With regard to reentry, Sec. Sec.  431.35 and 435.35 currently
account only for the risk posed by debris to the collective members of
the public. This proposed rule would clarify that, just like launch,
the debris regulations for reentry encompass both impacting inert and
explosive debris. The FAA is also proposing to require a launch
operator to also account for the risks of toxic release. While there
have not been past instances of a reentry where toxicity risk was above
a minimal level, the FAA is concerned about missions that are being
planned for the near future involving a reentry vehicle touching down
on land during a reentry. These types of missions may require a reentry
vehicle to carry a substantial load of fuel during reentry, which would
significantly increase the risk of toxic release posed by the reentry.
For example, the FAA performed a sensitivity study on the release of a
reentry vehicle's propellants during reentry and found that a ground
release of the propellants is the worst case scenario for a toxic
release, as opposed to venting the propellant during reentry or the
vehicle exploding during reentry and releasing all of its propellant
into the atmosphere at a high altitude. In other words, the study
results demonstrated an inversely proportional relationship between
altitude release and the casualty area, where the higher the altitude
release, the lower the casualty area. The two methods of dispersion
considered for a ground release were a ``Hot Spill'' method, which is
where a propellant tank explodes on impact and releases a toxic vapor
cloud and a ``Pool Evaporation'' method, which is where a propellant
tank ruptures on impact and leaks out the propellant, forming a liquid
pool. Because of the possible risk posed by these types of missions and
methods of toxic dispersion, the FAA is proposing to add toxic releases
to the Ec limit governing reentry. No current reentry
vehicles have the capability of reentering to land, so the FAA seeks
comment on the necessity of this proposal.
    The U.S. Air Force and NASA have a total reentry Ec
limited to a 100 x 10-\6\ limit. However, as discussed
above, Ec calculations currently contain a level of
uncertainty that generally prevents them from being accurately
expressed using more than one significant digit. Accordingly, the FAA
proposes to set the reentry Ec limit for collective risk to
1 x 10-\4\ expressed using a single significant digit. This
reentry limit would govern the aggregated risk posed by vehicle debris
and toxic release.

F. Hazard Areas

    The FAA also proposes to clarify the existing limits on probability
of impact for ships and aircraft. This proposed clarification would not
constitute a change from what is currently required. Specifically,
Sec.  417.107(b)(3) and (4) currently require the launch operator of an
ELV to implement and establish ship and aircraft hazard areas that
provide an equivalent level of safety to that provided by ship and
aircraft hazard areas implemented for launch from a federal launch
range. This provision memorializes the level of safety that was
provided by hazard areas for launches from a federal launch range in
2006,

when the FAA issued Sec.  417.107(b)(3).\52\ Because the current
provision does not specify a specific federal launch range, a launch
operator could arguably pick an equivalent hazard-area level of safety
from amongst the federal launch ranges.
---------------------------------------------------------------------------

    \52\ As of the date of this writing, December 2013, federal
launch ranges have not changed the pertinent standards from what
they used in 2006.
---------------------------------------------------------------------------

    While each federal launch range has its own safety criteria for
hazard areas, the federal launch range with the least burdensome limit
for hazard areas imposes a probability of impact (Pi) limit
of 1 x 10-6 for aircraft hazard areas and a Pi
limit of 1 x 10-5 for water-borne-vessel hazard areas.\53\
Currently, Sec.  417.107(b)(3) and (4) permits a launch operator to set
a hazard-area level of safety that is equivalent to the one used by
federal launch ranges with the least burdensome hazard area limit.
Accordingly, the FAA proposes to make transparent the criteria for
establishing hazard areas, which are that an aircraft Pi,
may not exceed 1 x 10-6 and a water-borne vessel
Pi may not exceed 1 x 10-5.
---------------------------------------------------------------------------

    \53\ Common Risk Criteria Standards for National Test Ranges
(RCC) 321-07 (2007).
---------------------------------------------------------------------------

    The FAA's proposal would define Pi as probability of
impact with debris capable of causing a casualty. This is because the
federal launch ranges defined Pi in this manner in 2006.
Specifically, an 1E-6 probability of impact was the
criterion used by the Eastern Range in 2002 \54\ and that same
criterion was used in 2007.\55\ The 2007 version of the RCC 321-07 made
clear that the ship and aircraft protection criteria in use by U.S.
ranges are ``based on the probability of impact with `debris capable of
producing a casualty' for ships and aircraft''.\56\ This is an
important clarification because some debris fragments are too small to
threaten the safety of people onboard aircraft or ships.
---------------------------------------------------------------------------

    \54\ Common Risk Criteria Standards for National Test Ranges
(RCC) 321-02 Supplement at 3 (2002).
    \55\ Common Risk Criteria Standards for National Test Ranges
(RCC) 321-07 at 5-49.
    \56\ See pages 3-3 and 3-4 of Range Commanders Council Risk
Committee of the Range Safety Group, Common Risk Criteria for
National Test Ranges, RCC 321-07, White Sands Missile Range, New
Mexico, 2007.
---------------------------------------------------------------------------

IV. Regulatory Notices and Analyses

A. Regulatory Evaluation

    Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 and Executive Order 13563 direct
that each Federal agency shall 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 (Pub.
L. 96-354) requires agencies to analyze the economic impact of
regulatory changes on small entities. Third, the Trade Agreements Act
(Pub. L. 96-39) prohibits agencies from setting standards that create
unnecessary obstacles to the foreign commerce of the United States. In
developing U.S. standards, the Trade Act requires agencies to consider
international standards and, where appropriate, that they be the basis
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4) 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 with
base year of 1995). This portion of the preamble summarizes the FAA's
analysis of the economic impacts of this proposed rule.
    In conducting these analyses, the FAA has determined that this
proposed rule: (1) Has net benefits that justify the minimum costs; (2)
is not an economically ``significant regulatory action'' as defined in
section 3(f) of Executive Order 12866; (3) is not ``significant'' as
defined in DOT's Regulatory Policies and Procedures; (4) would not have
a significant economic impact on a substantial number of small
entities; (5) would not create unnecessary obstacles to the foreign
commerce of the United States; and (6) would not impose an unfunded
mandate on state, local, or tribal governments, or other private
sectors by exceeding the threshold identified above.
    Department of Transportation Order DOT 2100.5 prescribes policies
and procedures for simplification, analysis, and review of regulations.
If the expected cost impact is so minimal that a proposed or final rule
does not warrant a full evaluation, this order permits that a statement
to that effect and the basis for it be included in the preamble if a
full regulatory evaluation of the cost and benefits is not prepared.
Such a determination has been made for this proposed rule. These
analyses are summarized below.
Parties Potentially Affected by This Rulemaking
 Satellite and RLV owners
 License applicants for launches and reentries
 Commercial space transportation suppliers
 The Federal Aviation Administration and the general public
Principal Assumptions and Sources of Information
     Benefit-Cost Analysis for the collective risk limits
during launches and reentries (GRA study 2013 by GRA, Incorporated
\57\).
---------------------------------------------------------------------------

    \57\ GRA study can be found in the docket.
---------------------------------------------------------------------------

     As discussed below, the principal assumption underlying
the proposed rule is that the acceptable public risk of launch or
reentry mission is an expected casualty Ec value of 1 x
10-4 or less.
     FAA Office of Commercial Space Transportation forecast of
suborbital launches using subject experts' judgment.
     FAA Office of Commercial Space Transportation estimation
of the commercial space industry hours related to waiver applications.
     All monetary values are expressed in 2012 dollars.
     Projected impacts for a 10-year period from 2013 to 2022.
Cost-Benefit Analysis
    Under current regulations, the FAA prohibits the expected casualty
(Ec) for each physically distinct source of risk (impacting
inert and explosive debris, toxic release and far field blast
overpressure) from exceeding 30 x 10-6 or an expected
average number of 0.00003 casualties per launch. The aggregate
Ec equals the sum of these risks, i.e., (30 x
10-6) + (30 x 10-6) + (30 x 10-6), for
a total of 90 x 10-6. However, launches currently are not
subject to this single aggregate Ec limit. If there is a
reentry using an RLV or other reentry vehicle, an additional regulatory
provision becomes applicable, which prohibits the combined
Ec of the launch and reentry from exceeding 30 x
10-6 for impacting debris.\58\
---------------------------------------------------------------------------

    \58\ This limit is specified in 14 CFR 431.35, which applies
only to reusable launch vehicles. However, 14 CFR 435.35
incorporates and applies 14 CFR 431.35 to all reentry vehicles.
---------------------------------------------------------------------------

    Under this proposal, the FAA would separate its expected casualties
(Ec) for launches and reentries. The proposed rule would
adopt an aggregate Ec requirement for a launch not to exceed
1 x 10-4 posed by the following hazards: (1) Impacting inert
and explosive debris, (2) toxic release, and (3) far field blast
overpressure. The FAA also proposes a separate aggregate Ec
requirement for a reentry not to exceed 1 x 10-4 posed by
the hazards of debris and toxic release.
    An Ec value of 1 x 10-4 mathematically equals
100 x 10-6, which is the Ec value currently used
on

federal ranges for civil and military launch and reentry missions.
However, because the proposed aggregate Ec limit would use
only one significant digit in the format of 1 x 10-4, this
proposal would, in effect, allow a commercial launch or reentry with an
aggregate Ec limit up to 149 x 10-6 under current
calculations to proceed without requiring the applicant to seek an FAA
waiver. This is because 149 x 10-6 rounds down to 1 x
10-4 when expressed using only one significant digit.
    Based on analysis of the historical data, the FAA found the
proposed criteria are supported by the commercial mission experiences
and post-mission safety data available since 1989. The FAA's launch
data indicated during this time there were 45 suborbital launches and
193 orbital launches, for a total of 238 launches.\59\ At least four of
these launches used an Ec that was allowed to go above the
existing 30 x 10-6 Ec limits. However, none of
these launches resulted in any casualties or other adverse impacts on
public safety.
---------------------------------------------------------------------------

    \59\ AST/FAA launch data as of Feb 1, 2013, excluding 21 failed
launches. This data can be found at http://www.faa.gov/about/office_org/headquarters_offices/ast/launch_license. See also
Appendix A in GRA study, which can be found on the docket for this
rule.
---------------------------------------------------------------------------

    As discussed in the preamble above, the FAA believes managing the
precision of rounding digits below and above the Ec limit is
imprecise for administering launch or re-entry licenses given the
uncertainties associated with the probability of failure variable that
goes into an Ec calculation. By using only one significant
digit, the proposed Ec limit for launch would become
slightly less restrictive than the three existing launch Ec
limits combined (i.e., 90 x 10-6). The regulatory-compliance
difference between 90 x 10-6 and 149 x 10-6 falls
under an accepted safety margin because the level of imprecision
associated with Ec calculations means that there is no
substantive difference between these two Ec figures.
However, changing the regulations to use only one significant digit
would improve efficiency by providing some flexibility to the
government and license applicants in the launch approval process. In
addition, using a single Ec limit that applies to an
aggregate risk in place of three separate hazard-specific Ec
limitations would further increase efficiency. As a result, the
proposed rule would maintain a level of safety for commercial launches
commensurate with the current level of safety associated with civil and
military counterparts, but would be cost relieving by eliminating some
waiver processes necessary under the current regulations as discussed
below.
    The proposed criteria would also separately address the public risk
limits of toxic release and inert and explosive debris risks for
reentry operations by establishing public safety requirements similar
to the ones used at the federal launch ranges. Based on current
practices of administering reentry licenses, the FAA found it was
unrealistic and unnecessary to administer reentry licenses with a
strict Ec limit of 30 x 10-6 for the combination
of launch and reentry debris hazards. Aggregating Ec limits
of toxic release and debris risks, the proposed Ec limit for
reentry would be commensurate with the current safety requirements
applied to civil and military reentries, and more conservative than
past federal launch ranges' practices that gave waivers to allow non-
commercial reentry missions to proceed with Ec risks on the
order of 1x 10-3.
    The proposed rule would merely revise reentry Ec limits
of toxic release and debris risks to be close to the current reentry
licensing practice, on which we assess the current economic baseline of
the revised Ec limits. The FAA expects that the nominal
increase in the debris Ec limit on reentry proposed in this
rule will impose no or minimal societal costs. This is because, while
the FAA has not been asked to grant a waiver in which Ec for
reentry would exceed 30 x 10-6, the FAA has historically
issued a number of waivers to commercial launches that allowed those
launches to exceed the regulatory Ec limits as long as those
launches did not exceed the 100 x 10-6 Ec limits
imposed by the federal ranges. The FAA has also issued waivers to two
commercial reentries that allowed the Ec for those reentries
to be considered separately from the Ec for launch. While
the FAA, as part of its waiver process, has not yet had to consider
whether a reentry operation should be issued a waiver to exceed the 30
x 10-6 Ec limit on reentry, the FAA expects that
its launch waiver analysis would apply equally to reentry operations.
Consequently, the FAA anticipates that many of the reentry operations
that would be affected by this rule may be eligible for an FAA waiver
in the absence of this rule. The only impact that this rule will have
on those operations is to eliminate the need to seek an FAA waiver.
Accordingly, any change to risk on reentry made by this proposed rule
would be nominal at most.
    With regard to toxic release risks, by applying the revised
Ec value of 1 x 10-4 to toxic release risks
during a reentry operation, the proposed rule would provide an
incremental margin of safety to the public that does not exist under
the current rule. However, from a technical perspective, toxic release
risks for reentry vehicles are expected to remain a minor factor in
Ec calculations, because the toxic release requirement would
affect only those vehicles that intend to return to land rather than
the ocean. The propellant load for a reentering reentry vehicle will
generally be minimal because most of the propellant will have been used
during the mission. The FAA believes that this portion of proposed
criteria pertaining to reentries of the next generation of vehicles
would not raise costs to the commercial space transportation industry.
Therefore, the FAA believes this proposed requirement has minimal costs
and positive benefits. The FAA requests comments with regard to the
minimal cost determination.
    The proposed changes in the risk limits would apply to all three
hazards combined rather than to each individual hazard. In addition,
the proposed changes would theoretically permit launches or reentries
without seeking waivers as long as the aggregated risks would not
exceed 0.000149 expected casualties per launch or re-entry mission
(i.e., 149 x 10-6). Both the commercial space transportation
industry and the government would have savings attributable to less
paperwork by avoiding some waiver-application process expenses.
    Based on historical records of requests and previous FAA-issued
waivers from the current Ec limits, the FAA anticipates that
an additional 38 waivers from the current Ec limits will be
necessary from 2013 to 2022 in the absence of this rule.\60\ If this
rule is finalized as proposed, the FAA expects that these 38 waivers
will not be needed. Thus, this rule would result in savings for both
the industry and the FAA, as the industry would not have to expend
resources to request waivers and the FAA would not have to expend
resources to evaluate waiver requests.
---------------------------------------------------------------------------

    \60\ GRA Study 2013, Table 5-7, by GRA Incorporated.
---------------------------------------------------------------------------

    The industry cost ranges from $4,472 for 56 hours to $12,776 for
160 hours of aerospace engineering time to prepare and submit the
necessary documentation to the FAA for approval.\61\ Multiplying the
forecasted

38 waivers for the 10-year period by the lower and upper bound costs
yields cost savings ranging from $169,936 to $485,488. The range
estimates for the FAA's cost savings are based on the costs of FAA
personnel time ranging from $4,530 for 58 hours to $14,841 for 190
hours \62\ to process each waiver request. This range is related to the
characteristics of the individual launch or reentry request. Multiplied
by the forecasted 38 waivers granted, the total estimated savings of
FAA personnel time to review requests and issue waivers range from
$172,140 to $563,958. The resulting savings for both the industry and
the FAA with an estimated mid-point would be approximately $695,754
($456,699 present value at a 7% discount rate). The lower and the
higher estimates are approximately $0.3 million and $1 million
($283,619 and $688,866 present value at a 7% discount rate),
respectively.
---------------------------------------------------------------------------

    \61\ Aerospace engineer wage rate ($79.85 per hour) was based on
GRA Study, 2013, Appendix C, Table C-3. The FAA's Office of
Commercial Space Transportation provided the estimation of the
commercial space industry hours related to a waiver application.
    \62\ The FAA calculated this estimation of the agency's
expenditure and hours related to processing a waiver application.
---------------------------------------------------------------------------

    The proposed rule may also result in cost-saving by reducing launch
delays and mission scrubs. The FAA currently does not have sufficient
data to quantify these savings, but believes the possible reduction of
launch delays and mission scrubs may increase the overall capacity of
the U.S. space transportation industry. Accordingly, the FAA seeks
comments on cost-savings that could be generated by this proposed rule
through reduced launch delays and mission scrubs.
    In summary, the proposed rule would maintain safety levels for
commercial space transportation commensurate with the current
requirements applied to civil and military launches and re-entries. In
addition, the proposed rule would result in net quantified benefits for
both industry and government. The net benefit would be achieved by
avoiding costs pertaining to applying and granting waivers with
Ec limits between 90 x 10-6 and 149 x
10-6. Further, related industries may also benefit by
avoiding unnecessary mission delays and scrubs. The FAA requests
comments with regard to this determination.

B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA 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 rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities,
section 605(b) of the RFA provides that the head of the agency may so
certify and a regulatory flexibility analysis is not required.
    The FAA expects many small entities would benefit from this
proposed rule because the proposed revisions to the current rule are
cost-relieving and do not cause any segment of industry to incur
compliance costs. Therefore, the FAA certifies that the proposed rule
would not have a significant economic impact on a substantial number of
small entities. The FAA solicits comments with regard to this
certification and requests that supporting documentation be supplied.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards. The FAA has
assessed the potential effect of this proposed rule and determined that
the rule would not impose obstacles to foreign commerce, as foreign
exporters would not have to change their current export products to the
United States.

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed rule that
may result in an expenditure of $100 million or more (in 1995 dollars)
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.'' The FAA currently uses an inflation-
adjusted value of $151 million in lieu of $100 million. This proposed
rule does not contain such a mandate; therefore, the requirements of
Title II of the Act do not apply.

E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there would be no new requirement for information collection associated
with this proposed rule.
International Compatibility
    In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these proposed regulations.
Environmental Analysis
    FAA Order 1050.1E identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 312f of NEPA and involves no
extraordinary circumstances.

Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. The agency has
determined that this action would not have a substantial direct effect
on the States, or the relationship

between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government,
and, therefore, would not have Federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use

    The FAA analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The agency has determined that it
would not be a ``significant energy action'' under the executive order
and would not be likely to have a significant adverse effect on the
supply, distribution, or use of energy.

Additional Information

A. Comments Invited

    The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The agency
also invites comments relating to the economic, environmental, energy,
or federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. To ensure the docket does not contain
duplicate comments, commenters should send only one copy of written
comments, or if comments are filed electronically, commenters should
submit only one time.
    The FAA will file in the docket all comments it receives, as well
as a report summarizing each substantive public contact with FAA
personnel concerning this proposed rulemaking. Before acting on this
proposal, the FAA will consider all comments it receives on or before
the closing date for comments. The FAA will consider comments filed
after the comment period has closed if it is possible to do so without
incurring expense or delay. The agency may change this proposal in
light of the comments it receives.
    Proprietary or Confidential Business Information: Commenters should
not file proprietary or confidential business information in the
docket. Such information must be sent or delivered directly to the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this document, and marked as proprietary or confidential. If submitting
information on a disk or CD ROM, mark the outside of the disk or CD
ROM, and identify electronically within the disk or CD ROM the specific
information that is proprietary or confidential.
    Under 14 CFR 11.35(b), if the FAA is aware of proprietary
information filed with a comment, the agency does not place it in the
docket. It is held in a separate file to which the public does not have
access, and the FAA places a note in the docket that it has received
it. If the FAA receives a request to examine or copy this information,
it treats it as any other request under the Freedom of Information Act
(5 U.S.C. 552). The FAA processes such a request under Department of
Transportation procedures found in 49 CFR part 7.

B. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the
Internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or
    3. Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
    Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling<PHONE_NUMBER>.
Commenters must identify the docket or notice number of this
rulemaking.
    All documents the FAA considered in developing this proposed rule,
including economic analyses and technical reports, may be accessed from
the Internet through the Federal eRulemaking Portal referenced in item
(1) above.

List of Subjects

14 CFR Part 417

    Launch and reentry safety, Aviation safety, Reporting and
recordkeeping requirements, Rockets, Space transportation and
exploration.

14 CFR Parts 431 and 435

    Launch and reentry safety, Aviation safety, Reporting and
recordkeeping requirements, Rockets, Space transportation and
exploration.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation
Administration proposes to amend chapter III of title 14, Code of
Federal Regulations as follows:

PART 417--LAUNCH SAFETY

0
1. The authority citation for part 417 continues to read as follows:

    Authority: 51 U.S.C. 50901-50923.

0
2. In Sec.  417.107, revise paragraphs (b)(1), (b)(3), and (b)(4) to
read as follows:

Sec.  417.107  Flight safety.

* * * * *
    (b) * * *
    (1) A launch operator may initiate the flight of a launch vehicle
only if the total risk associated with the launch to all members of the
public, excluding persons in water-borne vessels and aircraft, does not
exceed an expected average number of 0.0001 casualties (Ec<=
1 x 10-4). The total risk consists of risk posed by
impacting inert and explosive debris, toxic release, and far field
blast overpressure. The FAA will determine whether to approve public
risk due to any other hazard associated with the proposed flight of a
launch vehicle on a case-by-case basis. The Ec criterion
applies to each launch from lift-off through orbital insertion,
including each planned impact, for an orbital launch, and through final
impact for a suborbital launch.
* * * * *
    (3) A launch operator must establish any water borne vessel hazard
areas necessary to ensure the probability of impact (Pi)
with debris capable of causing a casualty for water borne vessels does
not exceed 0.00001 (1 x 10-5).
    (4) A launch operator must establish any aircraft hazard areas
necessary to ensure the probability of impact (Pi) with
debris capable of causing a casualty for aircraft does not exceed
0.000001 (1 x 10-6).
* * * * *

PART 431-- LAUNCH AND REENTRY OF A REUSABLE LAUNCH VEHICLE (RLV)

0
4. The authority citation for part 431 continues to read as follows:

    Authority: 51 U.S.C. 50901-50923.

0
5. In Sec.  431.35, revise paragraph (b)(1) to read as follows:

Sec.  431.35  Acceptable reusable launch vehicle risk.

* * * * *
    (b) * * *
    (1) To obtain safety approval, an applicant must demonstrate the
following for public risk:
    (i) The risk to the collective members of the public from the
proposed launch meets the public risk criteria of Sec.  417.107(b)(1)
of this chapter;
    (ii) The risk level to the collective members of the public,
excluding persons in water borne vessels and aircraft, from each
proposed reentry

does not exceed an expected average number of 0.0001 casualties
(Ec criterion of 1 x 10-4) from impacting inert
and explosive debris and toxic release associated with the reentry; and
    (iii) The risk level to an individual does not exceed .000001
probability of casualty per mission (individual risk of Ec
<= 1 x 10-6).
* * * * *

PART 435--REENTRY OF A REENTRY VEHICLE OTHER THAN A REUSABLE LAUNCH
VEHICLE (RLV)

0
6. The authority citation for part 435 continues to read as follows:

    Authority: 51 U.S.C. 50901-50923.

0
7. Revise Sec.  435.35 to read as follows:

Sec.  435.35  Acceptable reusable launch vehicle risk.

    To obtain safety approval for reentry, an applicant must
demonstrate the following for public risk:
    (a) The risk to the collective members of the public from the
proposed launch meets the public risk criteria of Sec.  417.107(b)(1)
of this chapter;
    (b) The risk level to the collective members of the public,
excluding persons in water borne vessels and aircraft, from each
proposed reentry does not exceed an expected average number of 0.0001
casualties (Ec criterion of 1 x 10-4) from
impacting inert and explosive debris and toxic release associated with
the reentry; and
    (c) The risk level to an individual does not exceed .000001
probability of casualty per mission (individual risk of Ec
<= 1 x 10-6).

    Issued under authority provided by 49 U.S.C. 106(f) and 51
U.S.C. 50904-50905 in Washington, DC, on June 25, 2014.
 George C. Nield,
Associate Administrator for Commercial Space Transportation.
[FR Doc. 2014-16928 Filed 7-18-14; 8:45 am]
BILLING CODE 4910-13-P