[Federal Register Volume 84, Number 72 (Monday, April 15, 2019)]
[Proposed Rules]
[Pages 15296-15444]
[FR Doc No: 2019-05972]

Vol. 84

Monday,

No. 72

April 15, 2019

Part II

Department of Transportation

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Federal Aviation Administration

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14 CFR Parts 401, 404, 413, et al.

 Streamlined Launch and Reentry Licensing Requirements; Proposed Rule

Federal Register / Vol. 84 , No. 72 / Monday, April 15, 2019 /
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 401, 404, 413, 414, 415, 417, 420, 431, 433, 435, 437,
440, and 450

[Docket No.: FAA-2019-0229; Notice No. 19-01]
RIN 2120-AL17

Streamlined Launch and Reentry Licensing Requirements

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This rulemaking would streamline and increase flexibility in
the FAA's commercial space launch and reentry regulations, and remove
obsolete requirements. This action would consolidate and revise
multiple regulatory parts and apply a single set of licensing and
safety regulations across several types of operations and vehicles. The
proposed rule would describe the requirements to obtain a vehicle
operator license, the safety requirements, and the terms and conditions
of a vehicle operator license.

DATES: Send comments on or before June 14, 2019.

ADDRESSES: Send comments identified by docket number FAA-2019-0229
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: In accordance with 5 U.S.C. 553(c), DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
    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 questions concerning this action,
contact Randy Repcheck, Office of Commercial Space Transportation,
Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 205914; telephone<PHONE_NUMBER>; email
[email protected].

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The Commercial Space Launch Act of 1984, as amended and codified at
51 U.S.C. 50901-50923 (the Act), authorizes the Department of
Transportation, and the FAA through delegation, to oversee, license,
and regulate commercial launch and reentry activities, and the
operation of launch and reentry sites as carried out by U.S. citizens
or within the United States. Section 50905 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. In addition, section 50903 requires the FAA encourage,
facilitate, and promote commercial space launches and reentries by the
private sector.
    If adopted as proposed, this rulemaking would consolidate and
revise multiple regulatory parts to apply a single set of licensing and
safety regulations across several types of operations and vehicles. It
would also streamline the commercial space regulations by, among other
things, replacing many prescriptive regulations with performance-based
rules, giving industry greater flexibility to develop means of
compliance that maximize their business objectives while maintaining
public safety. Because this rulemaking would amend the FAA's launch and
reentry requirements, it falls under the authority delegated by the
Act.

List of Abbreviations and Acronyms Frequently Used in This Document

AC--Advisory Circular
CEC--Conditional expected casualty
EC--Expected casualty
ELOS determination--Equivalent-level-of-safety determination
ELV--Expendable launch vehicle
FSA--Flight safety analysis
FSS--Flight safety system
PC--Probability of casualty
PI--Probability of impact
RLV--Reusable launch vehicle

Table of Contents

I. Overview of Proposed Rule
II. Background
    A. History
    B. Licensing Process
    C. National Space Council
    D. Streamlined Launch and Reentry Licensing Requirements
Aviation Rulemaking Committee
III. Discussion of the Proposal
    A. The FAA's Approach To Updating and Streamlining Launch and
Reentry Regulations
    B. Single Vehicle Operator License
    C. Performance-Based Requirements and Means of Compliance
    D. Launch From a Federal Launch Range
    E. Safety Framework
Flight Safety
    A. Public Safety Criteria
    1. Neighboring Operations Personnel
    2. Property Protection (Critical Assets)
    3. Consequence Protection Criteria for Flight Abort and Flight
Safety System
    B. System Safety Program
    1. Safety Organization
    2. Procedures
    3. Configuration Management and Control
    4. Post-Flight Data Review
    C. Preliminary Safety Assessment for Flight
    D. Hazard Control Strategy
    E. Flight Abort
    1. Flight Safety Limits and Uncontrolled Areas
    2. Flight Abort Rules
    3. Flight Safety System
    F. Flight Hazard Analysis
    G. Computing Systems and Software Overview
    H. Hybrid Launch Vehicles
    I. Flight Safety Analysis Overview
    J. Safety-Critical Systems
    1. Safety-Critical Systems Design, Test, and Documentation
    2. Flight Safety System
    K. Other Prescribed Hazard Controls
    1. Agreements
    2. Safety-Critical Personnel Qualifications
    3. Work Shift and Rest Requirements
    4. Radio Frequency Management
    5. Readiness: Reviews and Rehearsals
    6. Communications
    7. Preflight Procedures
    8. Surveillance and Publication of Hazard Areas
    9. Lightning Hazard Mitigation
    10. Flight Safety Rules
    11. Tracking
    12. Launch and Reentry Collision Avoidance Analysis Requirements
    13. Safety at End of Launch
    14. Mishaps: Definition, Plan, Reporting, Response,
Investigation, Test-Induced Damage
    L. Pre- and Post-Flight Reporting
    1. Preflight Reporting
    2. Post-Flight Reporting
Ground Safety
    A. Definition and Scope of Launch
    B. Ground Safety Requirements
Process Improvements

    A. Safety Element Approval
    B. Incremental Review of a License Application
    C. Time Frames
    D. Continuing Accuracy of License Application and Modification
of License
Other Changes
    A. Pre-Application Consultation
    B. Policy Review and Approval
    C. Payload Review and Determination
    D. Safety Review and Approval
    E. Environmental Review
    F. Additional License Terms and Conditions, Transfer of a
Vehicle Operator License, Rights Not Conferred by a Vehicle Operator
License
    G. Unique Safety Policies, Requirements, and Practices
    H. Compliance Monitoring
    I. Registration of Space Objects
    J. Public Safety Responsibility, Compliance With License,
Records, Financial Responsibility, and Human Spaceflight
Requirements
    K. Applicability
    L. Equivalent Level of Safety
Additional Technical Justification and Rationale
    A. Flight Safety Analyses
    1. Scope and Applicability
    2. Flight Safety Analysis Methods
    3. Trajectory Analysis for Normal Flight
    4. Trajectory Analysis for Malfunction Flight
    5. Debris Analysis
    6. Flight Safety Limits Analysis
    7. Gate Analysis
    8. Data Loss Flight Time and Planned Safe Flight State Analyses
    9. Time Delay Analysis
    10. Probability of Failure
    11. Flight Hazard Areas
    12. Debris Risk Analysis
    13. Far-Field Overpressure Blast Effects
    14. Toxic Hazards for Flight
    15. Wind Weighting for the Flight of an Unguided Suborbital
Launch Vehicle
    B. Software
    C. Changes to Parts 401, 413, 414, 420, 437, 440
    1. Part 401--Definitions
    2. Part 413--Application Procedures
    3. Part 414--Safety Element Approvals
    4. Part 420--License To Operate a Launch Site
    6. Part 437--Experimental Permits
    7. Part 440--Financial Responsibility
IV. Regulatory Notices and Analyses
    A. Regulatory Evaluation
    B. Regulatory Flexibility Determination
    C. International Trade Impact Assessment
    D. Unfunded Mandates Assessment
    E. Paperwork Reduction Act
    F. International Compatibility
    G. Environmental Analysis
V. Executive Order Determinations
    A. Executive Order 13132, Federalism
    B. Executive Order 13211, Regulations That Significantly Affect
Energy Supply, Distribution, or Use
    C. Executive Order 13609, International Cooperation
    D. Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs
VI. Additional Information
    A. Comments Invited
    B. Availability of Rulemaking Documents
The Proposed Amendment

I. Overview of Proposed Rule

    The FAA commercial space transportation regulations protect public
health and safety and the safety of property from the hazards of launch
and reentry. In addition, the regulations address national security and
foreign policy interests of the United States, financial
responsibility, environmental impacts, informed consent for crew and
space flight participants, and, to a limited extent, authorization of
payloads not otherwise regulated or owned by the U.S. Government. The
FAA is proposing this deregulatory action consistent with President
Donald J. Trump's Space Policy Directive--2 (SPD-2) ``Streamlining
Regulations on Commercial Use of Space.'' \1\ The directive charged the
Department of Transportation with revising regulations to require a
single license for all types of commercial space flight operations and
replace prescriptive requirements with performance-based criteria.
Streamlining these regulations would lower administrative burden and
regulatory compliance costs and bolster the U.S. space commercial
sector and industrial base.
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    \1\ Space Policy Directive--2, Streamlining Regulations on
Commercial Use of Space; May 24, 2018 (https://www.whitehouse.gov/presidential-actions/space-policy-directive-2-streamlining-regulations-commercial-use-space/).
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    Additionally, this proposed rule incorporates industry input and
recommendations provided primarily by the Streamlined Launch and
Reentry Licensing Requirements Aviation Rulemaking Committee (ARC). The
subject proposed rule would implement the applicable section of SPD-2
and address industry. The recommendation report is provided in the
docket for this rulemaking.
    Current regulations setting forth application procedures and
requirements for commercial space transportation licensing were based
largely on the distinction between expendable and reusable launch
vehicles. Specifically, title 14 of the Code of Federal Regulations (14
CFR) parts 415 and 417 address the launch of expendable launch vehicles
(ELVs) and are based on the Federal launch range standards developed in
the 1990s. Part 431 addresses the launch and reentry of reusable launch
vehicles (RLVs), and part 435 addresses the reentry of reentry vehicles
other than RLVs. Parts 431 and 435 are primarily process-based, relying
on a license applicant to derive safety requirements through a ``system
safety'' process. That being said, the FAA has used the more detailed
part 417 requirements to inform parts 431 and 435. While these separate
regulatory parts and requirements satisfied the need of the commercial
space transportation industry at the time they were issued,\2\ the
industry has changed and continues to evolve.
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    \2\ The current 14 CFR parts 415, 417, 431, and 435 regulatory
text can be found at https://www.ecfr.gov/ under their respective
links. The eCFR contains Federal Register citations for each time a
regulation is modified by rulemaking.
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    The FAA proposes to consolidate, update, and streamline all launch
and reentry regulations into a single performance-based part to better
fit today's fast-evolving commercial space transportation industry.
Proposed part 450 would include regulations applicable to all launch
and reentry vehicles, whether they have reusable components or not. The
FAA looked to balance the regulatory certainty but rigidity of current
ELV regulations with the flexibility but vagueness of current RLV
regulations. As a result, these proposed regulations are flexible and
scalable to accommodate innovative safety approaches while also
protecting public health and safety, safety of property, and the
national security and foreign policy interests of the United States.
    The FAA proposes to continue reviewing licenses in five component
parts: Policy review, payload review, safety review, maximum probable
loss determination, and environmental review. However, after consulting
with the FAA, applicants would have the option of submitting portions
of applications for incremental review and approval by the FAA. In
terms of the applications themselves, the FAA has streamlined and
better defined application requirements.
    In terms of safety requirements, the FAA would maintain a high
level of safety. Neighboring operations requirements would result in a
minimal risk increase compared to current regulations, offset by
operational benefits. The FAA would anchor the proposed requirements on
public safety criteria. The FAA would continue to use the current
collective and individual risk criteria. However, this proposal would
implement risk criteria for neighboring operations personnel, critical
asset protection, and conditional risk to protect from an unlikely but
catastrophic event.\3\ In particular, the

conditional risk would be used to determine the need for a flight
safety system \4\ and the reliability of that system. To meet these
public safety criteria, most operators would have the option of using
traditional hazard controls or to derive alternate controls through a
system safety approach. These rules would also revise quantitative
flight safety analyses to better define their applicability and to
reduce the level of prescriptiveness. In terms of ground safety, the
FAA has scoped its oversight to better fit the safety risks and to
increase operator flexibility.
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    \3\ As will be discussed later, ``neighboring operations
personnel'' would be defined as those members of the public located
within a launch or reentry site, or an adjacent launch or reentry
site, who are not associated with a specific hazardous licensed or
permitted operation currently being conducted but are required to
perform safety, security, or critical tasks at the site and are
notified of the operation. ``Critical asset'' means an asset that is
essential to the national interests of the United States. Critical
assets include property, facilities, or infrastructure necessary to
maintain national defense, or assured access to space for national
priority missions. For ``conditional risk,'' the FAA would require
that operators quantify the consequence of a catastrophic event, by
calculating the conditional risk as conditional expected casualties
for any one-second period of flight. Unlike collective risk that
determines the expected casualties factoring in the probability that
a dangerous event will occur, conditional risk determines the
expected casualties assuming the dangerous event will occur.
    \4\ The FAA proposes to revise the definition in Sec.  401.5 of
``flight safety system'' to mean a system used to implement flight
abort. A human can be a part of a flight safety system. The proposed
definition is discussed later in this preamble.
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    To satisfy the proposed performance-based regulations, operators
would be able to use a means of compliance that has already been
accepted by the FAA or propose an alternate approach. To retain the
maximum flexibility to adjust to dynamic industry changes, the FAA
would continue to offer operators the choice to request waivers of
regulations and equivalent level of safety determinations.
    The proposed rule is a deregulatory action under Executive Order
13771.\5\ This deregulatory action would consolidate and revise
multiple commercial space regulatory parts to apply a single set of
licensing and safety regulations across several types of operations and
vehicles. It would also replace many prescriptive regulations with
performance-based regulations, giving industry greater flexibility to
develop a means of compliance that maximizes their business objectives.
This proposed rule would result in net cost savings for industry and
enable future innovation in U.S. commercial space transportation.
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    \5\ Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs, January 30, 2017, (https://www.whitehouse.gov/presidential-actions/presidential-executive-order-reducing-regulation-controlling-regulatory-costs/).
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    At the time of writing, the FAA estimates this proposed rule would
affect 12 operators that have an active license or permit to conduct
launch or reentry operations. In addition, the FAA estimates this
proposed rule would affect approximately 276 launches over the next 5
years (2019 through 2023). The FAA anticipates this proposed rule would
reduce the costs of current and future launch operations by removing
prescriptive requirements that are burdensome to meet or require a
waiver. The FAA expects these changes would lead to more efficient
launch operations and have a positive effect on expanding the number of
future launch and reentry operations.
    Based on the preliminary analysis, the FAA estimates industry
stands to gain about $19 million in discounted present value net
savings over 5 years or about $5 million in annualized net savings
(using a discount rate of 7 percent). In addition, the FAA will save
about $1 million in the same time period. The FAA expects industry will
gain additional unquantified savings and benefits as the proposed rule
is implemented, since it would provide flexibility and scalability
through performance-based requirements that would reduce the future
cost of innovation and improve the efficiency and productivity of U.S.
commercial space transportation.\6\
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    \6\ 51 U.S.C. 50904 grants the FAA authority to oversee,
license, and regulate commercial launch and reentry activities, and
the operation of launch and reentry sites as carried out by U.S.
citizens or within the United States.
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    Throughout this document, the FAA uses scientific notation to
indicate probabilities. For example, 1 x 10-\2\ means one in
a hundred and 1 x 10-\6\ means one in a million.

II. Background

A. History

    As noted earlier, the Act authorizes the Secretary of
Transportation to oversee, license, and regulate commercial launch and
reentry activities and the operation of launch and reentry sites as
carried out by U.S. citizens or within the United States. The Act
directs the Secretary to exercise this responsibility consistent with
public health and safety, safety of property, and the national security
and foreign policy interests of the United States, and to encourage,
facilitate, and promote commercial space launches by the private
sector. The FAA carries out the Secretary's responsibilities under the
Act.
    In the past 30 years, the Department of Transportation (DOT)
regulations addressing launch and reentry have gone through a number of
iterations intended to be responsive to an emerging industry while at
the same time ensuring public safety. A review of this history is
provided to put this rulemaking in perspective.
1. First Licensing Regulations in 1988
    DOT's first licensing regulations for commercial launch activities
became effective over 30 years ago, on April 4, 1988. The regulations
replaced previous guidance and constituted the procedural framework for
reviewing and authorizing all proposals to conduct non-Federal launch
activities, including the launching of launch vehicles, operation of
launch sites, and payload activities that were not licensed by other
federal agencies. They included general administrative procedures and a
revised compilation of DOT's information requirements.
    No licensed launches had yet taken place when DOT initially issued
these regulations. Accordingly, DOT established a flexible regime
intended to be responsive to an emerging industry while at the same
time ensuring public safety. This approach worked well because all
commercial launches at the time took place from Federal launch ranges
where safety practices were well established and had proven effective
in protecting public safety. In 1991, when the industry reached about
ten launches a year, DOT took further steps designed to simplify the
licensing process for launch operators with established safety records
by instituting a launch operator license, which allowed one license to
cover a series of launches where the same safety resources support
identical or similar missions.
2. Licensing Changes in 1999
    On June 21, 1999,\7\ the FAA amended its commercial space
transportation licensing regulations to clarify its license application
process generally, and for launches from Federal launch ranges
specifically. The FAA intended the regulations to provide an applicant
or an operator with greater specificity and clarity regarding the scope
of a license and to codify and amend licensing requirements and
criteria. Notable changes were dividing launch into preflight and
flight activities; defining launch to begin with the arrival of the
launch vehicle or its major components at a U.S. launch site;
separating what had been a safety and mission review into a safety,
policy, and

payload review; and the addition of a specific requirement to
``passivate'' any vehicle stage left on orbit to avoid the potential of
creating orbital debris through a subsequent explosion.
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    \7\ Commercial Space Transportation Licensing Regulations, Final
Rule. 64 FR 19586 (April 21, 1999).
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3. Reusable Launch Vehicle Regulations in 2000
    In the mid-1990s, prospective RLV operators identified the absence
of adequate regulatory oversight over RLV operations, particularly
their reentry, as an impediment to technology development. The need for
a stable and predictable regulatory environment in which RLVs could
operate was considered critical to the capability of the emerging RLV
industry to obtain the capital investment necessary for research and
development and ultimately vehicle operations. The Commercial Space Act
of 1998, Public Law 105-303, extended DOT's licensing authority to the
reentry of reentry vehicles and the operation of reentry sites by non-
Federal entities. In September 2000, the FAA amended the commercial
space transportation licensing regulations by establishing requirements
for the launch of an RLV, the reentry of a reentry vehicle, and the
operation of launch and reentry sites.\8\
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    \8\ Commercial Space Transportation Reusable Launch Vehicle and
Reentry Licensing Regulations, Final Rule. 65 FR 56617 (September
19, 2000).
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    At the time, the FAA believed that the differences between ELVs and
RLVs justified a different regulatory approach. There was a long
history of successful ELV launches from Federal launch ranges using
detailed prescriptive regulations, encouraging the FAA to follow suit.
Also, ELVs and RLVs used different means of terminating flight. ELV
launches typically relied on flight safety systems (FSS) that
terminated flight to ensure flight safety by preventing a vehicle from
traveling beyond approved limits. Unlike an ELV, the FAA contemplated
that an RLV might rely upon other means of ending vehicle flight, such
as returning to the launch site or using an alternative landing site,
in case the vehicle might not be able to safely conclude a mission as
planned. Importantly, other than NASA's Space Shuttle, there was little
experience with RLVs. For these reasons, the FAA decided to enact
flexible process-based regulations for RLVs and other reentry vehicles.
These regulations reside in 14 CFR parts 431 and 435.
4. Further Regulatory Changes in 2006
    The last major change to FAA launch regulations occurred in
2006.\9\ The FAA believed that it would be advantageous for its ELV
regulations to be consistent with Federal launch range requirements and
worked with the United States Air Force (Air Force) and the National
Aeronautics and Space Administration (NASA) to codify safety practices
for ELVs. Those regulations reside in 14 CFR parts 415 and 417. The
2006 rule also codified safety responsibilities and requirements that
applied to any licensed launch, regardless of whether the launch occurs
from a Federal launch range or a non-Federal launch site.
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    \9\ Licensing and Safety Requirements for Launch, Final Rule. 71
FR 50508 (August 25, 2006).
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    In developing the technical requirements, the FAA built on the
safety success of Federal launch ranges and sought to achieve their
same high level of safety by using Federal launch range practices as a
basis for FAA regulations consistent with its authority. The
regulations specified detailed processes, procedures, analyses, and
general safety system design requirements. For safety-critical hardware
and software, where necessary, the rule provided design and detailed
test requirements. The FAA attempted to provide flexibility by allowing
a launch operator the opportunity to demonstrate an alternative means
of achieving an equivalent level of safety.
5. Evolution of Launch Vehicles and the Need for Updated and
Streamlined Regulations
    Since 2006, the differences between ELVs and RLVs have blurred.
Vehicles that utilize traditional flight safety systems now are
partially reusable. For example, the Falcon 9 first stage, launched by
Space Exploration Technologies Corporation (SpaceX), routinely returns
to the launch site or lands on a barge, and other operators are
developing launch vehicles with similar return and reuse capabilities.
Although the reuse of safety critical systems or components can have
public safety implications, labeling a launch vehicle as expendable or
reusable has not impacted the primary approach necessary to protect
public safety, certainly not to the extent suggested in the differences
between part 431 and parts 415 and 417.
    Moreover, the regulations for ELV launches in parts 415 and 417
have proven to be too prescriptive and one-size-fits-all, and the
significant detail has caused the regulations to become obsolete in
many instances. For example, part 417 requires all launch operators to
have at least 11 plans that define how launch processing and flight of
a launch vehicle will be conducted, each with detailed requirements.
This can lead an operator to produce documents that are not necessary
to conduct safe launch operations. In contrast, the regulations for RLV
launches have proven to be too general, lacking regulatory clarity. For
example, part 431 does not contain specificity regarding the
qualification of flight safety systems, acceptable methods for flight
safety analyses, and ground safety requirements. This lack of clarity
can cause delays in the application process to allow for discussions
between the FAA and the applicant. Operators frequently rely upon the
requirements in part 417 to demonstrate compliance.
    Since 2015, the launch rate has only increased, from 9 licensed
launches a year to 33 licensed launches in 2018. Beginning in 2016, the
FAA developed a comprehensive strategy to consolidate and streamline
the regulatory parts associated with commercial space launch and
reentry operations and licensing of space vehicles. Actions by the
National Space Council confirmed and accelerated FAA rulemaking plans
regarding launch and reentry licenses.

B. Licensing Process

    When it issues a license, the Act requires the FAA to do so
consistent with public health and safety, safety of property, and
national security and foreign policy interests of the United
States.\10\ The FAA currently conducts its licensing application review
in five component parts: Policy Review, Payload Review, Safety Review,
Maximum Probable Loss Determination, and Environmental Review. The
license application review is depicted in figure 1. A policy review, in
consultation with other government agencies, determines whether the
launch or reentry would jeopardize U.S. national security or foreign
policy interests, or international obligations of the United States. A
payload review, also in consultation with other government agencies,
determines whether the launch or reentry of a payload would jeopardize
public health and safety, safety of property, U.S. national security or
the foreign policy interests, or international obligations of the
United States. A safety review examines whether the launch or reentry
would jeopardize public health and safety and safety of property, and
typically is the most extensive part of FAA's review. The Act also
requires the FAA to determine financial responsibility of the licensee
for third party liability and losses to U.S. Government property based
on the maximum probable loss. Lastly, the National Environmental Policy
Act requires the FAA to consider and

document the potential environmental effects associated with issuing a
launch or reentry license.
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    \10\ 51 U.S.C. 50905(a).
    [GRAPHIC] [TIFF OMITTED] TP15AP19.000

    This proposal would not alter this 5-pronged approach to licensing.
Although the FAA usually evaluates components concurrently, as noted
later in this preamble, the FAA may make separate determinations after
considering the interrelationship between the components. For instance,
this proposal would allow an applicant to apply for a Safety Review
component in an incremental manner. This preamble will discuss the
proposed incremental review process in further detail later.

C. National Space Council

    The National Space Council was established by President George H.W.
Bush on April 20, 1989 by Executive Order 12675 to have oversight of
U.S. national space policy and its implementation. Chaired by Vice
President Dan Quayle until its disbanding in 1993, the first National
Space Council consisted of the Secretaries of State, Treasury, Defense,
Commerce, Transportation, Energy, the Director of the Office of
Management and Budget, the Chief of Staff to the President, the
Assistant to the President for National Security Affairs, the Assistant
to the President for Science and Technology, the Director of Central
Intelligence, and the NASA Administrator.
    On June 30, 2017, President Donald J. Trump signed Executive Order
13803, which reestablished the National Space Council to provide a
coordinated process for developing and monitoring the implementation of
national space policy and strategy. The newly-reinstituted body met for
the first time on October 5, 2017. As Chair of the Council, the Vice
President directed the Secretaries of Transportation and Commerce, and
the Director of the Office of Management and Budget, to conduct a
review of the U.S. regulatory framework for commercial space activities
and report back within 45 days with a plan to remove barriers to
commercial space enterprises. The assigned reports and recommendations
for regulatory streamlining were presented at the second convening of
the National Space Council on February 21, 2018. The Council approved
four recommendations, including DOT's recommendation that the launch
and reentry regulations should be reformed into a consolidated,
performance-based licensing regime.
    On May 24, 2018, the Council memorialized its recommendations in
SPD-2. SPD-2 instructed the Secretary of Transportation to publish for
notice and comment proposed rules rescinding or revising the launch and
reentry licensing regulations, no later than February 1, 2019. SPD-2
charged the Department with revising the regulations such that they
would require a single license for all types of commercial space flight
operations and replace prescriptive requirements with performance-based
criteria. SPD-2 further commended the Secretary to coordinate with the
members of the National Space Council, especially the Secretary of
Defense and the NASA Administrator, to minimize requirements associated
with commercial space flight launch and reentry operations from Federal
launch ranges as appropriate.

D. Streamlined Launch and Reentry Licensing Requirements Aviation
Rulemaking Committee

    On March 8, 2018, the FAA chartered the Streamlined Launch and
Reentry Licensing Requirements Aviation Rulemaking Committee (ARC) to
provide a forum to discuss regulations to set forth procedures and
requirements for commercial space transportation launch and reentry
licensing. The FAA tasked the ARC to develop recommendations for a
performance-based regulatory approach in which the

regulations set forth the safety objectives to be achieved while
providing the applicant with the flexibility to produce tailored and
innovative means of compliance.
    The ARC's membership represented a broad range of stakeholder
perspectives, including members from aviation and space communities.
The ARC was supported by the FAA and other federal agency subject
matter experts. The following table identifies ARC participants from
the private sector:

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Aerospace industries association.
Airlines for America.
Alaska Aerospace Corporation.
Astra Space.
Blue Origin.
Boeing.
Coalition for Deep Space Exploration.
Commercial Spaceflight Federation.
Exos Aerospace Systems & Technologies, Inc.
Generation Orbit.
Lockheed Martin Corporation.
MLA Space, LLC.
Mojave air and spaceport.
Orbital ATK.
RocketLab.
Sierra Nevada Corp.
Spaceport America.
SpaceX.
Space Florida.
Stratolaunch.
United Launch Alliance.
Vector Launch, Inc.
Virgin Galactic/Virgin Orbit.
World View Enterprises.
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    On April 30, 2018, the ARC produced its final recommendation
report, which has been placed in the docket to this rulemaking.\11\ The
ARC recommended that the proposed regulations should--
---------------------------------------------------------------------------

    \11\ Streamlined Launch and Reentry Licensing Requirements ARC,
Recommendations Final Report (April 30, 2008). The ARC Report is
available for reference in the docket for this proposed rule.
---------------------------------------------------------------------------

    1. Be performance-based, primarily based upon the ability of the
applicant to comply with expected casualty limits.
    2. Be flexible.
    i. Adopt a single license structure to accommodate a variety of
vehicle types and operations and launch or reentry sites.
    ii. Allow for coordinated determination of applicable regulations
prior to the application submission.
    iii. Develop regulations that can be met without waivers.
    iv. Use guidance documents to facilitate frequent updates.
    3. Reform the pre-application consultation process and
requirements.
    i. Use ``complete enough'' as the real criterion for entering
application evaluation and remove the requirement for pre-application
consultation.
    ii. Use a level-of-rigor approach to scope an applicant-requested
pre-application consultation process as the basis for a ``complete
enough'' determination, considering both an applicant's prior
experience and whether the subject vehicle is known or unknown.
    4. Contain defined review timelines.
    i. Support significantly-reduced timelines and more efficient
review.
    ii. Increase predictability for industry.
    iii. Create reduced review timelines for both new and continuing
accuracy submissions.
    5. Contain continuing accuracy requirements. Continuing accuracy
submissions should be based upon impact to public safety as measured by
the Expected Casualty (EC).
    6. Limit FAA jurisdiction.
    i. Limit FAA jurisdiction to activities so publicly hazardous as to
warrant FAA-oversight.
    ii. Identify well-defined inspection criteria.
    7. Eliminate duplicative jurisdiction on Federal launch ranges.
    The FAA will address these recommendations in more detail
throughout the remainder of this document.
    During the course of the ARC, volunteer industry members formed a
Task Group to provide draft regulatory text reflecting proposed
revisions to the commercial space transportation regulations. The
volunteer industry members of the Task Group were Blue Origin, Sierra
Nevada Corporation, Space Florida, and SpaceX. The majority of the ARC
opposed the formation of this Task Group and disagreed with including
the proposed regulatory text into the ARC's recommendation report. The
FAA will not specifically address the proposed regulatory text in this
document because it did not receive broad consensus within the ARC.

III. Discussion of the Proposal

A. The FAA's Approach To Updating and Streamlining Launch and Reentry
Regulations

    The FAA's approach to meeting SPD-2's mandate is to consolidate,
update, and streamline all launch and reentry regulations into a single
performance-based part. Pursuant to SPD-2, and in the interest of
updating the FAA's regulations to reflect the current commercial space
industry, the FAA proposes to consolidate requirements for the launch
and reentry of ELVs, RLVs, and reentry vehicles other than an RLV.\12\
The FAA would also update a number of safety provisions, including
areas such as software safety and flight safety analyses (FSA), to
reflect recent advancements. Finally, the FAA proposes to streamline
its regulations by designing them to be flexible and scalable, to
reduce timelines, to remove or minimize duplicative jurisdiction, and
to limit FAA jurisdiction over ground safety to operations that are
hazardous to the public. This streamlining was the focus of the ARC.
---------------------------------------------------------------------------

    \12\ These requirements currently appear in parts 415, 417, 431,
and 435.
---------------------------------------------------------------------------

    The FAA proposal would follow the ARC recommendations to enable
greater regulatory flexibility. First, the proposed rule would be
primarily performance-based, codifying performance standards and
relying on FAA guidance or other standards to provide acceptable means
of compliance. This would allow the regulations to better adapt to
advancements in the industry. Second, the FAA proposes to change the
structure of its launch and reentry license to be more flexible in the
number and types of launches and reentries one license can accommodate.
Third, as the ARC suggested, system safety principles would be
prominent. All applicants would need to comply with core system safety
management principles and conduct a preliminary safety assessment. Some
applicants may also be required to use a flight hazard analysis to
derive hazard controls particular to their operation. Lastly, for any
particular requirement, the FAA would maintain the ability for an
applicant or operator to propose an alternative approach for
compliance, and then clearly demonstrate that the alternative approach
would provide an equivalent level of safety to the requirement.
    The ARC recommended that the level of rigor of an applicant's
safety demonstration vary based on vehicle history, company history,
and the relative risk of the launch or reentry. It also recommended
that the FAA not always require a flight safety system. The FAA
recognizes that different operations require different levels of rigor,
and is proposing a more scalable regulatory regime. Given performance-
based regulations are inherently scalable, the FAA proposal is
consistent with the ARC recommendation, even though it does not
explicitly account for vehicle or operator history as a means of
scaling requirements. In addition to performance-based requirements,
this proposal would implement a specific level-of-rigor approach to
ensure safety requirements are proportionate to the public safety risk
in the need for a flight safety system and its required

reliability, in flight safety analysis,\13\ and in software safety.
These are all discussed in greater detail later in this preamble.
---------------------------------------------------------------------------

    \13\ For flight safety analyses, various levels of rigor would
be outlined in ACs.
---------------------------------------------------------------------------

    Because the rulemaking process is time-consuming and labor
intensive, the FAA seeks to minimize the need for regulatory updates to
proposed part 450 through the proposed performance-based regulations
which would allow for a variety of FAA-approved means of compliance.
Approving new means of compliance creates flexibility for operators
without reducing safety. Additionally, approving new means of
compliance is easier to accomplish than updating regulatory standards
through the rulemaking process. Thus, the proposed regulatory scheme
would be more adaptable to the fast-evolving commercial space industry.
    The ARC recommended that the FAA should design a modular approach
to application submittal and evaluation and significantly reduce FAA
review timelines. This proposal would allow an applicant to apply for a
license in an incremental manner,\14\ to be developed on a case-by-case
basis during pre-application consultation. Most timelines in the
proposal would have a default value, followed by an option for the FAA
to agree to a different time frame, taking into account the complexity
of the request and whether it would allow sufficient time for the FAA
to conduct its review and make its requisite findings. Lastly, the FAA
proposes to make it easier for a launch or reentry operator to obtain a
safety element approval, which would reduce the time and effort of an
experienced operator in a future license application. Although these
provisions should reduce the time for experienced operators, the FAA
does not propose to reduce by regulation the statutory review period of
180 days to make a decision on a license application.
---------------------------------------------------------------------------

    \14\ In this rulemaking, the term ``incremental'' would be
synonymous with the ARC's proposed term of ``modular.''
---------------------------------------------------------------------------

    It might be useful to provide some perspective concerning the time
the FAA actually takes to make license determinations. The average of
the last ten new license determinations through calendar year 2018 was
141 days; the median was 167 days. The FAA strives to expedite
determinations when possible to accommodate launch schedules. In three
of these ten, the FAA made determinations in 54, 73, and 77 days, all
without tolling. Three determinations were tolled for 73, 77, and 171
days. The lengthy tolling was the result of a software issue concerning
a flight safety system that the applicant needed to resolve. To our
knowledge, a launch has never been delayed as a result of the time it
took the FAA to make a license determinations.
    The ARC recommended that the FAA propose rules that eliminate
duplicative U.S. Government requirements when an operator conducts
operations at a Federal launch range. The FAA's proposal would allow
for varying levels of Federal launch range involvement, including a
single FAA authorization. It would also minimize duplicative work by a
launch or reentry operator. This issue is discussed in more detail
later in this preamble.
    Also, the ARC recommended that the FAA limit its jurisdiction over
ground operations to activities so publicly hazardous as to warrant the
FAA's oversight. This proposal would scope ground activities overseen
by FAA to each operation. It would also permit neighboring operations
personnel to be present during launch activities in certain
circumstances.
    The ARC also recommended that the FAA require the pre-application
process only for new operators or new vehicle programs, and that pre-
application occur at the operator's discretion for all other
operations.\15\ The FAA proposes to retain the requirement for pre-
application consultation because of the various flexibilities proposed
in this rule. These include incremental review, timelines, and the
performance-based nature of many of the regulatory requirements. Pre-
application consultation would assist operators with the licensing
process and accommodate all operators, including those that choose to
avail themselves of the flexibilities provided in this proposal. The
FAA acknowledges, however, that pre-application consultation can be
minimal for operators experienced with FAA requirements. In such cases,
consultation may consist of a telephone conversation.
---------------------------------------------------------------------------

    \15\ ARC Report at p. 23.
---------------------------------------------------------------------------

B. Single Vehicle Operator License

    As part of its streamlining effort, the FAA proposes in Sec.  450.3
(Scope of Vehicle Operator License) to establish one license, a vehicle
operator license, for commercial launch and reentry activity. A vehicle
operator license would authorize a licensee to conduct one or more
launches or reentries using the same vehicle or family of vehicles and
would specify whether it covers launch, reentry, or launch and reentry.
The FAA would eliminate the current limitation in Sec.  415.3
specifying a launch license covers only one launch site, and would
eliminate the designations of launch-specific license and launch
operator license, mission-specific license and operator license, and
reentry-specific license and reentry-operator license. The proposal
would also allow the FAA to scope the duration of the license to the
operation.
    Although the FAA has not defined a ``family of vehicles,'' launch
operators often do so themselves. Usually, the vehicles share a common
core, i.e., the booster and upper stage. Sometimes multiple boosters
are attached together to form a larger booster. Historically, solid
rocket motors have been attached to core boosters to enhance
capability. There has never been an issue concerning what operators and
the FAA consider to be members of the same family. It is merely a
convenient way to structure licenses.
    SPD-2 directed the DOT to revise the current launch and reentry
licensing regulations with special consideration to requiring a single
license for all types of commercial launch and reentry operations.
Similarly, the ARC recommended that the FAA adopt a single license
structure to accommodate a variety of vehicle types, operations, and
launch and reentry sites. In accordance with these recommendations, the
FAA proposes a single vehicle operator license that could be scoped to
the operation. In order to accommodate the increasingly similar
characteristics of some ELVs and RLVs, as well as future concepts,
these proposed regulations would no longer distinguish between ELVs and
RLVs. Rather, this proposal would consolidate the licensing
requirements for all commercial launch and reentry activities under one
part, and applicants would apply for the same type of license.
    In addition to accommodating different vehicles and types of
operations, this proposal would allow launches or reentries under a
single vehicle operator license from or to multiple sites. Under the
current regulations, in order for an operator to benefit from using
multiple sites for launches authorized by a part 415 license, the
operator must apply for a new license.\16\ This process is
unnecessarily burdensome. This

proposed change would facilitate the application process because an
operator would no longer be required to apply for a separate license to
launch or reenter from a launch site other than that specified by the
license.
---------------------------------------------------------------------------

    \16\ For example, in 2018, a launch operator held a launch
license under part 415 that authorized it to launch from Kennedy
Space Center (KSC) in Florida; however, the operator contemplated
launching from a nearby launch site, Cape Canaveral Air Force
Station (CCAFS). Under current part 415, in order to launch from
CCAFS instead of KSC, the operator has to file a separate
application for a license to launch from CCAFS.
---------------------------------------------------------------------------

    In order to apply for a license that includes multiple sites, an
applicant would need to provide the FAA with application materials that
would allow the FAA to conduct separate reviews for each site to
determine, for example: Maximum probable loss required by part 440;
public risk to populated areas, aircraft, and waterborne vessels; and
the environmental impacts associated with proposed launches or
reentries. The FAA foresees that a license that authorizes launches or
reentries at more than one site would make it administratively easier
for an operator to change sites for a particular operation. For
example, an operator could move a launch from one site to another due
to launch facility availability. A launch might move from CCAFS to KSC.
Additionally, FAA foresees multiple sites will be utilized by operators
of hybrid vehicles at launch sites with runways as well as vehicles
supporting operationally responsive space missions such as DARPA Launch
Challenge. Under this proposed licensing regime, an applicant should be
prepared to discuss its intent to conduct activity from multiple sites
during pre-application consultation. This discussion would give both
the applicant and the agency an opportunity to scope the application
and identify any potential issues early on when changes to the
application or proposed licensed activities would be less likely to
cause additional issues or significant delays. The launch operator
would not need to specify the specific launches that would be planned
for each site. The FAA would continue its current practice for operator
licenses of requiring a demonstration that a proposed range of
activities, not every trajectory variation within that range, can be
safely conducted in order to scope the license. The license would not
need to be modified unless the proposed operation fell outside the
authorized range.
    The FAA further notes that under Sec.  413.11, after an initial
screening the FAA determines whether an application is complete enough
to begin its review. If an application that includes multiple launch
sites is complete enough for the FAA to accept it and begin its review,
the 180-day review period under Sec.  413.15(a) would begin. However,
if during the FAA's initial review it determines that an application is
sufficiently complete to make a license determination for at least one
launch site but not all launch sites included in the application, the
FAA would have the option to toll the review period, as provided in
Sec.  413.15(b). Alternatively, the FAA could continue its review of
the part of the application with complete enough information and toll
the portion involving any launch site with insufficient information to
make a licensing determination. In either case, the FAA would notify
the applicant as required by Sec.  413.15(c).
    Finally, the FAA proposes a more flexible approach to the duration
of a vehicle operator license under Sec.  450.7 (Duration of a Vehicle
Operator License). Specifically, the FAA would determine, based on
information received from an applicant, the appropriate duration of the
license, not to exceed five years. In making this determination, the
FAA would continue its current practice of setting the duration of a
license for specified launches to be approximately one year after the
expected date of the activity. Currently, a launch-specific license
expires upon completion of all launches authorized by the license or
the expiration date stated in the license, whichever occurs first. An
operator license remains in effect for two years for an RLV and five
years for an ELV from the date of issuance. The FAA considered setting
all license durations to five years, but rejected this option to allow
an applicant to obtain a license for a limited specific activity rather
than for a more general range of activities. An applicant may prefer a
shorter license duration for a specific activity because a licensee has
obligations under an FAA license, such as the requirements to
demonstrate financial responsibility and allow access to FAA safety
inspectors, and a shorter license duration would relieve an applicant
of compliance with these requirements after the activity has ended.
Unless an operator requests an operator license, currently good for
either two or five years, the operator does not typically request a
license duration. The FAA initially sets the duration to encompass the
authorized activity. The FAA plans to continue its current practice of
extending licenses through renewals or modifications to accommodate
delays in authorized launches or reentries.

C. Performance-Based Requirements and Means of Compliance

    SPD-2 directs the FAA to consider replacing prescriptive
requirements in the commercial space flight launch and reentry
licensing process with performance-based criteria. The ARC echoed the
SPD-2 recommendation for performance-based requirements that allowed
varying means of compliance proposed by the operator.\17\ In response
to SPD-2 and the ARC recommendations, the FAA is proposing to replace
many of the prescriptive licensing requirements with performance-based
requirements. These performance-based requirements would provide
flexibility, scalability, and adaptability as discussed in the
introduction. An operator would be able to use an acceptable means of
compliance to demonstrate compliance with the requirements.
---------------------------------------------------------------------------

    \17\ ARC Report, at p. 7.
---------------------------------------------------------------------------

    Currently, the FAA uses both prescriptive and performance-based
requirements for launches and reentries respectively.\18\ Parts 415 and
417 provide detailed prescriptive requirements for ELVs. Although these
requirements provide regulatory certainty, they have proven inflexible.
As the industry grows and innovates, ELV operators have identified
alternate ways of operating safely that do not comply with the
regulations as written. This has forced operators to request waivers or
equivalent-level-of safety-determinations (ELOS determinations), often
close to scheduled launch dates. On the other hand, the performance-
based regulations in parts 431 and 435 lack the detail to efficiently
guide operators through the FAA's regulatory regime. Indeed, the FAA
often fills these regulatory gaps by adopting part 417 requirements in
practice. The process of adding regulatory certainty to these
performance-based regulations by adopting part 417 requirements has
been frustrating and contentious for both operators and the FAA.
---------------------------------------------------------------------------

    \18\ Parts 415 and 417, and their associated appendices, provide
primarily prescriptive requirements for licensing and launch of an
ELV. Part 431 provides primarily performance- and process-based
requirements for a launch and reentry of a reusable launch vehicle.
Part 435 provides similar requirements to part 431 for the reentry
of a reentry vehicle other than a reusable launch vehicle. Parts 431
and 435 rely on a system safety process performed by an operator in
order to demonstrate adequate safety of the operation.
---------------------------------------------------------------------------

    Adopting performance-based requirements that allow operators to use
an acceptable means of compliance would decrease the need for waivers
or ELOS determinations to address new technology advancements. An
acceptable means of compliance is one means, but not the only means, by
which a requirement could be met. The FAA would set the safety standard
in regulations and identify any acceptable means of compliance
currently available. The FAA would provide public notice of each means
of compliance that the Administrator has accepted by publishing the
acceptance

on its website, for example. This notification would communicate to the
public and the industry that the FAA has accepted a means of compliance
or any revision to an existing means of compliance. A consensus
standards body, any individual, or any organization would be able to
submit means of compliance documentation to the FAA for consideration
and potential acceptance.
    An operator could also develop its own means of compliance to
demonstrate it met the safety standard. Once the Administrator has
accepted a means of compliance for that operator, the operator could
use it in future license applications. The FAA would not provide public
notice of individual operator-developed means of compliance. If any
information submitted to the FAA as part of a means of compliance for
acceptance is proprietary, it would be afforded the same protections as
are applied today to license applications submitted under Sec.  413.9.
    For five of the proposed requirements, an operator would have to
demonstrate compliance using a means of compliance that has been
approved by the FAA before an operator could use it in a license
application. These five requirements are flight safety systems
(proposed Sec.  450.145), FSA methods (proposed Sec.  450.115),
lightning flight commit criteria (proposed Sec.  450.163(a)), and
airborne toxic concentration and duration thresholds (proposed
Sec. Sec.  450.139 and 450.187). The FAA has developed Advisory
Circulars (ACs) or identified government standards that discuss an
acceptable means of compliance for each of these requirements, and has
placed these documents in the docket for the public's review and
comment. If an operator wishes to use a means of compliance not
previously accepted by the FAA to demonstrate compliance with one of
the five requirements, the FAA would have to review and accept it prior
to an operator using that means of compliance to satisfy a licensing
requirement.
    If an operator is interested in applying for the acceptance of a
unique means of compliance, it should submit any data or documentation
to the FAA necessary to demonstrate that the means of compliance
satisfies the safety requirements established in the regulation. An
operator should note that the FAA will take into account such factors
as complexity of the means of compliance; whether the means of
compliance is an industry, government, or voluntary consensus standard;
and whether the means of compliance has been peer-reviewed during its
review and determination. These factors may affect how quickly the FAA
is able to review and make a determination. The time could range from a
few days to many weeks.
    Although applying for the acceptance of a new means of compliance
may take time, once an operator's unique means of compliance is
accepted by the FAA, the operator can use it in future license
applications. The FAA also anticipates that this process will result in
flexibility for industry and will encourage innovation as industry and
consensus standards bodies \19\ develop multiple ways for an operator
to meet the requisite safety standards. The FAA believes this is the
best approach to enabling new ways of achieving acceptable levels of
safety through industry innovation, and seeks public comment on whether
this approach may induce additional innovation through industry-
developed consensus standards.
---------------------------------------------------------------------------

    \19\ The FAA intends to rely increasingly on voluntary consensus
standards as means of compliance. Section 12(d) of the National
Technology Advancement Act (Pub. L. 104-113; 15 U.S.C. 3701, et
seq.) directs federal agencies to use voluntary consensus standards
in lieu of government-unique standards except where inconsistent
with law or otherwise impractical. Because voluntary consensus
bodies are made up of a wide selection of industry participants, and
often also include FAA participation, the FAA expects its review of
a means of compliance developed by a voluntary consensus standards
body would be more expeditious than a custom means of compliance.
Unlike means of compliance developed by a voluntary consensus
standards body, a custom means of compliance would not be subject to
peer review or independent review of the viability of the technical
approach.
---------------------------------------------------------------------------

D. Launch From a Federal Launch Range

    Both industry and the National Space Council have urged government
agencies involved in the launch and reentry of vehicles by commercial
operators to work towards common standards and to remove duplicative
oversight. The ARC recommended an end goal of either exclusive FAA
jurisdiction over commercial launches at a range, or a range adopting
the same flight safety regulations used by the FAA. SPD-2 directed the
Secretary of Defense, the Secretary of Transportation, and the NASA
Administrator to coordinate to examine all existing U.S. Government
requirements, standards, and policies associated with commercial space
flight launch and reentry operations from Federal launch ranges and
minimize those requirements, except those necessary to protect public
safety and national security, that would conflict with the efforts of
the Secretary of Transportation in implementing the Secretary's
responsibilities to review and revise its launch and reentry
regulations.\20\ Most recently, the John S. McCain National Defense
Authorization Act for Fiscal Year 2019 includes a provision stating
that the Secretary of Defense may not impose any requirement on a
licensee or transferee that is duplicative of, or overlaps in intent
with, any requirement imposed by the Secretary of Transportation under
51 U.S.C. chapter 509, unless imposing such a requirement is necessary
to avoid negative consequences for the national security space
program.\21\
---------------------------------------------------------------------------

    \20\ SPD-2; May 24, 2018 (https://www.whitehouse.gov/presidential-actions/space-policy-directive-2-streamlining-regulations-commercial-use-space).
    \21\ Section 1606(2)(A), John S. McCain National Defense
Authorization Act for Fiscal Year 2019, Public Law 115-232 (amending
51 U.S.C. 50918 note).
---------------------------------------------------------------------------

    Currently, the FAA issues a safety approval to a license applicant
proposing to launch from a Federal launch range if the applicant
satisfies the requirements of part 415, subpart C, and has contracted
with the range for the provision of safety-related launch services and
property, as long as an FAA Launch Site Safety Assessment (LSSA) \22\
shows that the range's launch services and launch property satisfy part
417. The FAA assesses each range and determines if the range meets FAA
safety requirements. If the FAA assessed a range, through its LSSA, and
found that an applicable range safety-related launch service or
property satisfies FAA requirements, then the FAA treats the range's
launch service or property as that of a launch operator's, and there is
no need for further demonstration of compliance to the FAA. The FAA
reassesses a range's practices only when the range chooses to change
its practice.
---------------------------------------------------------------------------

    \22\ LSSA is an FAA evaluation of Federal range services and
launch property.
---------------------------------------------------------------------------

    The ARC recommended that ranges and the FAA have common flight
safety regulations and guidance documents. To address this
recommendation, the FAA proposes performance-based requirements for
both ground and flight safety that an operator could meet using Air
Force and NASA practices as a means of compliance. The FAA expects that
there will be few, if any, instances where Air Force or NASA practices
do not satisfy the proposed performance-based requirements.
Additionally, the proposed requirements should provide enough
flexibility to accommodate changes in Air Force and NASA practices in
the future. The FAA expects that range services that a range applies to
U.S. Government launches and

reentries will almost invariably satisfy the FAA's proposed
requirements. The FAA currently accepts flight safety analyses
performed by Air Force on behalf of an operator without additional
analysis and anticipates that it would give similar deference to other
analyses by federal agencies once it established that they meet FAA
requirements.
    The FAA developed this approach to reduce operator burden to the
largest extent possible. The FAA is bound to execute its statutory
mandates and may do so only to the extent authorized by those statutes.
Although federal entities often have complimentary mandates and
statutory authorities, they are rarely identical. That is, each federal
department or agency has been given separate mission. Federal entities
establish interagency processes to manage closely related functions in
as smoothly and least burdensome manner possible. Coordinating FAA
requirements, range practices, and those practices implemented at other
Federal facilities is largely an interagency issue, this proposal does
not include language to eliminate duplicative approvals. Instead, the
FAA will continue to work with the appropriate agencies to streamline
commercial launch and reentry requirements at ranges and Federal
facilities by leveraging the Common Standards Working Group (CSWG).\23\
---------------------------------------------------------------------------

    \23\ The CSWG consists of range safety personnel from the Air
Force and NASA, and was chartered in the early 2000's to develop and
maintain common launch safety standards among agencies.
---------------------------------------------------------------------------

E. Safety Framework

    In addition to proposing a single vehicle operator license and
replacing prescriptive requirements with performance-based
requirements, this rule would rely on a safety framework that provides
the flexibility needed to accommodate current and future operations and
the regulatory certainty lacking in some of the current regulations.
    This proposal would consolidate the launch and reentry safety
requirements in subpart C. Figure 2 depicts the safety framework on
which the FAA relied in developing its proposed safety requirements. In
developing this framework, the FAA considered following the approach
taken in parts 431 and 435 and relying almost exclusively on a robust
systems safety approach. As noted earlier, experience has shown that
part 431 does not offer enough specificity and, as a result, it has
been unclear to operators what safety measures the FAA requires to
achieve an acceptable level of safety. In particular, there are no
explicit requirements for ground safety, flight safety analysis, or
flight safety systems. On the other hand, part 417 is too prescriptive,
particularly regarding design and detailed procedural requirements for
ground safety, detailed design and test requirements for flight safety
systems, and numerous plans that placed needless burden on operators
and impeded innovation. Thus, the framework described below is designed
to strike a balance between these two parts. The proposed regulations
clearly lay out FAA expectations, but should provide a launch or
reentry operator with flexibility on how it achieves acceptable public
safety. The framework also seeks to allow operators that wish to
conduct operations using proven hazard control strategies to do so.
[GRAPHIC] [TIFF OMITTED] TP15AP19.001

    System Safety Program. All operators would be required to have a
system safety program that would establish system safety management
principles for both ground and flight safety throughout the operational
lifecycle of a launch or reentry system. The system safety program
would include a safety organization, procedures, configuration control,
and post-flight data review.
    Preliminary Flight Safety Assessment. For flight safety, an
operator would conduct a preliminary flight safety assessment to
identify public hazards and determine the appropriate hazard control
strategy for a phase of flight or an entire flight. An operator could
use traditional hazard controls such as physical containment, wind
weighting, or flight abort to mitigate hazards. Physical containment is
when a launch vehicle does not have sufficient energy for any hazards
associated with its flight to reach the public or critical assets.

Wind weighting is when the operator of an unguided suborbital launch
vehicle adjusts launcher azimuth and elevation settings to correct for
the effects of wind conditions at the time of flight to provide a safe
impact location for the launch vehicle or its components. Flight Abort
is the process to limit or restrict the hazards to public health and
safety and the safety of property presented by a launch vehicle or
reentry vehicle, including any payload, while in flight by initiating
and accomplishing a controlled ending to vehicle flight. Flight abort
as a hazard control strategy would be required for a phase of flight
that is shown by a consequence analysis to potentially have significant
public safety impacts. Otherwise, an operator would be able to bypass
these traditional hazard control strategies and conduct a flight hazard
analysis.
    Flight Hazard Analysis. As an alternative to traditional hazard
control measures, an operator would be able to conduct a flight hazard
analysis to derive hazard controls. Hazard analysis is a proven
engineering discipline that, when applied during system development and
throughout the system's lifecycle, identifies and mitigates hazards
and, in so doing, eliminates or reduces the risk of potential mishaps
and accidents. In addition, a separate hazard analysis methodology is
outlined for computing systems and software.
    Flight Safety Analysis. Regardless of the hazard control strategy
chosen or mandated, an operator would be required to conduct a number
of flight safety analyses. At a minimum, these analyses would
quantitatively demonstrate that a launch or reentry meets the public
safety criteria for debris, far-field overpressure, and toxic hazards.
Other analyses support flight abort and wind weighting hazard control
strategies and determine flight hazard areas.\24\ For a detailed
discussion, please see the ``Additional Technical Justification and
Rationale'' discussion later in the preamble.
---------------------------------------------------------------------------

    \24\ Note that flight hazard analysis and flight safety analysis
are interdependent in that each can help inform the other. Flight
safety analysis quantifies the risks posed by hazards, which are
typically identified and mitigated during the flight hazard
analysis, by using physics to model how the vehicle will respond to
specific failure modes. The FSA is also useful to define when
operational restrictions are necessary to meet quantitative risk
requirements.
---------------------------------------------------------------------------

    Derived Hazard Controls. An operator would derive a number of
hazard controls through its conduct of a flight hazard analysis and
flight safety analyses.
    Prescribed Hazard Controls. Regardless of the hazard controls
derived from a flight hazard analysis and flight safety analyses, the
FAA would require a number of other hazard controls that have
historically been necessary to achieve acceptable public safety. These
include requirements for flight safety and other safety critical
systems, agreements, safety-critical personnel qualifications, crew
rest, radio frequency management, readiness, communications, preflight
procedures, surveillance and publication of hazard areas, lightning
hazard mitigation, flight safety rules, tracking, collision avoidance,
safety at the end of launch, and mishap planning.
    Acceptable Flight Safety. All elements of the safety framework
combine to provide acceptable public safety during flight. In proposed
Sec.  450.101 (Public Safety Criteria), the FAA would outline specific
public safety criteria to clearly define how safe is safe enough.
Section 450.101 is discussed in detail later in this preamble.
    Ground Safety. With respect to ground safety, an operator would
conduct a ground hazard analysis to derive ground hazard controls.
Those, along with prescribed hazard controls, would provide acceptable
public safety during ground operations.

Flight Safety

A. Public Safety Criteria

    Proposed Sec.  450.101 would consolidate all public safety criteria
for flight into one section. It would contain the core performance-
based safety requirements to protect people and property on land, at
sea, in the air, and in space. All other flight safety requirements in
proposed part 450 subpart C would support the achievement of these
criteria. The Sec.  450.101 requirements would define how safe is safe
enough for the flight of a commercial launch or reentry vehicle.
    Proposed Sec.  450.101(a) contains launch risk criteria, or the
risk thresholds an operator may not exceed during flight. An operator
would be permitted to initiate the flight of a launch vehicle only if
the collective, individual, aircraft, and critical asset risk satisfy
the proposed criteria. The criteria would apply to every launch from
liftoff through orbital insertion for an orbital launch, and through
final impact or landing for a suborbital launch, which is the same
scope used for current launch risk criteria in parts 417 and 431. Each
measure of risk serves a different purpose. Collective risk addresses
the risk to a population as a whole, whereas individual risk addresses
the risk to each person within a population. The measure of aircraft
risk is unique, due to the difficulty of modeling collective and
individual risk for aircraft in flight. Lastly, critical asset risk
addresses the loss of functionality of an asset that is essential to
the national interests of the United States. Critical assets include
property, facilities, or infrastructure necessary to maintain national
defense, or assured access to space for national priority missions.
    Proposed Sec.  450.101(a)(1) would establish the collective risk
criteria for flight, measured by expected casualties (EC).
The proposal would define EC as the mean number of
casualties predicted to occur per flight operation if the operation
were repeated many times. The term casualties refers to serious
injuries or worse, including fatalities. It would require the risk to
all members of the public, excluding persons in aircraft and
neighboring operations personnel, to not exceed an expected number of 1
x 10-\4\ casualties, posed by impacting inert and explosive
debris, toxic release, and far field blast overpressure.\25\ With two
exceptions, this is the same criteria currently used in Sec. Sec.
417.107(b)(1) and 431.35(b)(1)(i). The first exception applies to
people on waterborne vessels, who would now be included in the
collective risk criteria to all members of the public. The second
exception applies to neighboring operations personnel. This proposal
would require the risk to all neighboring operations personnel not
exceed an expected number of 2 x 10-\4\ casualties. Both of
these topics are discussed separately later in this preamble.
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    \25\ Far field blast overpressure is a phenomenon resulting from
the air blast effects of large explosions that may be focused by
certain conditions in the atmosphere through which the blast waves
propagate. Population may be at risk from broken window glass
shards.
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    Proposed Sec.  450.101(a)(2) would establish the individual risk
criteria for flight, measured by probability of casualty
(PC). The proposal would define PC as the
likelihood that a person will suffer a serious injury or worse,
including a fatal injury, due to all hazards from an operation at a
specific location. It would require the risk to any individual member
of the public, excluding neighboring operations personnel, to not
exceed a PC of 1 x 10-\6\ per launch, posed by
impacting inert and explosive debris, toxic release, and far field
blast overpressure. With one exception, this is the same criteria
currently in Sec. Sec.  417.107(b)(2) and 431.35(b)(1)(iii). The
exception is neighboring operations personnel would have separate
individual risk criteria, which is discussed later in this preamble.
    Proposed Sec.  450.101(a)(3) would set aircraft risk criteria for
flight. It would

require a launch operator to establish any aircraft hazard areas
necessary to ensure the probability of impact with debris capable of
causing a casualty for aircraft does not exceed 1 x 10-6.
This is the same requirement as current Sec.  417.107(b)(4). Part 431
does not have aircraft risk criteria, although the FAA's current
practice is to use the part 417 criteria for launches licensed under
part 431. With this proposal, the FAA would expressly apply this
criterion to all launches. The FAA does not propose any other changes
for the protection of aircraft at this time. The FAA has an ongoing
Airspace Access ARC, composed of commercial space transportation and
aviation industry representatives, whose recommendations may inform a
future rulemaking on protection of aircraft.
    Proposed Sec.  450.101(a)(4) would set the launch risk criteria for
critical assets. It would require the probability of loss of
functionality for each critical asset to not exceed 1 x
10-\3\, or some other more stringent probability if deemed
necessary to protect the national security interests of the United
States. This would be a new requirement and is discussed separately
later in this preamble.
    Proposed Sec.  450.101(b) would define risk criteria for reentry.
These would be the same as the risk criteria for launch, except that
the proposed criteria would apply to each reentry, from the final
health check prior to the deorbit burn through final impact or landing.
The same discussion earlier regarding collective risk, individual risk,
aircraft risk, and risk to critical assets would apply to the reentry
risk criteria.
    Proposed Sec.  450.101(c) would set the flight abort criteria for
both launch and reentry. It represents the most significant change to
public safety criteria in this proposed rule. It would require that an
operator use flight abort as a hazard control strategy if the
consequence of any reasonably foreseeable vehicle response mode,\26\ in
any one-second period of flight, is greater than 1 x 10-3
conditional expected casualties (CEC) for uncontrolled
areas.\27\ CEC is the consequence, measured in terms of
EC, without regard to the probability of failure, and will
be discussed in the Consequence Protection Criteria for Flight Abort
and Flight Safety System section. Flight abort with the use of an FSS
and applying the CEC criteria in proposed part 450 is
discussed later in this preamble. Proposed Sec.  450.101(c) would apply
to all phases of flight, unless otherwise agreed to by the FAA based on
the demonstrated reliability of the launch or reentry vehicle during
that phase of flight. The flight of a certificated aircraft that is
carrying a rocket to a drop point is an example of when the use of an
FSS would likely not be necessary even though the CEC could
be above the threshold, because the aircraft would have a demonstrated
high reliability.
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    \26\ Vehicle response mode means a mutually exclusive scenario
that characterizes foreseeable combinations of vehicle trajectory
and debris generation.
    \27\ Uncontrolled Area is an area of land not controlled by a
launch or reentry operator, a launch or reentry site operator, an
adjacent site operator, or other entity by agreement.
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    Proposed Sec.  450.101(d) would establish disposal \28\ safety
criteria. It would require that an operator conducting a disposal of a
vehicle stage or component from Earth orbit either meet the criteria of
Sec.  450.101(b)(1), (2), and (3), or target a broad ocean area.
Because a launch vehicle stage or component will not survive a disposal
substantially intact, disposal is not considered a reentry.\29\
Disposal is an effective method of orbital debris prevention because it
eliminates the vehicle stage or component as a piece of orbital debris
and as a risk for future debris creation through collision. The FAA is
not proposing to require that a launch operator dispose of any upper
stage or component in this rulemaking. The current proposal would only
apply if a launch operator chooses to dispose of its upper stage or
other launch vehicle component. Although an operator could choose to
demonstrate that the proposed collective and individual risk criteria
are met for a disposal, the FAA expects most, if not all, disposals to
target a broad ocean area.\30\ This is consistent with current practice
and NASA Technical Standards.\31\ Because the broad ocean area has such
a low density of people that are exposed almost exclusively in large
waterborne vessels, objects that survive reentry to impact in these
areas produce an insignificant PC. Therefore, operators
disposing a vehicle stage or component into a broad ocean area would
not need to demonstrate compliance with the collective, individual, or
aircraft risk criteria. For purposes of this proposal, the FAA
considers ``broad ocean'' as an area 200 nautical miles (nm) from land.
Two hundred nm is also the recognized limit of exclusive economic zones
(EEZ), which are zones prescribed by the United Nations Convention on
the Law of the Sea \32\ over which the owning state has exclusive
exploitation rights over all natural resources. Disposal beyond an EEZ
further reduces the chance of disrupting economic operations such as
commercial fishing.
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    \28\ The FAA proposes to define ``disposal'' in Sec.  401.5 to
mean the return or attempt to return, purposefully, a launch vehicle
stage or component, not including a reentry vehicle, from Earth
orbit to Earth, in a controlled manner. The proposed definition is
discussed later in this preamble.
    \29\ A ``reentry'' is defined in 51 U.S.C. 50902, as ``to return
or attempt to return, purposefully, a reentry vehicle and its
payload or human beings, if any, from Earth orbit or from outer
space to Earth.'' A ``reentry vehicle'' is defined as ``a vehicle
designed to return from Earth orbit or outer space to Earth, or a
reusable launch vehicle designed to return from Earth orbit or outer
space to Earth, substantially intact.''
    \30\ A disposal that ``targets a broad ocean area'' would wholly
contain the disposal hazard area within a broad ocean area.
    \31\ NASA-STD-8715.14A, paragraph <IP_ADDRESS>.b, states, ``For
controlled reentry, the selected trajectory shall ensure that no
surviving debris impact with a kinetic energy greater than 15 joules
is closer than 370 km from foreign landmasses, or is within 50 km
from the continental U.S., territories of the U.S., and the
permanent ice pack of Antarctica.''
    \32\ United Nations Convention on the Law of the Sea, Dec. 10,
1982, 1833 U.N.T.S. 397. Although the United States has not ratified
UNCLOS, its comprehensive legal framework codifies customary
international law governing uses of the ocean.
---------------------------------------------------------------------------

    Proposed Sec.  450.101(e) would address the protection of people
and property on-orbit, through collision avoidance requirements during
launch or reentry and through requirements aimed at preventing
explosions of launch vehicle stages or components on-orbit.
Specifically, proposed Sec.  450.101(e)(1) would require a launch or
reentry operator to prevent the collision between a launch or reentry
vehicle stage or component, and people or property on-orbit, in
accordance with the requirements in proposed Sec.  450.169(a) (Launch
and Reentry Collision Avoidance Analysis Requirements). Proposed Sec.
450.101(e)(2) would require that a launch operator prevent the creation
of debris through the conversion of energy sources into energy that
fragments the stage or component, in accordance with the requirements
in proposed Sec.  450.171 (Safety at End of Launch). Proposed Sec.
450.171 would contain the same requirements as in Sec. Sec.  417.129
and 431.43(c)(3). Both Sec. Sec.  450.169(a) and 450.171 are addressed
in greater detail later in the preamble.
    Proposed Sec.  450.101(f) would require that an operator for any
launch, reentry, or disposal notify the public of any region of land,
sea, or air that contains, with 97 percent probability of containment,
all debris resulting from normal flight events capable of causing a
casualty. The requirement to notify the public of planned impacts is
currently in Sec. Sec.  417.111(i)(5) and 431.75(b). The calculation of
such hazard areas is discussed later in this preamble in the

discussion of proposed Sec.  450.133 (Flight Hazard Areas).
Notification of planned impacts would be included in proposed Sec.
450.101 because it is not tied to risk and is therefore not covered by
the other public safety criteria of proposed Sec.  450.101.
    In proposed Sec.  450.101(g), the FAA would establish performance
level requirements for the validity of analysis methods. Specifically,
consistent with the existing language in Sec.  417.203(c) and current
practice for launch and reentry assessments, an operator's analysis
method would have to use accurate data and scientific principles and be
statistically valid. ``Accurate data'' would continue to refer to
completeness, exactness, and fidelity to the maximum extent
practicable. In this context, ``scientific principles'' would continue
to refer to knowledge based on the scientific method, such as that
established in the fields of physics, chemistry, and engineering. An
analysis based on non-scientific principles, such as astrology, would
not be consistent with this standard. A ``statistically valid''
analysis would be the result of a sound application of mathematics and
would account for the uncertainty in any statistical inference due to
sample size limits, the degree of applicability of data to a particular
system, and the degree of homogeneity of the data.
1. Neighboring Operations Personnel
    Two of the proposed requirements in Sec.  450.101 that do not exist
in the current regulations carve out separate individual and collective
risk criteria for neighboring operations personnel. With the increase
in operations and launch rate, the Air Force, NASA, and the industry
have expressed concerns about the FAA's public risk criteria because in
certain circumstances they force an operator to clear or evacuate any
other launch operator and its personnel not involved with a specific
FAA-licensed operation from a hazard area or safety clear zone during
certain licensed activities.\33\ The clearing or evacuation of other
launch operator personnel, which can range from a handful of workers to
over a thousand for a significant portion of a day, results in
potential schedule impacts and lost productivity costs to other range
users. These impacts will increase as the launch tempo increases and
similar operations are conducted at other sites.
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    \33\ To illustrate the problematic nature of the current risk
requirements as they are applied to the public, flybacks and
landings of reusable boosters at Cape Canaveral Air Force Station
conducted under an FAA license are causing operational impacts to
other range users due to FAA requirements to clear the public,
including range users not involved with the launch, to meet public
safety criteria.
---------------------------------------------------------------------------

    The Air Force, NASA, and industry have recommended that the FAA
treat certain personnel of other launch operators, referred to in this
proposed rulemaking as ``neighboring operations personnel,''
differently than the rest of the public who are typically visitors,
tourists, or people who are located outside a launch site and are not
aware of the hazards nor trained and prepared to respond to them.
Specifically, they recommend that the FAA characterize neighboring
operations personnel who work at a launch site as either non-public or
subject to a higher level of risk than the rest of the public, to
minimize the need to evacuate them during certain licensed
operations.\34\
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    \34\ The Air Force requested that the FAA propose an approach
that allows certain neighboring operations personnel during an FAA-
licensed launch to be assessed at the Air Force's higher launch
essential risk criteria of 10 x 10-6 individual
probability of casualty. Also, Air Force and NASA members of the
CSWG have asked for increased flexibility with the collective risk
EC for flight to accommodate neighboring operations
personnel. As one of its recommendations to the National Space
Council in November 2017, NASA suggested a change to operational
requirements to clear employees from hazard areas during commercial
operations under an FAA license.
---------------------------------------------------------------------------

    The ARC recommended: (1) Excluding permanently badged personnel and
neighboring launch operations from the definition of ``public''; (2)
revising the definition of ``public safety'' because the current
definition is overly broad, ambiguous, and inconsistent with other
federal agencies, including the Air Force; (3) distinguishing between
``public'' (i.e., those uninvolved individuals located outside the
controlled-access boundaries of a launch or reentry site or clustered
sites within a defined Federal or private spaceport) and people who
work regularly within the controlled-access boundaries of a Federal or
private spaceport or an operator's dedicated launch or reentry site;
\35\ and (4) employing mitigation measures for uninvolved neighboring
operations personnel when a hazardous operation or launch is
scheduled.\36\
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    \35\ According to the ARC, these individuals who work regularly
within the boundaries of a federal range or private spaceport are
industry workers who know and accept the risks associated with the
hazardous environment in which they work.
    \36\ These mitigations might include: facility separation
distances (e.g., separation between launch points on a multi-user
spaceport) that anticipate and allow for safe concurrent operations;
terms in site and use agreements with the Federal or non-Federal
property owner that indemnify and hold harmless the government or
other landlord; and potential reciprocal waivers (not required by
regulation) that may be entered into among neighboring operations to
share risks of hazards to each other's property and personnel.
---------------------------------------------------------------------------

i. FAA Proposed Definitions of Public and Neighboring Operations
Personnel in Sec.  401.5
    To address these concerns, the FAA proposes to add two definitions
to Sec.  401.5. The first is ``public,'' which the FAA would define in
Sec.  401.5, for a particular licensed or permitted launch or reentry,
as people and property that are not involved in supporting the launch
or reentry. This would include those people and property that may be
located within the launch or reentry site, such as visitors,
individuals providing goods or services not related to launch or
reentry processing or flight, and any other operator and its personnel.
This language is similar to the current definition of ``public safety''
in Sec.  401.5, which the FAA proposes to delete, except that the FAA
has included reentry and permitted activities in the definition.\37\
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    \37\ The FAA would also delete the definition of ``public'' in
Sec.  420.5 for launch sites, which means people and property that
are not involved in supporting a licensed or permitted launch. The
new definition of public in Sec.  401.5 will apply to all parts,
including part 420.
---------------------------------------------------------------------------

    The second is the definition of ``neighboring operations
personnel,'' which the FAA would define in Sec.  401.5 as those members
of the public located within a launch or reentry site, as determined by
the Federal or licensed launch or reentry site operator,\38\ or an
adjacent launch or reentry site, who are not associated with a specific
hazardous licensed or permitted operation currently being conducted but
are required to perform safety, security, or critical tasks at the site
and are notified of the hazardous operation. While neighboring
operations personnel would still fall under the proposed definition of
public, this proposal would apply different individual and collective
risk criteria to them. The FAA seeks comment on this approach.
---------------------------------------------------------------------------

    \38\ Since neighboring operations personnel, as defined in this
proposal, work at a launch or reentry site, the FAA expects that the
site operator (i.e., an operator of a Federal site or FAA-licensed
launch or reentry site), not the launch operator, would identify
these personnel.
---------------------------------------------------------------------------

    In developing its proposal, the FAA looked to NASA and Air Force
requirements, which treat a portion of the public differently than the
FAA regulations by allowing some other launch operators and their
personnel, referred to as ``neighboring operations personnel'' by the
Air Force \39\ and

``critical operations personnel'' by NASA,\40\ to be subjected to a
higher level of risk than the rest of the public. This approach lessens
the impact to multiple users and enables concurrent operations at a
site. The FAA's proposed definition more closely aligns with the
definitions of neighboring operations personnel and critical operations
personnel adopted by the Air Force and NASA, respectively, because it
distinguishes neighboring operations personnel as personnel required to
perform safety, security, or critical tasks and who are notified of
neighboring hazardous operations. Critical tasks may include
maintaining the security of a site or facility or performing critical
launch processing tasks such as monitoring pressure vessels or testing
safety critical systems of a launch vehicle for an upcoming mission.
---------------------------------------------------------------------------

    \39\ The Air Force has two sub-categories of public: Neighboring
operations personnel and the general public. For a specific launch,
the general public includes all visitors, media, and other non-
essential personnel at the launch site, as well as persons located
outside the boundaries of the launch site. For the Air Force,
neighboring operations personnel are individuals, not associated
with the specific operation or launch currently being conducted,
required to perform safety, security, or critical tasks at the
launch base, and who are notified of a neighboring hazardous
operation and are either trained in mitigation techniques or
accompanied by a properly trained escort. In accordance with
guidance information in AFSPCMAN 91-710V1, neighboring operations
personnel may include individuals performing launch processing tasks
for another launch, but do not include individuals in training for
any job or individuals performing routine activities such as
administrative, maintenance, support, or janitorial. AFSPCMAN 91-
710V1 can be found at https://static.e-publishing.af.mil/production/1/afspc/publication/afspcman91-710v1/afspcman91-710v1.pdf. The Air
Force may allow neighboring operations personnel to be within safety
clearance zones and hazardous launch areas, and neighboring
operations personnel would not be evacuated with the general public.
The Air Force includes neighboring operations personnel in the same
risk category as launch-essential personnel. The allowable
collective aggregated risk for launch essential personnel is 300 x
10-6 and the allowable individual risk for launch
essential personnel is 10 x 10-6.
    \40\ NASA, for the purposes of range safety risk management,
defines public as visitors and personnel inside and outside NASA-
controlled locations who are not critical operations personnel or
mission essential personnel and who may be on land, on waterborne
vessels, or in aircraft. Similar to the Air Force's definition of
neighboring operations personnel, NASA considers critical operations
personnel to include persons not essential to the specific operation
(launch, reentry, flight) being conducted, but who are required to
perform safety, security, or other critical tasks at the launch,
landing, or flight facility; are notified of the hazardous operation
and either trained in mitigation techniques or accompanied by a
properly trained escort; are not in training for any job or
individuals performing routine activities such as administrative,
maintenance, or janitorial activities; and may occupy safety
clearance zones and hazardous areas, and are not evacuated with the
public. NASA includes critical operations personnel in the same risk
category as mission essential personnel. For flight, the allowable
collective aggregated risk for the combination of mission essential
personnel and critical operations personnel is 300 x 10-6
and the allowable individual risk for mission essential or critical
operations personnel is 10 x 10-6.
---------------------------------------------------------------------------

    Because of these specific duties, neighboring operations personnel
are more likely than the rest of the public to be specially trained and
prepared to respond to hazards present at a launch or reentry site.
Those hazards include exposure to debris, overpressure, toxics, and
fire. The Air Force and NASA definitions specify that these personnel
are either trained in mitigation techniques or accompanied by a
properly trained escort. Note, however, that the FAA would not require
that neighboring operations personnel be trained or accompanied by a
trained escort. It would be burdensome to require a licensee to ensure
neighboring operations personnel are trained, and training is not
necessary to justify the slight increase in risk allowed for workers
performing safety, security, or critical tasks.
    The FAA proposal would not include all permanently badged personnel
on a launch or reentry site as neighboring operations personnel. While
neighboring operations personnel are permanently-badged personnel,
including all permanently-badged personnel as neighboring operations
personnel could then include individuals performing routine activities
such as administrative, maintenance, or janitorial duties. These
individuals are not necessary for critical tasks. Unlike for
neighboring operations personnel, the disruption to routine activities
does not sufficiently justify allowing these individuals to remain on
site during hazardous operations.
ii. Individual Risk Level for Neighboring Operations Personnel
    Currently, for ELVs, the individual risk criterion for the public
in Sec.  417.107(b)(2) allows a launch operator to initiate flight only
if the risk to any individual member of the public does not exceed 1 x
10-6 per launch for each hazard. Part 431 is similar for an
RLV mission. Thus, any person not involved in supporting a launch or
reentry, whether within or outside the bounds of the launch or reentry
site, are required to have a risk of casualty no higher than 1 x
10-6 per launch or reentry for each hazard.
    The FAA proposes in Sec.  450.101(a)(2) a higher individual risk
criterion of 1 x 10-5 for neighboring operations personnel
compared to 1 x 10-6 for the rest of the public for launch
and reentry. Although neighboring operations personnel would still fall
under the FAA's definition of public, this proposal would establish a
higher risk threshold for neighboring operations personnel as compared
to other members of the public. This proposal would permit neighboring
operations personnel to remain on site because--unlike other members of
the public such as visitors or tourists--the presence of these
personnel at a launch or reentry site is necessary for security or to
avoid the disruption of launch or reentry activities at neighboring
sites. In addition, the proposed increased risk to which these
personnel would be exposed is minimal.
iii. Collective Risk Level for Neighboring Operations Personnel
    Sections 417.107(b)(1) and 431.35(b)(1)(i) and (ii) currently
require that for each proposed launch or reentry, the risk level to the
collective members of the public, which would include neighboring
operations personnel but exclude persons in water-borne vessels and
aircraft, must not exceed an expected number of 1 x 10-4
casualties from impacting inert and explosive debris and toxic release
associated with the launch or reentry.
    Similar to individual risk, the FAA proposes a separate collective
risk criterion for neighboring operations personnel in Sec.
450.101(a)(1). This proposal would permit a launch operator to initiate
the flight of a launch vehicle only if the total risk associated with
the launch to all members of the public, excluding neighboring
operations personnel and persons in aircraft, does not exceed an
expected number of 1 x 10-4 casualties. Additionally, a
launch operator would be permitted to initiate the flight of a launch
vehicle only if the total risk associated with the launch to
neighboring operations personnel did not exceed an expected number of 2
x 10-4 casualties. These risk criteria would also apply to
reentry.
    These proposed requirements would enable neighboring operations
personnel to remain within safety clear zones and hazardous launch
areas during flight. Additionally, neighboring operations personnel
would not be required to evacuate with the rest of the public as long
as their collective risk does not exceed 2 x 10-4. The
rationale is the same as that for individual risk. While the FAA
proposal would add a separate collective risk limit for neighboring
operations personnel, the collective risk limit for the public other
than neighboring operations personnel would not be able to exceed 1 x
10-4 for flight.
iv. Maximum Probably Loss (MPL) Thresholds for Neighboring Operations
Personnel
    Under a license, an operator must obtain liability insurance or
demonstrate financial responsibility to compensate for the maximum
probable loss from claims by a third party for

death, bodily injury, or property damage or loss.\41\ For financial
responsibility purposes under 14 CFR part 440, neighboring operations
personnel qualify as third parties.\42\ Thus, allowing neighboring
operations personnel to remain within hazard areas has the potential to
increase the maximum probable loss, and therefore the amount of third
party liability insurance that a licensee would be required to obtain.
However, this would be fully or partially mitigated by changing the
threshold value used to determine MPL for neighboring operations
personnel.
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    \41\ An operator must also obtain liability insurance or
demonstrate financial responsibility to compensate the U.S.
Government for damage or loss to government property, but this is
not affected by the neighboring operations personnel proposal.
    \42\ Title 51 U.S.C. 50902 defines third party as a person
except the U.S. Government or its contractors or subcontractors
involved in the launch or reentry services; a licensee or transferee
under Chapter 509 and its contractors, subcontractors or customers
involved in launch or reentry services; the customer's contractors
or subcontractors involved in launch or reentry services; or crew,
government astronauts, or space fight participants. Section 440.3
incorporates this definition into the regulations.
---------------------------------------------------------------------------

    The MPL is the greatest dollar amount of loss that is reasonably
expected to result from a launch or reentry. Current regulations define
what is reasonable by establishing probability thresholds:
     Losses to third parties that are reasonably expected to
result from a licensed or permitted activity are those that have a
probability of occurrence of no less than one in ten million.
     Losses to government property and government personnel
involved in licensed or permitted activities that are reasonably
expected to result from licensed or permitted activities are those that
have a probability of occurrence of no less than one in one hundred
thousand.
    Therefore, for any launch or reentry, there should only be a 1 in
10,000,000 (1 x 10-\7\) chance that claims from third
parties would exceed the MPL value, and a 1 in 100,000 (1 x
10-\5\) chance that claims from the government for
government property loss would exceed the MPL value. Because it is much
less likely that claims from third parties would exceed the MPL value,
the FAA's calculation of MPL takes into account a larger number of rare
events that could result in a third party claim than could result in a
government property claim. And, because the MPL calculation for third
party liability involves consideration of more events related to non-
government personnel third party losses than events related to
government personnel losses, non-government third party losses are more
likely to influence the MPL calculation. The difference in thresholds
reflects the government's acceptance of greater risk in supporting
launch and reentry activities than that accepted by the uninvolved
public.\43\
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    \43\ Subject to congressional appropriation, the Federal
Government indemnifies a launch or reentry operator for claims above
the insured amount up to $1.5 billion, adjusted for inflation from
January 1989 (approximately $3 billion as of 2016). The lower the
threshold used for calculating MPL, the greater chance that the
Federal Government may need to indemnify a licensee.
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    The FAA proposes, for the purpose of determining MPL, that the
threshold for neighboring operations personnel be the same as the
threshold for losses to government property and involved government
personnel, such that losses to neighboring operations personnel would
have a probability of occurrence of no less than 1 x 10-\5\.
This approach would be appropriate because unlike other third parties,
except for involved government personnel, the presence of neighboring
operations personnel at a launch or reentry site is necessary for
security or to avoid the disruption of launch or reentry activities at
neighboring sites. The presence of neighboring operations personnel
during licensed activities would not influence the MPL value for third-
party liability in most cases because, as discussed above, the 1 x
10-\5\ threshold would capture fewer events and therefore
have less of an influence on MPL. The FAA seeks comment on this
approach.
v. Ground Operations Pertinent to Neighboring Operations Personnel
    For ground operations, the FAA currently does not have, nor is it
proposing at this time, quantitative public risk criteria for
neighboring operations personnel or the rest of the public. As will be
discussed in greater detail later, an operator would conduct a ground
hazard analysis to derive ground hazard controls. This analysis would
be a qualitative, not quantitative. Thus, there would be no
quantitative criteria to treat neighboring operations personnel
differently than other members of the public during ground operations.
An operator would be expected to use hazard controls to contain hazards
within defined areas and to control public access to those areas. An
operator may use industry or government standards to determine proper
mitigations to protect the public, including neighboring operations
personnel, from hazards. The impact on neighboring operations personnel
during ground activities should be minimal.
    Additionally and as discussed later, the FAA is proposing that
launch would begin at the start of preflight ground operations that
pose a threat to the public, which could be when a launch vehicle or
its major components arrive at a U.S. launch site, or at a later point
as agreed to by the Administrator.\44\ Scoping preflight ground
operations to only those that require FAA oversight would alleviate
many of the previously-discussed issues associated with neighboring
operations personnel.
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    \44\ The clause ``as agreed to by the Administrator'' is used
throughout the proposed regulations, particularly in relation to
timeframes discussed in detail later in this preamble. Where the
clause is used, it means that an operator may submit an alternative
to the proposed requirement to the FAA for review. The FAA must
agree to the operator's proposal in order for the operator to use
the alternative. By whatever means the FAA's agreement to an
alternative is communicated to the operator, the agreement means
that the alternative does not jeopardize public health and safety
and the FAA has no objection to the submitted alternative. Unless
the context of the situation clearly provides otherwise, ``as agreed
to by the Administrator'' does not simply mean receipt by the FAA
(i.e., that the item was given to a representative of the FAA and
that person received it on behalf of the FAA).
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2. Property Protection (Critical Assets)
    Another proposed requirement in Sec.  450.101 that does not exist
in the current regulations is the proposal to adopt a critical asset
protection criterion in proposed Sec.  450.101. To better inform this
proposed requirement, the FAA would also amend Sec.  401.5 to add a
definition of critical asset. Specifically, the probability of loss of
functionality for each critical asset would not be able to exceed 1 x
10-\3\, or a more stringent probability if the FAA
determines, in consultation with relevant federal agencies, it is
necessary to protect the national security interests of the United
States. This requirement is necessary to ensure a high probability of
the continuing functionality of critical assets. A critical asset would
be defined as an asset that is essential to the national interests of
the United States, as determined in consultation with relevant federal
agencies. Critical assets would include property, facilities, or
infrastructure necessary to maintain national defense, or assured
access to space for national priority missions. Critical assets would
also include certain military, intelligence, and civil payloads,
including essential infrastructure when directly supporting the payload
at the launch site. Under this proposal, the FAA anticipates that it
would work with relevant authorities, including a launch or reentry
site operator or Federal property owner, to identify each ``critical
asset'' and its potential vulnerability to launch and reentry hazards.

    The FAA's existing risk criteria, currently found in Sec. Sec.
417.107(b) and 431.35(b), do not explicitly set any limit on the
probability of loss of functionality for any assets on the surface of
the Earth due to launch or reentry operations. An example of loss of
functionality would be if a launch vehicle crashed on a nearby launch
complex and resulted in damage that prevented the use of the launch
complex until repaired. Currently, FAA requirements provide some
protection for the safety of property during launch or reentry by
limiting individual and collective risks because people are generally
co-located with property. However, no protection is afforded for assets
within areas that are evacuated.
    The proposed property protection criteria would be consistent with
current practice at Federal launch ranges. Launch operations from NASA-
operated ranges are subject to requirements that limit the probability
of debris impact to less than or equal to 1 x 10-\3\ for
designated assets. While the Air Force does not have a formal
requirement, in practice, launch operations from Air Force-operated
ranges have adopted the NASA standard. In the past, Federal launch
ranges have, on occasion, applied a more stringent requirement limiting
the probability of debris impact caused by launch or reentry hazards to
less than or equal to 1 x 10-\4\ for national security
payloads, including essential infrastructure when directly supporting
the payload at the launch site. The FAA is looking to extend the
protection of critical assets to non-Federal launch or reentry sites.
The Pacific Spaceport (located on Kodiak Island, Alaska) is an example
of a non-Federal launch or reentry site that is a dual-use commercial
and military spaceport (meaning that commercial missions have been
conducted there, as well as missions for the Department of Defense),
which has no regulatory assurance of protection from loss of
functionality of critical assets.
    For these reasons, the FAA has determined that a requirement to
maintain a high probability of continuing functionality of critical
assets at a launch site is necessary to ensure the safety of property
and national security interests of the United States. Launch and
reentry infrastructure used for commercial operations are increasingly
in close proximity to critical assets, such as infrastructure used to
support the national interests of the United States. The national
interests of the U.S. relevant to this proposal go beyond national
security interests, and include infrastructure used to serve high
priority NASA missions as well. For example, the FAA considers launch
and reentry services to deliver cargo to and from the International
Space Station as national priority missions. As another example, the
launch infrastructure used by SpaceX to launch the Falcon 9 from
Kennedy Space Center is within 2 nm of the launch infrastructure used
by ULA to launch the Atlas V, which are both used to support commercial
operations and operations that serve the national interests of the
United States. The FAA coordinated the development of this proposed
critical asset protection requirement with NASA, the Department of
Defense, and the Intelligence Community.
    Furthermore, the proposed property protection requirement would
also help achieve the goal of common standards for launches from any
U.S. launch site, Federal or non-Federal. Common standards are public
safety related requirements and practices that are consistently
employed by the Air Force, the FAA, and NASA during launch and reentry
activities. Common standards would provide launch and reentry operators
certainty in planning and enable a body of expertise to support those
standards.
    Finally, the proposed property protection standards would apply to
all FAA-licensed launches, whether to or from a Federal launch range or
a non-Federal launch or reentry site. Applying the provision to non-
Federal sites would ensure continuity in the protection of critical
assets and that the probability of loss of functionality of critical
assets is the same for all commercial launch and reentry operations.
The FAA sees no reason for imposing different standards of safety for
critical assets based on whether a launch takes place from a non-
Federal launch site or from a Federal launch range, especially in light
of the fact that some non-Federal sites are dual use, supporting both
commercial and military operations.
    During the interagency review process, the Department of Defense
requested and the FAA considered specifying a more stringent criterion
for certain critical assets of utmost importance. This subcategory of
critical assets would be known as critical payloads. Specifically, the
FAA considered requiring the probability of loss of functionality for
critical payloads, including essential infrastructure when directly
supporting the payload at the launch site, not exceed 1 x
10-\4\. The FAA considered defining a critical payload as a
critical asset that (1) is so costly or unique that it cannot be
readily replaced, or (2) the time frame for its replacement would
adversely affect the national interests of the United States. Critical
payloads may include vital national security payloads, and high-
priority NASA and NOAA payloads. For example, a payload such as NASA's
Curiosity rover would likely be afforded this protection. The higher
protection criterion would have safeguarded those payloads of utmost
importance to the United States meriting a greater degree of protection
than other critical assets. The specific 1 x 10-\4\
criterion would apply to those national priority payloads at a launch
or reentry site, including essential infrastructure when directly
supporting the payload. A federal agency would identify payloads
meeting the definition of ``critical payload'' as warranting protection
at the 1 x 10-\4\ level. These may include commercial
payloads that meet the national interest described above.
    The FAA opted to not include this higher protection criterion due
to uncertainty about its impact on future launch or reentry operations.
Therefore, in order to properly analyze this request, the FAA requests
comment on the following:
    (1) If the FAA adopted the more-stringent 1 x 10-\4\
criterion for critical payloads, what impacts would it have on your
operation?
    (2) Should FAA consider applying this more-stringent criterion to
any commercial payload? Please provide specific examples and rationale.
    (3) If this criterion is applied to commercial space launch and
reentry operations, what would be the additional, incremental costs and
benefits on your current and future operations compared to the proposed
1 x 10-\3\ criterion? Specifically, the FAA requests
information and data to quantify additional costs and benefits of this
criterion compared to the proposed 1 x 10-\3\ criterion.
Please provide sources for information and data provided.
3. Consequence Protection Criteria for Flight Abort and Flight Safety
System
    This proposal would expand the FAA's use of consequence criteria to
protect the public from an unlikely but catastrophic event. Proposed
Sec.  450.101(c) would require that operators quantify the consequence
of a catastrophic event by calculating CEC for any one-
second period of flight. Unlike EC that determines the
expected casualties factoring in the probability that a dangerous event
will occur, CEC determines the expected casualties assuming
the dangerous event will occur. In essence, it represents the

consequence of the worst foreseeable events during a launch or reentry.
The FAA proposes to use CEC to determine the need for flight
abort with a reliable FSS as a hazard control strategy, to set
reliability standards for any required FSS, and to determine when to
initiate a flight abort. In other words, the more severe the potential
consequences from an unplanned event, the more stringent the flight
abort requirements.
    The current ELV flight abort regulations are essentially a one-
size-fits-all approach. In practice, the current requirement in Sec.
417.107(a) requires an FSS for any orbital launch vehicle to prevent
hazards from reaching protected areas at all times during flight.
Regardless of the individual and collective risks, or the consequences
in the case of a catastrophic event, all FSSs must satisfy part 417,
subparts D and E, requirements.\45\ These include reliability
requirements (0.999 reliable at 95 percent confidence) \46\ and
extensive testing requirements. Besides requiring a potentially
expensive FSS, the part 417 hazard control approach also has the
potential to limit vehicle flight paths unnecessarily, even when those
flight paths would produce low public risks and consequences. This
preamble will discuss these areas in further detail later.
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    \45\ Part 417 sets specific FSS requirements covering general
command control system requirements, command control system testing,
FSS support systems, FSS analysis, and flight safety crew roles and
qualifications.
    \46\ Section 417.309 requires that each onboard flight
termination system and each command control system must have a
predicted reliability of 0.999 at the 95 percent confidence level
when operating, as well as predicted reliability of 0.999 at the 95
percent confidence for multiple component systems such as the
ordnance train to propagate a charge, any safe-and-arm device, and
ordinance interrupters and initiators. As these component systems
define the reliability of the FSS and approximate the design
reliability of the entire flight safety system, for the purpose of
the preamble the current requirements are discussed as requiring an
FSS to have predicted reliability of 0.999 at a 95 percent
confidence level. This will be discussed later in the preamble in
further detail.
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    The FAA also recognizes shortcomings in its current part 431 hazard
control approach. Part 431 does not expressly require the use of an FSS
to manage hazards. Rather, Sec.  431.35(c) requires a system safety
process to identify hazards and assess the risk to public health and
safety and the safety of property. The system safety approach has
consistently resulted in the use of an FSS as a hazard control
strategy. In practice, the FAA has applied part 417 FSS requirements to
part 431 to ensure proper reliability and flight abort rules.
    Part 417 FSS requirements have proven difficult to scale to
different operations. Indeed, the FAA has had to issue numerous waivers
to these requirements to accommodate the fast-evolving commercial space
industry. The need for waivers has been partially driven by changes to
Air Force requirements, which diverged from FAA regulations beginning
in 2013.\47\ For example, the FAA has repeatedly waived its requirement
to activate an FSS to ensure no debris greater than 3 pounds per square
foot (psf) ballistic coefficient \48\ reaches protected areas.\49\ In
granting these waivers, the FAA has adopted the conditional risk
management approach, noting that the predicted consequence was below a
threshold of 1 x 10-\2\ CEC. The FAA has
concluded that measuring the consequence from reasonably foreseeable,
albeit unlikely, failures is an appropriate metric to assess prudent
mitigations of risks to public health and safety and the safety of
property.\50\
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    \47\ The FAA regulations and Air Force requirements regarding
flight abort were virtually identical from the time part 417 was
promulgated in 2006 until 2013 when the Air Force provided permanent